J.P. v. T.H. , 2017 Ohio 233 ( 2017 )

[Cite as J.P. v. T.H., 2017-Ohio-233.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
J.P. C.A. No. 15CA010897
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
T.H. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 15CV185623
DECISION AND JOURNAL ENTRY
Dated: January 23, 2017
WHITMORE, Presiding Judge.
{¶1} Plaintiff-Appellant, J.P., appeals the judgment of the Lorain County Court of
Common Pleas granting summary judgment in favor of Defendant-Appellee, T.H. For the
reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.
I.
{¶2} This is the second appeal J.P. has filed involving a dispute that he had with his
neighbor, T.H., on June 22, 2014. In a prior appeal, J.P. v. T.H., 9th Dist. Lorain No.
14CA010715, 2016-Ohio-243, this Court set forth the basic underlying factual history as
follows:
J.P. and T.H. are neighbors in a townhouse development that includes a skate park
located near J.P.’s residence. J.P. has actively been trying to close the skate park
due to alleged “chronic nuisance conditions, including crime[.]” As part of his
campaign to shut down the skate park, J.P. has confronted, videotaped, and called
the police on a number of the park’s patrons.
J.P. asserts that beginning in the spring of 2014, T.H. “began a campaign of
retaliation” against him due to his opposition to the skate park. According to J.P.,
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this campaign has included T.H. stalking and harassing him on a variety of
occasions. J.P. accused T.H. of mailing him an anonymous letter that contained
derogatory and threatening language. The letter also instructed J.P. to move out
of the neighborhood for the betterment of the community. T.H. has denied
sending the letter and he also disclaimed an interest in the development’s skate
park.
On the evening of June 22, 2014, T.H. was riding his bicycle down the street
towards his home, returning from the development’s community swimming pool.
T.H. was forced to pass J.P.’s residence in order to get to his own home. As T.H.
passed J.P.’s residence, J.P. yelled out that he was not intimidated by T.H. A
physical altercation then ensued. J.P. claims that T.H. came onto his driveway,
knocked a video camera out of his hand, and struck him in the head.
Alternatively, T.H. and another neighbor who witnessed the altercation both
assert that J.P. approached T.H. near the street and slapped him numerous times.
It is undisputed that J.P. subsequently withdrew a firearm that had been concealed
on his person and briefly aimed it at T.H. Upon seeing the firearm, T.H. and the
neighbor immediately retreated and called the police. As a result of this
altercation, the police placed T.H. under arrest.
Id. at ¶ 2-4. J.P. subsequently petitioned for and received an ex parte civil protection order
against T.H. Id. at ¶ 5. However, the trial court denied J.P.’s petition for a permanent protection
order against T.H. following a two-day evidentiary hearing on J.P.’s petition. Id. at ¶ 6. This
Court ultimately affirmed the trial court’s denial of J.P.’s petition for a permanent protection
order against T.H. Id. at ¶ 37.
{¶3} On February 6, 2015, while J.P.’s civil protection order case was still being
litigated, J.P. filed a complaint for money damages against T.H. in the Lorain County Court of
Common Pleas, wherein J.P. pleaded causes of action for assault, battery, invasion of privacy,
and defamation stemming from T.H.’s alleged actions during the June 22, 2014 altercation. T.H.
failed to file a timely responsive pleading or otherwise appear in the matter. Consequently, J.P.
filed a motion for default judgment pursuant to Civ.R. 55(A). However, on March 30, 2015, the
trial court instructed J.P. to properly serve T.H. with his motion for default judgment, as well as
to supplement his motion with an affidavit in support of damages and a military affidavit. On
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April 10, 2015, upon receiving a copy of the March 30, 2015 order from the trial court, T.H. filed
an answer denying the allegations set forth in J.P.’s complaint, which was attached to a motion
for leave to file an answer instanter. T.H. also filed a brief in opposition to J.P.’s motion for
default judgment. J.P. thereafter filed written objections to the trial court’s March 30, 2015
order, as well as an opposition brief to both T.H.’s motion for leave to file an answer instanter
and brief in opposition to J.P.’s motion for default judgment. On April 17, 2015, the trial court
granted T.H.’s motion for leave to file an answer instanter and accepted T.H.’s answer. The trial
court also summarily denied J.P.’s motion for default judgment and dismissed J.P.’s objections
to its March 30, 2015 order as moot. The trial court subsequently denied J.P.’s motion for leave
to file a reply instanter in response to T.H.’s brief in opposition to J.P.’s motion for default
judgment.
{¶4} On June 29, 2015, J.P. filed an ex parte motion for a temporary restraining order
(T.R.O.) against T.H. and T.H.’s daughter, M.H., on the basis that they were stalking, menacing,
and/or harassing him and his brother. The trial court summarily denied J.P.’s ex parte motion for
a T.R.O. and request for an oral hearing. On August 21, 2015, J.P. filed an amended complaint
attached to a motion to amend complaint instanter, wherein J.P. sought to add M.H. as a
defendant to the lawsuit, as well as additional claims. The trial court summarily denied J.P.’s
motion to amend his complaint.
{¶5} On November 6, 2015, T.H. filed a motion for summary judgment. J.P. filed a
brief in opposition to T.H.’s summary judgment motion, to which T.H. filed a reply brief in
response to J.P.’s opposition brief. On December 17, 2015, the trial court granted summary
judgment in favor of T.H. on the basis that all of J.P.’s claims are barred by the doctrine of res
judicata since “these matters have been resolved as a result of earlier litigation.”
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{¶6} J.P. filed this timely appeal and raises eight assignments of error for this Court’s
review. To facilitate our analysis, we elect to address some of J.P.’s assignments of error
together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
ABUSED ITS DISCRETION IN ISSUING ITS MARCH 30, 2015 JOURNAL
ENTRY, INCLUDING ORDERING [J.P.] TO FILE A DAMAGES AFFIDAVIT
AND A MILITARY AFFIDAVIT AND TO SERVE THE AFFIDAVITS AND
[J.P.]’S MOTION FOR DEFAULT JUDGMENT ON [T.H.].
{¶7} In his first assignment of error, J.P. argues that the trial court erred by issuing its
March 30, 2015 journal entry ordering him to supplement his motion for default judgment with a
military affidavit and an affidavit in support of damages, as well as ordering him to serve T.H.
with said affidavits and a copy of his motion for default judgment. We disagree.
{¶8} Civ.R. 55(A), which governs the entry of default judgments, states in pertinent
part:
When a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend as provided by these rules, the party entitled to a
judgment by default shall apply in writing or orally to the court therefore[.] * * *
If, in order to enable the court to enter judgment or to carry it into effect, it is
necessary to take an account or to determine the amount of damages or to
establish the truth of any averment by evidence or to make an investigation of any
other matter, the court may conduct such hearings or order such references as it
deems necessary and proper and shall when applicable accord a right of trial by
jury to the parties.
“Proof of damages is not required before a default judgment can be granted in an action filed
upon a liquidated damage claim based upon an account. However, when the judgment is not
liquidated, or only partially liquidated, it is reversible error for the trial court to enter a default
judgment without holding a hearing on the damages issue.” (Citations omitted.) Hull v. Clem
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D’s Auto Sales, 2d Dist. Darke No. 2011 CA 6, 2012-Ohio-629, ¶ 7, quoting Mid-American
Acceptance Co. v. Reedy, 11th Dist. Lake No. 89-L-14-072, 1990 WL 94816, *2 (June 29, 1990).
This rule is derived from Civ.R. 8(D), which states in part that “[a]vertments in a pleading to
which a responsive pleading is required, other than those as to the amount of damage, are
admitted when not denied in the responsive pleading.” (Emphasis added.)
{¶9} Here, it is undisputed that T.H. did not file a timely responsive pleading or
otherwise appear in this matter prior to J.P. filing his motion for default judgment. On March 30,
2015, without ruling on J.P.’s motion for default, the trial court ordered J.P. to file a military
affidavit and an affidavit in support of damages, and further ordered J.P. to serve T.H. with these
affidavits along with a copy of his motion for default judgment. On appeal, J.P. contends that he
was entitled to a default judgment and that the orders contained within the trial court’s March 30,
2015 journal entry were improper.
{¶10} A review of J.P.’s complaint indicates that J.P.’s prayer for relief included a
request for compensatory and punitive damages on each cause of action “in an amount to be
determined by the jury at trial, but in excess of $75,000.00 total[.]” However, nothing within
J.P.’s complaint or motion for default judgment, and no other filing within the record,
specifically details the amount of damages that J.P. actually suffered as a result of T.H.’s
allegedly tortious conduct. Thus, because the amount of damages pled within J.P.’s complaint is
not liquidated, the trial court was unable to enter a default judgment without first ascertaining the
true nature of J.P.’s damages.
{¶11} However, nothing within Civ.R. 55(A) obligates a trial court to bifurcate its
determinations with respect to liability and damages. See Civ.R. 55(A). That is, Civ.R. 55(A)
does not require a trial court to make an immediate determination as to liability prior to
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considering the issue of damages, although a trial court may certainly elect to do so in its
discretion. Rather, when considering a motion for default judgment, a trial court is free to
consider liability and damages simultaneously. Additionally, although Civ.R. 55(A) does not
require a movant to file an affidavit in support of damages along with his or her motion for
default judgment, we cannot say that it was improper for the trial court to order J.P. to file such a
motion, especially since this information was relevant to proving J.P.’s claims and to
ascertaining damages. As such, we conclude that the trial court did not abuse its discretion by
ordering J.P. to file an affidavit in support of damages. Further, because the trial court had the
authority to instruct J.P. to file an affidavit in support of damages, we need not address the
propriety of the remaining orders contained within the March 30, 2015 journal entry.
{¶12} J.P.’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
ABUSED ITS DISCRETION IN ISSUING ITS APRIL 17, 2015 JOURNAL
ENTRY, INCLUDING IN GRANTING [T.H.] LEAVE TO FILE AN ANSWER
INSTANTER, IN DENYING [J.P.]’S MARCH 25, 2015 MOTION FOR
DEFAULT JUDGMENT AGAINST [T.H.] AND IN NOT HOLDING A
HEARING ON THE MOTION AND IN NOT SETTING THE CASE FOR A
JURY TRIAL AS TO DAMAGES ONLY, AND IN DISMISSING [J.P.]’S
APRIL 13, 2015 OBJECTIONS.
ASSIGNMENT OF ERROR III
THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
ABUSED ITS DISCRETION IN ISSUING ITS APRIL 22, 2015 JOURNAL
ENTRY, INCLUDING IN DENYING [J.P.]’S APRIL 17, 2015 MOTION FOR
LEAVE TO FILE A REPLY.
{¶13} In his second assignment of error, J.P. argues that the trial court erred by issuing
its April 17 2015, journal entry, thus granting T.H.’s motion for leave to file answer instanter,
accepting T.H.’s untimely answer, and summarily denying his motion for default judgment. In
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his third assignment of error, J.P. contends that the trial court erred by issuing its April 22, 2015
journal entry, thus denying his motion for leave to file a reply instanter in response to T.H.’s
brief in opposition to his motion for default judgment. We disagree on both points.
{¶14} Civ.R. 6(B)(2) explains when a court may grant leave for a late filing:
When by these rules or by a notice given thereunder or by order of court an act is
required or allowed to be done at or within a specified time, the court for cause
shown may at any time in its discretion * * * upon motion made after the
expiration of the specified period permit the act to be done where the failure to act
was the result of excusable neglect; but it may not extend the time for taking any
action under Civ.R. 50(B), Civ.R. 59(B), Civ.R. 59(D), and Civ.R. 60(B), except
to the extent and under the conditions stated in them.
Although Civ.R. 55(A) permits a default judgment when a defendant fails to answer or otherwise
defend an action, a trial court has the discretion to permit an answer to be filed after the time for
filing has run in the case of excusable neglect. Davis v. Immediate Med. Serv., Inc., 80 Ohio
St.3d 10, 14 (1997). “Neglect under Civ.R. 6(B)(2) has been described as conduct that falls
substantially below what is reasonable under the circumstances.” Id., citing State ex rel. Weiss v.
Indus. Comm., 65 Ohio St.3d 470, 473 (1992). This determination is made with reference to all
of the surrounding facts and circumstances and with due consideration for the principle that cases
should be decided on their merits when possible. State ex rel. Lindenschmidt v. Butler Cty. Bd.
of Commrs., 72 Ohio St.3d 464, 466 (1995). A trial court’s decision in this regard is reviewed
for an abuse of discretion. Id. at 465. An abuse of discretion implies that the trial court’s
attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶15} After a thorough review the record, we determine that the trial court did not abuse
its discretion in issuing its April 17, 2015, and April 22, 2015 journal entries, respectively. J.P.
filed his complaint in the instant matter on February 6, 2015. Upon T.H.’s failure to file a timely
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responsive pleading or otherwise appear in this matter, J.P. filed a motion for default judgment
on March 25, 2015. T.H. subsequently filed a motion for leave to file an answer instanter, as
well as a brief in opposition to J.P.’s motion for default judgment. In his opposition brief, T.H.’s
trial counsel explained that T.H.’s failure to file a timely responsive pleading or otherwise appear
in this matter was not deliberate, but resulted from his accidental misfiling of the unopened
summons and complaint while relocating his law office. On April 17, 2015, the trial court
summarily denied J.P.’s motion for default judgment, granted T.H.’s motion for leave to file an
answer instanter, and ordered the Lorain County Clerk of Court to accept T.H.’s answer. On
April 22, 2015, the trial court also denied J.P.’s motion for leave to file a reply instanter to T.H.’s
brief in opposition to J.P.’s motion for default judgment.
{¶16} Considering these circumstances, we cannot conclude that the trial court abused
its discretion by denying J.P.’s motion for default judgment and permitting T.H. to file an answer
instanter. It is a basic tenet of Ohio law that cases should be decided on their merits. Perotti v.
Ferguson, 7 Ohio St.3d 1, 3 (1983). For these same reasons, we also determine that the trial
court did not err by denying J.P.’s motion for leave to file a reply instanter in response to T.H.’s
brief in opposition to J.P.’s motion for default judgment. Lastly, having already determined that
the trial court did not abuse its discretion by denying J.P.’s motion for default judgment, we
likewise conclude that the trial court did not err by not scheduling a hearing or jury trial to
address the issue of damages or by dismissing J.P.’s objections to its April 17, 2015 journal entry
as moot.
{¶17} Accordingly, J.P.’s second and third assignments of error are overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
ABUSED ITS DISCRETION IN ISSUING ITS JULY 8, 2015 JOURNAL
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ENTRY, INCLUDING IN DENYING [J.P.]’S JUNE 29, 2015 MOTION FOR A
TEMPORARY RESTRAINING ORDER AND REQUEST FOR AN ORAL
HEARING ON THE MOTION.
{¶18} In his fourth assignment of error, J.P. contends that the trial court erred by
denying his ex parte motion for a T.R.O. and request for an oral hearing on said motion. We
disagree.
{¶19} A temporary restraining order is a form of relief intended to prevent the applicant
from suffering immediate and irreparable harm, injury, or damage. Civ.R. 65(A); Coleman v.
Wilkinson, 147 Ohio App.3d 357, 358 (10th Dist.2002). In determining whether injunctive relief
should be granted, a trial court generally examines four factors: whether (1) there is a substantial
likelihood that plaintiff will prevail on the merits; (2) plaintiff will suffer irreparable injury if the
injunction is not granted; (3) any third parties will be unjustifiably harmed if the injunction is
granted; and (4) the public interest will be served by the injunction. Vanguard Transp. Sys., Inc.
v. Edwards Transfer & Storage Co., Gen. Commodities Div., 109 Ohio App.3d 786, 790 (10th
Dist.1996), citing Valco Cincinnati, Inc. v. N & D Machining Serv., Inc., 24 Ohio St.3d 41(1986). The party seeking the preliminary injunction must establish each of these elements by
clear and convincing evidence. Mead Corp. v. Lane, 54 Ohio App.3d 59, 63 (4th Dist.1988).
“Clear and convincing evidence is that measure or degree of proof which will produce in the
mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.
It is intermediate, being more than a mere preponderance, but not to the extent of such certainty
as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and
unequivocal.” State v. Bluser, 2d Dist. Montgomery No. 18856, 2002 WL 191567, *1 (Feb. 8,
2002), citing Cross v. Ledford, 161 Ohio St. 469, 477 (1954); State v. Ingram, 82 Ohio App.3d
341 (2d Dist.1992). An appellate court will not reverse a trial court’s decision to deny or grant a
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temporary restraining order or preliminary injunction absent an abuse of discretion. Wimmer
Family Trust v. FirstEnergy, 9th Dist. Lorain No. 08CA009392, 2008-Ohio-6870, ¶ 9, vacated
on other grounds, citing TGR Ents., Inc. v. Kozhev, 167 Ohio App.3d 29, 2006–Ohio–2915, ¶ 11
(2d Dist.).
{¶20} Here, J.P. filed his motion for a T.R.O. on the basis that T.H. and T.H.’s daughter,
M.H., were stalking, menacing, and/or harassing him and his brother. Specifically, J.P. asserted
that T.H. and M.H. both followed him and his brother in their car, made menacing comments to
them, made finger gestures towards them, looked menacingly at them, and honked their car horn
at them. J.P.’s motion also references the June 22, 2014 altercation between T.H. and himself,
which is the incident at issue both in the present lawsuit and in J.P.’s previous action for a civil
stalking protection order. See J.P. v. T.H., 2016-Ohio-243. On July 8, 2015, the trial court
summarily denied J.P.’s ex parte motion for a T.R.O. without holding a hearing on the matter.
{¶21} Initially, we note that Civ.R. 65 does not require a trial court to hold a hearing on
a T.R.O. Ridenour v. Wilkinson, 10th Dist. Franklin No. 07AP-200, 2007-Ohio-5965, ¶ 49,
citing Civ.R. 65(A). Rather, Civ.R. 65 requires a hearing on a motion for a preliminary
injunction only if a T.R.O. has been granted. Id. Accordingly, because J.P. was not entitled to a
hearing on his motion for a T.R.O. under Civ.R. 65, we determine that the trial court did not err
by not conducting a hearing prior to denying J.P.’s ex parte motion for a T.R.O.
{¶22} Additionally, after reviewing the record, we determine that the trial court did not
err by denying J.P.’s motion for a T.R.O., as J.P.’s motion failed to demonstrate a substantial
likelihood that he would prevail on the merits. As noted previously in this opinion, at the time
that the present lawsuit was filed, J.P. had already filed for a permanent civil stalking protection
order against T.H. in the Lorain County Court of Common Pleas. In that case, the Lorain County
11
Court of Common Pleas conducted a two-day evidentiary hearing on the matter and ultimately
denied J.P.’s petition for a permanent civil stalking protection order against T.H. on the basis that
J.P. had failed to meet his burden of proof. J.P. at ¶ 6. As such, in ruling upon J.P.’s motion for
a T.R.O., the trial court was already well aware of the long and bitter history between the parties,
as well as the underlying facts giving rise to this case. Thus, as J.P.’s ex parte motion for a
T.R.O. was partly premised on the June 22, 2014, altercation between the parties, as well as other
similar incidents that allegedly occurred subsequent to June 22, 2014, we cannot conclude that
the trial court erred by denying J.P.’s ex parte motion for a T.R.O.
{¶23} J.P.’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR VII
THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
ABUSED ITS DISCRETION IN ISSUING ITS DECEMBER 17, 2015
JOURNAL ENTRY, INCLUDING IN GRANTING SUMMARY JUDGMENT
TO T.H.
{¶24} In his seventh assignment of error, J.P. contends that the trial court erred by
granting summary judgment in favor of T.H. Specifically, J.P. contends that the trial court erred
by concluding that the doctrine of res judicata barred his civil claims against T.H. We agree.
{¶25} Res judicata is a doctrine of judicial preclusion. Grava v. Parkman Twp., 73 Ohio
St.3d 379, 381 (1995). There are two theories on which res judicata operates: claim preclusion
(estoppel by judgment) and issue preclusion (collateral estoppel). Id. “Under the doctrine of res
judicata, ‘[a] valid, final judgment rendered upon the merits bars all subsequent actions based
upon any claim arising out of the transaction or occurrence that was the subject matter of the
previous action.’” Kelm v. Kelm, 92 Ohio St.3d 223, 227 (2001), quoting Grava at syllabus.
Furthermore, res judicata operates to bar litigation of “‘all claims which were or might have been
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litigated in a first lawsuit.’” (Emphasis omitted). Grava at 382, quoting Natl. Amusements, Inc.
v. Springdale, 53 Ohio St.3d 60, 62 (1990).
{¶26} “‘Proper application of the doctrine of res judicata requires that the identical cause
of action shall have been previously adjudicated in a proceeding with the same parties, in which
the party against whom the doctrine is sought to be imposed shall have had a full and fair
opportunity to litigate the claim.’” SunTrust Bank v. Wagshul, 2d Dist. Montgomery No. 25567,
2013–Ohio–3931, ¶ 8, quoting Brown v. Vaniman, 2d Dist. Montgomery No. 17503, 1999 WL
957721, *4 (Aug. 20, 1999).
{¶27} Here, the trial court determined that J.P.’s civil claims against T.H. involved
matters that “have been resolved as a result of earlier litigation,” namely J.P.’s failed effort to
secure a permanent civil protection order against T.H. See J.P. v. T.H., 2016-Ohio-243. Thus,
upon determining that the present lawsuit “involves the same parties, the same temporal events,
and the same pivotal dates (all of which culminated on June 22, 2014),” the trial court
determined that the doctrine of res judicata applied to the instant case and barred J.P.’s civil
claims against T.H. Accordingly, the trial court determined that since the underlying facts in this
case were previously litigated at the civil protection order hearing, no genuine issues of material
fact remained to be litigated and that T.H. was entitled to judgment as a matter of law.
{¶28} The trial court correctly noted that the prior litigation involving the parties in the
instant matter concerned a petition for a civil stalking protection order that J.P. filed in the Lorain
County Court of Common Pleas. It has been held that “[a] civil protection order is a special
statutory remedy that is designed to prevent violence, not to compensate the victim for
damages.” Oliver v. Johnson, 4th Dist. Jackson No. 06CA16, 2007-Ohio-5880, ¶ 1. As such, a
civil protection order does not create a tort remedy. Id. Indeed, R.C. 2903.214, Ohio’s statute
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governing the issuance of a civil stalking protection order, confers limited jurisdiction to the
common pleas courts to address requests for civil stalking protection orders. While R.C.
2903.214 does not explicitly prohibit a petitioner from filing civil claims contemporaneously
with his or her petition for a protection order, the statute does state that the remedies available in
stalking cases “are in addition to, and not in lieu of, any other available civil and criminal
remedies.” R.C. 2903.214(G). Thus, we determine that J.P.’s failure to assert his tort claims
contemporaneously with his petition for a civil stalking protection order did not preclude J.P.
from subsequently bringing a civil action against T.H. To hold otherwise would punish
petitioners seeking protection orders by forever depriving them of all legal remedies simply for
prioritizing their own physical safety and/or the physical safety of their family members over
their pecuniary damages.
{¶29} While we agree with both T.H. and the trial court that the present lawsuit and
J.P.’s prior action seeking a civil protection order derive from the same common nucleus of
operative fact (that is, the June 22, 2014 altercation), we do not agree that the issues litigated in
the protection order case are similar to the issues involved here. In J.P.’s protection order case,
the trial court was required to decide whether J.P. had proven by a preponderance of the evidence
that T.H. knowingly caused J.P. to believe that he would cause him either physical harm or
mental distress. See J.R. v. Pless, 9th Dist. Summit No. 27665, 2016-Ohio-14, ¶ 8. This
determination squarely addresses whether J.P. was at risk of future harm from T.H. See Hamlin-
Scanlon v. Taylor, 9th Dist. Summit No. 23773, 2008-Ohio-411, ¶ 11 (holding that the goal of
R.C. 2903.214 is to prevent future injury and “allow the police and the courts to act before a
victim is harmed by a stalker.”). In the present civil case, on the other hand, the trial court is
required to consider whether J.P. has proven by a preponderance of the evidence that T.H.
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committed the elements constituting assault, battery, invasion of privacy, and defamation.
Contrary to J.P.’s protection order case, this determination requires the trial court to consider
T.H.’s past conduct. As both of J.P.’s cases involve facts that are neither directly at issue in the
other litigation nor fully litigated in the previous protection order case, we conclude that J.P.’s
civil claims are not barred by the doctrine of res judicata and that the trial court erred by granting
summary judgment in favor of T.H. on this basis.
{¶30} Accordingly, J.P.’s seventh assignment of error is sustained.
ASSIGNMENT OF ERROR V
THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
ABUSED ITS DISCRETION IN ISSUING ITS DECEMBER 9, 2015 JOURNAL
ENTRY, INCLUDING IN SUA SPONTE EXTENDING THE TIME FOR [T.H.]
TO FILE A REPLY.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
ABUSED ITS DISCRETION IN ISSUING ITS DECEMBER 16, 2015
JOURNAL ENTRY, INCLUDING IN OVERRULING/DENYING [J.P.]’S
DECEMBER 15, 2015 OBJECTIONS TO THE TRIAL COURT’S DECEMBER
9, 2015 REPLY EXTENSION.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
ABUSED ITS DISCRETION IN IMPLICITLY DENYING [J.P.]’S DECEMBER
17, 2015 MOTION TO STRIKE, ALTERNATIVELY, MOTION FOR LEAVE
TO FILE A NEW OPPOSITION.
{¶31} In his fifth assignment of error, J.P. argues that the trial court erred by extending
the amount of time that T.H. had to file his reply brief to J.P.’s brief in opposition to T.H.’s
motion for summary judgment. In his sixth assignment of error, J.P. argues that the trial court
erred by denying his objections to the trial court’s December 9, 2015 order extending the amount
of time that T.H. had to file his reply brief to J.P.’s brief in opposition to T.H.’s motion for
15
summary judgment. In his eighth assignment of error, J.P. argues that the trial court erred by
implicitly denying his motion to strike T.H.’s reply brief to his brief in opposition to T.H.’s
motion for summary judgment. J.P. alternatively argues in his eighth assignment of error that the
trial court erred by implicitly denying his motion for leave to file a new opposition brief to
T.H.’s motion for summary judgment. However, given this Court’s resolution of J.P.’s seventh
assignment of error, J.P.’s fifth, sixth and eighth assignments of error are moot, and we decline
to address them. See App.R. 12(A)(1)(c).
III.
{¶32} J.P.’s first, second, third, and fourth assignments of error are overruled. J.P.’s
seventh assignment of error is sustained and his fifth, sixth, and eighth assignments of error are
moot. Accordingly, the judgment of the Lorain County Court of Common Pleas is affirmed in
part, reversed in part, and this matter is remanded for further proceedings consistent with this
opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
16
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
J.P., pro se, Appellant.
GERALD R. WILSON, Attorney at Law, for Appellee.