B.M. v. G.H.
| Citation | 2020 Ohio 3629 |
| Decision Date | 30 June 2020 |
| Docket Number | Case No. 19 MA 0076 |
| Parties | B.M., Petitioner-Appellee, v. G.H., Respondent-Appellant. |
| Court | United States Court of Appeals (Ohio) |
OPINION AND JUDGMENT ENTRY
Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio
BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D'Apolito, Judges.
JUDGMENT: Affirmed.
Atty. James Wise, Hartford & Wise, Co., LPA, 91 West Taggart, P.O. Box.85, East Palestine, Ohio 44413, for Petitioner-Appellee, No Brief Filed.
Atty. Tracey A. Laslo, 325 East Main Street, Alliance, Ohio 44601, for Respondent-Appellant.
{¶1} Appellant G.H. appeals a January 29, 2019 decision of the Mahoning County Court of Common Pleas granting Appellee B.M.'s civil protection petition. Appellant argues Appellee failed to establish that Appellant was at least eighteen years of age. Appellant also argues Appellee failed to establish a pattern of behavior, and either that Appellant knowingly caused Appellee to believe she would physically harm her, or that Appellee suffered mental distress. As the protection order in this matter has expired, this appeal is moot. As such, Appellant's arguments are without merit and the judgment of the trial court is affirmed.
{¶2} On October 17, 2018, Appellee filed a petition seeking a civil protection order against Appellant. The next day, the magistrate denied a request for an ex parte order after conducting a hearing on the matter. .) On November 6, 2018, Appellee filed a pro se motion asking the trial court to expedite a full hearing based on the escalation of Appellant's behavior, including a threat to "kill us both," and her continual presence outside of Appellee's work place. (11/6/18 Pro Se Motion to Expedite Case.) The trial court denied the motion.
{¶3} The magistrate did conduct a full hearing on the petition on January 22, 2019. The first witness to testify was an employee of Howard Hanna Realty. This employee was essentially in charge of human resources for the business. She testified that both Appellant and Appellee worked for the company until July of 2017 when Appellant was terminated and instructed that she would not be allowed back into the office building. Appellee continued to be employed by Howard Hanna.
{¶4} After Appellant's termination, Appellant continued to communicate with Appellee through Facebook, email, and text messages. Appellee testified that she asked Appellant "hundreds of times" to stop contacting her. .) The communication was not limited to electronic means. On October 8, 2018, while Appellee was running in a local park, she saw Appellant. She attempted to avoid her, but Appellant began to follow Appellee on her run. Appellee testified: " .) At some point during this encounter, Appellee called her husband and informed him of Appellant's behavior. She was concerned because the road she was on came to a dead end and no one else was in the area at that time. Once she finished her run, she saw Appellant waiting for her near the entrance to the parking lot. However, her husband had also arrived and had pulled his vehicle next to Appellee's car, having driven to the park because he feared for Appellee's safety based on Appellant's behavior.
{¶5} The next day, Appellee attended an open house showing. According to Appellee, she is required to post that she will be present at an open house. This provides notice to the public that the real estate is being shown. After leaving the open house, Appellee noticed Appellant's car following her as she drove. Appellee also noticed that Appellant was videotaping her during this drive. Appellee feared that the cars would collide or that Appellant would follow her to her home.
{¶6} A few days later, Appellee was working a phone shift at the Howard Hanna office and saw that Appellant had parked her car outside of the building and had entered a nearby coffee shop, where she apparently stayed until the shop closed. Once the coffee shop closed, Appellant waited inside her car that was still parked outside of the office. Afraid for her well-being, Appellee told her manager, who accompanied her outside and saw Appellant sitting in her car outside of the building.
{¶7} Shortly thereafter, Appellant sent Appellee an email quoting song lyrics: .) Appellant stated in the email that she thought of Appellee every time she heard the song. Appellee felt threatened, particularly at the reference to guns and death.
{¶8} Appellee testified that she continually looks out of the window while at work to make sure Appellant is not waiting outside. She no longer runs in the park and is afraid to do her job because she must publicly announce where she will be holding an open house. At one point, she contacted the Mahoning County Sheriff's Office and was told that there was nothing that they could do.
{¶9} On January 29, 2019, the magistrate issued a one-year civil protection order. This order was to expire on January 23, 2020. On February 7, 2019, Appellant filed an objection to issuance of the order and on March 8, 2019, filed a supplement objection. On June 11, 2019, the trial court overruled Appellant's objections and adopted the magistrate's decision. It is from this entry that Appellant timely appeals.
{¶10} Although not raised within Appellant's brief, this record reveals that the protection order expired on January 23, 2020. Appellant did not seek a stay of the order nor did she attempt to expedite this appeal. Appellee did not file a brief.
{¶11} "The mootness doctrine provides, 'American courts will not decide * * * cases in which there is no longer any actual controversy.' " In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37, citing Black's Law Dictionary 1100 (9th Ed.2009). "However, courts are vested with the jurisdiction to address moot issues when such issues are capable of repetition yet evade review." Citizens Word v. Canfield Twp., 152 Ohio App.3d 252, 2003-Ohio-1604, 787 N.E.2d 104, ¶ 8, citing State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1988), paragraph one of the syllabus. "Courts are also vested with jurisdiction to address moot issues when those issues concern an important public right or a matter of great public or general interest." Id., citing In re Appeal of Huffer, 47 Ohio St.3d 12, 14, 546 N.E.2d 1308 (1989).
{¶12} Neither exception to the mootness doctrine has been met in this matter. The trial court had the option to grant a protective order for a period up to five years. The court granted an order to be effective for only one year, and there is nothing within the record to suggest that Appellee has attempted to extend this order. Thus, the issue does not appear to be capable of repetition without review. Also, the facts of this case do not involve a matter of great public interest.
{¶13} The Ohio Supreme Court recently accepted review on the issue of whether "the collateral consequences exception to mootness appl[ies] to an appeal from an expired protection order when the appellant faces possible collateral consequences that may not be ascertainable at the time of the appeal[.]" Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 6. The Court answered the question in the negative, holding that speculation regarding possible future consequences to a person subject to a protection order is insufficient to overcome the mootness doctrine. Id. at ¶ 11.
{¶14} A "collateral disability is an adverse legal consequence of a conviction or judgment that survives despite the [defendant's service or satisfaction of the] sentence." State v. Bittles, 2nd Dist. Greene No. 2018-CA-15, 2018-Ohio-4228, ¶ 4, citing In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 10; Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957).
{¶15} A high standard has been placed on arguments involving whether a possible collateral consequence is sufficiently clear to avoid speculation. The Ohio Supreme Court rejected the Eighth District's position that a domestic violence protective order could affect divorce, postdivorce, and custody proceedings, and thus, review of an expired order should involve an exception to the mootness doctrine. Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, citing Wilder v. Perna, 174 Ohio App.3d 586, 2007-Ohio-6635, 883 N.E.2d 1095. The Cyran Court explained that Id. at ¶ 11. See also City of Dublin v. Willms, 10th Dist. Franklin No. 17AP-847, 2018-Ohio-5144 (Any concern that a future court could use a finding to render an unfavorable determination in an unrelated hypothetical proceeding is highly speculative); Bittles, supra, (Where a driver's license suspension has been imposed on a defendant who has not provided pre-suspension and post-suspension insurance premiums or otherwise demonstrated a collateral disability as the result of the mere existence of a record of the driver's license suspension has not met the burden of proving collateral consequences.)
{¶16} The Cyran Court carved out several exceptions to its holding: felony convictions, misdemeanor convictions that enhance the penalty for a future criminal charge or penalty, traffic cases which result in points being added to a driver's record, and cases where a...
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