E.H. v. T.S.

2015 Ohio 5444

• Court: Ohio Court of Appeals
• Decided: December 28, 2015
• Docket: 6-15-07
• Status: Published

Opinion

[Cite as E.H. v. T.S., 2015-Ohio-5444.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

E.H., CASE NO. 6-15-07 PETITIONER-APPELLEE,

v.

T.S., OPINION

RESPONDENT-APPELLANT.

Appeal from Hardin County Common Pleas Court Juvenile Division Trial Court No. MS 20152001

Judgment Reversed

Date of Decision: December 28, 2015

APPEARANCES:

Rocky Ratliff for Appellant Case No. 6-15-07

WILLAMOWSKI, J.

{¶1} T.S. (“Respondent”) brings this appeal from the judgment of the

Hardin County Court of Common Pleas, Juvenile Division granting a civil

protection order (“CPO”) to E.H. (“Petitioner”). For the reasons set forth below,

the judgment of the trial court is reversed.

{¶2} This case arises from an incident on May 21, 2015. Doc. 14. Two

middle school students were arguing and began pushing and shoving each other.

Petitioner alleged that Respondent swung a glass bottle at her, but missed. The

bell rang and the two students went to class and interacted at their lockers without

further incident. The next week on May 26, 2015, Petitioner, through her mother,

filed a petition for a juvenile CPO requesting that Respondent be ordered to stay at

least ten feet away from petitioner at all times. Doc. 1. An emergency ex parte

hearing was held that same day and the CPO was granted. Petitioner was told that

a tentative full hearing date was set for June 5, but was informed that the final date

would be sent to her. Ex Parte Hearing Tr. 9. The reason for the tentative date

was that the judge did not have his calendar with him and informed Petitioner he

would need to check the calendar before setting a hearing date. Id. Petitioner

indicated that she understood this at that time. Id. That same date, the CPO was

served on Petitioner and stated that the full hearing would be held on June 3, 2015,

at 8:30 a.m. Doc. 2. According to the return of service, the CPO was personally

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handed to Petitioner and her mother on May 26, 2015. Doc. 4. Thus, Petitioner

received actual notice of the full hearing date.

{¶3} On June 3, 2015, the hearing commenced at 8:30 as scheduled with all

parties and witnesses present except for Petitioner. Appellant’s Brief, 20. The

trial court then entered a judgment entry indicating that due to Petitioner’s failure

to appear at the full hearing, the petition was dismissed. Doc. 8. No conditions

were placed upon the dismissal and it was filed in the docket on June 3, 2015. Id.

Two days later, the trial court sua sponte reversed the dismissal order claiming it

was “done in error” without any explanation as to what the error was. Doc. 9. A

full hearing was then held on June 16, 2015. The trial court granted the CPO.

Doc. 14. Respondent filed a notice of appeal and on appeal raises the following

assignments of error.

First Assignment of Error

The trial court did not have sufficient evidence to show that (1) [Respondent] committed the offense of Menacing pursuant to R.C. 2903.22 and (2) that [Petitioner] was at risk of future harm from [Respondent], and thus, there was insufficient evidence to grant the [CPO] protecting [Petitioner] from [Respondent].

Second Assignment of Error

The trial court’s granting of a juvenile [CPO] protecting [Petitioner] from [Respondent] was against the manifest weight of the evidence that (1) [Respondent] committed the offense of Menacing pursuant to R.C. 2903.22 and (2) that [Petitioner] was at risk of future harm from [Respondent].

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Third Assignment of Error

The trial court dismissed the petition for [CPO] for failing to attend the scheduled final hearing, and did not have jurisdiction to reopen the case and proceed to final hearing.

Fourth Assignment of Error

The trial court erred by asking witnesses questions on behalf of the Petitioner.

This court notes that Petitioner did not file a brief on appeal.

{¶4} As the third assignment of error is jurisdictional, we will address it

first. In the third assignment of error, Respondent claims that the trial court erred

by sua sponte reopening the case after the petition was dismissed. The Supreme

Court of Ohio has routinely held that “when a trial court unconditionally dismisses

* * * the trial court patently and unambiguously lacks jurisdiction to proceed, and

a writ of prohibition will issue to prevent the exercise of jurisdiction.” Paige v.

Riley, 85 Ohio St.3d 621, 623, 710 N.E.2d 690 (1999). See also State ex rel.

Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771 N.E.2d 853 and Infine

Security Solutions, L.L.C. v. Karam Properties II, LTD., 143 OhioSt.3d 346, 2015-

Ohio-1101, 37 N.E.2d 3d 1211.

{¶5} Here, the trial court sua sponte decided to reopen a case that was

unconditionally dismissed. No motion pursuant to Civil Rule 60(B) and no new

petition was filed by Petitioner. The trial court alleged that it reopened the case to

correct an error, but a review of the record does not reveal any error by the court.

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Petitioner was given actual notice of the hearing day, just like the Respondent.

The only error was that of Petitioner not appearing at the full hearing.

Additionally, the record reveals no request by Petitioner for the case to be

reopened. The trial court “patently and unambiguously” lacked jurisdiction to sua

sponte reopen the case. Because the trial court lacked jurisdiction to reopen the

case, any further judgments after the dismissal were null and void. The third

assignment of error is therefore sustained.

{¶6} Having determined that the trial court lacked jurisdiction to sua sponte

reopen the case after unconditionally dismissing it, the trial court had no authority

to hold a new hearing or issue the CPO. The judgment granting the CPO is null

and void. Thus, the remaining assignments of error are moot and need not be

addressed by this court. App.R. 12(A)(1)(c).

{¶7} Accordingly, for the aforementioned reasons, it is the order of this

Court that the Judgment Entry of the Court of Common Pleas of Hardin County,

Juvenile Division is reversed and remanded to the trial court with instruction to

vacate the CPO issued on June 30, 2015.

ROGERS, P.J. and SHAW, J., concur.

/hlo

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