Ehlers v. Thomas

[Cite as Ehlers v. Thomas, 2026-Ohio-4327.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY BROOKE EHLERS, : CASE NO. CA2026-03-036 Appellee, : OPINION AND vs. : JUDGMENT ENTRY 11/2/2026 ANTHONY THOMAS, : Appellant. : : CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 23 CS 4386 Smith & Webb, Attorneys, and Mark D. Webb and Jesse Clark, for appellee. Anthony Thomas, pro se. ____________ OPINION M. POWELL, J. {¶ 1} Respondent-appellant, Anthony Thomas, appeals a decision of the Warren County Court of Common Pleas. The decision denied his motion to vacate a civil stalking protection order ("CSPO") issued in favor of petitioner-appellee, Brooke Ehlers, in March 2023 and amended in July 2024. For the reasons below, we affirm.  Warren CA2026-03-036 I. Factual and Procedural Background {¶ 2} Ehlers is the director of the Montgomery County Coroner's Office. In August 2022, Thomas and William Petrey submitted public-records requests to that office about several deaths that they believed were part of a cover-up.1 Ehlers v. Thomas, 2024-Ohio- 2531, ¶ 2 (12th Dist.) ("Thomas I"). Their emails to Ehlers "grew more numerous and confrontational," and some threatened criminal charges, "'legal war,'" and internet smear campaigns. Id. at ¶ 3. One email from Petrey paired autopsy photographs with pictures of Ehlers's family and asked, "'[W]hat if it was your daughter?'" Id. Thomas wrote in an email that the world "'WILL KNOW WHY PEOPLE BURN OUR FYCKING [sic] CITIES AND HAVE NO RESPECT FOR LAW ENFORCEMENT!!'" Id. at ¶ 4. He also found Ehlers's personal Facebook page and tried to "friend" her. He then sent her a message remarking that she was "'a hometown Clinton County Resident'" and that a friend he had served with in the Marines was "'employed by NCIS.'" Id. In February 2023, the two men went to the coroner's office in person. After a "very contentious, but non-violent" exchange with employees, police escorted them out. Id. at ¶ 5. A. The CSPO and the First Appeal {¶ 3} In March 2023, Ehlers petitioned for CSPOs against both men. After a full hearing, the magistrate found that they had "'knowingly engaged in a pattern of conduct that caused [Ehlers] to believe that [they would] cause physical harm or cause or [have caused] mental distress.'" Id. at ¶ 7. The court entered five-year CSPOs, which expire on March 6, 2028. Among their terms, the orders said that the men "'shall not make any additional posts online which specifically name petitioner,'" and it barred them from 1. Petrey is not a party to this appeal. But his case has traveled alongside Thomas's from the start. The trial court consolidated the proceedings on the petition for a CSPO against Petrey with those against Thomas, and we later consolidated the two men's initial appeals from the CSPOs entered against them. We therefore refer to facts and proceedings involving Petrey where they bear on the issues in the present appeal. -2-  Warren CA2026-03-036 possessing deadly weapons. Id. The trial court overruled their objections on June 5, 2023. {¶ 4} Thomas and Petrey appealed, now represented by counsel. Their single assignment of error asserted that the trial court erred in granting a CSPO that restrains future online speech and the possession of firearms. Id. at ¶ 9. They did not challenge the finding of menacing by stalking or any other term of the order. On July 1, 2024, we sustained the assignment of error. Applying Bey v. Rasawehr, 2020-Ohio-3301, we held that the prohibition on posts naming Ehlers was a content-based prior restraint that was "demonstrably overbroad." Id. at ¶ 20-22. We also held that the weapons prohibition lacked "a sufficient nexus to Appellants' conduct" because no evidence showed that they had used or threatened to use a firearm. Id. at ¶ 28. We reversed and remanded "for proceedings consistent with this opinion." Id. at ¶ 30. {¶ 5} In July 2024, the trial court issued amended orders that removed the online- posting restriction and the weapons prohibition, leaving the order otherwise unchanged. Thomas did not appeal. B. The Motion to Vacate {¶ 6} On December 31, 2025, Thomas filed a pro se Civ.R. 60(B) motion to vacate the CSPO. He argued that the trial court had failed to comply with our mandate, had failed to hold a hearing on remand, had failed to apply Counterman v. Colorado, 600 U.S. 66 (2023), and was continuing to violate his First Amendment rights. The magistrate denied the motion. She concluded that the trial court "was instructed to and did modify the protection order to remove the language and firearm restrictions." She also concluded that Counterman did not apply and that Thomas had satisfied none of the requirements of Civ.R. 60(B). Any claim that the trial court had not complied with our decision, the magistrate observed, "should have been raised in 2024." {¶ 7} Thomas filed objections. They restated these arguments and added that the -3-  Warren CA2026-03-036 magistrate had exceeded her authority and had failed to conduct a "First Amendment and narrow tailoring analysis." The trial court overruled the objections because they did not "cite a single legal authority" and lacked "any substantive legal analysis." {¶ 8} Thomas appealed. II. Analysis {¶ 9} In his pro se brief, Thomas raises three assignments of error. He contends that the trial court failed to comply with our mandate, failed to conduct the analysis the First Amendment requires, and failed to vacate restrictions that the record does not support. We first address two motions that Thomas filed after oral argument. A. The Post-Argument Motions {¶ 10} After briefing was complete and the case had been argued, Thomas moved for leave to file a supplemental memorandum. Its stated purpose is to correct what he describes as an apparent attempt by Ehlers's counsel, at oral argument, to attribute to him conduct that our Thomas I opinion attributes to Petrey. The memorandum goes on to argue that the CSPO must rest on two or more acts "attributable to Thomas." If the record does not show them, he argues, the CSPO should be reversed and vacated. {¶ 11} The appellate rules provide for an appellant's brief, an appellee's brief, and a reply, and "[n]o further briefs may be filed except with leave of court." App.R. 16(C). Thomas relies on App.R. 15(A) and 12th Dist.Loc.App.R. 13, but those rules govern motion practice generally. Even assuming that we may accept a post-argument memorandum in an unusual case, this is not one. Our earlier opinion already distinguishes Petrey's email from Thomas's own communications, Thomas I, 2024-Ohio- 2531, at ¶ 3-4 (12th Dist.), and we do not need a memorandum to tell one man from the other. {¶ 12} The memorandum's real object is a challenge to whether the 2023 evidence -4-  Warren CA2026-03-036 established a pattern of conduct by Thomas under R.C. 2903.211(A)(1) and (D)(1). That is an attack on the order itself, and it was available in Thomas's first appeal, where he contested only the online-posting restriction and weapons prohibition. As we explain below, a Civ.R. 60(B) motion cannot revive a claim that could have been raised on direct appeal. Neither can a post-argument memorandum in an appeal from the denial of such a motion. {¶ 13} The motion for leave is denied. Ehlers filed a memorandum opposing the motion, and Thomas moved to strike her memorandum as untimely and improperly served. Because we deny leave without relying on Ehlers's memorandum, the motion to strike is denied as moot. B. Our Mandate on Remand {¶ 14} The first assignment of error states: THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH THE MANDATE OF THE TWELFTH DISTRICT COURT OF APPEALS. {¶ 15} Thomas contends in the first assignment of error that our 2024 decision in Thomas I required the trial court, on remand, to conduct a First Amendment analysis of the protection order. The issue is barred by res judicata, and it fails on the merits in any event. 1. Standard of Review {¶ 16} We review the denial of a Civ.R. 60(B) motion for an abuse of discretion. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988). Whether res judicata applies, and what our mandate required, are questions of law that we review de novo. See Giancola v. Azem, 2018-Ohio-1694, ¶ 13. If Thomas's objections lacked the specificity that Civ.R. 53(D)(3)(b)(ii) requires, our review would be limited to plain error. Civ.R. 53(D)(3)(b)(iv); Doran v. Doran, 2009-Ohio-5521, ¶ 15 (12th Dist.). We need not decide -5-  Warren CA2026-03-036 that question, though, because Thomas's arguments fail under any standard. 2. The Claim Is Barred by Res Judicata {¶ 17} A valid, final judgment "'"is conclusive as to all claims which were or might have been litigated."'" (Emphasis deleted.) Grava v. Parkman Twp., 1995-Ohio-331, ¶ 12, quoting Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62 (1990), quoting Rogers v. Whitehall, 25 Ohio St.3d 67, 69 (1986). Civ.R. 60(B) offers relief from injustices grave enough to "demand a departure from the strict constraints of res judicata." Bank of Am., N.A. v. Kuchta, 2014-Ohio-4275, ¶ 15. But it is not a "substitute for a timely appeal." Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128 (1986), paragraph two of the syllabus. Res judicata therefore bars a Civ.R. 60(B) motion that raises issues that could have been raised on direct appeal. Kuchta at ¶ 16; U.S. Bank, N.A. v. Chibinda, 2025- Ohio-1212, ¶ 18 (12th Dist.). {¶ 18} The amended CSPO was a final, appealable order. R.C. 2903.214(G)(1). If the trial court failed to do what our mandate required, the defect was apparent on the face of that order the day it was entered, and Thomas had 30 days to appeal. App.R. 4(A)(1). He instead waited nearly a year and a half and then moved to vacate. The magistrate recognized as much. {¶ 19} Thomas's four responses do not persuade us. {¶ 20} He first argues that our 2024 opinion could not have decided the validity of an amended order that did not yet exist. That is true but beside the point. The bar arises from the amended order itself, which became final when Thomas did not appeal it. Kuchta, 2014-Ohio-4275, at ¶ 16. And because res judicata reaches claims that might have been litigated, it does not matter that no court has ruled on the mandate question. Grava, 73 Ohio St.3d at 382. {¶ 21} Thomas next calls the order a continuing constitutional violation to which -6-  Warren CA2026-03-036 the appeal deadline does not apply. But his claim is that the trial court misread our mandate in July 2024. That was a completed event, fully reviewable on direct appeal, and constitutional claims are subject to the ordinary rules of finality. State v. Perry, 10 Ohio St.2d 175 (1967), paragraph seven of the syllabus. {¶ 22} Thomas also invokes the provision allowing relief when "it is no longer equitable that the judgment should have prospective application," which he says carries no one-year limit. The clause appears in Civ.R. 60(B)(4). It was "designed to provide relief to those who have been prospectively subjected to circumstances which they had no opportunity to foresee or control." Knapp v. Knapp, 24 Ohio St.3d 141, 146 (1986); see In re Whitman, 81 Ohio St.3d 239, 245, 1998-Ohio-466. A CSPO may thus be modified when "the original circumstances have materially changed and it is no longer equitable for the order to continue." T.D. v. C.N., 2018-Ohio-1840, ¶ 41 (8th Dist.). Thomas identifies no such change. He argues only that the order was wrong when entered. And although the one-year limit does not apply, a motion under Civ.R. 60(B)(4) or (5) still "shall be made within a reasonable time." Civ.R. 60(B). Nearly a year and a half is not a reasonable time to raise a defect visible on the face of the order. {¶ 23} Finally, Thomas cites Disciplinary Counsel v. Rudduck, 2026-Ohio-1126, as intervening authority. Rudduck applied strict scrutiny to a rule of judicial conduct. It says nothing about our mandate, and the framework it applied is the one we applied in Thomas's first appeal. {¶ 24} The claim is barred. Because Thomas asserts that a mandate of ours has gone unheeded, however, we briefly explain why it also fails on the merits. 3. The Trial Court Complied with the Mandate {¶ 25} "Absent extraordinary circumstances, such as an intervening decision by the Supreme Court, an inferior court has no discretion to disregard the mandate of a -7-  Warren CA2026-03-036 superior court in a prior appeal in the same case." Nolan v. Nolan, 11 Ohio St.3d 1 (1984), syllabus. Nor may it "extend or vary the mandate." Giancola, 2018-Ohio-1694, ¶ 16, citing id. at 4. {¶ 26} Our 2024 mandate was narrow. The only provisions before us were the online-posting restriction and the weapons prohibition, and those were the only provisions we disturbed. Thomas I, 2024-Ohio-2531, at ¶ 22, 28-30 (12th Dist.). On remand, the trial court removed both and left the rest of the order intact. That is what our opinion called for. {¶ 27} Thomas insists that the trial court also had to identify the speech at issue, decide whether it was unprotected, apply strict scrutiny, and make written findings. He draws these steps from our observation that the trial court had not determined whether the speech fell into a restrictable category "before ordering a prior restraint." Id. at ¶ 21. But that observation describes what a court must do before it restrains speech. It is a condition on imposing a restriction. Our mandate may have allowed the trial court to consider a narrower restriction supported by proper findings, but it did not require one. By removing the restriction, the trial court satisfied the mandate and gave Thomas the fullest relief available. Once the restraint was gone, there was nothing left to examine. {¶ 28} Thomas's reply brief goes further. It argues that the remaining no-contact and stay-away provisions are themselves content-based restrictions. We address that argument under the second assignment of error. For now, it is enough that our 2024 opinion did not reach those provisions because no one asked us to. A trial court does not violate a mandate by leaving undisturbed what the mandate never reached. See Giancola, 2018-Ohio-1694, at ¶ 16 (stating that "'"[w]hile a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues"'"), quoting Quern v. Jordan, 440 U.S. 332, 347, fn. 18 (1979), quoting Sprague v. Ticonic -8-  Warren CA2026-03-036 Natl. Bank, 307 U.S. 161, 168 (1939). {¶ 29} The first assignment of error is overruled. C. The Remaining CSPO Provisions {¶ 30} The second assignment of error states: THE TRIAL COURT ERRED BY FAILING TO CONDUCT THE CONSTITUTIONAL ANALYSIS REQUIRED UNDER THE FIRST AMENDMENT. {¶ 31} Thomas's merit brief argues in the second assignment of error that, on remand, the trial court had to identify the speech at issue, determine whether it was unprotected, apply strict scrutiny, and make written findings. This restates the first assignment of error, and it fails for the reasons given there. {¶ 32} In his reply brief, Thomas argues that the no-contact and stay-away provisions still in the amended CSPO are content-based restrictions that have never been subjected to strict scrutiny. His merit brief does refer to "remaining restrictions" and asks us to "[v]acate any remaining unconstitutional restrictions." But the brief never identifies those provisions or argues that they regulate speech because of its content, and it cites no authority for that conclusion. An appellant's brief must set out "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." App.R. 16(A)(7). We may disregard an assignment of error that is not argued as that rule requires. App.R. 12(A)(2). The reply brief does answer Ehlers's assertion that the speech "restrictions" in the amended order "are non-existent." But a reply brief may not supply an argument that the merit brief omitted and that the appellee has had no chance to address. See App.R. 16(C); 12th Dist.Loc.App.R. 11(A)(3). {¶ 33} The argument fails in any event. Thomas is right that collateral estoppel -9-  Warren CA2026-03-036 does not apply, because the validity of these provisions was never "actually and necessarily litigated and determined" in a prior action. Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 195 (1983). But claim preclusion reaches claims that might have been litigated. Grava, 73 Ohio St.3d at 382. And the law-of-the-case doctrine likewise bars arguments "available to be pursued, in a first appeal." Hubbard ex rel. Creed v. Sauline, 1996-Ohio-174, ¶ 14. The provisions Thomas now attacks have been part of the order since March 2023. He appealed that order with counsel and challenged only the online-posting restriction and weapons prohibition. Thomas I, 2024-Ohio-2531, at ¶ 10 (12th Dist.). For the reasons already given, a Civ.R. 60(B) motion cannot revive what that appeal, or an appeal from the amended order, could have raised. {¶ 34} The second assignment of error is overruled. D. Sufficiency of the Evidence Supporting the CSPO {¶ 35} The third assignment of error states: THE TRIAL COURT ERRED BY CONTINUING OR FAILING TO VACATE RESTRICTIONS UNSUPPORTED BY THE EVIDENTIARY RECORD. {¶ 36} Thomas argues in the third assignment of error that, because we held in 2024 that no evidence showed he used or threatened to use a firearm, the record cannot support a finding that he posed a threat of physical harm. {¶ 37} This is a challenge to the sufficiency of the evidence supporting the 2023 CSPO, and it fails at the threshold. Thomas raised it in neither his motion nor his objections. An appellant generally may not raise on appeal an argument he did not present to the trial court. State ex rel. Quarto Mining Co. v. Foreman, 1997-Ohio-71, ¶ 12. In civil cases, plain error "is not favored and may be applied only in the extremely rare case involving exceptional circumstances." Goldfuss v. Davidson, 1997-Ohio-401, syllabus. - 10 -  Warren CA2026-03-036 {¶ 38} This is not such a case. Our firearm holding addressed only whether the weapons prohibition bore a sufficient nexus to Thomas's and Petrey's conduct. Thomas I, 2024-Ohio-2531, at ¶ 28 (12th Dist.). It said nothing about whether the evidence established menacing by stalking. And the statute does not require fear of physical harm at all. It is satisfied when the respondent knowingly causes the petitioner to believe that he will cause her "mental distress." R.C. 2903.211(A)(1). {¶ 39} The claim is also barred for the reasons given under the first two assignments of error. The sufficiency of the evidence was available to be pursued in Thomas's first appeal, and he did not pursue it. {¶ 40} The third assignment of error is overruled. III. Conclusion {¶ 41} We have overruled each of the assignments of error presented. The trial court's judgment is therefore affirmed. PIPER, P.J., and SIEBERT, J., concur. - 11 -  Warren CA2026-03-036 JUDGMENT ENTRY The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed. It is further ordered that appellant’s motion to file a supplemental memorandum following briefing is denied. Appellant’s motion to strike appellee’s memorandum opposing appellant’s motion to file a supplemental memorandum is denied as moot since this court did not rely on appellee’s memorandum in ruling on the motion to file a supplemental memorandum. It is further ordered that a mandate be sent to the Warren County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27. Costs to be taxed in compliance with App.R. 24. /s/ Robin N. Piper, Presiding Judge /s/ Mike Powell, Judge /s/ Melena S. Siebert, Judge - 12 -