Schwab v. Lattimore , 2006 Ohio 1372 ( 2006 )

{¶ 19} The majority today determines that there is nothing for us to review. The majority reasons that the issue of whether Schwab was entitled to possession of the apartment is moot because Lattimore no longer lives in the apartment.

{¶ 20} But by declaring the issue in this case moot, we are denying relief to any tenant, not just Lattimore, who has a legitimate counterclaim against a landlord that would prevent an eviction. This is the type of issue that falls under the exception to the mootness doctrine because it is capable of repetition yet evades review.

I. The Case Is Not Moot {¶ 21} The majority cites State exrel. Calvary v. Upper Arlington for a definition of the two requirements for an issue to be capable of repetition yet evading review.⁵ The first is whether the challenged action is too short in its duration to be fully litigated before its cessation or expiration. The challenged action here is the eviction. Evictions are summary proceedings. The time between when a tenant is wrongly evicted — even if a stay of the writ is granted — and when the tenant's lease expires will invariably be short. Most leases are for one year, and it is unlikely that the entire process of a trial court decision and appellate review could occur all within that one year. And if no stay is granted, the issue will, under the majority's analysis, always be moot. Thus, in almost any dispute between a landlord and tenant in which a tenant is wrongly evicted, a court will consider the issue moot. That qualifies as an issue that evades review.

{¶ 22} The majority concedes as much, but then apparently decides that the issue is incapable of repetition, stating that Lattimore "has not demonstrated any likelihood that she will be subject to the action again." But that is too narrow an interpretation of "capable of repetition." Anytenant who is sued for eviction by a landlord, when the landlord is not entitled to the eviction, risks being evicted anyway and then being incapable of proving in court that the eviction was wrong, because the lease will have since expired. The situation is likely to be repeated and is exactly the situation that needs to be resolved instead of being forever dismissed for mootness.

{¶ 23} In In re Appeal of Huffer, the Ohio Supreme Court held that the issue of the authority of local school boards to make rules and regulations was capable of repetition yet evaded review "since students who challenge school board rules generally graduate before the case winds its way through the court system."⁶ The fact that the particular student in that case was unlikely to ever attend high school again did not mean that the issue was incapable of repetition. Likewise, the fact that Lattimore will be unlikely to rent another apartment from Schwab should not mean that her issue is incapable of repetition.

{¶ 24} And similarly, in State v.Brooks, the Ohio Supreme Court considered the issue of sentencing a defendant to a prison term after a community-control sanction, despite acknowledging that the defendant in the case had already served his entire term of imprisonment imposed for his community-control violation.⁷ The court specifically held that the issue was moot as to the defendant, but that the issue should be addressed because it was capable of repetition and evading review.⁸

{¶ 25} Brooks, which was decided in 2004, four years after State ex rel. Calvary, clearly indicates that the exception to the mootness doctrine of "capable of repetition yet evading review" applies when a situation is likely to occur repeatedly, albeit with different litigants.

{¶ 26} I would hold that the issue in this case is not moot merely because Lattimore no longer lives in the apartment. It is possible that she was wrongly evicted and was left without a remedy to prove that her eviction was wrong, as she was allowed to do under R.C. 1923.061.

II. A Counterclaim Must Be Heard {¶ 27} I would further hold that the trial court erred when it failed to first determine which party was owed a net judgment before entering judgment for Schwab on the eviction claim. That decision cannot be deferred to be heard with the "second claim," or the landlord's claim for damages and back rent.

{¶ 28} When a tenant challenges the eviction on the ground that the premises were in such disrepair that the fair rental value was less, the trial court must hear the counterclaim before issuing a writ, because the tenant might not owe any rent. Under R.C. 1923.061, "[i]f no rent remains due after application of this division, judgment shall be entered for the tenant or resident in the action for possession."⁹ Clearly, judgment on the issue of possession cannot be made until the court first determines whether the tenant owes any money. If the tenant does not owe any money, the landlord is not entitled to possession of the premises.

{¶ 29} Several other appellate districts have reached the same conclusion and have held that a trial court must first determine which party is owed a net judgment before ruling on possession of the premises. In Sandefur Mgt. Co.v. Smith, the Tenth Appellate District held that the trial court incorrectly granted the landlord possession of the premises prior to trial "since, at that time, it was not possible for the trial court to ascertain proper application of the mandatory provisions of R.C. 1923.061(B)."¹⁰ The court noted, "The clear purpose of R.C. 1923.061(B) is to permit a tenant to remain in possession of the leased premises whenever the tenant recovers a monetary judgment against a landlord * * *."

{¶ 30} Similarly, in Studer v.Roark, the Fifth Appellate District held that the issues of possession and damages must be determined at the same time, stating, "It is very possible that when the trial court hears the issue of damages, [the tenant] could prevail on his counterclaim and restitution to [the landlord] will not be the proper remedy; therefore, [the tenant] could remain in the rental premises. This is the exact situation that R.C. 1923.061 tries to simplify."¹¹

{¶ 31} Therefore, I would sustain Lattimore's first and second assignments of error and hold that the trial court erred when it granted a writ of restitution to Schwab before ruling on Lattimore's counterclaim and determining which party was due a net judgment.

⁵ See State ex rel. Calvary v. Upper Arlington (2000),89 Ohio St.3d 229, 231, 729 N.E.2d 1182.

⁶ See In re Appeal of Huffer (1989), 47 Ohio St.3d 12, 14,546 N.E.2d 1308.

⁷ See State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746,814 N.E.2d 837, at ¶ 5.

⁸ Id.

⁹ R.C. 1923.061(B).

¹⁰ Sandefur Mgt. Co. v. Smith (1985),21 Ohio App.3d 145, 149, 21 OBR 155, 486 N.E.2d 1234.

¹¹ Studer v. Roark (Mar. 21, 1995), 5th Dist. No. 94-CA-38, 1995 WL 347963; see, also, Heritage Hills,Ltd. v. Bragg (Aug. 27, 1987), 4th Dist. No. 1379,1987 WL 16079.