[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 Wayne County Court 

of Common Pleas. This Court reverses and remands for further consideration. 

I. 

{¶2} On August 27, 2020, Appellee-Petitioner K.T. filed a petition for a civil stalking 

protection order against her neighbor, J.S., pursuant to R.C. 2903.214. 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 order and set the matter for a full hearing. 

{¶3} After two continuances were granted at J.S.’s request, a full hearing on K.T.’s 

petition was held on November 13, 2020, before a magistrate. Both parties appeared and were 

represented by counsel. The magistrate issued a decision on November 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 stalking protection [order] to ensure the safety and protection of 
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[K.T.] and her minor children.” The trial court reviewed and adopted the magistrate’s decision 

the same day. 

{¶4} On November 24, 2020, J.S. timely filed an objection to the magistrate’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 completion of the requested transcript of 

November 13, 2020 * * *, counsel for [J.S.] will file a more specific 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 filing of the transcript, he would have ten days to submit a 

memorandum in support of his objection. The order also indicated that K.T. would have ten 

days to respond to J.S.’s objection, and then the court would rule 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 December 22, 2020, the trial court 

overruled J.S.’s objection on the basis that J.S. failed to make any specific objection pursuant to 

Civ.R. 53. In so doing, the trial court 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 review. This Court 

elects to begin with the third assignment of error as it is dispositive of this appeal. 
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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 court erred in overruling 

his objection. For the following reasons, we agree. 

The trial court applied the incorrect standard in denying J.S.’s objection. 

{¶8} Civ.R. 65.1 of the Ohio Rules of Civil Procedure applies to “special statutory 

proceedings under R.C. 3113.31, R.C. 2151.34, and R.C. 2903.214 providing for domestic 

violence, stalking, and sexually oriented offense civil protection orders.” Civ.R. 65.1(A). The 

rule specifically states that the provisions of the rule “shall * * * supersede and make 

inapplicable in such proceedings the provisions of any other rules of civil procedure to the extent 

that such application is inconsistent with other provisions of this rule.” Id. Further, Civ.R. 

65.1(3)(c)(iv) explicitly states “[a] court’s adoption, modification, or rejection of a magistrate’s 

denial or granting of a protection order after a full hearing under 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 govern the issuance of civil stalking 

protection orders, and such orders are not subject to the requirements set forth in Civ.R. 53. 

{¶9} Here, the text of the trial court’s order denying J.S.’s objection to the magistrate’s 

decision regarding the civil stalking protection order shows that the trial court incorrectly 

analyzed J.S.’s objection pursuant to the standard contained in Civ.R. 53, rather than Civ.R. 65.1. 

The trial court’s order states: 
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Concerning objections, Ohio Rule of Civil Procedure 53(D)(3), in pertinent part 

states: * * * Specificity of objection. An objection to a magistrate’s decision shall 

be specific and state with particularity all grounds for objection. The lack of 

transcript does not prevent counsel from filing a specific objection which is 

required by rule. Because the objection is not specific, the objection is overruled. 

(Emphasis added.) Civ.R. 53 and 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.” Civ.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 other defect is evident on the face of 

the order, or that the credible evidence of record is insufficient to support the granting or denial 

of the protection order, or that the magistrate abused the magistrate’s discretion in including or 

failing to include specific terms in the protection order.” 

{¶10} This Court previously found harmless error where the trial court 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 distinguishable from T.M. because, in T.M., 

although the trial court incorrectly cited to Civ.R. 53, it nonetheless applied the correct standard 

found in Civ.R. 65.1. Id. In this case, there is no evidence 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 in denying J.S. the opportunity to file 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) days 
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from the date objecting party’s counsel filed his brief to respond. The Court will 

then rule on the objections without an oral hearing. 

(Emphasis added.) Subsequently, the transcript was filed on December 14, 2020. Under the 

terms of the trial court’s own order, J.S. had until December 24, 2020, to file a memorandum in 

support of his objection. For reasons unknown, the trial court proceeded to rule on J.S.’s 

objection prematurely, issuing an order denying J.S.’s objection 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 trial 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 court was required to refrain 

from ruling until the end of court-ordered time period.). See also Bank of New York v. Brunson, 

9th Dist. Summit No. 25118, 2010-Ohio-3978, ¶ 10 (Premature ruling 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 prematurely ruling without giving 

appellant reasonable opportunity to respond.). 

{¶12} We note that this Court is not taking a position as to the sufficiency 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 assignment of error is well taken. 

{¶13} Accordingly, J.S.’s third assignment 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. 
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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. argues that the trial 

court’s grant of the protection order to K.T. is both based on insufficient evidence and against the 

manifest weight of the evidence. Because this matter must be remanded for further proceedings, 

the arguments presented in the first, second, and fourth assignments of error are premature. We, 

therefore, decline to address them. 

III. 

{¶15} J.S.’s third assignment of error is sustained. Because his first, second, and fourth 

assignments of error are premature, this Court declines to address them. The judgment of the 

Wayne County Court of Common Pleas is reversed, and the cause is 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, directing the Court of Common 

Pleas, County of Wayne, 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. 
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 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 

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. 

 No costs are taxed. 

 

 BETTY SUTTON 

 FOR THE COURT 

HENSAL, P. J. 

CALLAHAN, J. 

CONCUR. 

APPEARANCES: 

JAMES W. ARMSTRONG, Attorney at Law, for Appellant. 

MICHAEL G. BUYTENDYK, Attorney at Law, for Appellee.