Toombs v. McGuireToombs v. McGuire
For Plaintiff-Appellee
CHRISTOPHER TOOMBS
4161 Co. Rd. 28
Cardington, Ohio 43315
For Defendant-Appellant
JEFFREY T. KLUESENER
Kluesener Law Office, LLC
P.O. Box 141204
{¶1} Appellant, Timothy McGuire, appeals the April 9, 2020 decision of the Morrow County Court of Common Pleas granting appellee’s petition for a stalking civil protection order. Appellee is Christopher Toombs.
STATEMENT OF FACTS AND THE CASE
{¶2} Appellee, Christopher Toombs, filed a petition for a stalking civil protection order on March 10, 2020. The matter was presented to a magistrate on March 24, 2020 and the order was issued on April 7, 2020 and was effective until October 10, 2020. Appellant filed objections to the magistrate’s order on April 23, 2020, but did not include a trаnscript of the hearing. The trial court denied the objections, finding that they were untimely filed and appellant filed an appeal to this court and submitted two assignmеnts of error:
{¶3} “I. THE TRIAL COURT ERRED IN GRANTING THE STALKING CIVIL PROTECTION ORDER.”
{¶4} “II. THE TRIAL COURT ABUSED ITS DISCRETIONARY ALLOWING AND RELYING ON EVIDENCE OF A PHONE CALL TO MRS. TOOMBS ALTHOUGH THE PHONE CALL WAS NOT AUTHENTICATED AND IS HEARSAY IN VIOLATION OF EVIDENCE. R. 901.”
{¶5} Because the civil protection order has expired, we hold that this appeal is moot. However, even if the appeal was not mоot, appellant’s failure to supply a transcript for the trial court’s review and his untimely objections would bar this appeal.
{¶6} The civil protection ordеr at issue was granted on April 7, 2020 and was limited to a sixth month existence, ending October 10, 2020. Appellant’s notice of appeal and brief were timely filed prior to thе expiration of the order, but now that the deadline has passed and the appellee has not sought an extension of the order, there is nothing for this court to rule upon as the controversy between the parties has been rendered moot. “[I]t is well established that the role of courts is to “‘decide actual cоntroversies by a judgment which can be carried into effect.‘“” Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E. 21 (1910), quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895) and this court has “a responsibility to refrain from giving advisory opinions.” Smith v. Leis, 111 Ohio St.3d 493, 2006-Ohio-6113, 857 N.E.2d 138, ¶ 16. Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487 ¶12. Because the protection order has expired, we cannot issue a “judgment which can be carried into effect” and our ruling would be purely advisory.
{¶7} The Supreme Court of Ohio recently conсluded that an appeal of a domestic violence protection order is moot once the order expired. Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 9. In Cyran, the Court considered whether thеre were demonstrable legal collateral consequences arising from the order that would provide an exception to mootness. The Court had rеcognized this collateral consequences exception in civil and criminal cases where “the collateral consequence is imposed аs a matter of law.” Id at ¶ 9. The Court supplied several examples of the
{¶8} The same rational applies to McGuirе’s appeal and compels us to conclude that his appeal became moot when the trial court order expired and nothing within the record supports the application of the collateral consequences exception because no law imposed a restriction as a result of the expiration. Id. at 11. The fact that this case does not involve a domestic violence protection order, but a stalking civil protection order, does not alter the analysis or the result.
{¶9} We previously addressed the merits of appeals where the protection order expired prior to our consideration of the case even though we acknowledged the appeal was moot. Daugherty v. Cross, 5th Dist. Richland No. 2005-CA-0078, 2006-Ohio-5545, ¶
{¶10} If, arguendo, this matter was not moot, we would be compelled to dismiss the appeal for appellant’s failure to comply with
{¶11}
[t]o special statutory proceedings under
R.C. 3113.31 ,R.C. 2151.34 , andR.C. 2903.214 providing for domestic violence, stalking, and sexually oriented offense civil protection orders, [and] shall be interpreted and applied in a manner consistent with the intent and purposes of those protection ordеr statutes, and supersede and make inapplicable in such proceedings the provisions of any other rules of civil procedure to the extent that such application is inconsistent with the provisions of this rule.”
{¶12} The rule expressly states that portions of
Notwithstanding the provisions of any other rule, an order entered by the court under division (F)(3)(c) or division (F)(3)(e) of this rule is a final, appealable order. However, a party must timely file objеctions to such an order under division (F)(3)(d) of this rule prior to filing an appeal, and the timely filing of such objections shall stay the running of the time for appeal until the filing of the court‘s ruling on the objections.
{¶13} We recently reviewed the application of this Rule throughout the state and held “that without timely filed objections under
{¶14} McGuire has also not supplied a written transcript of the hеaring before the magistrate. “In the absence of a written transcript of the hearing, we have no record of the evidence presented to the magistrate, and we cannot speculate what testimony was given at that hearing. Rather, we must presume that the evidence supported the magistrate‘s findings.” (Citations omitted.) Florenz v. Omalley, 2nd Dist. No. 28780, 2020-Ohio-4487, 158 N.E.3d 1009, ¶ 15; Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). McGuire’s appeal, assuming it was not moot, would be barred for failure to provide a transcript of the hearing.
By: Baldwin, P.J.
Hoffman, J. and
Delaney, J. concur.