Toombs v. McGuire

Court: Ohio Court of Appeals
Date filed: 2021-02-10
Citations: 2021 Ohio 387
Copy Citations
6 Citing Cases
Combined Opinion
[Cite as Toombs v. McGuire, 2021-Ohio-387.]


                                      COURT OF APPEALS
                                   MORROW COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


CHRISTOPHER TOOMBS, et al.                    :    JUDGES:
                                              :    Hon. Craig R. Baldwin, P.J.
        Plaintiff - Appellee                  :    Hon. William B. Hoffan, J.
                                              :    Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
TIMOTHY E. MCGUIRE                            :    Case No. 20CA0005
                                              :
        Defendant - Appellant                 :    OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Morrow County
                                                   Court of Common Pleas, Case No.
                                                   2020 CV 00032



JUDGMENT:                                          Dismissed



DATE OF JUDGMENT:                                  February 10, 2021




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

CHRISTOPHER TOOMBS                                 JEFFREY T. KLUESENER
4161 Co. Rd. 28                                    Kluesener Law Office, LLC
Cardington, Ohio 43315                             P.O. Box 141204
Morrow County, Case No. 20CA0005                                                    2


Baldwin, J.

       {¶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 transcript 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 assignments

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 moot, appellant’s failure to supply a transcript

for the trial court’s review and his untimely objections would bar this appeal.
Morrow County, Case No. 20CA0005                                                      3


                                            ANALYSIS

       {¶6}   The civil protection order 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 the 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 controversies 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 concluded 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 there

were demonstrable legal collateral consequences arising from the order that would

provide an exception to mootness. The Court had recognized this collateral

consequences exception in civil and criminal cases where “the collateral consequence is

imposed as a matter of law.” Id at ¶ 9. The Court supplied several examples of the
Morrow County, Case No. 20CA0005                                                     4


application of the exception,1 but noted that the exception was inapplicable in the context

of a domestic violence civil protection order and held “that in the absence of demonstrated

legal collateral consequences, the collateral-consequences exception to the mootness

doctrine does not apply to an expired domestic-violence civil protection order.” Id. at ¶7.

       {¶8}   The same rational applies to McGuire’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, ¶



1 State v. Golston, 71 Ohio St.3d 224, 227, 643 N.E.2d 109 (1994) (due to the
numerous statutory restrictions imposed on convicted felons, an appeal of a felony
conviction is not moot even if the entire sentence has been satisfied before the matter is
heard on appeal); Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953
N.E.2d 278, ¶ 23, 31 (a misdemeanant demonstrates a substantial stake in the
judgment of conviction even after the sentence has been completed when he contests
the charges at trial and, after being convicted, seeks a stay of execution of sentence for
the purpose of preventing an intended appeal from becoming moot; in her concurring
opinion, Justice Lundberg Stratton pointed to Ohio Revised Code provisions that use a
prior misdemeanor charge to enhance the penalty for a future criminal charge or
penalty); State v. Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236 (1975), syllabus (a
misdemeanant must offer evidence from which an inference can be drawn that the
misdemeanant suffers some collateral disability in order to maintain the right to appeal a
conviction); In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 14, 18
(an appeal of a conviction for a traffic offense does not become moot after the
defendant has paid the fines and costs, because the statutory imposition of points on a
person's driver's license constitutes a collateral disability).
Morrow County, Case No. 20CA0005                                                    5


18; Tupps v. Jansen, 5th Dist. Ashland No. 2012-COA-26, 2013-Ohio-1403, ¶ 13. The

Supreme Court’s decision in Cyran, supra, leads us to conclude that considering the

merits in this case would be imprudent. Consequently, we hold that the expiration of the

civil protection order rendered this matter moot and the appeal must be dismissed.

       {¶10} If, arguendo, this matter was not moot, we would be compelled to dismiss

the appeal for appellant’s failure to comply with Civil Rule 65.1 which requires that the

appellant present timely objections to the magistrate’s decision prior to the filing of an

appeal with this court.

       {¶11} Civil Rule 65.1 applies:

       [t]o special statutory proceedings under R.C. 3113.31, R.C. 2151.34, and

       R.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 order 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.”

Civ.R. 65.1(A).

       {¶12} The rule expressly states that portions of Civ.R. 53 that would otherwise be

applicable to the actions of the magistrate in such a hearing are not applicable in this

context, including Civ.R. 53(D)(3)(b)(iv) which requires an objection to the magistrate’s

decision to preserve an issue for appeal. Civ.R. 65.1(F)(3)(b). While that obligation to

object is inapplicable, Civil Rule 65.1(G) provides an analogous mandate:
Morrow County, Case No. 20CA0005                                                           6


              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 objections 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 Civ.R. 65.1(G), [an appellant] may not

challenge the trial court's decision on appeal.” Casto v. Lehr, 5th Dist. Tuscarawas No.

2020 AP 02 0002, 2020-Ohio-3777, ¶ 21. We find that the same rational applies in the

appeal before us. Appellant did file objections, but as noted by the trial court, those

objections were filed outside the deadline imposed by the rule and were rejected by the

trial court as untimely. McGuire’s appeal would be barred for failure to comply with Civ.R.

65.1(G) if it was not moot.

       {¶14} McGuire has also not supplied a written transcript of the hearing 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.
Morrow County, Case No. 20CA0005                                                 7


      {¶15} The questions presented by this appeal are moot as the relief sought can

no longer be granted, and the appeal is hereby dismissed sua sponte. State v. Brock, 5th

Dist. Licking No. 18-CA-10, 2018-Ohio-3404, ¶¶ 19-26.       For the forgoing reasons,

appellant's appeal is found moot and the appeal is dismissed.

By: Baldwin, P.J.

Hoffman, J. and

Delaney, J. concur.