[Cite as Darden v. Fambrough,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99730

AJA DARDEN, ET AL.

PLAINTIFFS-APPELLEES

vs.

WILLIAM FAMBROUGH DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND VACATED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-793630 and CV-793631

BEFORE: Stewart, A.J., S. Gallagher, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: December 19, 2013 ATTORNEYS FOR APPELLANT

Robert C. Petrulis Kelly L. Hamilton Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 127 Public Square 4130 Key Tower Cleveland, OH 44114

ATTORNEY FOR APPELLEES

Denise J. Knecht 4415 Euclid Avenue, Suite 310 Cleveland, OH 44103

ATTORNEYS FOR AMICUS CURIAE, BOARD OF TRUSTEES, EAST CLEVELAND LIBRARY

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Brian R. Gutkoski Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, A.J.:

{¶1} The court issued petitioners-appellees Rose Ford and Aja Darden, the interim

executive director and fiscal officer, respectively, of the East Cleveland Public Library,

temporary protection orders against respondent-appellant William Fambrough, the

president of the Board of Trustees of the East Cleveland Public Library, on grounds that

Fambrough had harassed them and threatened to fire them. During a hearing on the

combined petitions, the court, fearing that Fambrough might take retaliatory action

against the petitioners, told him that he could not convene an executive session of the

board of trustees without first giving the court notice. Fambrough did convene an

executive session of the board without giving the court notice and the board terminated

the petitioners, so the court found him in contempt and ordered him to pay Ford and

Darden’s attorney fees.

{¶2} In seven assignments of error, Fambrough challenges the jurisdiction of the

trial court, the validity of the court’s orders, complains about the lack of due process, and

disputes the amount of fees awarded. We conclude that the court lacked jurisdiction over

Ford’s case because there was no order consolidating that case with Darden’s case. But

that error is inconsequential because the court erred by issuing temporary, ex parte civil

stalking protection orders in what appears to be an employment dispute between the

parties. Even if a civil protection order could have been granted under the

circumstances, we conclude that the court had no authority to use it to limit Fambrough’s exercise of his duties as a trustee when those duties did not relate to the safety or

protection of either Ford or Darden, so there was no legal basis for holding Fambrough in

contempt.

I

{¶3} Darden and Ford filed separate petitions for temporary protection orders:

Darden’s case, CV-793630, was assigned to Judge Richard McMonagle; Ford’s case,

CV-793631,was assigned to Judge Michael Russo. After each judge separately issued

the protection orders at issue, Judge McMonagle assumed jurisdiction over CV-793631.

At the time, there was no order consolidating the cases. Fambrough objected to Judge

McMonagle asserting jurisdiction over Ford’s case.

{¶4} Petitions for temporary protection orders can be filed in the name of one

person only. See R.C. 2903.214(C) (“A person may seek relief under this section * *

*.”). In the ordinary practice, the court can consolidate actions involving “common

questions of law and fact.” See Loc.R. 15(H) of the Court of Common Pleas of

Cuyahoga County, General Division. However, consolidation must be accomplished by

way of a properly signed and filed journal entry. See State ex rel. Hexagram v.

Friedland, 8th Dist. Cuyahoga Nos. 87089 and 87105,

(“The

reassignment of any case to a judge must be accomplished through a journal entry that has

been executed by the administrative judge and journalized by the clerk of the trial

court.”). Judge McMonagle exercised jurisdiction over Ford’s case without a signed and

journalized judgment entry reassigning the case to him, so any ruling he made relating to Ford was voidable on objection. See In re J.J.,

,

,

, paragraph one of the syllabus.

{¶5} The record does contain an order signed by Judge Russo and filed on January

8, 2013, transferring Ford’s case to Judge McMonagle, but that entry was made too late

because Judge McMonagle had, on the very same day, found Fambrough in contempt. In

any event, Judge Russo could not validly enter a transfer order because Loc.R. 15(H)

states that the judge who has the lower case number shall rule on a motion for

consolidation. Judge McMonagle had the lower case number, so any order of transfer

would have been his responsibility.

{¶6} Ford argues that Judge Russo’s order was functionally a nunc pro tunc order,

but this argument misapprehends the purpose of an order nunc pro tunc. “A ‘nunc pro

tunc’ entry is used retrospectively to correct clerical errors in a judgment so that the

judgment reflects that which the court intended.” Kennedy v. Jacobs, 8th Dist. Cuyahoga

No. 98285,

. In other words, for an order to be nunc pro tunc

(literally “now for then”), it must refer to a previous judgment or order and state what was

omitted from that previous judgment or order.

{¶7} There was no prior order of consolidation or anything remotely touching on

the issue of consolidation, so Judge Russo’s January 8, 2013 order transferring Ford’s

case to Judge McMonagle could not have been nunc pro tunc to an earlier date. Judge

Russo’s transfer order would have been effective moving forward from its date of issue,

but it could not validly reach back in time to vest Judge McMonagle with jurisdiction over the Ford case. It follows that any orders Judge McMonagle made in the Ford case

before the transfer was effected are void.

II

{¶8} The court’s error in proceeding in Ford’s case is inconsequential, however,

because we conclude that the court erred by issuing temporary civil protection orders in

the first instance for what was an employment dispute between the parties that did not

involve any immediate and present danger to the petitioners.

A

{¶9} R.C. 2903.214(C) states that an application for a civil protection order must

contain an allegation that the respondent engaged in menacing by stalking. Menacing by

stalking, as defined in R.C. 2903.211(A)(1), states: “No person by engaging in a pattern

of conduct shall knowingly cause another person to believe that the offender will cause

physical harm to the other person or cause mental distress to the other person.” In order

to issue a temporary, ex parte protection order, the court must find that the order is

necessary “for the safety and protection of the person to be protected by the order.” R.C.

2903.214(D)(1). The statute states that “immediate and present danger” to the person to

be protected is good cause for issuing the order and that “immediate and present danger”

includes situations “in which the respondent has threatened the person to be protected by

the protection order with bodily harm.”

B {¶10} Neither petitioner gave either judge adequate grounds for the issuance of the

civil protection orders.

{¶11} Darden’s petition stated:

On 8/20/2012, Respondent stated the victim has been making [sic] fraudulent activities. Respondent has been putting his finger in the victim’s face. On 10/11/12 Respondent demanded a signature plate. Respondent followed the victim into her office telling her to quit.

{¶12} Ford’s petition for a protection order made this single allegation:

In May 2012, the Respondent told the victim that she could lose her job if

she did not cooperate with him as chairman of the board. Respondent has

been harassing her to release sensitive information he is not entitled to.

{¶13} It does not appear that the court conducted an ex parte hearing on Darden’s

petition. The court did conduct an ex parte hearing on Ford’s petition.1

{¶14} The allegations made by both petitioners arose from an internecine dispute

between the board of trustees of the East Cleveland Public Library and the library’s

administrative staff. It appears that a turnover in the board of trustees led to Fambrough

being named president of the board. Ford, who had been appointed interim executive

director by the outgoing board of trustees, said that some six months after Fambrough

assumed his duties as president of the board, he and two other board members had a

Ford’s petition was originally assigned to Judge Russo, however the official transcript 1

indicates that Judge McMonagle conducted the ex parte hearing on Ford’s petition. The parties appear to agree that Judge Russo conducted the ex parte hearing on Ford’s petition and that Judge McMonagle’s name appeared on the transcript because he subsequently asserted jurisdiction over the case. We have no reason to disbelieve the parties, but in the absence of a formal request to amend the record we are bound by the transcript certified to us. conversation with her to the effect that it would “be in [her] best interest” to do what

Fambrough told her to do, or else “[her] job would be in jeopardy.” From that point,

Ford’s relationship with Fambrough deteriorated and Fambrough blocked all attempts to

have her appointed as the permanent director of the library.

{¶15} Ford’s relationship with Fambrough grew antagonistic after Fambrough

requested information on a library employee that had been terminated. According to

Ford, that employee was a friend of Fambrough’s and he apparently wanted Ford to give

him documents from the friend’s personnel file. Ford refused “because there was a lot of

sensitive information in there and if anything got out, [she] didn’t want to be accused of

putting her business out there.” She said that Fambrough continually called her after that

until the terminated employee gave her consent for Ford to release the file to Fambrough.

That “upset” Ford because she believed that Fambrough circumvented board policy

relating to grievances.

{¶16} Ford told the court that Fambrough had been “immediately in my face, name

calling, referring - asking me to leave, to get out, to quit my job, and his behavior

becomes more and more aggressive. I am being bullied.” When asked to describe the

incidents in which Fambrough had been “in her face,” Ford told the court that one

occurred during a library community forum where “he got directly in my face and pointed

and demanded I make copies of a document that was not related to the meeting, and that

day he yelled at me across the room in front of everybody * * *.” {¶17} Another incident happened when Fambrough was following Darden into her

office and Ford stated that “[I] put my arm out because he was going to follow Ms.

Darden into her office and I said, * * * – you shouldn’t do that.” Ford said Fambrough

was “directly up on me” and “got in my face.” He refused her requests to leave and

called her a “scary ass or something to that nature.” She said she called security to have

him removed. She said “this last incident was the most aggressive.”

C

{¶18} The common theme with both petitioners was that Fambrough had used his

position as president of the board of trustees to seek information that they did not believe

he was entitled to receive, and that he threatened their jobs when they refused to comply.

Threatened job loss is not a basis for issuing a protection order because it does not

involve an immediate and present danger of bodily harm.

{¶19} At no point did either petitioner claim that Fambrough had caused them any

physical harm or threatened to do so. The only allegation that either petitioner made that

touched on the issue of physical harm was that Fambrough put his finger in one’s face

(Darden) or that Fambrough had been “in her [Ford’s] face.” Ford conceded to the court

that Fambrough had “never struck me * * * or put his hands on me[.]”

{¶20} We likewise find that neither petitioner alleged the kind of mental distress

necessary to show that Fambrough engaged in menacing by stalking. Ford’s primary

complaint was that Fambrough had “bullied” her by yelling at her and was abusing his

position as president of the board of trustees. She said that “I have been consistently harassed and threatened by Mr. Fambrough. He makes unreasonable demands. He’s

threatened my job position if I don’t fully cooperate with him.” Ford said that

Fambrough had been “immediately in her face,” asking her to quit her job. She claimed

that his actions were becoming more aggressive and that when she refused to give him

materials that “did not belong to him but that were the property of the library, [he] got

immediately in my face and demanded that I give it to him.” She said he was “yelling

and screaming” at her in front of other people and refusing to leave her office when

requested. She described him as “bullying” and that in meetings he “smirks” at her or

would “look at [her] and make nasty faces.”

{¶21} In one specific instance of receiving what she claimed was a “menacing”

telephone call, Ford said that Fambrough called her on a Saturday to complain that she

had not immediately reported a system malfunction to him. However, when pressed by

the court as to how she found that “threatening,” Ford conceded “I guess that’s not

threatening but it was just part of the whole picture.” She went on to say that “he was

bullying me on that phone. His tone of voice, his nature, he was exercising authority and

threatening me that this better not happen again because * * * [w]hen things happen at

this library, I’m the first person who needs to know.”

{¶22} The court concluded that Fambrough’s actions amounted to “bullying,” but

even if we agreed with that characterization of his conduct, it did not rise to the level of a

criminal offense sufficient to warrant judicial intervention in the form of a protection

order. The courts are not arbiters of civility in the workplace. Oncale v. Sundowner Offshore Servs., Inc.,

,

,

(1998). In the

context of the tort of intentional infliction of emotional distress, the courts have

recognized that civil “liability clearly does not extend to mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities” and that persons “must necessarily be

expected and required to be hardened to a certain amount of rough language, and to

occasional acts that are definitely inconsiderate and unkind.” Yeager v. Local Union 20,

Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,

,

(1983).

{¶23} The menacing by stalking statute thus requires the petitioner to show

something more than allegations describing a boorish and overbearing supervisor whose

conduct was purely work-related. Darling v. Darling, 7th Dist. Jefferson Nos. 06 JE 6

and 06 JE 7,

(“It is not at all clear, though, that merely rude

gestures or snide remarks to another person constitute menacing by stalking, and by

extension, justify issuing a civil stalking protection order.”). Neither petitioner alleged

that Fambrough’s conduct amounted to an immediate and present danger that he would

cause either of them physical harm or mental distress of the kind required to show

menacing by stalking. The “threats” that Fambrough made to them were nothing more

than job-related consequences should they fail to obey his directives. Issuing a

protective order in the context of a heated employment dispute not only demeans the

seriousness of the kind of conduct that warrants a protection order, but needlessly puts the

court into employment disputes that are beyond its expertise. Chandler v. Dunn Hardware, Inc.,

,

,

(8th

Dist.) (“The courts understandably avoid becoming entangled in discussions about the

wisdom of business decisions and do not require good business judgment on the part of

business executives.”).

{¶24} The court appeared to issue the protection orders because it was concerned

that Fambrough would take unwarranted disciplinary action against the petitioners. To

be sure, the court repeatedly stressed to Ford that “I’m not putting myself in the middle

between you and the board” and that if the board was to follow “proper procedures and

they replace you as interim director, then that’s one way that they resolve this issue.”

The court’s subsequent actions belied this assertion.

{¶25} When the parties met before the court after the ex parte protection orders

had been issued, the court noted that both Darden and Ford had filed complaints with the

Ohio Civil Rights Commission and that it would “defer to that[.]” The substance of

those complaints is not in the record. The court then warned Fambrough that if he

wished to call a meeting of the board of directors, the meeting had to be “duly called” and

that the board could not go into an executive session without first giving notice.

Apparently concerned that Fambrough would act in a retaliatory manner against the

petitioners, the court told Fambrough: “If you have a private meeting, executive session

meeting, without notice, I want to know about it. You’re not to do it. You can’t have a

secret meeting, all right?” {¶26} It is beyond question that by the time the court warned Fambrough not to

hold any executive session of the board without giving notice to the court, the court was

no longer concerned with any imminent and present danger to the petitioners of the kind

necessary to issue a civil protection order. Contrary to its earlier assertions to Ford, it

had placed itself squarely in the middle of an employment dispute and was using the

protection order as a functional restraining order. Simply put, the court’s action was an

extension of its intent to stop Fambrough from taking retaliatory action against the

petitioners.

{¶27} To the extent the court believed that Fambrough was “bullying” the

petitioners, it was apparent that he did so by asserting his authority over them as a

supervisor (it appears that both Ford and Darden answered directly to the board of

trustees). Fambrough may have done so in a manner that the petitioners found

particularly offensive, but his actions did not amount to menacing by stalking. As

previously noted, if Fambrough’s actions would not rise to the level of the civil tort of

intentional infliction of emotional distress under the lower burden of proof employed in

civil actions, they could not constitute the crime of menacing by stalking for purposes of

issuing a protection order under R.C. 2903.214. We therefore conclude that neither

petitioner offered a sufficient reason for the court to issue the protection orders.

III

{¶28} Even if we could have found the protection orders to be justified as

protecting the petitioners’ safety, the court made no formal order prohibiting Fambrough from calling the board into an executive session without giving the court prior notice, so

there was no valid order that he could be found to have disobeyed. And even had the

court journalized its directive that Fambrough not call the board into an executive session

without first notifying the court, that order was beyond the court’s authority because it

inhibited Fambrough’s discretion in carrying out his duties as president of the library’s

board of trustees without any showing that Fambrough’s actions would implicate the

safety and protection of the petitioners.

A

{¶29} R.C. 2903.214(D)(1) permits the court, for good cause shown, to “enter any

temporary orders” that are “necessary for the safety and protection of the person to be

protected by the order.” Although this section does not state what orders the court might

make, it plainly does limit orders to those relating to a petitioner’s safety and protection.

{¶30} To the extent the court “ordered” Fambrough to give it notice before

conducting any executive session of the board, that order was of no effect because it was

not journalized. The court speaks only through its journal, State ex rel. Worcester v.

Donnellon,

,

(1990), so unsigned or

nonjournalized orders are unenforceable. So in fact, the court did nothing more than

order that its previous orders of protection remain in effect. Those protection orders only

required Fambrough to keep a minimum distance from the petitioners. The court’s

verbal warning that Fambrough provide it with notice before taking the board of trustees

into an executive session was stated ten days after the protection orders were put in place, so the warning was in addition to the journalized protection orders. With there being no

valid journal entry requiring Fambrough to give the court notice, Fambrough had no legal

obligation to comply. The court had no authority to find him in contempt for violating an

nonjournalized order. Csaky v. Csaky, 9th Dist. Summit No. 10776,

(Dec. 8, 1982).

B

{¶31} If the court had issued a valid order that Fambrough give it notice of any

executive session to be conducted by the board of trustees, such an order would have been

beyond the scope of the court’s authority.

{¶32} The court could not, in the context of a hearing for a protection order, issue

any orders that restrained Fambrough in the exercise of his duties as president of the

board of trustees unless those orders were directly related to the purposes of R.C.

2903.214(D)(1) and intended for the safety and protection of the petitioners. By the time

the court demanded that Fambrough give it notice before calling the board into an

executive session, the petitioners had been under a protective order for at least ten days.

There was no indication that Fambrough had violated the protection order by making any

physical threats against them or had caused them mental distress rising to the level of a

crime. So there was no basis for the court to conclude that an executive session of the

board of directors posed an immediate and present danger of the kind contemplated under

R.C. 2903.214(D)(1). {¶33} The only conclusion to be reached on the record before us is that the court

was trying to prevent the board of trustees from acting in secret to terminate the

petitioners. Regardless of whether the board of trustees might retaliate against the

petitioners by terminating them, termination from employment did not invoke the kind of

conduct to be prevented by the issuance of a civil protection order. That being the case,

the court’s requirement that Fambrough give it notice before convening an executive

session of the board did not derive from any need to protect the petitioners as

contemplated by R.C. 2903.214(D)(1). The board’s decision to meet in executive

session was an act within their discretion, and the court overreached its authority by

attempting to limit the board’s exercise of discretion that did not relate to any imminent or

present danger of bodily harm. It follows that Fambrough could not be held in contempt

for violating an order that the court had no power to issue. See In re Guardianship of

Jadwisiak,

,

(1992). The contempt citation must

be vacated.

{¶34} This cause is reversed and the order of contempt is vacated.

It is ordered that appellant recover of appellees his costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. MELODY J. STEWART, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and EILEEN A. GALLAGHER, J., CONCUR