Ebbing v. Mathis ( 2013 )

[Cite as Ebbing v. Mathis, 2013-Ohio-2273.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
JOSEPH P. EBBING, :
CASE NO. CA2012-10-201
Plaintiff-Appellant, :
OPINION
: 6/3/2013
- vs -
:
GARY MATHIS, JR., et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM HAMILTON MUNICIPAL COURT
Case No. 12CVG01526
Joseph P. Ebbing, 3800 Princeton Road, Hamilton, Ohio 45011, plaintiff-appellant, pro se
Molly Russell, 215 East Ninth Street, Cincinnati, Ohio 45202, for defendant-appellee, Gary
Mathis, Jr.
Dallace McIntosh, 517 East Avenue, Hamilton, Ohio 45011, defendant-appellee, pro se
S. POWELL, J.
{¶ 1} Plaintiff-appellant, Joseph P. Ebbing, appeals from the judgment of the
Hamilton Municipal Court finding against him and in favor of defendants-appellants, Gary
Mathis, Jr. and Dallace McIntosh, on Ebbing's forcible entry and detainer action. For the
reasons that follow, we affirm the judgment of the trial court.
{¶ 2} Mathis and McIntosh leased a residence in Hamilton, Ohio. Ebbing is the
Butler CA2012-10-201
landlord of the residence. On July 9, 2012, Ebbing, acting pro se, brought a complaint
against Mathis and McIntosh in the Hamilton Municipal Court, seeking a writ of restitution of
the premises in his first claim and past due rent and damages in his second claim. Ebbing
alleged in his complaint that, on July 6, 2012, he served Mathis and McIntosh with written
notice to vacate the premises. Ebbing attached, as an exhibit to his complaint, a copy of the
"Notice to Leave the Premises" that he provided to Mathis and McIntosh.
{¶ 3} On July 25, 2012, Mathis appeared before the magistrate with his counsel,
Molly Russell, who argued the trial court did not have jurisdiction to rule on Ebbing's forcible
entry and detainer (FED) complaint because he filed it, prematurely, by one day. The
magistrate agreed and dismissed Ebbing's FED complaint. The trial court overruled Ebbing's
objections to the magistrate's decision, and his request for an award of costs against
Attorney Russell.
{¶ 4} Ebbing now appeals, assigning the following as error:
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT COMMITTED UNLAWFUL AND REVERSIBLE ERRORS
TO THE PREJUDICE OF PLAINTIFF; FIRST IN CONSIDERING, AND AGAIN IN
GRANTING DEFENDANT'S CIV.R. 12(B)(1) MOTION TO DISMISS BEFORE AND
WITHOUT CONDUCTING THE REQUIRED TRIAL AND DETERMINING THE
TRUTHFULNESS OF PLAINTIFF'S COMPLAINT.
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE
PREJUDICE OF PLAINTIFF IN DENYING WITHOUT A HEARING, EBBING'S CAUSE
AGAINST RUSSELL.
{¶ 9} In his first assignment of error, Ebbing argues the trial court erred in dismissing
his FED action for lack of subject matter jurisdiction, without conducting a trial and
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determining the truthfulness of his complaint. We disagree.
{¶ 10} R.C. 1923.04(A) provides, in pertinent part:
Except as provided in division (B) or (C) of this section, a party
desiring to commence an action under this chapter shall notify
the adverse party to leave the premises, for the possession of
which the action is about to be brought, three or more days
before beginning the action, by certified mail, return receipt
requested, or by handing a written copy of the notice to the
defendant in person, or by leaving it at the defendant's usual
place of abode or at the premises from which the defendant is
sought to be evicted.
{¶ 11} R.C. 1923.04(A) requires a landlord to give written notice to a tenant to vacate
the premises three days prior to instituting a forcible entry and detainer action against the
tenant; unless the landlord has provided the tenant with such notice, the trial court lacks
subject matter jurisdiction over any FED action brought by the landlord against the tenant.
Knoll Group Mgt. Co. v. Wolfe, 4th Dist. No. 93 CA 553, 1994 WL 326347 (June 28, 1994),
*4. Proper service of the three-day notice is a condition precedent to the commencement of
an eviction action, and it is a separate jurisdictional step that must be completed before an
FED action is filed. Wintrow v. Smith, 32 Ohio Misc.2d 12 (1987). In calculating the three-
day notice period, the first day is excluded, and the last day is included. Id. at 13, citing R.C.
1.14; Civ.R. 6(A); and Dennis v. Coble, 18 Ohio App. 62 (1923) (interpreting an analogous
provision of the General Code, Section 10216).
{¶ 12} Here, Ebbing stated in his complaint that, on July 6, 2012, he provided Mathis
and McIntosh with written notice to leave the premises, a copy of which he attached to the
complaint. Therefore, under R.C. 1923.04(A), Ebbing was not permitted to bring his FED
action against Mathis and McIntosh until July 10, 2012, since the first day, July 6, 2012, is
excluded from the calculation of the three-day notice period and the last day, July 9, 2012 is
included. Wintrow. By filing his FED action on July 9, 2012, Ebbing filed his action one day
prematurely, thereby depriving the trial court of jurisdiction over his FED action. Id. and Knoll
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Group Mgt. Co., 4th Dist. No. 93 CA 553, 1994 WL 326347 at *4.
{¶ 13} Ebbing raises six arguments in support of his assignment of error. All of them
lack merit.
{¶ 14} First, Ebbing argues the trial court was without authority to consider any matter
except a motion for a continuance raised under R.C. 1923.08, prior to the required trial. We
disagree, because "[a] court possesses initial authority to determine its own jurisdiction over
the parties and the subject matter absent a patent and unambiguous lack of jurisdiction."
Yazdani-Isfehani v. Yazdani-Isfehani, 170 Ohio App. 3d 1, 2006-Ohio-7105 (4th Dist.), ¶ 20.
{¶ 15} Second, Ebbing asserts that the trial court was not permitted to dismiss his FED
action under Civ.R. 12(B) if any part of his complaint could have survived the motion.
However, no part of his complaint could survive the trial court's determination that it lacked
subject matter jurisdiction to rule on Ebbing's FED action.
{¶ 16} Third, Ebbing contends that his failure to wait an additional day before bringing
his FED action did not deprive the trial court of jurisdiction to rule on his complaint. We
disagree with this argument for the reasons set forth in the cases cited above, including Knoll
Group Mgt. Co., 4th Dist. No. 93 CA 553, 1994 WL 326347 at *4.
{¶ 17} Fourth, Ebbing asserts that the trial court lacked jurisdiction to consider the
"question" that Attorney Russell supposedly presented to the trial court when she stated, "we
believe that there's a question of jurisdiction on the first cause [or first claim in Ebbing's
complaint]." (Emphasis added.) Ebbing contends that, by asking this "question," Attorney
Russell was improperly seeking to have the trial court "'interpret' R.C. 1923.04 (footnote
omitted) and declare that [his] complaint was procedurally insufficient so that the trial court
lacked jurisdiction over the subject matter[.]" Ebbing further asserts that Attorney Russell's
"question" was an improper attempt to turn the proceedings into a "declaratory action [sic],"
which was "inapposite [to] the F.E.D. [sic] action." We find this argument unpersuasive.
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{¶ 18} When Attorney Russell used the word "question" in her statement to the trial
court that "we believe that there's a question of jurisdiction on the first cause[,]" she was
merely arguing it was the defense's position that the trial court lacked subject matter
jurisdiction over the case due to Ebbing's failure to comply with R.C. 1923.04(A). Both the
trial court and this court have agreed with this argument for the reasons set forth above. The
trial court, undoubtedly, had subject matter jurisdiction to consider Attorney Russell's
"question," i.e., argument.
{¶ 19} Fifth, Ebbing argues the trial court's refusal to conduct a trial on his FED
complaint deprived him of his state and federal rights to open access to the courts, due
process of law and the equal protection of law. We disagree. All Ebbing has to do in this
action is to file his action against Mathis and McIntosh, again, this time, in compliance with
R.C. 1923.04(A)—an act which Mathis and McIntosh have alleged that Ebbing has already
done in this matter. Moreover, all Ebbing has to do in the future if the need arises to evict
another tenant is to remember to give the tenant three, full days notice to vacate the
premises before filing the FED action against the tenant, as required by R.C. 1923.04(A) and
the case law interpreting it. See, e.g., Wintrow, 32 Ohio Misc.2d 12; and Knoll Group Mgt.
Co., 4th Dist. No. 93 CA 553, 1994 WL 326347 at *4.
{¶ 20} Finally, Ebbing asserts that the trial court fraudulently construed R.C. 1923.04
to require four days of notice for FED actions instead of three. We strongly disagree. The
trial court properly applied the three-day notice rule in R.C. 1923.04(A) to this action,
consistent with the case law interpreting that provision.
{¶ 21} Consequently, Ebbing's first assignment of error is overruled.
{¶ 22} In his second assignment of error, Ebbing argues the trial court erred in denying
his claims against Attorney Russell because her unlawful conduct caused needless delay
and cost. Again, we strongly disagree. There was nothing unlawful about Attorney Russell's
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conduct, and none of her actions merit sanction.
{¶ 23} Accordingly, Ebbing's second assignment of error is overruled.
{¶ 24} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.
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