[Cite as Sullivan v. Willhoite, 2018-Ohio-4234.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 BRENDAN SULLIVAN                                       :
                                                        :
          Plaintiff-Appellant                           :   Appellate Case No. 27968
                                                        :
 v.                                                     :   Trial Court Case No. 2017-CV-4704
                                                        :
 JASON WILLHOITE                                        :   (Civil Appeal from
                                                        :   Common Pleas Court)
          Defendant-Appellee                            :
                                                        :

                                                   ...........

                                                   OPINION

                            Rendered on the 19th day of October, 2018.

                                                   ...........

BRENDAN SULLIVAN, 1199 Durham Drive, Centerville, Ohio 45459
    Plaintiff-Appellant, Pro Se

JASON WILLHOITE, 2862 Acosta Street, Kettering, Ohio 45429
     Defendant-Appellee, Pro Se

                                              .............




WELBAUM, P.J.
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       {¶ 1} This matter is before the court on the pro se appeal of Brendan Sullivan from

an order denying Sullivan’s request for a civil stalking protection order against Jason

Willhoite. Sullivan is also appealing from the trial court’s denial of his request for a

“mistake in fact” hearing.

       {¶ 2} Sullivan presents three “issues for review,” which include the trial court’s

alleged abuse of discretion in “discarding facts” to elude the statutory requirements in

R.C. 2903.214, and the court’s alleged abuse of discretion in applying a standard of

clear and convincing evidence to the case. In addition, Sullivan argues that the trial court

erred in denying a protection order after he established multiple instances of intentional

harm and emotional distress.

       {¶ 3} We conclude that the trial court did not abuse its discretion in denying

Sullivan’s petition for a civil stalking protection order. Our ability to review Sullivan’s

arguments is limited because he failed to file a transcript of the full civil protection order

hearing. As a result, the regularity of the proceedings below is presumed, and the limited

record for review does not affirmatively demonstrate error. In addition, the trial court did

not use an incorrect burden of proof in deciding the issues. Accordingly, the judgment

of the trial court will be affirmed.



                                I. Facts and Course of Proceedings

       {¶ 4} In October 2017, Sullivan filed a pro se petition for a civil stalking protection

order (“CPO”) against Willhoite. Included in the request were other family and household

members, including Sullivan’s girlfriend, an autistic adult, and two minor children.    After
                                                                                            -3-


an ex parte hearing, the trial court denied Sullivan’s request for an emergency order and

set a full civil protection hearing for late October 2017.

       {¶ 5} An attorney entered an appearance for Sullivan the day before the hearing,

and the matter was continued until late November 2017. At Willhoite’s request, the

matter was again continued, due to pending criminal charges in Kettering Municipal Court.

The trial court indicated it would not set a hearing date until the criminal case had reached

disposition. Subsequently, the trial court set a full civil protection hearing for February

2018, and then continued the hearing until March 15, 2018.

       {¶ 6} After hearing the testimony of both parties, the magistrate concluded that

Sullivan failed to establish that Willhoite had engaged in two or more incidents that would

have caused Sullivan to reasonably fear physical harm or emotional distress.              The

magistrate, therefore, denied the request for a CPO, and on March 29, 2018, the trial

court filed a judgment, pursuant to Civ.R. 65.1, adopting the magistrate’s order.

       {¶ 7} The trial court’s judgment notified Sullivan that it was a final appealable order.

However, on April 11, 2018, Sullivan filed a pro se request for a “mistake in fact” hearing.

In the request, Sullivan alleged that more than one incident had occurred, and alleged

that Willhoite had been untruthful in his testimony.         After the trial court denied the

request, Sullivan timely appealed from both decisions.



                      II. Alleged Abuse of Discretion in “Discarding Facts”

       {¶ 8} Sullivan’s First “Issue for Review” states:

              Did the Common Pleas Court Abuse Its Discretion by Discarding

       Facts to Allude [sic] the Statute [sic] Requirements of R.C. 2903.214?
                                                                                          -4-


       {¶ 9} Under this issue, Sullivan contends that the trial court erred in failing to

consider various facts, like an incident that allegedly occurred on November 5, 2017, after

the petition for a CPO was filed.

       {¶ 10} Before considering this point, we note that both parties are proceeding pro

se. “Litigants who choose to proceed pro se are presumed to know the law and correct

procedure, and are held to the same standards as other litigants.” Yocum v. Means, 2d

Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20.             Unfortunately, various procedural

requirements have not been observed.

       {¶ 11} As an initial matter, both parties’ appellate briefs refer to facts outside the

record. Under well-established law, appellate courts are limited to the record before the

trial court and cannot consider documents or matters that are not in the record. E.g.,

Chase Manhattan Mfg. Corp. v. Locker, 2d Dist. Montgomery No. 19904, 2003-Ohio-

6665, ¶ 10; Kahler v. Eytcheson, 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶ 23.

       {¶ 12} Sullivan also had a duty under App.R. 9(B) to provide a transcript of the

proceedings before the trial court. However, he failed to do so. Without a transcript of

the proceedings or a proper substitute, “we cannot speculate what the testimony was at

trial, and we are constrained to presume the regularity of the proceedings below unless

the limited record for our review affirmatively demonstrates error.” Albritton v. White, 2d

Dist. Montgomery No. 24027, 2011-Ohio-3499, ¶ 15, citing Banks v. Regan, 2d Dist.

Montgomery No. 21929, 2008-Ohio-188, ¶ 2.

       {¶ 13} With this limited ability to review in mind, we will discuss Sullivan’s first

issue, which alleges that the trial court failed to consider relevant facts in denying the

request for a CPO.
                                                                                        -5-


       {¶ 14} Under R.C. 2903.214(C)(1), a person may file a petition for injunctive relief

against another individual who has allegedly violated R.C. 2903.211 with respect to the

petitioner. Howard v. Wilson, 186 Ohio App.3d 521, 2010-Ohio-1125, 928 N.E.2d 1180,

¶ 10 (2d Dist.). The statute in question involves “Menacing by Stalking,” and provides,

in pertinent part, that:

               No person by engaging in a pattern of conduct shall knowingly cause

       another person to believe that the offender will cause physical harm to the

       other person or a family or household member of the other person or cause

       mental distress to the other person or a family or household member of the

       other person.

R.C. 2903.211(A)(1).

       {¶ 15} In deciding if a CPO order should have been issued under R.C. 2903.214,

we decide “whether the petitioner proved by a preponderance of the evidence that the

respondent engaged in conduct constituting menacing by stalking.”              Hudnell v.

Blackshear, 2d Dist. Montgomery No. 27221, 2017-Ohio-2680, ¶ 7. See also Felton v.

Felton, 79 Ohio St.3d 34, 42, 679 N.E.2d 672 (1997) (finding that a preponderance of the

evidence standard is applied to issuance of protection orders).

       {¶ 16} Here, the trial court concluded that Sullivan failed to establish that there

were two or more incidents that would cause Sullivan to reasonably fear physical harm or

mental distress. In view of the limited facts of record before us, we cannot conclude that

the record affirmatively demonstrates error. The trial court decision notes Sullivan’s

allegations and Willhoite’s denial of the allegations, other than one incident during which

Willhoite called the police about an open-air fire at Sullivan’s home.          Doc. #15,
                                                                                         -6-


Magistrate’s Decision, p. 3. Clearly, the trial court did not find Sullivan credible.

       {¶ 17} We defer to trial court decisions on credibility. L.L.L. v. Junies, 2d Dist.

Greene No. 2013 CA 31, 2014-Ohio-141, ¶ 15. The rationale for this is that “the trial

judge is best able to view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered

testimony.” Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273 (1984).

       {¶ 18} Based on the preceding discussion, Sullivan’s First “Issue for Review” is

overruled.



               III. Alleged Abuse of Discretion in Applying the Standard of Review

       {¶ 19} Sullivan’s Second “Issue for Review” states:

               Did the Common Pleas Court Abuse it[s] Discretion When It Applied

       the Clear and Convincing Standard When Ohio Law Only Requires a

       Preponderance?

       {¶ 20} Under this issue, Sullivan does not refer to any place where the trial court

used a clear and convincing standard of proof; instead, his contention is that he presented

the court with “a clear and convincing preponderance of the evidence that was omitted

from the court[’]s record of finding.” Appellant’s Brief, p. 8. Sullivan does contend in his

reply brief that the court applied the wrong standard, but he fails to point to any part of

the decision which recited the wrong standard. See Appellant’s Reply Brief, p. 5.

       {¶ 21} As was noted, the trial court apparently did not find Sullivan’s testimony

convincing.    In addition, the court specifically stated that the burden of proof is
                                                                                         -7-


preponderance of the evidence. Doc. #15, Magistrate’s Decision, at p. 3. We observed

above that this is the appropriate standard. Hudnell, 2d Dist. Montgomery No. 27221,

2017-Ohio-2680, at ¶ 7. Accordingly, the Second “Issue for Review” is overruled.



                                IV. Alleged Deprivation of CPO

       {¶ 22} Sullivan’s Third “Issue for Review” states:

              Did the District Court Deprive Brendan Sullivan Appropriate Civil

       Protections Against Jason Willhoite After Demonstrating to the Common

       Pleas Court After [sic] Multiple Instances to Cause Intentional Harm and

       Mental Duress?

       {¶ 23} In his briefs, Sullivan has not separately discussed any of his “issues.”

Instead, he has combined his discussion in a “summary argument.” This was another

procedural deficiency, as App.R. 16(A)(7) requires an appellant to include “an argument

containing the contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with citations to the

authorities, statutes, and parts of the record on which appellant relies.”

       {¶ 24} Sullivan’s third issue simply rehashes the contentions made in the first issue

for review. However, we have rejected those arguments. Accordingly, the third “Issue

for Review” lacks merit and is overruled.

       {¶ 25} As a final matter, Sullivan has not addressed the trial court’s denial of his

request for a “mistake in fact” hearing, which was filed post-judgment. We interpret the

request for a “mistake in fact” hearing as a motion for reconsideration of the court’s

judgment denying the CPO. However, the Supreme Court of Ohio long ago held that
                                                                                       -8-


“[t]he Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after a

final judgment in the trial court.” Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 423

N.E.2d 1105 (1981), paragraph one of the syllabus.         Such motions, therefore, are

“considered a nullity.” Id. at 380.



                                        V. Conclusion

       {¶ 26} All of Sullivan’s “Issues for Review” having been overruled, the judgment of

the trial court is affirmed.

                                      .............



FROELICH, J. and TUCKER, J., concur.



Copies sent to:

Brendan Sullivan
Jason Willhoite
Hon. Mary Katherine Huffman
