Keene v. Duke

[Cite as Keene v. Duke, 2022-Ohio-2321.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
AMANDA KEENE : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Petitioner-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2021 CA 0052
KRISTY M. DUKE :
:
Respondent-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court
of Common Pleas, Case No. 2021CV168R
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: July 1, 2022
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
AMANDA KEENE PRO SE CASSANDRA J.M. MAYER
2294 Vivian Avenue 452 Park Avenue West
Ontario, OH 44906 Mansfield, OH 44906
[Cite as Keene v. Duke, 2022-Ohio-2321.]
Gwin, P.J.
{¶1} Appellant Kristy Duke appeals the decision of the Richland County Court of
Common Pleas granting appellee Amanda Keene’s petition for a civil stalking protection
order pursuant to R.C. 2903.214.
Facts & Procedural History
{¶2} On April 15, 2021, appellee filed a petition for civil stalking protection order
(“CPO”) pursuant to R.C. 2903.214, seeking an order preventing appellant from
contacting her. Appellee did not request an ex parte order. The magistrate issued a
notice of hearing, setting a full hearing for May 11, 2021. The Richland County Sheriff
personally served appellant with the petition and notice of hearing on April 17, 2021.
{¶3} At 3:49 p.m. on May 10, 2021, counsel for appellant filed a notice of
appearance and motion to continue. The trial court issued a judgment entry finding the
motion moot and denying the motion on May 13, 2021, stating the following: the motion
was filed eleven minutes before the end of the day on the afternoon before a 9:00 a.m.
hearing; a copy of the motion was not given to the Court by counsel; the motion was not
brought up to the Court until after the hearing was held; counsel for appellant did not
contact the Court to inform the Court a continuance was requested; and neither appellant
nor counsel appeared for the hearing.
{¶4} The magistrate held a hearing on the petition on May 11, 2021.
{¶5} On May 13, 2021, the magistrate issued an order of protection against
appellant. Attached as Exhibit A to the order granting the CPO is a magistrate’s order,
including detailed findings of fact and conclusions of law. The magistrate’s order noted
appellant was not present at the hearing. The order provides, “[t]he terms of this Order
Richland County, Case No. 2021 CA 0052 3
shall be effective until 5/11/2022.” The order of protection was signed by the trial court
judge.
{¶6} Appellant filed objections to the magistrate’s decision on May 26, 2021, but
did not include a transcript of the hearing. The trial court issued a judgment entry on June
16, 2021, overruling the objections to the magistrate’s decision and affirming the denial
of appellant’s motion for continuance.
{¶7} Appellant appeals the judgment entries of the Richland County Court of
Common Pleas and assigns the following as error:
{¶8} “THE TRIAL COURT ERRED IN FAILING TO GRANT THE
CONTINUANCE REQUEST FILED BY RESPONDENT’S ATTORNEY OF RECORD
THE DAY BEFORE THE HEARING, SETTING FORTH THE GROUNDS FOR THE
REQUEST FOR CONTINUANCE AS PURSUANT [TO] THE RULES OF
SUPERINTENDENCE, RESPONDENT’S ATTORNEY WAS IN THE MIDDLE OF A
CRIMINAL JURY TRIAL IN LICKING COUNTY, OHIO, ON THE DATE OF THE
HEARING IN THIS MATTER.
{¶9} “II. THE TRIAL COURT FURTHER ERRED WHEN IT GRANTED THE
PETITIONER’S REQUEST FOR AN ANTI-STALKING PROTECTION ORDER AGAINST
RESPONDENT AS PETITIONER FAILED TO DEMONSTRATE SUFFICIENT
EVIDENCE OF TWO OR MORE INCIDENTS, CLOSELY RELATED IN TIME, WHEREIN
RESPONDENT CAUSED PETITIONER TO BELIEVE THAT SHE WOULD CAUSE HER
PHYSICAL HARM OR MENTAL DISTRESS, AS REQUIRED BY STATUTE.”
Richland County, Case No. 2021 CA 0052 4
Mootness
{¶10} The CPO was granted on May 13, 2021, and was limited to a definite period,
ending on May 11, 2022. Appellant did not seek a stay of the order, nor did she attempt
to expedite this appeal. Appellant’s notice of appeal and brief were filed prior to the
expiration of the order, but now that the deadline has passed and 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. Toombs v. McGuire, 5th Dist. Morrow No.
20CA005, 2021-Ohio-387.
{¶11} “[I]t is well established that the role of the court is to ‘decide actual
controversies by a judgment which can be carried into effect,’” Miner v. Witt, 82 Ohio St.
237, 92 N.E.2d 138 (1910), 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.
Because the protection order has expired, we cannot issue a “judgment which can be
carried into effect” and our ruling would be purely advisory.
{¶12} In a case analogous to this case in which a CPO had expired, we found the
matter was moot and dismissed the appeal. We held that when a CPO expires prior to
this Court’s review and the appellee has not sought an extension of the order, the appeal
is moot. Toombs v. McGuire, 5th Dist. Morrow No. 20CA005, 2021-Ohio-387. Other
districts addressing the issue have similarly held the appeal of an expired CPO is moot.
A.F. v. R.A.T., 10th Dist. Franklin No. 20AP-23, 20AP-24, 2021-Ohio-2568; B.M. v. G.H.,
7th Dist. Mahoning No. 19 MA 0076, 2020-Ohio-3629.
{¶13} In Toombs, this Court relied on the Ohio Supreme Court’s decision in Cyran
v. Cyran. In Cyran, the Supreme Court concluded that an appeal of a domestic violence
Richland County, Case No. 2021 CA 0052 5
protection order is moot once the order is expired. Cyran v. Cyran, 152 Ohio St.3d 484,
2018-Ohio-24, 97 N.E.3d 487. The Supreme Court considered whether there were
demonstrable legal collateral consequences arising from the order that would provide an
exception to the mootness doctrine. Id. While the Supreme Court had previously
recognized the collateral consequences exception to the mootness doctrine in civil and
criminal cases where collateral consequences were imposed as a matter of law, the Court
emphasized that there are no restrictions that occur by operation of law on a person after
the expiration of a CPO. Id. Further, that speculation regarding possible future
consequences to a person subject to a CPO is insufficient to overcome the mootness
doctrine. Id. Because there are no demonstrated legal collateral consequences, the
“collateral-consequences exception to the mootness doctrine does not apply to an expired
domestic-violence civil protection order.” Id.{¶14} The same rationale applies to appellant’s appeal in this case, and compels
us to conclude that her appeal became moot when the trial court order expired. As we
stated in Toombs, “the fact that this case does not involve a domestic violence protection
order, but a civil stalking protection order, does not alter the analysis or result.” Toombs
v. McGuire, 5th Dist. Morrow No. 20CA005, 2021-Ohio-387.
{¶15} Based on the foregoing, we find the questions presented by this appeal are
moot as the relief sought can no longer be granted.
Richland County, Case No. 2021 CA 0052 6
{¶16} Consequently, the above-captioned appeal is dismissed.
By Gwin, P.J.,
Hoffman, J., and
Baldwin, J., concur
[Cite as Keene v. Duke, 2022-Ohio-2321.]