[Cite as J.P. v. T.H., 2017-Ohio-233.]


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

J.P.                                                  C.A. No.       15CA010897

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
T.H.                                                  COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   15CV185623

                                  DECISION AND JOURNAL ENTRY

Dated: January 23, 2017



        WHITMORE, Presiding Judge.

        {¶1}     Plaintiff-Appellant, J.P., appeals the judgment of the Lorain County Court of

Common Pleas granting summary judgment in favor of Defendant-Appellee, T.H. For the

reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.

                                                 I.

        {¶2}     This is the second appeal J.P. has filed involving a dispute that he had with his

neighbor, T.H., on June 22, 2014.         In a prior appeal, J.P. v. T.H., 9th Dist. Lorain No.

14CA010715, 2016-Ohio-243, this Court set forth the basic underlying factual history as

follows:

        J.P. and T.H. are neighbors in a townhouse development that includes a skate park
        located near J.P.’s residence. J.P. has actively been trying to close the skate park
        due to alleged “chronic nuisance conditions, including crime[.]” As part of his
        campaign to shut down the skate park, J.P. has confronted, videotaped, and called
        the police on a number of the park’s patrons.

        J.P. asserts that beginning in the spring of 2014, T.H. “began a campaign of
        retaliation” against him due to his opposition to the skate park. According to J.P.,
                                                2


       this campaign has included T.H. stalking and harassing him on a variety of
       occasions. J.P. accused T.H. of mailing him an anonymous letter that contained
       derogatory and threatening language. The letter also instructed J.P. to move out
       of the neighborhood for the betterment of the community. T.H. has denied
       sending the letter and he also disclaimed an interest in the development’s skate
       park.

       On the evening of June 22, 2014, T.H. was riding his bicycle down the street
       towards his home, returning from the development’s community swimming pool.
       T.H. was forced to pass J.P.’s residence in order to get to his own home. As T.H.
       passed J.P.’s residence, J.P. yelled out that he was not intimidated by T.H. A
       physical altercation then ensued. J.P. claims that T.H. came onto his driveway,
       knocked a video camera out of his hand, and struck him in the head.
       Alternatively, T.H. and another neighbor who witnessed the altercation both
       assert that J.P. approached T.H. near the street and slapped him numerous times.
       It is undisputed that J.P. subsequently withdrew a firearm that had been concealed
       on his person and briefly aimed it at T.H. Upon seeing the firearm, T.H. and the
       neighbor immediately retreated and called the police. As a result of this
       altercation, the police placed T.H. under arrest.

Id. at ¶ 2-4. J.P. subsequently petitioned for and received an ex parte civil protection order

against T.H. Id. at ¶ 5. However, the trial court denied J.P.’s petition for a permanent protection

order against T.H. following a two-day evidentiary hearing on J.P.’s petition. Id. at ¶ 6. This

Court ultimately affirmed the trial court’s denial of J.P.’s petition for a permanent protection

order against T.H. Id. at ¶ 37.

       {¶3}    On February 6, 2015, while J.P.’s civil protection order case was still being

litigated, J.P. filed a complaint for money damages against T.H. in the Lorain County Court of

Common Pleas, wherein J.P. pleaded causes of action for assault, battery, invasion of privacy,

and defamation stemming from T.H.’s alleged actions during the June 22, 2014 altercation. T.H.

failed to file a timely responsive pleading or otherwise appear in the matter. Consequently, J.P.

filed a motion for default judgment pursuant to Civ.R. 55(A). However, on March 30, 2015, the

trial court instructed J.P. to properly serve T.H. with his motion for default judgment, as well as

to supplement his motion with an affidavit in support of damages and a military affidavit. On
                                                  3


April 10, 2015, upon receiving a copy of the March 30, 2015 order from the trial court, T.H. filed

an answer denying the allegations set forth in J.P.’s complaint, which was attached to a motion

for leave to file an answer instanter. T.H. also filed a brief in opposition to J.P.’s motion for

default judgment. J.P. thereafter filed written objections to the trial court’s March 30, 2015

order, as well as an opposition brief to both T.H.’s motion for leave to file an answer instanter

and brief in opposition to J.P.’s motion for default judgment. On April 17, 2015, the trial court

granted T.H.’s motion for leave to file an answer instanter and accepted T.H.’s answer. The trial

court also summarily denied J.P.’s motion for default judgment and dismissed J.P.’s objections

to its March 30, 2015 order as moot. The trial court subsequently denied J.P.’s motion for leave

to file a reply instanter in response to T.H.’s brief in opposition to J.P.’s motion for default

judgment.

       {¶4}    On June 29, 2015, J.P. filed an ex parte motion for a temporary restraining order

(T.R.O.) against T.H. and T.H.’s daughter, M.H., on the basis that they were stalking, menacing,

and/or harassing him and his brother. The trial court summarily denied J.P.’s ex parte motion for

a T.R.O. and request for an oral hearing. On August 21, 2015, J.P. filed an amended complaint

attached to a motion to amend complaint instanter, wherein J.P. sought to add M.H. as a

defendant to the lawsuit, as well as additional claims. The trial court summarily denied J.P.’s

motion to amend his complaint.

       {¶5}    On November 6, 2015, T.H. filed a motion for summary judgment. J.P. filed a

brief in opposition to T.H.’s summary judgment motion, to which T.H. filed a reply brief in

response to J.P.’s opposition brief. On December 17, 2015, the trial court granted summary

judgment in favor of T.H. on the basis that all of J.P.’s claims are barred by the doctrine of res

judicata since “these matters have been resolved as a result of earlier litigation.”
                                                  4


        {¶6}   J.P. filed this timely appeal and raises eight assignments of error for this Court’s

review. To facilitate our analysis, we elect to address some of J.P.’s assignments of error

together.

                                                  II.

                                   ASSIGNMENT OF ERROR I

        THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
        ABUSED ITS DISCRETION IN ISSUING ITS MARCH 30, 2015 JOURNAL
        ENTRY, INCLUDING ORDERING [J.P.] TO FILE A DAMAGES AFFIDAVIT
        AND A MILITARY AFFIDAVIT AND TO SERVE THE AFFIDAVITS AND
        [J.P.]’S MOTION FOR DEFAULT JUDGMENT ON [T.H.].

        {¶7}   In his first assignment of error, J.P. argues that the trial court erred by issuing its

March 30, 2015 journal entry ordering him to supplement his motion for default judgment with a

military affidavit and an affidavit in support of damages, as well as ordering him to serve T.H.

with said affidavits and a copy of his motion for default judgment. We disagree.

        {¶8}   Civ.R. 55(A), which governs the entry of default judgments, states in pertinent

part:

        When a party against whom a judgment for affirmative relief is sought has failed
        to plead or otherwise defend as provided by these rules, the party entitled to a
        judgment by default shall apply in writing or orally to the court therefore[.] * * *
        If, in order to enable the court to enter judgment or to carry it into effect, it is
        necessary to take an account or to determine the amount of damages or to
        establish the truth of any averment by evidence or to make an investigation of any
        other matter, the court may conduct such hearings or order such references as it
        deems necessary and proper and shall when applicable accord a right of trial by
        jury to the parties.

“Proof of damages is not required before a default judgment can be granted in an action filed

upon a liquidated damage claim based upon an account. However, when the judgment is not

liquidated, or only partially liquidated, it is reversible error for the trial court to enter a default

judgment without holding a hearing on the damages issue.” (Citations omitted.) Hull v. Clem
                                                 5


D’s Auto Sales, 2d Dist. Darke No. 2011 CA 6, 2012-Ohio-629, ¶ 7, quoting Mid-American

Acceptance Co. v. Reedy, 11th Dist. Lake No. 89-L-14-072, 1990 WL 94816, *2 (June 29, 1990).

This rule is derived from Civ.R. 8(D), which states in part that “[a]vertments in a pleading to

which a responsive pleading is required, other than those as to the amount of damage, are

admitted when not denied in the responsive pleading.” (Emphasis added.)

       {¶9}    Here, it is undisputed that T.H. did not file a timely responsive pleading or

otherwise appear in this matter prior to J.P. filing his motion for default judgment. On March 30,

2015, without ruling on J.P.’s motion for default, the trial court ordered J.P. to file a military

affidavit and an affidavit in support of damages, and further ordered J.P. to serve T.H. with these

affidavits along with a copy of his motion for default judgment. On appeal, J.P. contends that he

was entitled to a default judgment and that the orders contained within the trial court’s March 30,

2015 journal entry were improper.

       {¶10} A review of J.P.’s complaint indicates that J.P.’s prayer for relief included a

request for compensatory and punitive damages on each cause of action “in an amount to be

determined by the jury at trial, but in excess of $75,000.00 total[.]” However, nothing within

J.P.’s complaint or motion for default judgment, and no other filing within the record,

specifically details the amount of damages that J.P. actually suffered as a result of T.H.’s

allegedly tortious conduct. Thus, because the amount of damages pled within J.P.’s complaint is

not liquidated, the trial court was unable to enter a default judgment without first ascertaining the

true nature of J.P.’s damages.

       {¶11} However, nothing within Civ.R. 55(A) obligates a trial court to bifurcate its

determinations with respect to liability and damages. See Civ.R. 55(A). That is, Civ.R. 55(A)

does not require a trial court to make an immediate determination as to liability prior to
                                                 6


considering the issue of damages, although a trial court may certainly elect to do so in its

discretion. Rather, when considering a motion for default judgment, a trial court is free to

consider liability and damages simultaneously. Additionally, although Civ.R. 55(A) does not

require a movant to file an affidavit in support of damages along with his or her motion for

default judgment, we cannot say that it was improper for the trial court to order J.P. to file such a

motion, especially since this information was relevant to proving J.P.’s claims and to

ascertaining damages. As such, we conclude that the trial court did not abuse its discretion by

ordering J.P. to file an affidavit in support of damages. Further, because the trial court had the

authority to instruct J.P. to file an affidavit in support of damages, we need not address the

propriety of the remaining orders contained within the March 30, 2015 journal entry.

       {¶12} J.P.’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
       ABUSED ITS DISCRETION IN ISSUING ITS APRIL 17, 2015 JOURNAL
       ENTRY, INCLUDING IN GRANTING [T.H.] LEAVE TO FILE AN ANSWER
       INSTANTER, IN DENYING [J.P.]’S MARCH 25, 2015 MOTION FOR
       DEFAULT JUDGMENT AGAINST [T.H.] AND IN NOT HOLDING A
       HEARING ON THE MOTION AND IN NOT SETTING THE CASE FOR A
       JURY TRIAL AS TO DAMAGES ONLY, AND IN DISMISSING [J.P.]’S
       APRIL 13, 2015 OBJECTIONS.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
       ABUSED ITS DISCRETION IN ISSUING ITS APRIL 22, 2015 JOURNAL
       ENTRY, INCLUDING IN DENYING [J.P.]’S APRIL 17, 2015 MOTION FOR
       LEAVE TO FILE A REPLY.

       {¶13} In his second assignment of error, J.P. argues that the trial court erred by issuing

its April 17 2015, journal entry, thus granting T.H.’s motion for leave to file answer instanter,

accepting T.H.’s untimely answer, and summarily denying his motion for default judgment. In
                                                 7


his third assignment of error, J.P. contends that the trial court erred by issuing its April 22, 2015

journal entry, thus denying his motion for leave to file a reply instanter in response to T.H.’s

brief in opposition to his motion for default judgment. We disagree on both points.

       {¶14} Civ.R. 6(B)(2) explains when a court may grant leave for a late filing:

       When by these rules or by a notice given thereunder or by order of court an act is
       required or allowed to be done at or within a specified time, the court for cause
       shown may at any time in its discretion * * * upon motion made after the
       expiration of the specified period permit the act to be done where the failure to act
       was the result of excusable neglect; but it may not extend the time for taking any
       action under Civ.R. 50(B), Civ.R. 59(B), Civ.R. 59(D), and Civ.R. 60(B), except
       to the extent and under the conditions stated in them.

Although Civ.R. 55(A) permits a default judgment when a defendant fails to answer or otherwise

defend an action, a trial court has the discretion to permit an answer to be filed after the time for

filing has run in the case of excusable neglect. Davis v. Immediate Med. Serv., Inc., 80 Ohio

St.3d 10, 14 (1997). “Neglect under Civ.R. 6(B)(2) has been described as conduct that falls

substantially below what is reasonable under the circumstances.” Id., citing State ex rel. Weiss v.

Indus. Comm., 65 Ohio St.3d 470, 473 (1992). This determination is made with reference to all

of the surrounding facts and circumstances and with due consideration for the principle that cases

should be decided on their merits when possible. State ex rel. Lindenschmidt v. Butler Cty. Bd.

of Commrs., 72 Ohio St.3d 464, 466 (1995). A trial court’s decision in this regard is reviewed

for an abuse of discretion. Id. at 465. An abuse of discretion implies that the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶15} After a thorough review the record, we determine that the trial court did not abuse

its discretion in issuing its April 17, 2015, and April 22, 2015 journal entries, respectively. J.P.

filed his complaint in the instant matter on February 6, 2015. Upon T.H.’s failure to file a timely
                                                  8


responsive pleading or otherwise appear in this matter, J.P. filed a motion for default judgment

on March 25, 2015. T.H. subsequently filed a motion for leave to file an answer instanter, as

well as a brief in opposition to J.P.’s motion for default judgment. In his opposition brief, T.H.’s

trial counsel explained that T.H.’s failure to file a timely responsive pleading or otherwise appear

in this matter was not deliberate, but resulted from his accidental misfiling of the unopened

summons and complaint while relocating his law office. On April 17, 2015, the trial court

summarily denied J.P.’s motion for default judgment, granted T.H.’s motion for leave to file an

answer instanter, and ordered the Lorain County Clerk of Court to accept T.H.’s answer. On

April 22, 2015, the trial court also denied J.P.’s motion for leave to file a reply instanter to T.H.’s

brief in opposition to J.P.’s motion for default judgment.

       {¶16} Considering these circumstances, we cannot conclude that the trial court abused

its discretion by denying J.P.’s motion for default judgment and permitting T.H. to file an answer

instanter. It is a basic tenet of Ohio law that cases should be decided on their merits. Perotti v.

Ferguson, 7 Ohio St.3d 1, 3 (1983). For these same reasons, we also determine that the trial

court did not err by denying J.P.’s motion for leave to file a reply instanter in response to T.H.’s

brief in opposition to J.P.’s motion for default judgment. Lastly, having already determined that

the trial court did not abuse its discretion by denying J.P.’s motion for default judgment, we

likewise conclude that the trial court did not err by not scheduling a hearing or jury trial to

address the issue of damages or by dismissing J.P.’s objections to its April 17, 2015 journal entry

as moot.

       {¶17} Accordingly, J.P.’s second and third assignments of error are overruled.

                                  ASSIGNMENT OF ERROR IV

       THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
       ABUSED ITS DISCRETION IN ISSUING ITS JULY 8, 2015 JOURNAL
                                                   9


        ENTRY, INCLUDING IN DENYING [J.P.]’S JUNE 29, 2015 MOTION FOR A
        TEMPORARY RESTRAINING ORDER AND REQUEST FOR AN ORAL
        HEARING ON THE MOTION.

        {¶18} In his fourth assignment of error, J.P. contends that the trial court erred by

denying his ex parte motion for a T.R.O. and request for an oral hearing on said motion. We

disagree.

        {¶19} A temporary restraining order is a form of relief intended to prevent the applicant

from suffering immediate and irreparable harm, injury, or damage. Civ.R. 65(A); Coleman v.

Wilkinson, 147 Ohio App.3d 357, 358 (10th Dist.2002). In determining whether injunctive relief

should be granted, a trial court generally examines four factors: whether (1) there is a substantial

likelihood that plaintiff will prevail on the merits; (2) plaintiff will suffer irreparable injury if the

injunction is not granted; (3) any third parties will be unjustifiably harmed if the injunction is

granted; and (4) the public interest will be served by the injunction. Vanguard Transp. Sys., Inc.

v. Edwards Transfer & Storage Co., Gen. Commodities Div., 109 Ohio App.3d 786, 790 (10th

Dist.1996), citing Valco Cincinnati, Inc. v. N & D Machining Serv., Inc., 24 Ohio St.3d 41

(1986). The party seeking the preliminary injunction must establish each of these elements by

clear and convincing evidence. Mead Corp. v. Lane, 54 Ohio App.3d 59, 63 (4th Dist.1988).

“Clear and convincing evidence is that measure or degree of proof which will produce in the

mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.

It is intermediate, being more than a mere preponderance, but not to the extent of such certainty

as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and

unequivocal.” State v. Bluser, 2d Dist. Montgomery No. 18856, 2002 WL 191567, *1 (Feb. 8,

2002), citing Cross v. Ledford, 161 Ohio St. 469, 477 (1954); State v. Ingram, 82 Ohio App.3d

341 (2d Dist.1992). An appellate court will not reverse a trial court’s decision to deny or grant a
                                                10


temporary restraining order or preliminary injunction absent an abuse of discretion. Wimmer

Family Trust v. FirstEnergy, 9th Dist. Lorain No. 08CA009392, 2008-Ohio-6870, ¶ 9, vacated

on other grounds, citing TGR Ents., Inc. v. Kozhev, 167 Ohio App.3d 29, 2006–Ohio–2915, ¶ 11

(2d Dist.).

        {¶20} Here, J.P. filed his motion for a T.R.O. on the basis that T.H. and T.H.’s daughter,

M.H., were stalking, menacing, and/or harassing him and his brother. Specifically, J.P. asserted

that T.H. and M.H. both followed him and his brother in their car, made menacing comments to

them, made finger gestures towards them, looked menacingly at them, and honked their car horn

at them. J.P.’s motion also references the June 22, 2014 altercation between T.H. and himself,

which is the incident at issue both in the present lawsuit and in J.P.’s previous action for a civil

stalking protection order. See J.P. v. T.H., 2016-Ohio-243. On July 8, 2015, the trial court

summarily denied J.P.’s ex parte motion for a T.R.O. without holding a hearing on the matter.

        {¶21} Initially, we note that Civ.R. 65 does not require a trial court to hold a hearing on

a T.R.O. Ridenour v. Wilkinson, 10th Dist. Franklin No. 07AP-200, 2007-Ohio-5965, ¶ 49,

citing Civ.R. 65(A).    Rather, Civ.R. 65 requires a hearing on a motion for a preliminary

injunction only if a T.R.O. has been granted. Id. Accordingly, because J.P. was not entitled to a

hearing on his motion for a T.R.O. under Civ.R. 65, we determine that the trial court did not err

by not conducting a hearing prior to denying J.P.’s ex parte motion for a T.R.O.

        {¶22} Additionally, after reviewing the record, we determine that the trial court did not

err by denying J.P.’s motion for a T.R.O., as J.P.’s motion failed to demonstrate a substantial

likelihood that he would prevail on the merits. As noted previously in this opinion, at the time

that the present lawsuit was filed, J.P. had already filed for a permanent civil stalking protection

order against T.H. in the Lorain County Court of Common Pleas. In that case, the Lorain County
                                                 11


Court of Common Pleas conducted a two-day evidentiary hearing on the matter and ultimately

denied J.P.’s petition for a permanent civil stalking protection order against T.H. on the basis that

J.P. had failed to meet his burden of proof. J.P. at ¶ 6. As such, in ruling upon J.P.’s motion for

a T.R.O., the trial court was already well aware of the long and bitter history between the parties,

as well as the underlying facts giving rise to this case. Thus, as J.P.’s ex parte motion for a

T.R.O. was partly premised on the June 22, 2014, altercation between the parties, as well as other

similar incidents that allegedly occurred subsequent to June 22, 2014, we cannot conclude that

the trial court erred by denying J.P.’s ex parte motion for a T.R.O.

       {¶23} J.P.’s fourth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR VII

       THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
       ABUSED ITS DISCRETION IN ISSUING ITS DECEMBER 17, 2015
       JOURNAL ENTRY, INCLUDING IN GRANTING SUMMARY JUDGMENT
       TO T.H.

       {¶24}    In his seventh assignment of error, J.P. contends that the trial court erred by

granting summary judgment in favor of T.H. Specifically, J.P. contends that the trial court erred

by concluding that the doctrine of res judicata barred his civil claims against T.H. We agree.

       {¶25} Res judicata is a doctrine of judicial preclusion. Grava v. Parkman Twp., 73 Ohio

St.3d 379, 381 (1995). There are two theories on which res judicata operates: claim preclusion

(estoppel by judgment) and issue preclusion (collateral estoppel). Id. “Under the doctrine of res

judicata, ‘[a] valid, final judgment rendered upon the merits bars all subsequent actions based

upon any claim arising out of the transaction or occurrence that was the subject matter of the

previous action.’” Kelm v. Kelm, 92 Ohio St.3d 223, 227 (2001), quoting Grava at syllabus.

Furthermore, res judicata operates to bar litigation of “‘all claims which were or might have been
                                                  12


litigated in a first lawsuit.’” (Emphasis omitted). Grava at 382, quoting Natl. Amusements, Inc.

v. Springdale, 53 Ohio St.3d 60, 62 (1990).

       {¶26} “‘Proper application of the doctrine of res judicata requires that the identical cause

of action shall have been previously adjudicated in a proceeding with the same parties, in which

the party against whom the doctrine is sought to be imposed shall have had a full and fair

opportunity to litigate the claim.’” SunTrust Bank v. Wagshul, 2d Dist. Montgomery No. 25567,

2013–Ohio–3931, ¶ 8, quoting Brown v. Vaniman, 2d Dist. Montgomery No. 17503, 1999 WL

957721, *4 (Aug. 20, 1999).

       {¶27} Here, the trial court determined that J.P.’s civil claims against T.H. involved

matters that “have been resolved as a result of earlier litigation,” namely J.P.’s failed effort to

secure a permanent civil protection order against T.H. See J.P. v. T.H., 2016-Ohio-243. Thus,

upon determining that the present lawsuit “involves the same parties, the same temporal events,

and the same pivotal dates (all of which culminated on June 22, 2014),” the trial court

determined that the doctrine of res judicata applied to the instant case and barred J.P.’s civil

claims against T.H. Accordingly, the trial court determined that since the underlying facts in this

case were previously litigated at the civil protection order hearing, no genuine issues of material

fact remained to be litigated and that T.H. was entitled to judgment as a matter of law.

       {¶28} The trial court correctly noted that the prior litigation involving the parties in the

instant matter concerned a petition for a civil stalking protection order that J.P. filed in the Lorain

County Court of Common Pleas. It has been held that “[a] civil protection order is a special

statutory remedy that is designed to prevent violence, not to compensate the victim for

damages.” Oliver v. Johnson, 4th Dist. Jackson No. 06CA16, 2007-Ohio-5880, ¶ 1. As such, a

civil protection order does not create a tort remedy. Id. Indeed, R.C. 2903.214, Ohio’s statute
                                                 13


governing the issuance of a civil stalking protection order, confers limited jurisdiction to the

common pleas courts to address requests for civil stalking protection orders.            While R.C.

2903.214 does not explicitly prohibit a petitioner from filing civil claims contemporaneously

with his or her petition for a protection order, the statute does state that the remedies available in

stalking cases “are in addition to, and not in lieu of, any other available civil and criminal

remedies.” R.C. 2903.214(G). Thus, we determine that J.P.’s failure to assert his tort claims

contemporaneously with his petition for a civil stalking protection order did not preclude J.P.

from subsequently bringing a civil action against T.H.          To hold otherwise would punish

petitioners seeking protection orders by forever depriving them of all legal remedies simply for

prioritizing their own physical safety and/or the physical safety of their family members over

their pecuniary damages.

       {¶29} While we agree with both T.H. and the trial court that the present lawsuit and

J.P.’s prior action seeking a civil protection order derive from the same common nucleus of

operative fact (that is, the June 22, 2014 altercation), we do not agree that the issues litigated in

the protection order case are similar to the issues involved here. In J.P.’s protection order case,

the trial court was required to decide whether J.P. had proven by a preponderance of the evidence

that T.H. knowingly caused J.P. to believe that he would cause him either physical harm or

mental distress. See J.R. v. Pless, 9th Dist. Summit No. 27665, 2016-Ohio-14, ¶ 8. This

determination squarely addresses whether J.P. was at risk of future harm from T.H. See Hamlin-

Scanlon v. Taylor, 9th Dist. Summit No. 23773, 2008-Ohio-411, ¶ 11 (holding that the goal of

R.C. 2903.214 is to prevent future injury and “allow the police and the courts to act before a

victim is harmed by a stalker.”). In the present civil case, on the other hand, the trial court is

required to consider whether J.P. has proven by a preponderance of the evidence that T.H.
                                                 14


committed the elements constituting assault, battery, invasion of privacy, and defamation.

Contrary to J.P.’s protection order case, this determination requires the trial court to consider

T.H.’s past conduct. As both of J.P.’s cases involve facts that are neither directly at issue in the

other litigation nor fully litigated in the previous protection order case, we conclude that J.P.’s

civil claims are not barred by the doctrine of res judicata and that the trial court erred by granting

summary judgment in favor of T.H. on this basis.

       {¶30} Accordingly, J.P.’s seventh assignment of error is sustained.

                                  ASSIGNMENT OF ERROR V

       THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
       ABUSED ITS DISCRETION IN ISSUING ITS DECEMBER 9, 2015 JOURNAL
       ENTRY, INCLUDING IN SUA SPONTE EXTENDING THE TIME FOR [T.H.]
       TO FILE A REPLY.

                                  ASSIGNMENT OF ERROR VI

       THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
       ABUSED ITS DISCRETION IN ISSUING ITS DECEMBER 16, 2015
       JOURNAL ENTRY, INCLUDING IN OVERRULING/DENYING [J.P.]’S
       DECEMBER 15, 2015 OBJECTIONS TO THE TRIAL COURT’S DECEMBER
       9, 2015 REPLY EXTENSION.

                                 ASSIGNMENT OF ERROR VIII

       THE TRIAL COURT PLAINLY ERRED, PREJUDICIALLY ERRED, AND/OR
       ABUSED ITS DISCRETION IN IMPLICITLY DENYING [J.P.]’S DECEMBER
       17, 2015 MOTION TO STRIKE, ALTERNATIVELY, MOTION FOR LEAVE
       TO FILE A NEW OPPOSITION.

       {¶31} In his fifth assignment of error, J.P. argues that the trial court erred by extending

the amount of time that T.H. had to file his reply brief to J.P.’s brief in opposition to T.H.’s

motion for summary judgment. In his sixth assignment of error, J.P. argues that the trial court

erred by denying his objections to the trial court’s December 9, 2015 order extending the amount

of time that T.H. had to file his reply brief to J.P.’s brief in opposition to T.H.’s motion for
                                                15


summary judgment. In his eighth assignment of error, J.P. argues that the trial court erred by

implicitly denying his motion to strike T.H.’s reply brief to his brief in opposition to T.H.’s

motion for summary judgment. J.P. alternatively argues in his eighth assignment of error that the

trial court erred by implicitly denying his motion for leave to file a new opposition brief to

T.H.’s motion for summary judgment. However, given this Court’s resolution of J.P.’s seventh

assignment of error, J.P.’s fifth, sixth and eighth assignments of error are moot, and we decline

to address them. See App.R. 12(A)(1)(c).

                                                III.

       {¶32} J.P.’s first, second, third, and fourth assignments of error are overruled. J.P.’s

seventh assignment of error is sustained and his fifth, sixth, and eighth assignments of error are

moot. Accordingly, the judgment of the Lorain County Court of Common Pleas is affirmed in

part, reversed in part, and this matter is remanded for further proceedings consistent with this

opinion.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               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 Lorain, 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.

       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
                                                16


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.

       Costs taxed equally to both parties.




                                                     BETH WHITMORE
                                                     FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

J.P., pro se, Appellant.

GERALD R. WILSON, Attorney at Law, for Appellee.
