M.H. v. J.P., et al.
C.A. Nos. 15CA010832, 15CA010833
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
January 9, 2017
[Cite as M.H. v. J.P., 2017-Ohio-33.]
MOORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nоs. 15CV186968, 15CV196969
MOORE, Judge.
{1} Respondents-Appellants J.P. and L.P. appeal from the judgments of the Lorain County Court of Common Pleas. We affirm in part and reverse in part.
I.
{2} On July 14, 2015, as Petitiоner-Appellee M.H. was driving to CVS she encountered slow traffic. She was not sure why traffic was moving so slowly. As she was looking around, she noticed that the person in the car in front of her was the cause of the slow traffic and was videotaping her with his phone while he drove. She realized the car in front of hеr was being driven by either J.P. or L.P., who are identical twins. According to M.H. the brothers live near her parents and had videotaped her and her family in the past. The brothers had also called the police on her family on multiple occasions in the past. She also came to
{3} M.H. called the police because she was concerned about J.P.‘s and L.P.‘s behavior in the past. She also believed that at least one of the brothers had a gun that he had threatened to use on more than one occasion. A sheriff happened to be in the area, noticed the traffic backup, and began to investigate. The sheriff spoke with J.P. and L.P., who indicated that M.H. was stalking them and that was why they were videotaping her. M.H. told the sheriff her side of the story, and she was allowed to continue to the police station to fill out a police report.
{4} On July 17, 2015, M.H. filed a petition for а civil stalking protection order against J.P. and L.P. pursuant to
{5} The trial court subsequently issued a full hearing civil stalking protection order against J.P. and L.P. Thereafter, J.P. and L.P. appealed. They then moved to amend the notices of appeal to include an order of the trial court that was filed shortly before the notices of appeal. We granted their motion. Subsequently, this Court consolidated the two appeals.
{6} J.P. and L.P. have raised 11 assignments of error for our review, which will be addressed out of sequence to facilitate our analysis.
ASSIGNMENT OF ERROR II
R.C. 2903.214/ITS SCHEME IS/WAS FACIALLY UNCONSTITUTIONAL AND/OR UNCONSTITUTIONAL AS APPLIED TO [J.P. AND L.P.], AND OTHERWISE (INCLUDING THROUGH THE ORDERS) VIOLATES/ED [J.P.‘S AND L.P.‘S] FIRST, SECOND, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS.
{7} In their first assignment of error, J.P. and L.P. assert that
{8} “The failure to challenge the cоnstitutionality of a statute in the trial court forfeits all but plain error on appeal, and the burden of demonstrating plain error is on the party asserting it.” State v. Detamore, 9th Dist. Wayne No. 15AP0026, 2016-Ohio-4682, ¶ 19, quoting State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 2.
{9} J.P. and L.P. argue that they were unable to present this argument to the trial court because they could not attend the ex parte hearing and they were nоt allowed to present a defense during the full hearing. However, J.P. and L.P. have not demonstrated that there were unable to file a motion in the trial cоurt challenging the constitutionality of the statute irrespective of what occurred at the hearings. Accordingly, we are unpersuaded that J.P. and L.P. werе precluded from raising this issue below.
{10} Further, while J.P. and L.P. have mentioned plain error in their brief, they have not developed a plain error argument. Seе
ASSIGNMENT OF ERROR VI
THE TRIAL COURT DENIED [J.P. AND L.P.] ANY DEFENSE WHATSOEVER DURING THE FULL HEARING.
{11} J.P. and L.P. argue in their sixth assignment of error that the trial court еrred in denying them the ability to present any defense. Under the circumstances of this case, we agree.
{12} “The right to procedural due process is guaranteed by the
{13}
{14} In the instant matter, at the full hearing, J.P. represented both himself and his brother. During J.P.‘s cross-examinatiоn of M.H., the trial court abruptly halted the examination and ultimately terminated the proceedings without allowing J.P. and L.P. to present any defense. After reading the transcript, we have no doubt that J.P. proved to be a challenging party for the trial court to manage. The trial court had to remind J.P. of the limited рurpose of the hearing and that the parties were not there to litigate all of the cases that J.P. and L.P. had pending. It is likewise evident that the trial court was frustrated with the manner in which J.P. handled the
{15} Given the foregoing, we sustain J.P.‘s and L.P.‘s sixth assignment of error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT/MAGISTRATE PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR ABUSED DISCRETION (“ERRED“) IN ISSUING THE JULY 17, 2015 EX PARTE PROTECTION ORDERS, THE AUGUST 3, 2015 ONE-YEAR PROTECTION ORDERS, AND THE AUGUST 7, 2015 SUPPLEMENTAL ORDERS AGAINST [J.P. AND L.P.], INCLUDING DUE TO EACH OF THE FOLLOWING SEPARATE ERRORS WHICH ARE FULLY INCORPORATED HEREIN AS THE DISCUSSION FOR THIS ASSIGNMENT OF ERROR.
ASSIGNMENT OF ERROR III
THE TRIAL COURT DENIED [J.P. AND L.P.] THE RIGHT TO OBJECT AND/OR TO STATE THE BASIS FOR THEIR OBJECTIONS DURING THE FULL HEARING.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT PREJUDICIALLY ADMITTED AND RELIED ON INADMISSIBLE EVIDENCE FROM [M.H.] – PARTICULARLY EXHIBIT 1 – DURING THE FULL HEARING.
THE TRIAL COURT PREJUDICIALLY EXCLUDED ADMISSIBLE AND MATERIAL EVIDENCE FROM [J.P. AND L.P.] DURING THE FULL HEARING.
ASSIGNMENT OF ERROR VII
THE TRIAL COURT DENIED [J.P. AND L.P.] THE REMAINDER OF THEIR ESSENTIAL CROSS-EXAMINATION OF [M.H.] DURING THE FULL HEARING.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT USED THE WRONG LEGAL STANDARD AS TO THE BURDEN OF PROOF DURING THE FULL HEARING.
ASSIGNMENT OF ERROR IX
THE TRIAL COURT USED THE WRONG LEGAL STANDARD AS TO [M.H.‘S] STATE OF MIND VIS-A-VIS MENTAL DISTRESS.
ASSIGNMENT OF ERROR X
THE TRIAL COURT DID NOT MAKE THE REQUIRED FINDINGS OF FACT IN THE ONE-YEAR PROTECTION ORDERS AGAINST [J.P. AND L.P.], AND THE FINDINGS/HOLDINGS THAT IT DID MAKE IN THE ORDERS WERE ERRONEOUS, INCLUDING BECAUSE OF THE USE OF A DISCRIMINATORY TERM.
ASSIGNMENT OF ERROR XI
[THE TRIAL COURT‘S] ISSUANCE OF THE AUGUST 3, 2015 ONE-YEAR PROTECTION ORDER[] AND SUPPLEMENTAL ORDERS AGAINST [J.P. AND L.P.] WAS BASED ON INSUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE DURING THE FULL HEARING.
{16} Given our resolution of J.P.‘s and L.P.‘s sixth assignment of еrror, we conclude the remaining assignments of error have been rendered moot and we decline to address them. See
{17} J.P.‘s and L.P.‘s second assignment оf error is overruled. We sustain J.P.‘s and L.P.‘s sixth assignment of error and remand the matter for proceedings consistent with this opinion. The remaining assignments of error have been rendered moot. The judgment of the Lorain County Court of Common Pleas is affirmed in part and reversed in part.
Judgment affirmed in part, reversed in part, аnd cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to сarry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shаll constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
CARR, P. J.
HENSAL, J.
CONCUR.
J. P., pro se, Appellant.
J.P., Attorney at Law, for Appellant L.P.
GERALD WALTON, Attorney at Law, for Appellee.