M.B. v. Mettke, 21AP-620

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtLUPER SCHUSTER, P.J.
Citation2022 Ohio 4166
Parties[M.B.], Petitioner-Appellee, v. Richard Mettke, Sr., Respondent-Appellant.
Docket Number21AP-620
Decision Date22 November 2022

2022-Ohio-4166

[M.B.], Petitioner-Appellee,
v.

Richard Mettke, Sr., Respondent-Appellant.

No. 21AP-620

Court of Appeals of Ohio, Tenth District

November 22, 2022


APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 21CV-2072

On brief:

Trolinger Law Offices, LLC, and Christopher L. Trolinger, for appellant.

Argued:

Christopher L. Trolinger.

DECISION

LUPER SCHUSTER, P.J.

{¶ 1} Respondent-appellant, Richard Mettke, Sr., appeals from a judgment of the Franklin County Court of Common Pleas granting a civil stalking protection order ("CSPO") to petitioner-appellee, M.B. For the reasons that follow, we dismiss the appeal.

I. Facts and Procedural History

{¶ 2} On April 6, 2021, M.B. filed a petition requesting a CSPO against Mettke. The magistrate granted an ex parte CSPO against Mettke and set the matter for a full evidentiary hearing. Following the May 10, 2021 hearing, at which both M.B. and Mettke testified, the magistrate issued a May 19, 2021 decision recommending the trial court grant M.B.'s petition and issue her a CSPO effective until April 6, 2022. Mettke filed objections to the magistrate's decision. In a November 2, 2021 decision and entry, the trial court sustained in part and overruled in part Mettke's objections, adopted the magistrate's decision, and granted the CSPO. Mettke timely appeals.

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II. Assignments of Error

{¶ 3} Mettke assigns the following errors for our review:

[1.] The trial court erred and abused its discretion in granting appellee's petition for a civil stalking protection order as there was insufficient evidence to support such finding and such was against the manifest weight of the evidence and contrary to law
[2.] The trial court erred and abused its discretion in finding that appellant's pursuit of civil remedies and criminal enforcement could constitute menacing by stalking for purposes of R.C. 2903.214 as such is against public policy and law
[3.] The trial court erred in finding that appellant utilized law enforcement to charge, prosecute and maximize appellee's criminal penalties as a means of manipulating her to rekindle her relationship with him.

III. Analysis

{¶ 4} Before we address Mettke's assignments of error, we sua sponte consider whether the appeal is moot given that the CSPO expired on April 6, 2022.

{¶ 5} Pursuant to the mootness doctrine, a court will not decide a case in which there is no longer any actual controversy. In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, ¶ 37. This court has recently reiterated the general rule that" 'the expiration of a [civil protection order] renders an appeal from that order moot.'" A.F. v. RA.T., 10th Dist. No. 20AP-23, 2021-Ohio-2568, ¶ 5, quoting Foster v. Foster, 10th Dist. No. 11AP-371, 2011-Ohio-6460, ¶ 4. There is no dispute here that the CSPO had expired prior to the scheduled oral argument in this appeal. Nonetheless, Mettke asserts the appeal is not moot based on the collateral consequences exception to the mootness doctrine.

{¶ 6} The Supreme Court of Ohio has held that "absent a showing of legal collateral consequences resulting from an expired domestic-violence civil protection order, an appeal of that order is moot." Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, ¶ 1. Although Mettke suggests that the protection order could adversely affect future reviews of the security clearance he undergoes for his employment, his argument is purely speculative. The Supreme Court was explicit in Cyran that "[s]peculation is insufficient to establish a legally cognizable interest for which a court can order relief using the collateral-

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consequences exception to the mootness doctrine." Id. at ¶ 11 (declining to find the application of the collateral consequences exception where the appellant did not demonstrate or argue that he suffered any actual consequences, but instead argued "that the possibility of future collateral consequences should preserve his appeal of the expired order"). (Emphasis added.) "As a result, an appellant that fails to argue that he or she has suffered any consequences or that merely speculates about the possibility of future consequences has not demonstrated a legally cognizable interest for which an appellate court can provide relief." A.F. at ¶ 6, citing Cyran at ¶ 11 (noting that "no provision of Ohio law * * * imposes a restriction as a result of an expired protection order").

{¶ 7} Here, Mettke does not demonstrate any legal collateral consequences from the CSPO such that the collateral consequences exception to the mootness doctrine would apply. A.F. at ¶ 7; Cyran at ¶ 9 ("under current law, the collateral-consequences exception to mootness applies in cases in which the collateral consequence is imposed as a matter of law"). As the CSPO at issue expired by its own terms and neither the collateral consequences exception nor any other exception to the mootness doctrine applies to this case, we conclude that the questions presented by the appeal are moot. A.F. at ¶ 7-8. Accordingly, we dismiss the appeal.

IV. Disposition

{¶ 8} Based on the foregoing reasons, the issues raised in this appeal are moot. Therefore, we dismiss the appeal.

Appeal dismissed.

NELSON, J., concurs.

JAMISON, J., dissents.

NELSON, J., retired, formerly of the Tenth Appellate District, assigned to active duty under authority of Ohio Constitution, Article IV, Section 6(C).

NELSON, J., concurring.

{¶ 9} I concur in full with the decision of the court because we are bound by the Supreme Court's instruction in Cyran.

{¶ 10} Although I am sympathetic with the concerns of the dissent, I do not believe that the "imminent threat" standard that it proposes with regard to possible collateral

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consequences is derived from or consistent with the majority decision in Cyran. Compare dissent here at ¶ 24 with Cyran (declining to adopt the probability analysis of the vigorous dissent there, but looking instead to whether a continuing disability was "impose[d]" as a matter of law as a result of the expired protection order). Mr. Mettke has not demonstrated either that loss of his claimed security clearance is a necessary consequence of the expired protection order, or even that review of such clearance would not be triggered by the allegations or admitted facts of this matter (as opposed to the fact of the expired order itself). I join the decision of the court.

JAMISON, J., dissenting.

{¶ 11} I disagree with the decision to dismiss this appeal as moot because I believe the record shows appellant will experience significant collateral consequences as a result of the findings made by the trial court in granting the CSPO. Additionally, because appellant raises a public policy challenge to the CSPO, I believe it is important to reach the merits of the appeal. For these reasons, I respectfully dissent.

I. FACTS AND PROCEDURAL HISTORY

{¶ 12} At the hearing on the CSPO, appellee told the magistrate that she is afraid of appellant. Appellee maintained that appellant was terrorizing and harassing her and trying to destroy her life. Appellee testified that appellant stepped up his pattern of threatening words and conduct towards her after a protection order issued to her by the domestic relations court was subsequently dismissed. Appellee submitted evidence in the form of emails and text messages sent to her by appellant on March 25, 2020, July 19, 2020, July 24, 2020, December 8, 2020, March 8, 2021, and March 13, 2021. Appellant admitted that his texts to appellee include the following claims and allegations: "You lied to me and you got arrested for solicitation. You lied to me and you got arrested for felony drug possession. Yep ... You can blame me.....* * * Your probation Violation ... You can blame me. I pushed the [Grove City] police to file the Felony drug possession charges. I wish you would have presented your case at the Protection order hearing you would have had more charges .... All because of you[r] lies. * * * I will see you at the small claims hearing to show how you defrauded me again ... I have all of your texts. But if you show up, I will have you

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arrested. * * * Or come back to me on bended knee. You have to ask and see what I say." (May 18, 2021 Petitioner's Ex. at 7-8.)

{¶ 13} On April 12, 2020, appellant sent a text message to a mutual acquaintance promising he would do whatever he could to make sure appellee gets jail time. In the same text, appellant boasted: "I am the one that got [appellee] arrested and am proud of [it]." (Petitioner's Ex. at 9.) In the text message appellant warns that he will make sure that appellee's "life as a normal citizen is over" because of her deceitful conduct in causing him to believe she loved him. (Petitioner's Ex. at 10.) Appellant also sent text messages to appellee informing her that he had contacted the state police and various local police departments claiming appellee was a fugitive from justice and providing her address. In that correspondence, appellant referred to appellee as a "piece of shit Psycho." (Petitioner's Ex. at 3.)

{¶ 14} In March of 2021, after appellant learned that appellee had been living with a boyfriend, he sent a letter to the boyfriend informing him that he had turned appellee into police for being a paid escort. Appellant admitted that he had appellee arrested on an outstanding warrant when she appeared at a March 16, 2021 hearing in small claims court. Appellant excused his behavior toward appellee by insisting that she had caused him harm by deceiving him about their relationship and taking advantage of his generosity.

{¶ 15} Although appellant admitted that he sent numerous correspondence to appellee in 2020 and 2021, he insisted that none of the emails and texts contained threats. Appellant did acknowledge that he sent a package to the father of appellee's ex-boyfriend containing information about the...

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