[Cite as K.T. v. J.S. , 2021-Ohio-4350.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

K. T. Appellee

v. J. S. Appellant C.A. No. 21AP0004

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2020 CVC-C 000278

DECISION AND JOURNAL ENTRY Dated: December 13, 2021

SUTTON, Judge. {¶1} Appellant-Respondent J.S. appeals from the judgment of the Wayn e County Court

of Common Pleas. This Court reve rses and remands for further c onsideration.

I. {¶2} On August 27, 2020, Appellee-Petiti oner K.T. filed a petition f or a civil stalking protection order against her ne ighbor, J.S., pursuant to R.C. 2 903.214. Under this petition, K.T. sought protection for both herself and her three children. The trial court granted K.T.’s request for an ex parte protection orde r and set the matter for a full hearing. {¶3} After two continuances were gran ted at J.S.’s request, a full h earing on K.T.’s petition was held on November 13, 2020, before a magistrate. B oth parties appeared and were represented by counsel. The mag istrate issued a decision on No vember 18, 2020, concluding that as a result of the testimony and evidence presented at the full hearing, “the preponderance of

the evidence mandates a civil st alking protection [order] to en sure the safety and protection of2

[K.T.] and her minor children.” The trial court reviewed and a dopted the magistrate’s decision the same day. {¶4} On November 24, 2020, J.S. timely f iled an objection to the mag istrate’s decision and the trial court’s adoption of the same. In his objection, J.S. did not state any factual or legal basis for objecting, but instead indicated that “[u]pon complet ion of the requested transcript of November 13, 2020 * * *, counsel f or [J.S.] will file a more sp ecific objection.” The following day, the trial court issued an order requiring J.S. to submit a deposit to the court reporter for preparation of the transcript of the November 13, 2020 hearing. In that order, the trial court also

informed J.S. that after the fili ng of the transcript, he would have ten days to submit a memorandum in support of his obj ection. The order also indicat ed that K.T. would have ten days to respond to J.S.’s objecti on, and then the court would r ule on J.S.’s objection without a hearing. {¶5} On December 14, 2020, a copy of the transcript of the November 13, 2020 hearing was filed with the trial court. Eight days later, on D ecember 22, 2020, the trial court overruled J.S.’s objection on the basis that J.S. failed to mak e any specific objection pursuant to Civ.R. 53. In so doing, the trial c ourt stated “[t]he lack of a transcript does not prevent counsel from filing a specific objection which is required by the rule. Because the objection is not specific, the objection is overruled.” The trial court did not address why it ruled on J.S.’s objection two days prematurely. {¶6} J.S. timely appealed asserting four assignments of error for re view. This Court elects to begin with the third a ssignment of error as it is dis positive of this appeal.3

II.

ASSIGNMENT OF ERROR III THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, ABUSING ITS DISCRETION WHEN IT UPHELD THE MAGISTRATE’S DECISION AND DISMISSED [J.S.]’S OBJECTION WITHOUT ALLOWING HIM TO SUPPLEMENT WITH THE TRANSCRIPT, WITHOUT HAVING REVIEWED THE TRANSCRIPT, AND NOT CONDUCTING AN INDEPENDENT REVIEW OF THE RECORD. {¶7} In his third assignment of error, J.S. argues that the trial co urt erred in overruling his objection. For the following reasons, we agree. The trial court applied the in correct standard in denying J.S.’ s objection. {¶8} Civ.R. 65.1 of the Ohio Rules of C ivil Procedure applies to “sp ecial statutory proceedings under R.C. 3113.31, R.C. 2151.34, and R.C. 2903.214 providing for domestic violence, stalking, and sexually o riented offense civil protect ion orders.” Civ.R. 65.1(A). The rule specifically states that the provisions of the rule “shall * * * supersede and make inapplicable in such proceedi ngs the provisions of any other ru les of civil procedure to the extent that such application is incons istent with other provisions of this rule.” Id . Further, Civ.R. 65.1(3)(c)(iv) explicitly states “[ a] court’s adoption, modific ation, or rejection of a magistrate’s denial or granting of a protecti on order after a full hearing u nder this division does not constitute a judgment or interim order under Civ.R. 53(D)(4)(e) and is not subject to the requirements of that rule.” As such, the procedures contained in Civ.R. 65.1 g overn the issuance of civil stalking protection orders, and such orders are not subject to the requi rements set forth in Civ.R. 53. {¶9} Here, the text of the trial c ourt’s order denying J.S.’s object ion to the magistrate’s decision regarding the civil stalking protection order shows th at the trial court incorrectly analyzed J.S.’s objection pursuan t to the standard contained in Civ.R. 53, rather than Civ.R. 65.1.

The trial court’s order states:4

Concerning objections, Ohio Rule of Civil Procedure 53(D)(3) , in pertinent part states: * * * Specificity of obj ection. An objection to a magi strate’s decision shall be specific and state with par ticularity all grounds for object ion. The lack of transcript does not prevent couns el from filing a specific obje ction which is required by rule. Because the objection is not specific, the objection is overruled. (Emphasis added.) Civ.R. 53 a nd Civ.R. 65.1 contain different standards for objections. Civ.R. 53 states: “[a]n objection to a magistrate’s decision shall be specific and state with particularity all grounds for objection.” Ci v.R. 65.1(3)(d)(iii) states: “[a ] party filing objections under this division has the burden of showing that an error of law or othe r defect is evident on the face of the order, or that the credible evidence of record is insuffici ent to support the granting or denial of the protection order, or that the magistrate abused the magi strate’s discretion in including or failing to include specific term s in the protection order.” {¶10} This Court previously found har mless error where the trial cour t cited to Civ.R. 53 but Civ.R. 65.1 was the appropriate standard. T.M. v. R.H. , 9th Dist. Summit No. 29556, 2020-Ohio-3013, ¶ 11. However, the present case is distinguish able from T.M. because, in T.M ., although the trial court incorre ctly cited to Civ.R. 53, it non etheless applied the correct standard

found in Civ.R. 65.1. Id . In this case, there is no evid ence in this record to suggest the trial court actually applied the correct standard, as found in Civ.R. 65.1.

The trial court also erred i n denying J.S. the opportunity to f ile a memorandum in support of his objection. {¶11} J.S. filed his objection on November 24, 2020. In response to the filing of the objection, the trial court issued an order on November 25, 2020 , instructing J.S. to submit a deposit to the court reporter for preparation of a transcript. The order also contained the following language: After the transcript of hearing is filed, [J.S.] shall have ten (10) days from the date of filing to submit a memorandum ; opposing counsel shall have ten (10) days5

from the date objecting party’s counsel filed his brief to resp ond. The Court will then rule on the objections without an oral hearing. (Emphasis added.) Subsequently, the transcript was filed on De cember 14, 2020. Under the terms of the trial court’s own order, J.S. had until December 2 4, 2020, to file a memorandum in support of his objection. For r easons unknown, the trial court proceeded to rule on J.S.’s objection prematurely, issuing an order denying J.S.’s objectio n on December 22, 2020. Thus, J.S. was denied the opportunity to file a memorandum in support of his objection within ten days as provided for in the trial court’s own order. As such, the t rial court erred in rendering a premature judgment on J.S.’s objection. See Ohio Bar Liab. Ins. Co. v. Hunt , 2d Dist. Montgomery Nos. 19320, 19321, 2003-Ohio-1381, ¶ 35-36 (Trial co urt was required to refrain from ruling until the end of c ourt-ordered time period.). See also Bank of New York v. Brunson , 9th Dist. Summit No. 25118, 2010-Ohio-3978, ¶ 10 (Premature rul ing by trial court denied appellant opportunity to be heard.); U.S. Bank National Association v. Harper , 9th Dist. Lorain No. 19CA011499, 2020-Ohio-4674, ¶ 29 (Trial court erred in prem aturely ruling without giving appellant reasonable opportunity to respond.). {¶12} We note that this Court is not taking a position as to the suff iciency of J.S.’s objection. But, because the trial court failed to analyze J.S. ’s objection under the appropriate

standard set forth in Civ.R. 65.1 and also prematurely ruled on J.S.’s objection in contravention to its own order, J.S.’s third a ssignment of error is well take n. {¶13} Accordingly, J.S.’s third assi gnment of error is sustained.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING A CIVIL PROTECTION ORDER AGAINST [J.S.] WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN SUCH A DECISION.6

ASSIGNMENT OF ERROR II THE GRANTING OF A CIVIL PROTECTION ORDER AGAINST [J.S.] WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING RELIEF TO [K.T.] WHO INSTIGATED THE INCIDENT WITH [J.S.]. {¶14} In his first, second, and fourth assignments of error, J.S. arg ues that the trial court’s grant of the protec tion order to K.T. is both based on insufficient evidence and against the manifest weight of the evidence. Because this matter must be r emanded for further proceedings, the arguments presented in the first, second, and fourth assign ments of error are premature. We, therefore, decline to address them.

III. {¶15} J.S.’s third assignment of error is sustained. Because his fir st, second, and fourth assignments of error are premature, this Court declines to addr ess them. The judgment of the Wayne County Court of Common Pleas is reversed, and the cause i s remanded for further proceedings consistent with this decision. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment i nto execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.7

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t 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 instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30.

No costs are taxed.

B ETTY SUTTON FOR THE COURT

HENSAL, P. J. CALLAHAN, J. CONCUR.

APPEARANCES: JAMES W. ARMSTRONG, Attorn ey at Law, for Appellant. MICHAEL G. BUYTENDYK, Attorney at Law, for Appellee.