Gold Key Realty v. Collins , 2014 Ohio 4705 ( 2014 )


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  • [Cite as Gold Key Realty v. Collins, 
    2014-Ohio-4705
    .]
    IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
    GOLD KEY REALTY, et al.                                   :
    Plaintiff-Appellee                                :       C.A. CASE NO.         2013 CA 57
    v.                                                        :       T.C. NO.     CVG1300017
    SHERRY COLLINS, et al.                                    :        (Civil appeal from
    Municipal Court)
    Defendant-Appellant                               :
    :
    ..........
    OPINION
    Rendered on the           24th       day of         October        , 2014.
    ..........
    LAURENCE A. LASKY, Atty. Reg. No. 0002959, 130 W. Second Street, Suite 830,
    Dayton, Ohio 45402
    Attorney for Plaintiff-Appellee
    KELLI A. BARTLETT, Atty. Reg. No. 0077263, 130 W. Second Street, Suite 700 West,
    Dayton, Ohio 45402
    Attorney for Defendant-Appellant
    ..........
    FROELICH, P.J.
    {¶ 1} Sherry Collins appeals from a judgment of the Fairborn Municipal
    2
    Court, which overruled, as moot, her objections to the magistrate’s decision to grant
    restitution of her apartment to her landlord, Gold Key Realty dba Landmark Village
    Apartments, and dismissed, as moot, the forcible entry and detainer action against her. For
    the following reasons, the trial court’s judgment will be affirmed.
    I. Factual and Procedural History
    {¶ 2}    We described the underlying circumstances of this case in Gold Key Realty
    v. Collins, 2d Dist. Greene No. 2013-CA-12, 
    2013-Ohio-3457
    , as follows:
    In 2009, Sherry Collins signed a lease agreement with Landmark,
    which is a HUD-subsidized property located in Fairborn, Ohio. Landmark
    has 165 units, almost all of which are subsidized. Only one or two tenants
    are paying market rent. There is a difference between “market rent” and
    “contract rent.” Market rent is what a comparable apartment would rent for
    in the area. However, contract rent is less, and is what the landlord can
    obtain from HUD. The tenant is required to pay a share of the contract rent,
    depending on the tenant’s income. In Collins’s case, the initial amount she
    was required to contribute was zero.
    When Collins signed the lease agreement, she also filled out a
    certification concerning her income and other sources of funds, her
    obligations, and her family composition. Recertifications were then required
    by HUD on a yearly basis. As part of the recertification process, tenants
    must personally come into the rental office, answer questionnaires, and sign
    releases for income and asset verification. If a tenant fails to comply and the
    3
    year-term expires without recertficiation, the rent for the tenant is the contract
    rate, and Landmark must return any money that HUD contributes for the
    tenant.
    Collins complied with the recertification requirements in 2010 and
    2011.     However, in 2012, Collins did not fill out recertification papers.
    Landmark sent reminder notices to Collins in August, September, and
    October 2012, indicating that Collins had to complete the recertification
    process by November 30, 2012. Collins was also informed that if she failed
    to complete the process, Landmark had the right to terminate her lease and
    charge her the contract rate, which was $637 per month.
    On August 6, 2012, Collins signed an interim recertification, which
    was a mid-year change or adjustment used to place Collins’s husband,
    Darrell, on the lease.    Interim recertifications are used to make changes
    during the course of a lease and do not affect the requirement to complete the
    annual recertification. Based on Darrell’s income, Collins’s share of the rent
    increased from zero to $351 per month. 1 Collins was upset about her
    husband's addition to the lease, and refused to engage in the recertification
    process because she did not believe that Landmark could force her to add
    someone to her lease.
    1
    The precise amount of Collins' portion of the rent is not
    clear. At various times in the transcripts, it was described as $351,
    $354, and $286. This discrepancy is irrelevant for purposes of the
    issues before us.
    [Cite as Gold Key Realty v. Collins, 
    2014-Ohio-4705
    .]
    Based on the failure to recertify, Landmark sent Collins a notice of
    termination in early December 2012. The notice indicated that the tenancy
    would be terminated December 16, 2012, and that because of the failure to
    recertify, the rent would be increased to $637. The notice also gave Collins
    the right to come into Landmark’s office within ten days to discuss the
    proposed termination. Neither Collins nor her husband came into the office
    during that time.
    On December 17, 2012, Landmark delivered a three-day notice of
    termination to the Collinses. They did not pay the $637 monthly rent in
    December 2012, nor did they pay it in January or February 2013. In fact,
    they paid no rent at all for these months. Landmark repaid HUD $1,053 for
    the months of December, January, and February.
    In January 2013, Landmark filed a complaint in forcible entry and
    detainer against Sherry Collins and all others residing in the apartment.
    Landmark requested restitution of the premises and a money judgment for the
    unpaid rent for December and January, plus all other rent that accrued before
    the premises were vacated. After Collins filed an answer, the matter was
    tried before a magistrate in February 2013. The magistrate concluded that
    Landmark had technically failed to completely comply with the HUD
    Handbook when it sent the reminder notices. Based on this finding, the
    magistrate further concluded that Landmark had improperly raised the rent to
    $637 on December 1, 2012. However, the magistrate also concluded that
    possession of the premises should be restored to Landmark, because there
    5
    was no evidence that Collins had tried to pay the rental amount of $354.
    (Footnote 1 in original.) Gold Key Realty at ¶ 3-9.
    {¶ 3}        On February 14, 2013, the trial court signed the magistrate’s entry, adopting
    the magistrate’s decision. The following day, Landmark sought a writ of restitution, which
    the trial court granted.
    {¶ 4}        On February 21, 2013, Collins filed timely objections to the magistrate’s
    decision, and she requested a transcript. She asserted that the magistrate erred in awarding
    restitution of the premises to Landmark because (1) Landmark had not served her with a
    proper notice of termination, (2) the basis for the termination was not included in
    Landmark’s notice of termination, contrary to HUD regulations, (3) any offer of less than
    $637 for December 2012 rent would have been futile, and (4) equitable factors weighed in
    her favor.
    {¶ 5}        Collins asked the trial court for a stay of the restitution order, with a use and
    occupancy bond.2 The trial court stayed the execution of the writ of restitution pending
    review of Collins’s objections. The judge’s order was contingent upon Collins’s paying
    $1,062 by February 28, 2013, and $354 per month thereafter. Landmark asked for a hearing
    on the amount of the bond. After a hearing, the trial court raised the bond amount to $637
    per month.
    {¶ 6}         Collins appealed from the judgment granting the bond increase and
    2
    The automatic stay provision in Civ.R. 53(D)(4)(e)(i) does not apply to forcible entry and detainer actions. Colonial
    Am. Dev. Co. v. Griffin, 
    48 Ohio St.3d 72
    , 
    549 N.E.2d 513
     (1990) (interpreting former Civ.R. 53(E)(7)); Miele v. Ribovich, 
    90 Ohio St.3d 439
    , 
    739 N.E.2d 333
     (2000) (stating that its decision “is not intended to affect our previous holdings in Colonial Am.
    Dev. Co. ***”); Cherry v. Morgan, 2d Dist. Clark Nos. 2012 CA 11 & 2012 CA 21, 
    2012-Ohio-3594
    , ¶ 5.
    6
    requested a stay of the trial court’s order. We granted a stay in late March 2013 and
    required Collins to make monthly bond postings in the amount of $354, pending further
    order from our court. On August 9, 2013, we affirmed the trial court’s order increasing the
    amount of Collins’s bond from $354 per month to $637 per month. Gold Key Realty, 2d
    Dist. Greene No. 2013-CA-12, 
    2013-Ohio-3457
    .
    {¶ 7}     Four days later (August 13), Landmark requested a writ of restitution from
    the trial court. The same day, the trial court ordered Collins to deposit an additional $2,545
    (representing the difference between $637 and $354, multiplied by nine months) with the
    clerk of court by August 30, 2013, in order to continue the stay of the writ of restitution.
    The order indicated that, if Collins failed to deposit that amount, the bailiff would execute a
    writ of restitution within 10 days.        Collins failed to make the necessary deposit.
    Accordingly, on September 4, 2013, the trial court ordered that the provision in the court’s
    August 13th order be carried out. Collins was evicted on September 6, 2013.
    {¶ 8}    On September 11, 2013, the trial court issued an entry addressing Collins’s
    objections to the magistrate’s decision of February 14, 2013. The trial court stated that a
    forcible entry and detainer action is generally moot where the landlord has taken possession
    of the property. The entry noted that Collins was moved out on September 6 because she
    “failed to continue to post the monthly use and occupancy bond as ordered by this Court
    pending ruling on the Objections.” The trial court concluded that her objections to the
    magistrate’s decision “on Count One ordering restitution of the premises is hereby rendered
    as moot.”
    {¶ 9}    Collins appealed from the trial court’s September 11, 2013 entry.          On
    7
    November 25, 2013, we ordered Collins to show cause why her appeal should not be
    dismissed, because it appeared that the case was moot due to Landmark’s regaining
    possession of the property.     Collins responded that the trial court’s entry was a final
    appealable order because, by “refusing to rule on the Objections to the Magistrate’s
    Decision, the trial court deprives Ms. Collins of her right under Ohio Civil Rule 53(D)(4)(d)
    * * *.”   Collins further asserted that she would suffer collateral consequences if the
    underlying restitution order granted by the magistrate’s decision were allowed to stand, and
    that others who are similarly situated would benefit from resolution of this issue. On
    February 11, 2014, we dismissed the appeal for lack of jurisdiction, stating that “Collins’
    vehicle to challenge the trial court’s determination is a timely appeal from the restitution
    order. By her own admission, she has not sought an appeal from that order.”
    {¶ 10} Collins moved for reconsideration of our judgment of dismissal. On May 9,
    2014, we granted the motion. We stated:
    In her motion for reconsideration, Collins contends that it would have
    been improper for her to have filed a notice of appeal from the February 14,
    2013 magistrate’s decision recommending restitution, which was adopted by
    the trial court on the same day, because she had timely filed objections, and
    the order did not become final until those objections were resolved. We
    agree.    The trial court’s determination on September 11, 2013 that the
    objections were moot was a ruling on the objections, despite Collins’
    argument to the contrary, thereby making the February decision final and
    appealable.    Only at this point did Collins have a remedy via appeal to
    8
    challenge the trial court’s decision.
    We take this opportunity to additionally find that this matter is
    distinguishable from the situation in Reck [v. Whalen, 
    114 Ohio App.3d 16
    ,
    
    682 N.E.2d 721
     (2d Dist.1996)], where a separate, independent action
    resulting in restitution of the property caused the appeal from the previous
    eviction action to be moot. Here, Collins is challenging the very decision
    ordering her eviction. Arguably, if this Court were to find that the trial court
    erred in overruling Collins’ objections, some relief may be available to her.
    See, e.g., Agler Green Co-op v. Rivers, 10th Dist. Franklin No. 87AP-915,
    
    1987 WL 31282
     (Dec. 23, 1987) (appeal of eviction not moot although
    defendant had vacated the subject premises because she did not do so
    voluntarily, she had not permanently relocated to another residence, and the
    subject premises remained vacant).
    {¶ 11} Collins raises two assignments of error for our review.
    II. Civ.R. 53 and Mootness
    {¶ 12} Collins’s assignments of error state:
    I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY
    DETERMINING         THAT      THE       CASE   WAS     MOOT      AND     THAT
    OBJECTIONS TO THE MAGISTRATE’S DECISION GRANTING
    RESTITUTION SHOULD NOT BE RULED UPON BECAUSE THE
    APPELLANT HAD MOVED FROM THE PREMISES FOLLOWING THE
    EXECUTION OF THE WRIT OF RESTITUTION.
    [Cite as Gold Key Realty v. Collins, 
    2014-Ohio-4705
    .]
    II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY
    DETERMINING            THAT      OBJECTIONS     TO   THE     MAGISTRATE’S
    DECISION GRANTING RESTITUTION SHOULD NOT BE RULED
    UPON IN VIOLATION OF CIVIL RULE 53.
    {¶ 13} Both of Collins’s assignments of error relate to the trial court’s
    determination that the action was moot and, consequently, the trial court’s failure to address
    the merits of her objections.
    {¶ 14}     “A forcible entry and detainer action is intended to serve as an expedited
    mechanism by which an aggrieved landlord may recover possession of real property.”
    Miele v. Ribovich, 
    90 Ohio St.3d 439
    , 441, 
    739 N.E.2d 333
     (2000). A forcible entry and
    detainer action decides only the right to immediate possession of property. Miami Valley
    Hous. v. Jackson, 2d Dist. Montgomery No. 25020, 
    2012-Ohio-5103
    , ¶ 5.
    {¶ 15} The long and complicated procedural history of this case is partly
    attributable to the fact that certain Rules of Civil Procedure do not apply to forcible entry
    and detainer actions. Civ.R. 1(C) expressly states that the Rules of Civil Procedure, to the
    extent that they would, by their nature, be clearly inapplicable, do not apply to forcible entry
    and detainer actions. The Supreme Court of Ohio has repeatedly stated that, due to the
    expedited nature of forcible entry and detainer proceedings, “the drafters of the Rules of
    Civil Procedure were careful to avoid encrusting this special remedy with time consuming
    procedure tending to destroy its efficacy.” Miele at 441, quoting Cuyahoga Metro. Hous.
    Auth. v. Jackson, 
    67 Ohio St.2d 129
    , 131, 
    423 N.E.2d 177
     (1981).
    {¶ 16} Applying Civ.R. 1(C), the supreme court has held that several of the
    magistrate procedures do not apply in forcible entry and detainer actions, including the
    10
    automatic stay provisions of former Civ.R. 53(E)(7). Colonial Am. Dev. Co. v. Griffith, 
    48 Ohio St.3d 72
    , 
    549 N.E.2d 513
     (1990), syllabus. See also, e.g., Jackson, 
    67 Ohio St.2d 129
    ,
    syllabus (former Civ.R. 53(E), requiring a referee to prepare a report, and Civ.R. 54(B) were
    “clearly inapplicable to proceedings in forcible entry and detainer, on the authority of Civ.R.
    1(C)”); State ex rel. GMS Mgt. Co., Inc. v. Callahan, 
    45 Ohio St.3d 51
    , 
    543 N.E.2d 483
    (1989) (former Civ.R. 52, requiring the trial court enter findings of facts and conclusions of
    law when requested).      The court stated in Griffith: “If judgment is entered against a
    defendant in a forcible entry and detainer action, he or she may delay execution and thereby
    eviction by filing a timely appeal pursuant to App.R. 4 and by posting a supersedeas bond.
    This procedure has the advantage of protecting the interests of both parties to the action.”
    (Emphasis added.) Griffith at 73-74.
    {¶ 17}   In 1995, extensive amendments to Civ.R. 53 “address[ed] the need for
    efficiency” in forcible entry and detainer actions and “provide[d] trial courts with a
    framework that enables them to render expedited judgments in cases where neither party
    files objections to the magistrate's decision.” Miele at 444. The supreme court noted that
    the automatic stay provision in Civ.R. 53(E) was not changed, and that its ruling in Griffith
    continues to apply. Miele, 90 Ohio St.3d at 444, fn.5.
    {¶ 18} On review of a claim for restitution, we have stated that “the Ohio Rules of
    Civil Procedure require a party to file written objections to the magistrate’s decision. Civ.R.
    53(E)(3)(b). When a party fails to file objections, the party may not assign as error on
    appeal the court’s adoption of the magistrate’s decision [granting restitution of the property].
    Id.”   Dayton Metro. Hous. Auth. v. Calloway, 2d Dist. Montgomery No. 22311,
    11
    
    2008-Ohio-3869
    , ¶ 6. In so stating, we did not discuss the extent to which Civ.R. 53
    applies to forcible entry and detainer actions.
    {¶ 19}    The Supreme Court has not expressly addressed whether the filing of
    objections interferes with the expedited nature of forcible entry and detainer actions, but its
    holding in Griffith suggests that, if the trial court has entered judgment before the time for
    filing objections has run, the tenant need not file objections and, instead, should file a notice
    of appeal from the trial court’s judgment. Moreover, Miele recognized that former Civ.R.
    53(E) did not “impede[ ] the summary disposition of forcible entry and detainer cases”
    where no objections were filed. (Emphasis added.) Miele at 444. In light of the delay
    attendant to the objection procedures of Civ.R. 53, a determination of the applicability of
    those provisions would be beneficial for the many parties and courts involved in forcible
    entry and detainer actions. See also Peter M. Iskin, Ohio Eviction and Landlord-Tenant
    Law (3d Ed.), p. 83, n.75 (2003) (questioning whether former Civ.R. 53(E)(3)(b), prohibiting
    parties from assigning as error on appeal the trial court’s adoption of the magistrate’s
    findings of fact or conclusions of law absent the filing of objections, should apply to eviction
    actions). Such a determination would also resolve whether a tenant must appeal from the
    judgment ordering restitution or from the trial court’s ruling on the objections to the
    magistrate’s decision, a question raised in this case.
    {¶ 20} Here, Collins filed objections to the magistrate’s decision, and the trial court
    ruled on those objections approximately seven months later, after the stay was dissolved and
    Collins had been evicted from the apartment. At that juncture, the trial court determined
    that Collins’s vacation of the apartment rendered the forcible entry and detainer action moot,
    12
    and thus it was not required to rule on the merits of Collins’s objections. Assuming (based
    on our existing authority) that Collins was required to file objections under Civ.R. 53, our
    determination of whether the trial court properly failed to rule on the merits of Collins’s
    objections turns on whether it properly concluded that the action, and thus the objections,
    were moot.
    {¶ 21}    “When the tenant has vacated the premises and the landlord has again taken
    possession, the merits of such action are generally rendered moot.” 
    Id.,
     citing, e.g., Cherry
    v. Morgan, 2d Dist. Clark Nos. 2012 CA 11 & 2012 CA 21, 
    2012-Ohio-3594
    , ¶ 4.
    {¶ 22} Here, the trial court found that Collins’s objections were rendered moot
    when she vacated her apartment and, although not clearly stated, the trial court’s decision
    dismissed the forcible entry and detainer action against Collins as moot. We review a trial
    court’s dismissal of an action as moot under a de novo standard of review. Brown v.
    Dayton, 2d Dist. Montgomery No. 24900, 
    2012-Ohio-3493
    , ¶ 9.
    {¶ 23} We discussed the concept of mootness in Brown, as follows:
    The concept of mootness is firmly rooted in Article III, Section 2, of
    the United States Constitution, conferring power upon courts to hear cases or
    controversies. James A. Keller, Inc. v. Flaherty, 
    74 Ohio App.3d 788
    , 791,
    
    600 N.E.2d 736
     ([10th Dist.]1991).         Mootness presents a question of
    jurisdiction because a lack of an actual case or controversy between the
    parties renders it necessarily impossible for a court to grant any meaningful
    relief. Miner v. Witt, 
    82 Ohio St. 237
    , 
    92 N.E. 21
     (1910). Obviously, a
    judgment cannot be carried into effect when the underlying issue at hand is
    13
    abstract, hypothetical, or otherwise potential. Although Ohio does not have
    a constitutional counterpart to Article III, Section 2, courts throughout Ohio
    continue to follow the long-standing concept of judicial restraint, mandating
    that courts entertain jurisdiction only over questions that are not moot.
    Flaherty at 791, 
    600 N.E.2d 736
    .
    The question of mootness, however, cannot always be decided as a
    matter of law and several limited exceptions to the mootness doctrine exist
    whereby a court may entertain jurisdiction in order to consider the issue. A
    trial court may factually determine that the matter is capable of repetition, yet
    evade review; that the matter produces adverse collateral consequences; or
    that the matter involves an important constitutional question. * * *
    Brown at ¶ 10-11.
    {¶ 24} It is undisputed that Collins has vacated the apartment at issue. Collins
    claims, however, that two exceptions to the mootness doctrine apply to her objections to the
    magistrate’s decisions and that the trial court should have addressed the merits of those
    objections.   First, she contends that she will suffer collateral consequences from her
    eviction, i.e., that her eligibility for project-based assisted housing will be affected. Second,
    she argues that there are other similarly situated individuals who would benefit from the
    resolution of her objections. Collins further states that her action is not moot because, if she
    prevails on her objections, she could still be afforded effective relief, such as being
    reinstated to her apartment, if it is available, or provided a comparable unit, when one
    becomes available.
    [Cite as Gold Key Realty v. Collins, 
    2014-Ohio-4705
    .]
    {¶ 25} “In assessing collateral-consequences questions, courts must highlight the
    fine line which distinguishes pure speculation from reasonably possible adverse scenarios.”
    Brown at ¶ 13. We have recognized that tenants of federally-subsidized housing have a
    constitutionally-protected interest in continued occupancy of their housing.           Gorsuch
    Homes, Inc. v. Wooten, 
    73 Ohio App.3d 426
    , 
    597 N.E.2d 554
     (2d Dist.1992). At the time
    the trial court considered Collins’s objections, however, Collins had vacated her
    federally-subsidized apartment. And while certain conduct might impair a tenant’s ability
    to qualify for federally-subsidized housing elsewhere, see Brown at ¶ 13 (consequence of
    felony drug/nuisance finding was eviction for 365 days), Collins’s brief did not direct us to
    any provision of the HUD Multifamily Occupancy Handbook, 4350.3 REV-1, or other
    regulation to support her claim that her eligibility for subsidized housing might be affected if
    her objections are not considered by the trial court on the merits.
    {¶ 26} At oral argument, Collins directed us to 24 C.F.R. 982.552(c), which
    provides that a public housing agency (PHA) has the authority to deny admission or
    terminate assistance if “any member of the family has been evicted from federally assisted
    housing in the last five years.” The PHA must terminate program assistance for a family
    evicted for a serious violation of the lease. 24 C.F.R. 982.552(b). Collins acknowledged
    that this federal regulation applies to the HUD Housing Choice Voucher Program (Section
    8), not the privately-owned subsidized housing in which Collins lived. Collins stated,
    however, that owners of privately-owned subsidized housing use the Section 8 criteria as
    guidance.
    {¶ 27}     We emphasize that the trial court did not enter a final judgment against
    Collins on Landmark’s forcible entry and detainer claim; instead, the trial court dismissed,
    15
    as moot, the forcible entry and detainer action against her, and collateral consequences are
    even more speculative when there has been no negative judgment against the tenant.
    Collins moved out of her apartment due to her inability to stay the magistrate’s ruling against
    her, but she did so before the trial court ruled on her objections. The trial court’s dismissal
    of Landmark’s forcible entry and detainer claim was not an adjudication on the merits and
    had the effect of vacating the previous judgment of eviction in her case. See State ex rel.
    Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections,
    
    96 Ohio St.3d 308
    , 
    2002-Ohio-4194
    , 
    774 N.E.2d 239
     (when case dismissed as moot, no final
    judgment was rendered on the merits and res judicata did not apply). Moreover, res judicata
    would not bar any legal or equitable action against Landmark based on Landmark’s eviction
    proceeding against her. 
    Id.
    {¶ 28}    Even if the trial court had merely overruled the objections as moot and left
    the judgment intact, a judgment of restitution in a forcible entry and detainer action would
    not bar Collins from pursuing a claim against Landmark. See Reck v. Whalen, 
    114 Ohio App.3d 15
    , 
    682 N.E.2d 721
     (2d Dist.1996) (per R.C. 1923.03, the outcome of an eviction
    proceeding does not operate as a bar to other claims that either party may have against the
    other); Machshonba v. Cleveland Metro. Hous. Auth., 8th Dist. Cuyahoga No. 96811,
    
    2011-Ohio-6760
    , ¶ 13 (“a forcible entry and detainer action does not bar a tenant from
    bringing a wrongful eviction claim or challenging whether the proper procedures were
    followed”) .
    {¶ 29} Collins further claims that other similarly situated individuals would benefit
    from consideration of her objections. As stated above, Collins argued in her objections that
    16
    the magistrate erred in awarding restitution to Landmark because (1) Landmark did not serve
    her with a proper notice of termination, (2) the basis for the restitution was not included in
    Landmark’s notice of termination, (3) any offer of less than $637 as rent for December 2012
    would have been futile, and (4) equitable factors weighed in favor of denying restitution to
    Landmark. In our view, these arguments are specific to the circumstances of Collins’s case,
    and they do not present questions of great public importance to justify overcoming the
    mootness doctrine.
    {¶ 30} In summary, the trial court did not err in finding that, due to Collins’s
    vacation of the apartment, Collins’s objections to the magistrate’s ruling and the forcible
    entry and detainer action itself were moot. And in finding that Collins’s objections were
    moot, the trial court did not act inconsistently with Civ.R. 53. Collins’s assignments of
    error are overruled.
    III. Conclusion
    {¶ 31} The trial court’s judgment will be affirmed.
    ..........
    DONOVAN, J. and WELBAUM, J., concur.
    Copies mailed to:
    Laurence A. Lasky
    Kelli A. Bartlett
    Hon. Beth W. Root