Kettering Square Apts. v. Crawford , 2017 Ohio 9054 ( 2017 )

[Cite as Kettering Square Apts. v. Crawford, 2017-Ohio-9054.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
KETTERING SQUARE APARTMENTS :
:
Plaintiff-Appellee : Appellate Case Nos. 27504, 27545,
: 27548
v. :
: Trial Court Case No. 17-CVG-2078
MARSHIE CRAWFORD :
: (Civil Appeal from
Defendant-Appellant : Municipal Court)
:
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OPINION
Rendered on the 15th day of December, 2017.
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DERRICK STRAHORN, Atty. Reg. No. 0034483, 6233 North Main Street, Dayton, Ohio
45415
Attorney for Plaintiff-Appellee
DEBRA LAVEY, Atty. Reg. No. 0073259, 130 West Second Street, Suite 700 West,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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HALL, P.J.
{¶ 1} The trial court granted Kettering Square Apartments (KSA) restitution of the
apartment in which Marshie Crawford lives, because she violated her lease. Crawford
has appealed several of the court’s entries. Finding no error in any of them, we affirm
them all.
I. Background
{¶ 2} On November 23, 2016, KSA served Crawford, who lives in a federally
subsidized apartment, with a 30-day notice of termination of her lease. The notice states
that she breached her lease by failing to maintain her apartment in a safe and sanitary
condition. According to the notice, earlier that year, on May 19 her apartment failed a
housekeeping inspection. A letter delivered on May 27 explained why it failed and gave
a date for reinspection. A month later, on June 27, the apartment was again inspected
and again failed. On September 1, Crawford’s attorney sent KSA a letter stating that
Crawford is disabled and asking that it give her a “reasonable accommodation in the form
of a two-week extension of time to address any failed inspection items.” KSA did not
respond to the letter or talk to Crawford about her request. However it was not until almost
four months later, on December 27, KSA served Crawford a 10-day notice of termination,
and then on January 9, 2017, it served her a 3-day notice of termination. Crawford did not
leave. On January 19, KSA filed a complaint for forcible entry and detainer against her,
asking for restitution of the premises. On March 14, after a hearing, a magistrate issued
a decision granting restitution. The same day, the trial court adopted the magistrate’s
decision and entered a writ of restitution ordering Crawford to vacate her apartment by
March 23.
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{¶ 3} Three days after the trial court granted restitution, Crawford filed objections
to the magistrate’s decision and a motion to stay execution pending a ruling on the
objections. She also filed a praecipe for preparation of a transcript of the magistrate’s
hearing and a motion to supplement objections when the transcript is filed. On March 20,
the trial court overruled the motion to stay, saying that a stay may be granted only after
an appeal is filed. The next day, March 21, Crawford appealed this ruling. The day after
that, March 22, the trial court stayed execution of the writ of restitution, stating that the
filing of the appeal “now puts [Crawford’s] request for stay properly before this Court for
a decision on the merits on the motion for stay.” The court also overruled Crawford’s
objections, though it did so “not on the merits of the objections, but on the basis that in a
forcible entry and detainer action objections are not the proper method to challenge the
issuance of the writ of restitution. A direct appeal is the proper method to challenge that
decision.” On April 5, the trial court granted Crawford’s motion to stay, pending the
underlying appeal, and ordered her to post a use and occupancy bond. A week later, on
April 13, Crawford filed a notice of appeal from the March 14 judgment granting restitution
and she filed a notice of appeal from the March 22 entry overruling her objections.
{¶ 4} All three of Crawford’s appeals are before us now. KSA has not filed a brief
in any of the appeals.
II. Appeal of the March 20 entry overruling the motion for stay
{¶ 5} Crawford’s first appeal is from the trial court’s March 20 judgment overruling
her motion for a stay pending objections. The sole assignment of error contends that the
trial court erred by overruling this motion. The court ultimately did grant Crawford’s motion
for a stay pending this appeal on April 5. Consequently the question whether the court
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erred by not doing so is moot.
{¶ 6} The sole assignment of error for that appeal is overruled.
III. Appeal of the March 22 entry overruling objections
{¶ 7} Crawford assigns two errors to that part of the March 22 entry overruling her
objections. The first assignment of error alleges that the trial court erred by concluding
that the Ohio Rules of Civil Procedure do not apply to forcible entry and detainer
proceedings. And the second assignment of error alleges that the trial court erred by
concluding that filing objections to a magistrate’s decision is not necessary or appropriate
in a forcible entry and detainer proceeding.
{¶ 8} In its March 22 entry, the trial court says, “In the Court’s Entry filed 20 March
2017, the Court noted that the Ohio Rules of Civil Procedure do not apply to a procedure
in forcible entry and detainer.” We doubt that the trial court’s statement reflects a
conclusion that none of the civil rules applies in a forcible entry and detainer proceeding.
Rather, we suspect that the trial court was simply being consistent with what the court
said in the March 20 entry: “Civ.R. 1(C) provides that the Ohio Rules of Civil Procedure
do not apply to a procedure in forcible entry and detainer. Colonial American Dev. Co. v.
Griffith, 48 Ohio St.3d 72, 549 N.E.2d 513 (1990). Therefore an automatic stay is not
imposed under Ohio Civ R 53 when a Defendant files an objection to the decision of a
Magistrate ordering restitution of the premises.” We have said that “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.” Gold Key Realty
v. Collins, 2d Dist. Greene No. 2013 CA 57, 2014-Ohio-4705, ¶ 15. Applying Civ.R. 1(C),
the Ohio Supreme Court in Griffith concluded that the automatic stay provisions in former
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Civ.R. 53(E)(7), now in Civ.R. 53(D)(4)(e)(i), do not apply to forcible entry and detainer
actions. Griffith at the syllabus. In light of Civ.R. 1(C) and Griffith, there is simply no
reasonable way to conclude that none of the civil rules apply to these actions.
{¶ 9} Concerning objections, in its March 22 entry, the trial court expressed its
opinion that because an action in forcible entry and detainer is a summary proceeding,
filing objections to the writ of restitution “is not a necessary or appropriate step in the
appeal process.” The trial court quotes Griffith that “[i]f 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.” Griffith at 72. The trial court cites this court’s opinion in Cherry v.
Morgan, 2d Dist. Clark Nos. 2012 CA 11, 2012 CA 21, 2012-Ohio-3594, as well as R.C.
1923.14 for the proposition that “[a] direct appeal is the proper method to challenge that
decision [writ of restitution].” It is for this reason, said the court, that it overruled Crawford’s
objections.
{¶ 10} The objection provisions in Civ.R. 53 create a procedural quagmire when
applied to a forcible entry and detainer proceeding—proceedings which are supposed to
be summary in nature. Griffith removed the rule’s automatic-stay provision for a writ of
restitution, but a party still has fourteen days to file objections, Civ.R. 53(D)(3)(b)(i), and
another thirty days after filing objections to file a transcript, Civ.R. 53(D)(3)(b)(iii). After
the transcript is ready, the objecting party may then ask the court for leave to file
supplemental objections. Id. Then the trial court must rule on the objections, and the
losing party then has thirty days to appeal. Without a stay, though, the entire action could
be moot well before the objection process is exhausted. By statute, a writ of execution is
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to be executed “by restoring the plaintiff to the possession of the premises” “within ten
days after receiving” the writ. R.C. 1923.14(A). “Once a landlord has been restored to the
property, the forcible entry and detainer action becomes moot because, having been
restored to the premises, there is no further relief that can be granted.” (Citation omitted.)
Cherry at ¶ 4. Here, for example, the trial court ordered Crawford to be evicted just over
a week after it issued the writ of restitution.
{¶ 11} R.C. 1923.14 suggests, as the trial court indicated, that filing an appeal is
the proper course. The statute pertinently states that “[i]f an appeal from the judgment of
restitution is filed and if, following the filing of the appeal, a stay of execution is obtained
and any required bond is filed with the court of common pleas, municipal court, or county
court, the judge of that court immediately shall issue an order to the sheriff, police officer,
constable, or bailiff commanding the delay of all further proceedings upon the execution.”
R.C. 1923.14(A). But if objections are not proper, what about the requirement in Civ.R.
53(D)(3)(b)(iv) that to assign an error on appeal the party must have objected to it? And
what about the requirement in App.R. 4(B)(2) that if a party files a notice of appeal before
the trial court has resolved objections, the appellate court is to remand the matter for a
ruling? In light of the potential delay objections would cause in the summary disposition
of forcible entry cases, we have previously commented that perhaps a tenant need not
file objections but rather proceed directly to appeal for relief. Gold Key Realty v. Collins,
supra, ¶ 19. It makes little sense to require the filing of objections when that process will
inevitably extend beyond the thirty day deadline for filing an appeal of the order to vacate
the premises.
{¶ 12} Fortunately, in this case, we can avoid the procedural quagmire, because
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Crawford has also appealed the March 14 judgment adopting the magistrate’s decision
and granting restitution, and in that appeal, she argues the merits of her objections. “ ‘In
order to justify the reversal of a judgment or decree upon error, the record must show
affirmatively, not only that error intervened, but that it was to the prejudice of the party
seeking to take advantage of it.’ ” In re Milella, 4th Dist. Ross No. 01CA2593, 2001 WL
812808, *11 (Jun. 29, 2001), quoting Ohio Life Ins. and Trust Co. v. Goodin, 10 Ohio St.
557 (1860), paragraph one of the syllabus. There is no prejudice if a judgment is correct
for a reason different than the one on which the trial court relied. Bonner v. Bonner, 3d
Dist. Union No. 14-05-26, 2005-Ohio-6173, ¶ 18 (“A judgment by the trial court which is
correct, but for a different reason, will be affirmed on appeal as there is no prejudice to
the appellant.”), citing Lust v. Lust, 3d Dist. Wyandot No. 16-02-04, 2002-Ohio-3629, ¶
32, citing Smith v. Flesher, 12 Ohio St.2d 107, 110, 233 N.E.2d 137 (1967).
{¶ 13} Here, even if the trial court erred by overruling Crawford’s objections, the
error was harmless. None of the issues that Crawford raises in her objections are
questions of fact. Indeed, few facts in this case are disputed. Rather, her objections raise
primarily questions of law, which we can resolve as well as the trial court. And based on
our de novo review of the March 14 judgment, we conclude that the trial court correctly
adopted the magistrate’s decision and granted KSA restitution. Compare In the Matter of
I.U., 2d Dist. Champaign No. 2007 CA 9, 2007-Ohio-6264; Goldfuss v. Traxler, 3d Dist.
Wyandot No. 16-08-12, 2008-Ohio-6186, ¶ 28 (relying on additional grounds not relied
on by the trial court to conclude that the writ of restitution was appropriate). We explain
those reasons next in our review of the March 14 judgment.
{¶ 14} Both assignments of error in this appeal are overruled.
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IV. Appeal of the March 14 judgment granting restitution
{¶ 15} In her appeal of the March 14 judgment granting KSA restitution, Crawford
presents three assignments of error, each of which is an objection to the magistrate’s
decision that Crawford filed in the trial court.
A. Was the November 23, 2016 notice of termination defective?
{¶ 16} The first assignment of error argues that the trial court did not have subject
matter jurisdiction over the case because the 30-day notice of termination that KSA
served Crawford on November 23, 2016, was defective. Crawford contends that the
notice fails to specify the acts or omissions that constitute a violation of the lease.
{¶ 17} The governing Ohio statute provides that “[i]f the tenant fails to fulfill any
obligation imposed upon him by section 5321.05 of the Revised Code that materially
affects health and safety, * * * the landlord may deliver a written notice of this fact to the
tenant specifying the act or omission that constitutes noncompliance with the pertinent
obligations and specifying that the rental agreement will terminate upon a date specified
in the notice * * *.” R.C. 5321.11. A federal regulation (which applies because Crawford’s
rent is federally subsidized) requires a notice of termination to “state the reasons for the
landlord’s action with enough specificity so as to enable the tenant to prepare a defense.”
24 C.F.R. 247.4(a). Crawford’s lease contains a substantively similar provision.
{¶ 18} The November termination notice states that Crawford’s tenancy is being
terminated because of her “material non-compliance with the lease and community rules.”
The notice then quotes a provision in the lease that requires the tenant to obey the
community rules and specifically quotes the rule that a tenant must keep her apartment
unit “ ‘in a decent, safe, and sanitary condition (including appliances), at all times.’ ”
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Citing the lease, the notice states that “material non-compliance with the lease” includes
“ ‘repeated minor violations of the lease that * * * adversely affect the health and safety of
any person.’ ” The notice then cites these facts:
(1) Your unit was inspected on 5/19/16 for your Annual Recertification. The
unit failed the housekeeping inspection and a letter was delivered on
5/27/16 explaining the deficiencies and giving you the date of re-inspection.
(2) Your unit was re-inspected on 6/27/16 and again failed.
{¶ 19} Crawford says that at the hearing KSA did not present either the inspection
reports or the letter explaining the deficiencies. She also says that KSA presented no
testimony as to the substance of the failed inspections or referenced letter and that there
is nothing in the record to show that either the inspection or letter explaining the
deficiencies were sufficient to satisfy the specificity requirement. We have said that a
court may look beyond the written notice to determine whether the specificity
requirements of the federal regulation were satisfied: “Facts and circumstances otherwise
known to the family and of which they are given notice by reference through the written
termination notice are within the contemplation of the regulation.” Northland Village Apts.
v. Hamp, 2d Dist. Montgomery No. 12407, 1991 WL 108717, *1 (Jun. 20, 1991).
{¶ 20} Here, KSA presented photographs of Crawford’s apartment that were taken
during the inspections. A KSA employee testified about the problems that the pictures
showed. The employee also testified that she showed Crawford the pictures and told her
that she would give her a copy so that she could see the things that needed to be done.
Crawford did not present any evidence that she did not know what the problems were.
Based on the evidence, the court could reasonably have found that Crawford knew why
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she failed the inspections with enough specificity to prepare a defense.
{¶ 21} The first assignment of error is overruled.
B. Did KSA waive the breach?
{¶ 22} The second assignment of error argues that KSA waived Crawford’s breach
by accepting rent payments after the breach.
{¶ 23} The applicable rule is that “[a] landlord who accepts future rent payments
after serving a notice to vacate is deemed to have waived the notice to vacate as a matter
of law because such acceptance is inconsistent with the notice to vacate.” Eureka
Multifamily Group v. Terrell, 6th Dist. Lucas No. L-14-1152, 2015-Ohio-1861, ¶ 13, citing
Colbert v. McLemore, 8th Dist. Cuyahoga No. 81961, 2003-Ohio-3255, ¶ 7. Here, KSA
did not accept any payments from Crawford after it served her with the first notice of
termination in this case. There is no dispute in the record that the last rent payment that
KSA accepted from her was in August 2016 or that KSA served Crawford the 30-day
notice of termination the following November. KSA did accept rent from Crawford after
the failed inspections in May and June 2016, but in August, KSA was apparently still
hoping that Crawford would remedy the breach.
{¶ 24} The second assignment of error is overruled.
C. Did KSA fail to grant Crawford a reasonable accommodation?
{¶ 25} The third assignment of error argues that KSA failed to grant Crawford a
reasonable accommodation because of her disability.
{¶ 26} On September 1, 2016, Crawford’s attorney sent KSA a letter asking that it
give Crawford a reasonable accommodation because she is disabled. Specifically, the
letter states that “Ms. Crawford requests a reasonable accommodation in the form of a
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two-week extension of time to address any failed inspection items.” While KSA did not
respond to the letter or talk to Crawford about her request, it did not give her the first
notice of termination until November 23, 2016. And, KSA did not file this action against
Crawford until January 2017. Despite having had months to address the failed inspection
items, Crawford still had not done so. Regardless whether KSA should have handled the
reasonable-accommodation request differently, it effectively gave Crawford more
accommodation than she requested.
{¶ 27} The third assignment of error in this appeal is overruled.
V. Conclusion
{¶ 28} We have overruled each of the assignments of error presented in each of
Crawford’s appeals. Therefore all of the appealed judgments are affirmed.
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DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Derrick Strahorn
Debra Lavey
Hon. James F. Long