[Cite as Sullivan v. Willhoite, 2018-Ohio-4234.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
BRENDAN SULLIVAN :
:
Plaintiff-Appellant : Appellate Case No. 27968
:
v. : Trial Court Case No. 2017-CV-4704
:
JASON WILLHOITE : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 19th day of October, 2018.
...........
BRENDAN SULLIVAN, 1199 Durham Drive, Centerville, Ohio 45459
Plaintiff-Appellant, Pro Se
JASON WILLHOITE, 2862 Acosta Street, Kettering, Ohio 45429
Defendant-Appellee, Pro Se
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WELBAUM, P.J.
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{¶ 1} This matter is before the court on the pro se appeal of Brendan Sullivan from
an order denying Sullivan’s request for a civil stalking protection order against Jason
Willhoite. Sullivan is also appealing from the trial court’s denial of his request for a
“mistake in fact” hearing.
{¶ 2} Sullivan presents three “issues for review,” which include the trial court’s
alleged abuse of discretion in “discarding facts” to elude the statutory requirements in
R.C. 2903.214, and the court’s alleged abuse of discretion in applying a standard of
clear and convincing evidence to the case. In addition, Sullivan argues that the trial court
erred in denying a protection order after he established multiple instances of intentional
harm and emotional distress.
{¶ 3} We conclude that the trial court did not abuse its discretion in denying
Sullivan’s petition for a civil stalking protection order. Our ability to review Sullivan’s
arguments is limited because he failed to file a transcript of the full civil protection order
hearing. As a result, the regularity of the proceedings below is presumed, and the limited
record for review does not affirmatively demonstrate error. In addition, the trial court did
not use an incorrect burden of proof in deciding the issues. Accordingly, the judgment
of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} In October 2017, Sullivan filed a pro se petition for a civil stalking protection
order (“CPO”) against Willhoite. Included in the request were other family and household
members, including Sullivan’s girlfriend, an autistic adult, and two minor children. After
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an ex parte hearing, the trial court denied Sullivan’s request for an emergency order and
set a full civil protection hearing for late October 2017.
{¶ 5} An attorney entered an appearance for Sullivan the day before the hearing,
and the matter was continued until late November 2017. At Willhoite’s request, the
matter was again continued, due to pending criminal charges in Kettering Municipal Court.
The trial court indicated it would not set a hearing date until the criminal case had reached
disposition. Subsequently, the trial court set a full civil protection hearing for February
2018, and then continued the hearing until March 15, 2018.
{¶ 6} After hearing the testimony of both parties, the magistrate concluded that
Sullivan failed to establish that Willhoite had engaged in two or more incidents that would
have caused Sullivan to reasonably fear physical harm or emotional distress. The
magistrate, therefore, denied the request for a CPO, and on March 29, 2018, the trial
court filed a judgment, pursuant to Civ.R. 65.1, adopting the magistrate’s order.
{¶ 7} The trial court’s judgment notified Sullivan that it was a final appealable order.
However, on April 11, 2018, Sullivan filed a pro se request for a “mistake in fact” hearing.
In the request, Sullivan alleged that more than one incident had occurred, and alleged
that Willhoite had been untruthful in his testimony. After the trial court denied the
request, Sullivan timely appealed from both decisions.
II. Alleged Abuse of Discretion in “Discarding Facts”
{¶ 8} Sullivan’s First “Issue for Review” states:
Did the Common Pleas Court Abuse Its Discretion by Discarding
Facts to Allude [sic] the Statute [sic] Requirements of R.C. 2903.214?
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{¶ 9} Under this issue, Sullivan contends that the trial court erred in failing to
consider various facts, like an incident that allegedly occurred on November 5, 2017, after
the petition for a CPO was filed.
{¶ 10} Before considering this point, we note that both parties are proceeding pro
se. “Litigants who choose to proceed pro se are presumed to know the law and correct
procedure, and are held to the same standards as other litigants.” Yocum v. Means, 2d
Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20. Unfortunately, various procedural
requirements have not been observed.
{¶ 11} As an initial matter, both parties’ appellate briefs refer to facts outside the
record. Under well-established law, appellate courts are limited to the record before the
trial court and cannot consider documents or matters that are not in the record. E.g.,
Chase Manhattan Mfg. Corp. v. Locker, 2d Dist. Montgomery No. 19904, 2003-Ohio-
6665, ¶ 10; Kahler v. Eytcheson, 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶ 23.
{¶ 12} Sullivan also had a duty under App.R. 9(B) to provide a transcript of the
proceedings before the trial court. However, he failed to do so. Without a transcript of
the proceedings or a proper substitute, “we cannot speculate what the testimony was at
trial, and we are constrained to presume the regularity of the proceedings below unless
the limited record for our review affirmatively demonstrates error.” Albritton v. White, 2d
Dist. Montgomery No. 24027, 2011-Ohio-3499, ¶ 15, citing Banks v. Regan, 2d Dist.
Montgomery No. 21929, 2008-Ohio-188, ¶ 2.
{¶ 13} With this limited ability to review in mind, we will discuss Sullivan’s first
issue, which alleges that the trial court failed to consider relevant facts in denying the
request for a CPO.
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{¶ 14} Under R.C. 2903.214(C)(1), a person may file a petition for injunctive relief
against another individual who has allegedly violated R.C. 2903.211 with respect to the
petitioner. Howard v. Wilson, 186 Ohio App.3d 521, 2010-Ohio-1125, 928 N.E.2d 1180,
¶ 10 (2d Dist.). The statute in question involves “Menacing by Stalking,” and provides,
in pertinent part, that:
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 a family or household member of the other person or cause
mental distress to the other person or a family or household member of the
other person.
R.C. 2903.211(A)(1).
{¶ 15} In deciding if a CPO order should have been issued under R.C. 2903.214,
we decide “whether the petitioner proved by a preponderance of the evidence that the
respondent engaged in conduct constituting menacing by stalking.” Hudnell v.
Blackshear, 2d Dist. Montgomery No. 27221, 2017-Ohio-2680, ¶ 7. See also Felton v.
Felton, 79 Ohio St.3d 34, 42, 679 N.E.2d 672 (1997) (finding that a preponderance of the
evidence standard is applied to issuance of protection orders).
{¶ 16} Here, the trial court concluded that Sullivan failed to establish that there
were two or more incidents that would cause Sullivan to reasonably fear physical harm or
mental distress. In view of the limited facts of record before us, we cannot conclude that
the record affirmatively demonstrates error. The trial court decision notes Sullivan’s
allegations and Willhoite’s denial of the allegations, other than one incident during which
Willhoite called the police about an open-air fire at Sullivan’s home. Doc. #15,
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Magistrate’s Decision, p. 3. Clearly, the trial court did not find Sullivan credible.
{¶ 17} We defer to trial court decisions on credibility. L.L.L. v. Junies, 2d Dist.
Greene No. 2013 CA 31, 2014-Ohio-141, ¶ 15. The rationale for this is that “the trial
judge is best able to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony.” Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
1273 (1984).
{¶ 18} Based on the preceding discussion, Sullivan’s First “Issue for Review” is
overruled.
III. Alleged Abuse of Discretion in Applying the Standard of Review
{¶ 19} Sullivan’s Second “Issue for Review” states:
Did the Common Pleas Court Abuse it[s] Discretion When It Applied
the Clear and Convincing Standard When Ohio Law Only Requires a
Preponderance?
{¶ 20} Under this issue, Sullivan does not refer to any place where the trial court
used a clear and convincing standard of proof; instead, his contention is that he presented
the court with “a clear and convincing preponderance of the evidence that was omitted
from the court[’]s record of finding.” Appellant’s Brief, p. 8. Sullivan does contend in his
reply brief that the court applied the wrong standard, but he fails to point to any part of
the decision which recited the wrong standard. See Appellant’s Reply Brief, p. 5.
{¶ 21} As was noted, the trial court apparently did not find Sullivan’s testimony
convincing. In addition, the court specifically stated that the burden of proof is
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preponderance of the evidence. Doc. #15, Magistrate’s Decision, at p. 3. We observed
above that this is the appropriate standard. Hudnell, 2d Dist. Montgomery No. 27221,
2017-Ohio-2680, at ¶ 7. Accordingly, the Second “Issue for Review” is overruled.
IV. Alleged Deprivation of CPO
{¶ 22} Sullivan’s Third “Issue for Review” states:
Did the District Court Deprive Brendan Sullivan Appropriate Civil
Protections Against Jason Willhoite After Demonstrating to the Common
Pleas Court After [sic] Multiple Instances to Cause Intentional Harm and
Mental Duress?
{¶ 23} In his briefs, Sullivan has not separately discussed any of his “issues.”
Instead, he has combined his discussion in a “summary argument.” This was another
procedural deficiency, as App.R. 16(A)(7) requires an appellant to include “an argument
containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies.”
{¶ 24} Sullivan’s third issue simply rehashes the contentions made in the first issue
for review. However, we have rejected those arguments. Accordingly, the third “Issue
for Review” lacks merit and is overruled.
{¶ 25} As a final matter, Sullivan has not addressed the trial court’s denial of his
request for a “mistake in fact” hearing, which was filed post-judgment. We interpret the
request for a “mistake in fact” hearing as a motion for reconsideration of the court’s
judgment denying the CPO. However, the Supreme Court of Ohio long ago held that
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“[t]he Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after a
final judgment in the trial court.” Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 423
N.E.2d 1105 (1981), paragraph one of the syllabus. Such motions, therefore, are
“considered a nullity.” Id. at 380.
V. Conclusion
{¶ 26} All of Sullivan’s “Issues for Review” having been overruled, the judgment of
the trial court is affirmed.
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FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Brendan Sullivan
Jason Willhoite
Hon. Mary Katherine Huffman