Wise v. Webb , 2015 Ohio 4298 ( 2015 )

[Cite as Wise v. Webb, 2015-Ohio-4298.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
FREDERICK H. WISE :
:
Plaintiff-Appellee : C.A. CASE NO. 2015-CA-50
:
v. : T.C. NO. 15CVG801
:
AMY T. WEBB, et al. : (Civil Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___16th___ day of ___October____, 2015.
...........
RICHARD F. HEIL, JR., Atty. Reg. No. 0033661, One S. Limestone Street, Suite 800,
P.O. Box 1488, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
AMY T. WEBB, 5803 Dialton Rd., Springfield, Ohio 45502
Defendant-Appellant
.............
FROELICH, P.J.
{¶ 1} Amy T. Webb appeals from a judgment of the Clark County Municipal Court,
which granted restitution of her rented home to her landlord, Frederick H. Wise, for
nonpayment of rent. For the following reasons, this appeal will be dismissed as moot.
I. Procedural History
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{¶ 2} On March 19, 2015, Wise filed a complaint for forcible entry and detainer
against Amy Webb and her adult son, Aaron Webb. Wise alleged that Amy Webb had
executed a written month-to-month lease, and that, as of March 18, 2015, she had failed
to pay her monthly rent of $695 for March 2015. Wise further alleged that, on March 10,
2015, he had served the Webbs with a notice to leave the premises. Wise sought
restitution of the property, unpaid rent, the cost of any unpaid utility bills, and the cost to
repair any damage to the premises. Wise attached to his complaint a copy of the written
lease agreement and the notice to vacate.
{¶ 3} Copies of the summons and the complaint were served on Webb’s daughter
on March 23, 2015. The summons ordered the Webbs to appear for trial on April 8,
2015.
{¶ 4} On April 6, 2015, Wise and his attorney filed affidavits with the trial court.
Wise stated in his affidavit that he is the owner of the home located at 5226 Hunter Road
in Enon, that the premises were rented to Amy Webb under a written month-to-month
rental agreement, that he (Wise) was “personally acquainted with the state of the rental
account of Defendants,” and that the Webbs breached the lease by failing to pay their
monthly rent of $695 as of March 1, 2015.
{¶ 5} Wise attached a copy of the lease agreement, which was executed in April
2012, to his affidavit. Paragraph 11 of the lease agreement states: “Rent is due on the
first of the month. Beginning on May 1 and for the remainder of 2012, said rent is
$500.00 per month. The costs of all utilities are the responsibility of the tenant.” The
parties agree that Wise orally informed Webb in May 2014 that the rent would increase
to $695 per month and that no revised written lease was executed.
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{¶ 6} Wise’s attorney’s affidavit stated that, on March 10, 2015, he served the
Webbs with written copies of a notice to leave the premises by personally serving Aaron
Webb and leaving a copy for Amy Webb with Aaron Webb. A copy of the notice was
attached to the affidavit. Wise’s attorney also stated that Aaron Webb had been living at
the premises since November 21, 2014, and the attorney supported that statement with
copies of court documents related to three municipal court cases in which Aaron Webb
was a defendant.
{¶ 7} On April 8, 2015, a trial was held before a magistrate. In a decision issued
the same day, the magistrate found that the owner of the premises had provided an
affidavit, “Defendant(s)” had testified, a copy of the written agreement was in the file, and
a three-day notice to vacate had been served on the defendants. The magistrate found
that restitution was appropriate due to nonpayment of rent. The same day, the trial court
adopted the magistrate’s decision and filed a judgment entry granting restitution of the
premises to Wise and ordering the Webbs to vacate the property by April 13, 2015.
{¶ 8} The Webbs did not file objections to the magistrate’s decision, and they did
not seek a stay of the trial court’s judgment granting restitution of the premises to Wise.
{¶ 9} On May 8, 2015, Amy Webb, pro se, appealed the trial court’s order.
Attached to the notice of appeal were copies of two rent checks that she had written,
made payable to Wise: (1) dated March 12, 2015, in the amount of $695, for March 2015
rent, and (2) dated March 31, 2015, in the amount of $1,390, for March and April 2015
rent. Both checks have “refused” written on them.
II. Landlord’s Right to Restitution of the Premises
{¶ 10} Webb’s appellate brief does not include assignments of error as required by
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App.R. 16(A), but she argues that she should not have been evicted for nonpayment of
rent, because Wise refused to accept the rental payments she had provided. Webb
further asserts that Wise should have terminated their landlord/tenant relationship by
means of a thirty-day notice to vacate the premises rather than through an eviction
proceeding.
{¶ 11} “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.
{¶ 12} When the tenant has vacated the premises and the landlord has again taken
possession, the merits of an eviction action are generally rendered moot. E.g., Cherry
v. Morgan, 2d Dist. Clark Nos. 2012 CA 11 & 2012 CA 21, 2012-Ohio-3594, ¶ 4.
The only method by which a defendant appealing a judgment of forcible
entry and detainer may prevent the cause from becoming moot is stated in
R.C.1923.14. The statute provides a means by which the defendant may
maintain, or even recover, possession of the disputed premises during the
course of his appeal by filing a timely notice of appeal, seeking a stay of
execution, and posting a supersedeas bond. If the defendant fails to avail
himself of this remedy, all issues relating to the action are rendered moot
by his eviction from the premises.
(Citations omitted.) Cherry at ¶ 5.
{¶ 13} Webb did not seek a stay of the trial court’s order of restitution, and she did
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not post a supersedeas bond. Based on the record before us, this appeal is moot.
{¶ 14} Even assuming, for sake of argument, that the Webbs continue to possess
the Hunter Road property, we would find no error in the trial court’s judgment. As an
initial matter, the Ohio Rules of Civil Procedure require a party to file written objections to
a magistrate’s decision within 14 days of the filing of the decision. Civ.R. 53(D)(3)(b).
Objections to factual findings must be supported by a transcript of all the evidence
submitted to the magistrate relevant to that finding or an affidavit of that evidence if a
transcript is not available. Civ.R. 53(D)(3)(b)(iii). When a party fails to file objections,
the party may not assign as error on appeal the trial court’s adoption of any factual finding
or legal conclusion. Civ.R. 53(D)(3)(b)(iv). Webb did not file objections to the
magistrate’s decision. As a result, she has waived all but plain error in the trial court’s
judgment. Miller v. Tye, 2d Dist. Montgomery No. 26277, 2015-Ohio-199, ¶ 8.
{¶ 15} In reviewing the trial court’s judgment, we are limited to the record before
the trial court. Kahler v. Eytcheson, 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶
23. The affidavits provided by Wise and his attorney, which the trial court accepted as
evidence, indicated that Webb breached her lease agreement by failing to timely pay her
March 2015 rent. In the absence of a written transcript of the hearing before the
magistrate, we have no record of the evidence presented to the magistrate, and we
cannot speculate what the testimony was at that hearing. Miller at ¶ 9. From the record
before us, we could not find plain error in the trial court’s granting of a writ of restitution to
Wise.
{¶ 16} Even if we were to consider the checks attached to Webb’s notice of
appeal, we could not conclude that the trial court erred in finding that she had failed to
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pay rent as required by her lease agreement. The record before us indicates that Wise
served a three-day notice to vacate on the Webbs on March 10, 2015 due to nonpayment
of rent. Two days later, Amy Webb sent a check for $695, representing the March rent,
to Wise. That check was refused. Webb then sent another check to Wise on March 31
with the full amount of the March and April rent. That check was also refused.
{¶ 17} “Under R.C.1923.04, a landlord is required to give a tenant at least three
days notice before beginning an action in forcible entry and detainer. Such an action
cannot be maintained if the landlord has waived his notice to vacate to the tenant. ‘The
generally accepted rule in Ohio is that, by accepting future rent payments after serving a
notice to vacate, a landlord waives the notice as a matter of law, as such acceptance is
inconsistent with the intent to evict.’” (Citations omitted.) Juergens v. Strileckyj, 2d Dist.
Clark No. 2010 CA 36, 2010-Ohio-5159, ¶ 23.
{¶ 18} The record before us indicates that Wise complied with his obligation to
provide a three-day notice to vacate. His refusal to accept the two checks that Webb
subsequently tendered was necessary for Wise to preserve his right to bring an eviction
action. And, we find no support to Webb’s claim that Wise was required to terminate the
month-to-month tenancy with a 30-day notice to vacate.
{¶ 19} Webb argues in her reply brief that Wise regularly accepted late rent
payments. To support this assertion, she attached to her reply brief a printout from her
bank of her rent payments for October 2013 through June 2014 and for August 2014,
September 2014, November 2014, and December 2014. There is nothing in the record
to indicate that Webb raised this issue in the trial court. Without a transcript of the trial,
we cannot conclude that the trial court erred in finding that Wise was entitled to restitution
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of the property due to nonpayment of rent in March 2015.
III. Conclusion
{¶ 20} Webb’s appeal from the trial court’s judgment granting restitution to Wise
will be dismissed as moot.
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DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Richard F. Heil, Jr.
Amy T. Webb
Hon. Thomas E. Trempe