T & R Properties, Inc. v. Wimberly , 2020 Ohio 4279 ( 2020 )


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  • [Cite as T & R Properties, Inc. v. Wimberly, 2020-Ohio-4279.]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    T&R Properties, Inc.,                                :
    Plaintiff-Appellee,                 :
    No. 19AP-567
    v.                                                   :          (M.C. No. 2019CVG-29217)
    Traci Wimberly,                                      :          (REGULAR CALENDAR)
    Defendant-Appellant.                :
    D E C I S I O N
    Rendered on September 1, 2020
    On brief: Willis Law Firm LLC, William L. Willis, Jr.,
    Dimitrios G. Hatzifotinos, Solomon J. Parini, and Michael K.
    Jameson, for appellee. Argued: Dimitrios G. Hatzifotinos.
    On brief: The Legal Aid Society of Columbus, Melissa C.
    Benson, and Benjamin D. Horne, for appellant. Argued:
    Melissa C. Benson.
    On brief: Zachary M. Klein, City Attorney, and Lara N.
    Baker-Morrish, for amicus curiae City of Columbus and
    Columbus Women's Commission, in support of appellant.
    On brief: Bricker & Eckler LLP, Anne Marie Sferra, and
    Bryan M. Smeenk, for amicus curiae Affordable Housing
    Alliance; Alvis, Inc.; B.R.E.A.D.; Coalition on Homelessness
    and Housing in Ohio; Community Mediation Services;
    Community Shelter Board; Human Services Chamber;
    Student Legal Services at the Ohio State University; and
    YWCA Columbus, in support of appellant.
    On brief: Lardiere McNair, LLC, Chad M. Stonebrook, and
    Christopher L. Lardiere, for amicus curiae Columbus
    Apartment Association, in support of appellee.
    APPEAL from the Franklin County Municipal Court
    No. 19AP-567                                                                                2
    DORRIAN, J.
    {¶ 1} Defendant-appellant, Traci Wimberly, appeals from a judgment of the
    Franklin County Municipal Court granting judgment in favor of plaintiff-appellee, T&R
    Properties, Inc. ("T&R"), on its action for forcible entry and detainer to evict Wimberly from
    an apartment ("the eviction action"). For the following reasons, we deny T&R's motion to
    dismiss Wimberly's appeal and reverse the judgment of the municipal court.
    I. Facts and Procedural History
    {¶ 2} Wimberly leased an apartment in Canal Winchester, Ohio, managed by T&R.
    On July 29, 2019, T&R filed the eviction action, seeking restitution of the apartment. The
    complaint alleged Wimberly failed to make her rental payment for July 2019 and had been
    given the required statutory notice to vacate the premises. The complaint further alleged
    Wimberly was in default under her lease and had not vacated the apartment. A hearing on
    the complaint was scheduled for August 12, 2019. Wimberly requested a continuance and
    the hearing was rescheduled for August 19, 2019. An attorney for T&R appeared at the
    rescheduled hearing, but Wimberly did not appear and was not represented by counsel. At
    the rescheduled hearing before a magistrate of the municipal court, the following
    proceedings occurred:
    THE BAILIFF: T & R Properties versus Traci Wimberly.
    THE COURT: This tenant did not appear here today. Based on
    this affidavit I'll find for the plaintiff.
    (Aug. 19, 2019 Tr. at 2.) The trial court record includes a copy of an affidavit made by
    Donielle Owen ("the Owen affidavit"), bearing a stamp indicating it was filed with the
    Franklin County Municipal Court Clerk on August 19, 2019. Owen averred: (1) Wimberly
    failed to pay her rent or was otherwise in default on her lease, (2) a notice to leave the
    premises was posted on the door of Wimberly's apartment, (3) Wimberly was behind on
    her rent at the time the notice to leave the premises was posted and at the time the affidavit
    was made, and (4) Wimberly was still residing in the apartment. This appears to be the
    affidavit referred to by the magistrate in the hearing transcript. The magistrate entered
    judgment in favor of T&R finding that, based on the evidence presented, the notice to vacate
    conformed to the statutory requirements and was served on Wimberly, and T&R proved
    No. 19AP-567                                                                               3
    non-payment of rent by a preponderance of the evidence. The magistrate issued a writ of
    restitution of the premises.
    {¶ 3} Wimberly filed objections to the magistrate's decision, asserting the
    magistrate violated Civ.R. 43 by relying solely on the Owen affidavit in rendering judgment
    for T&R and that the Owen affidavit was inadmissible hearsay evidence. The trial court
    overruled Wimberly's objections concluding it was bound by this court's decision in
    Oakbrook Realty Corp. v. Blout, 
    48 Ohio App. 3d 69
    (10th Dist.1988), and, that based on
    the holding in Blout, the magistrate did not err by accepting the Owen affidavit as evidence.
    II. Assignment of Error
    {¶ 4} Wimberly appeals and assigns the following sole assignment of error for our
    review:
    The trial court erred when it granted judgment to Plaintiff at
    trial absent any live witness testimony.
    III. Analysis
    A. Use of affidavits in forcible entry and detainer actions in Franklin County
    Municipal Court when the defendant does not appear
    {¶ 5} As context for this appeal, it is useful to understand the existing practice in
    the municipal court at a hearing on a forcible entry and detainer claim when the defendant
    is not present. In its decision overruling Wimberly's objections, the municipal court
    incorporated by reference an earlier decision in Carl Edward Miller Trust v. Jones,
    Franklin M.C. No. 2018CVG-15385 (June 13, 2018). The Jones decision described the use
    of affidavits in forcible entry and detainer cases in the municipal court:
    First, it is critical to note that there is no local rule in the
    Franklin County Municipal Court which authorizes admission
    of affidavits as evidence during trial of an eviction claim. The
    mistaken belief that such a local rule exists is understandable
    given how entrenched the affidavit practice is as a part of the
    Court's eviction dockets that typically process approximately
    one hundred or more eviction claims every day. However, the
    Court's affidavit practice exists solely because of the Court's
    obligation to adhere to the law as promulgated by the Tenth
    District Court of Appeals thirty years ago in Oakbrook Realty
    Corp. v. Blout, 
    48 Ohio App. 3d 69
    , 
    548 N.E.2d 305
    (10th
    Dist.1988).
    No. 19AP-567                                                                                   4
    ***
    Pursuant to the Blout precedent, the Franklin County
    Municipal Court's practice has been to exercise discretion by
    admitting affidavits when the tenant does not appear for trial
    and therefore does not object to the affidavit; if the tenant
    appears and contests the landlord's claim for eviction, the
    landlord must present live witness testimony or other
    admissible evidence sufficient to prove eviction is appropriate,
    by a preponderance of the evidence.
    Jones at 1-2. Consistent with the characterization in Jones, amici curiae in support of
    Wimberly, the city of Columbus and the Columbus Women's Commission, assert it is
    common practice for the municipal court to grant judgment in favor of a landlord in a
    forcible entry and detainer case based solely on an affidavit when the tenant does not
    appear. In the present case, the magistrate relied exclusively on the Owen affidavit in
    concluding the elements of the eviction action had been established and granting judgment
    in favor of T&R.
    B. T&R's motion to dismiss appeal
    {¶ 6} T&R has moved to dismiss Wimberly's appeal, arguing it is moot because her
    lease term expired and she vacated the apartment that was the subject of the eviction action
    while the appeal was pending. Wimberly concedes she has vacated the apartment, but
    argues the appeal should not be dismissed as moot, citing several exceptions to the
    mootness doctrine. Before addressing the merits of Wimberly's appeal, we must consider
    T&R's motion to dismiss.
    {¶ 7} "The doctrine of mootness is rooted both in the 'case' or 'controversy' language
    of Section 2, Article III of the United States Constitution and in the general notion of judicial
    restraint. While Ohio has no constitutional counterpart to Section 2, Article III, the courts
    of Ohio have long recognized that a court cannot entertain jurisdiction over a moot
    question. It is not the duty of a court to decide purely academic or abstract questions."
    (Internal citations omitted.) James A. Keller, Inc. v. Flaherty, 
    74 Ohio App. 3d 788
    , 791
    (10th Dist.1991). "No actual controversy exists where a case has been rendered moot by an
    outside event." Tschantz v. Ferguson, 
    57 Ohio St. 3d 131
    , 133 (1991). "When a case becomes
    moot, dismissal of the case is appropriate because the case no longer presents a justiciable
    No. 19AP-567                                                                                    5
    controversy." Rithy Properties, Inc. v. Cheeseman, 10th Dist. No. 15AP-641, 2016-Ohio-
    1602, ¶ 14.
    {¶ 8} An action for forcible entry and detainer is a method for an aggrieved
    landlord to recover possession of real property. Cheeseman at ¶ 15. Judgment in a forcible
    entry and detainer action only determines the right to immediate possession of the
    property.
    Id. "If immediate possession
    is no longer at issue because the defendant vacates
    the premises and possession is restored to the plaintiff, then continuation of the forcible
    entry and detainer action or an appeal of such an action is unnecessary, as there is no
    further relief that may be granted."
    Id. {¶ 9} Because
    Wimberly has vacated the apartment that was the subject of the
    eviction action, there is no actual, justiciable controversy between the parties. See
    id. at ¶ 16
    ("This legal dispute, however, is now moot because Cheeseman has vacated the
    apartment. With the restoration of the apartment to Rithy, the controversy underlying the
    parties' legal dispute was resolved."). Notwithstanding this conclusion, we must determine
    whether any exceptions to the mootness doctrine apply to this appeal.
    1. Exception to mootness for issues capable of repetition, yet evading review
    {¶ 10} One exception to the mootness doctrine arises when the issues raised in an
    appeal are " 'capable of repetition, yet evading review.' " State ex rel. Plain Dealer
    Publishing Co. v. Barnes, 
    38 Ohio St. 3d 165
    , 166 (1988), quoting S. Pacific Terminal Co. v.
    Interstate Commerce Comm., 
    219 U.S. 498
    , 515 (1911). The Ohio Supreme Court has
    declared this exception applies in exceptional circumstances, when two factors are present:
    "(1) the challenged action is too short in its duration to be fully litigated before its cessation
    or expiration, and (2) there is a reasonable expectation that the same complaining party
    will be subject to the same action again." State ex rel. Calvary v. Upper Arlington, 89 Ohio
    St.3d 229, 231 (2000).
    {¶ 11} With respect to the first element of the exception, this court has stated that
    because R.C. 1923.14(A) provides for a stay of execution of judgment, a forcible entry and
    detainer action is not too short in duration to be fully litigated through appeal. Cheeseman
    at ¶ 23. See also AKP Properties, LLC v. Rutledge, 5th Dist. No. 2018CA00058, 2018-Ohio-
    5309, ¶ 19 (citing Cheeseman and holding that because R.C. 1923.14(A) provided for stay
    of execution of judgment, forcible entry and detainer action was not too short in duration
    No. 19AP-567                                                                                    6
    to be fully litigated through appeal). R.C. 1923.14(A) provides in relevant part 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." (Emphasis added.)
    {¶ 12} Unlike the present case, where T&R sought to evict Wimberly for failure to
    pay her rent, the landlord in Cheeseman sought eviction because the tenant's lease had
    expired but she remained in possession of her apartment. Cheeseman at ¶ 2. Thus, the
    court in Cheeseman did not consider the ability of a tenant to meet the requirements to
    obtain a stay of execution, including paying a bond. In this case, the municipal court
    required Wimberly to post a supersedeas bond with the court in the amount of the two
    monthly rent payments she was alleged to have missed as of the date of judgment. Tenants
    faced with eviction due to failure to pay their rent will be unlikely to have the means to post
    a bond to obtain a stay of execution. See Olympic Realty v. Voytek Zaleski, 10th Dist. No.
    11AP-668 (June 29, 2012) (memorandum decision on application for reconsideration)
    ("[A]ctions such as this are likely to otherwise evade review, as tenants who rely on housing
    assistance will likely be unable to post a bond in order to preserve their issues for appeal.").
    Alternatively, as in the present case, the natural term of a tenant's lease may expire during
    the pendency of an appeal, requiring the tenant to vacate the premises and allowing the
    landlord to assert the appeal is moot. See Schwab v. Lattimore, 
    166 Ohio App. 3d 12
    , 2006-
    Ohio-1372, ¶ 21 (1st Dist.) (Painter, J., dissenting) ("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.").
    Accordingly, we find Cheeseman to be distinguishable and conclude Wimberly has
    established the eviction action was too short in duration to be fully litigated through appeal
    before it expired.
    {¶ 13} With respect to the second element of the exception, Wimberly asserts that
    because she is a low-income tenant renting property in Franklin County, she remains
    subject to the continued threat of eviction by affidavit. The municipal court decision in
    No. 19AP-567                                                                                7
    Jones referred to affidavit practice as an entrenched part of the court's eviction docket.
    Wimberly alleges T&R filed three separate forcible entry and detainer actions against her
    during the period of October 2018 through October 2019, with the two actions filed prior
    to the case resulting in this appeal being resolved by agreed judgment entry. Wimberly
    asserts she has moved to an apartment managed by a different company, but claims her
    current landlord previously has used affidavits to evict other tenants. Therefore, we find
    Wimberly has established a reasonable expectation that she may be subject to a forcible
    entry and detainer action again.
    {¶ 14} Accordingly, we find this appeal presents an issue that is capable of
    repetition, yet evading review, and not subject to the mootness doctrine.
    2. Exception to mootness for cases presenting a constitutional question or
    matter of great public or general interest
    {¶ 15} Another exception to the mootness doctrine arises when a case presents a
    debatable constitutional question or matter of great public or general interest. Franchise
    Developers, Inc. v. Cincinnati, 
    30 Ohio St. 3d 28
    , 31 (1987). Considering an otherwise moot
    appeal because it presents an issue of great public or general interest should only occur with
    caution on rare occasions. Cheeseman at ¶ 24. Citing statistics maintained by the
    municipal court, amici curiae in support of Wimberly, the city of Columbus and the
    Columbus Women's Commission, assert that 35,103 forcible entry and detainer actions
    were filed in the municipal court between January 2017 and December 2018. That equates
    to an average of 48 eviction actions filed per day over that two-year period. As noted, in
    Jones the municipal court referred to the use of affidavits as an entrenched part of the
    court's eviction docket. Even amicus curiae in support of T&R, the Columbus Apartment
    Association claims the issues in this appeal are of great public interest, with the potential
    to affect every landlord, tenant, and property management company in Franklin County.
    Under these circumstances, we conclude the present appeal is within an exception to the
    mootness doctrine because it presents an issue of great general or public interest within
    Franklin County.
    3. Conclusion regarding motion to dismiss
    {¶ 16} Although we find there is no actual, justiciable controversy between
    Wimberly and T&R because Wimberly has vacated the apartment, we further conclude this
    No. 19AP-567                                                                                                  8
    appeal presents an issue capable of repetition, yet evading review, and of great general or
    public interest. Therefore, we deny T&R's motion to dismiss the appeal.
    C. Analysis of merits of Wimberly's appeal
    {¶ 17} Having denied T&R's motion to dismiss, we turn to the merits of Wimberly's
    appeal. Wimberly argues the trial court erred by granting judgment in favor of T&R in the
    eviction action based solely on the Owen affidavit, without taking any live testimony. She
    asserts Civ.R. 43 requires that testimony be taken in open court and that no exceptions to
    the rule apply in a forcible entry and detainer action, and that the Owen affidavit constituted
    inadmissible hearsay evidence.
    1. Standard of review
    {¶ 18} Wimberly did not appear at the rescheduled hearing on August 19, 2019;
    because she was not present, she could not object to the magistrate's consideration of the
    Owen affidavit. However, Wimberly timely filed objections to the magistrate's decision,
    asserting the magistrate erred by accepting the Owen affidavit as evidence and relying on it
    in granting judgment for T&R because Civ.R. 43 requires testimony in open court and the
    Owen affidavit was inadmissible hearsay. When objections are filed to a magistrate's
    decision, the trial court must undertake an independent de novo review of the matters
    objected to in order "to ascertain [whether] the magistrate has properly determined the
    factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d).1 See also James v.
    My Cute Car, LLC, 10th Dist. No. 16AP-603, 2017-Ohio-1291, ¶ 13. "The standard of review
    1As discussed more fully infra, pursuant to Civ.R. 1(C)(3), some provisions of the civil rules do not apply to
    forcible entry and detainer actions. The Ohio Supreme Court has determined that some portions of Civ.R. 53
    are not applicable in forcible entry and detainer actions, while others are applicable. See Colonial Am. Dev.
    Co. v. Griffith, 
    48 Ohio St. 3d 72
    , 73 (1990) (holding automatic stay provision of Civ.R. 53 did not apply in
    forcible entry and detainer actions); compare Miele v. Ribovich, 
    90 Ohio St. 3d 439
    , 444 (2000) (holding
    provisions of Civ.R. 53 authorizing a magistrate to prepare a decision without factual findings and enabling
    the trial court to adopt the magistrate's decision without conducting an independent analysis were applicable
    in forcible entry and detainer actions). The Miele decision concluded that the relevant provisions were "neither
    inconsistent with the summary nature of forcible entry and detainer proceedings nor contrary to this court's
    previous decisions construing sections of the rule not addressed in this decision." Miele at 444. We note that
    the local rules of the Franklin County Municipal Court authorize the filing of objections to magistrate's
    decisions pursuant to Civ.R. 53. Loc.R. 7.03 of the Franklin County Municipal Court. Accordingly, for
    purposes of this decision, we assume that the municipal court's review of objections to a magistrate's decision
    in a forcible entry and detainer action is subject to the standard set forth in Civ.R. 53(D)(4)(d). See, e.g.,
    Portage Metro. Hous. Auth. v. Brumley, 11th Dist. No. 2008-P-0019, 2008-Ohio-5534, ¶ 74-75 (applying
    Civ.R. 53(D)(4)(d) in considering appeal of municipal court denial of objections to magistrate's decision).
    Moreover, we note that the municipal court purported to apply this standard in reviewing Wimberly's
    objections to the magistrate's decision, stating "[t]he Court has made an independent review of the matters
    objected to, and rules as follows." (Aug. 28, 2019 Decision and Entry at 1.)
    No. 19AP-567                                                                                                    9
    on appeal from a trial court that adopts a magistrate's decision varies with the nature of the
    issues that were (1) preserved for review through objections before the trial court and
    (2) raised on appeal by assignment of error." In re Guardianship of Schwarzbach, 10th
    Dist. No. 16AP-670, 2017-Ohio-7299, ¶ 14; Feathers v. Ohio Dept. of Rehab. & Corr., 10th
    Dist. No. 16AP-588, 2017-Ohio-8179, ¶ 10.
    {¶ 19} In its decision denying Wimberly's objections, the municipal court held the
    magistrate did not err as a matter of law by accepting the Owen affidavit as evidence.
    Generally, the admission of evidence is within the discretion of a trial court, and a reviewing
    court will only reverse upon a showing of an abuse of discretion. Peters v. Ohio State
    Lottery Comm., 
    63 Ohio St. 3d 296
    , 299 (1992). This court has also noted that in some
    instances "questions about whether to admit hearsay often are hybrid questions of fact and
    law" and that no court has the discretion to commit an error of law. JPMorgan Chase Bank,
    N.A. v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 18. An abuse of discretion
    occurs when a decision is "unreasonable, arbitrary or unconscionable." Blakemore v.
    Blakemore, 
    5 Ohio St. 3d 217
    , 219 (1983).2
    2. Statutory requirements for a forcible entry and detainer action when the
    defendant does not appear
    {¶ 20} R.C. Chapter 1923 governs actions for forcible entry and detainer. R.C.
    1923.07 states: "[i]f the defendant does not appear in [an] action under this chapter and
    the summons was properly served, the court shall try the cause as though the defendant
    were present." In the context of legal proceedings, to "try" is defined as: "[t]o examine
    judicially; to examine and resolve (a dispute) by means of a trial." Black's Law Dictionary
    1827 (11th Ed.2019). A "trial" is further defined as "[a] formal judicial examination of
    evidence and determination of legal claims in an adversary proceeding." Black's at 1812.
    2The parties asserted that plain error review should apply to this appeal due to Wimberly's failure to object to
    the Owen affidavit at the hearing. Although this decision applies the abuse of discretion standard, we would
    also find that the municipal court plainly erred by overruling Wimberly's objections in this case. In civil cases,
    plain error should only be found in extremely rare cases involving exceptional circumstances that challenge
    the fairness, integrity, or public reputation of the judicial process. Brisco v. U.S. Restoration & Remodeling,
    Inc., 10th Dist. No. 18AP-109, 2019-Ohio-5318, ¶ 25. The error must be clear on the face of the record and
    prejudicial to the appellant.
    Id. For the reasons
    set forth in this decision, relying solely on the Owen affidavit
    to grant judgment in favor of T&R without taking any testimony in open court and without determining
    whether the Owen affidavit was admissible under the rules of evidence was clear error. This error was
    prejudicial to Wimberly because absent the Owen affidavit, T&R did not present any evidence to support its
    claim and judgment would have been granted in favor of Wimberly.
    No. 19AP-567                                                                               10
    Thus, under R.C. 1923.07, even when a tenant fails to appear after being properly served,
    the municipal court must conduct a formal judicial examination of the evidence and reach
    a determination on a complaint for forcible entry and detainer.
    {¶ 21} The issue presented in this appeal implicates the rules that apply at a trial
    conducted pursuant to R.C. 1923.07 when a tenant fails to appear and what evidence may
    be considered at such a trial. In a 1980 case, the Sixth District Court of Appeals found that
    the statutory requirements of R.C. 1923.07 were not satisfied at a hearing where the tenant
    did not appear and the municipal court judge simply questioned the landlord's attorney
    before entering judgment in favor of the landlord. Hampshire Heights, Inc. v. Wormer,
    6th Dist. No. L-80-091 (July 3, 1980). The court reasoned that "[a]s a minimum, one
    witness should have been sworn and examined or some evidence should have been
    adduced" to comply with the statutory requirements.
    Id. See also Aultman
    Home for Aged
    Women v. Ott, 5th Dist. No. CA-7688 (June 5, 1989) (finding R.C. 1923.07 was not satisfied
    where landlord's counsel merely recited the allegations set forth in the complaint and no
    evidence was presented). T&R argues Hampshire Heights and Aultman Home are
    distinguishable from the present case because some evidence, in the form of the Owen
    affidavit, was submitted in this case. We note that neither the trial court record nor the
    hearing transcript reveals precisely how the Owen affidavit was presented to the court.
    T&R claims the Owen affidavit was admitted into evidence at the hearing. Wimberly argues
    the Owen affidavit was not tendered as an exhibit at the hearing or filed and served on her,
    therefore it is not part of the trial court record. Notwithstanding the lack of clarity in the
    trial record, for purposes of analysis, we will treat the Owen affidavit as though it was
    properly presented to the trial court for consideration at the hearing. Therefore, we find
    this case to be distinguishable from Hampshire Heights and Aultman Home because T&R
    presented some evidence to support its claim for forcible entry and detainer.
    {¶ 22} In overruling Wimberly's objections to the magistrate's decision, the
    municipal court concluded it was bound by this court's decision in Blout. The municipal
    court held that under Blout the magistrate had discretion to admit an affidavit into evidence
    at an eviction hearing, and therefore did not err as a matter of law by accepting the Owen
    affidavit and rendering judgment for T&R.
    3. The Blout decision
    No. 19AP-567                                                                                              11
    {¶ 23} Blout involved a claim for forcible entry and detainer tried by a referee3
    pursuant to R.C. 1923.07 when the tenant failed to appear for the hearing. Blout at 70. The
    landlord moved to admit certain affidavits and attachments as evidence, but the referee
    refused to admit the affidavits based on the "try the cause as though the defendant were
    present" clause of R.C. 1923.07.
    Id. It appears the
    landlord did not offer any witnesses to
    provide testimony at the hearing. After excluding the landlord's proffered affidavits, the
    referee recommended dismissal of the claim for lack of evidence. The municipal court
    adopted the referee's recommendation and dismissed the claim.
    Id. {¶ 24} On
    appeal, the landlord argued the referee erred by rejecting the affidavits
    because there was no objection to their admission at the hearing.
    Id. This court agreed,
    holding that even in the absence of an objection the trial court had discretionary authority
    to admit or exclude evidence.
    Id. at 70-71.
    We also rejected the suggestion that the trial
    court was required to exclude the affidavits because they constituted hearsay evidence. This
    court stated that "[w]hile a trial court may exclude such evidence, it is not required to do
    so in every case." (Emphasis sic.)
    Id. at 71.
    We held that the municipal court erred by
    failing to exercise its discretion when it concluded it was bound to exclude the affidavits as
    a matter of law.
    Id. We reversed and
    remanded for further proceedings. The Blout decision
    did not analyze whether the specific affidavits and attachments offered by the landlord
    constituted admissible evidence.
    {¶ 25} As noted above, in its decision denying Wimberly's objections in the present
    case, the municipal court incorporated its earlier decision in Jones which asserted that, as
    a result of Blout, the municipal court's practice is to routinely admit affidavits in forcible
    entry and detainer actions when the tenant does not appear.
    4. Civ.R. 43 and its applicability to forcible entry and detainer actions
    {¶ 26} Wimberly argues that Civ.R. 43, adopted by the Supreme Court 27 years after
    Blout was decided, requires live testimony in open court at trials and hearings, including
    trials conducted pursuant to R.C. 1923.07 in forcible entry and detainer actions where the
    defendant is not present. T&R claims our prior decision in Blout controls the outcome in
    this case and argues Civ.R. 43 does not apply to forcible entry and detainer actions based
    3The title of "referee" was changed to "magistrate" through amendments to Civ.R. 53 adopted effective July 1,
    1995. 1995 Staff Note, Civ.R. 53; Miele at 443, fn. 4.
    No. 19AP-567                                                                                12
    on limitations contained in the civil rules. T&R further claims that even if Civ.R. 43 applies,
    live testimony is not required because affidavits are allowed by statute as a method of taking
    a witness's testimony.
    {¶ 27} Civ.R. 43 was adopted by the Supreme Court in 2015. The rule, titled "taking
    testimony," contains the following provisions:
    (A) In open court. At trial or hearing, the witnesses'
    testimony shall be taken in open court unless a statute, the
    Rules of Evidence, these rules, or other rules adopted by the
    Supreme Court provide otherwise. For good cause in
    compelling circumstances and with appropriate safeguards,
    the court may permit testimony in open court by
    contemporaneous transmission from a different location.
    (B) Evidence on a motion. When a motion relies on facts
    outside the record, the court may hear the matter on affidavits
    or may hear it wholly or partly on oral testimony or on
    depositions.
    Because, as discussed above, R.C. 1923.07 required the municipal court to conduct a trial
    on the eviction action despite her absence, Wimberly argues Civ.R. 43(A) required T&R to
    present live testimony in open court to establish the elements of the eviction action.
    a. Limited exceptions from civil rules for forcible entry and detainer actions
    {¶ 28} T&R argues Civ.R. 43 does not apply to forcible entry and detainer actions
    pursuant to the limitation contained in Civ.R. 1(C)(3). Civ.R. 1(C)(3) provides that the civil
    rules do not apply to actions for forcible entry and detainer "to the extent that they would
    by their nature be clearly inapplicable." T&R claims forcible entry and detainer actions are
    intended to provide an expedited method for landlords to recover possession of their
    property. Therefore, T&R asserts, to the extent Civ.R. 43 would require live testimony at a
    hearing where the tenant does not appear, the rule is clearly inapplicable because it would
    delay the proceedings and hinder the summary nature of the remedy.
    {¶ 29} The Supreme Court has referred to forcible entry and detainer as a summary
    or expedited proceeding. See Miele v. Ribovich, 
    90 Ohio St. 3d 439
    , 441 (2000) ("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."); Cuyahoga Metro. Hous.
    Auth. v. Jackson, 
    67 Ohio St. 2d 129
    , 130 (1981) ("Forcible entry and detainer, as authorized
    in R.C. Chapter 1923, is a summary proceeding in which 'any judge of a county court' may
    No. 19AP-567                                                                                 13
    make inquiry into disputes between landlords and tenants, and, where appropriate, order
    restitution of the premises to the landlord."). This court has similarly stated that a forcible
    entry and detainer action is intended to be an expedited proceeding. See, e.g., Dobbins v.
    Kalson, 10th Dist. No. 07AP-831, 2008-Ohio-395, ¶ 10 ("The rationale behind excluding
    eviction proceedings from the civil rules is that forcible entry and detainer is a special,
    statutory remedy, intended to be a summary proceeding, and its purpose would be
    frustrated by strict application of the civil rules."). Notwithstanding this general description
    of forcible entry and detainer actions, a thorough review of R.C. Chapter 1923 indicates that
    while a forcible entry and detainer action is designed to provide an expedited outcome,
    nothing in the law provides for or suggests an abbreviated or summary trial. The statutes
    in R.C. Chapter 1923 permit expedited service of process, as little as seven days before trial
    (R.C. 1923.06(A)) and limit the defendant to requesting a continuance of no more than
    eight days, unless a bond is provided (R.C. 1923.08). Each of these provisions serves to
    speed the ultimate resolution of a forcible entry and detainer action. However, the law also
    allows either party to demand a jury trial, which is not consistent with creating a summary
    or expedited trial procedure. R.C. 1923.10. Moreover, nothing in the statutes governing
    trials in forcible entry and detainer actions provides for a limited or abbreviated trial. See
    R.C. 1923.07, 1923.09, and 1923.10. The statute at issue in this appeal expressly provides
    that when the defendant is not present, the court must try the case "as though the defendant
    were present." R.C. 1923.07.
    {¶ 30} Decisions construing the limitation under Civ.R. 1(C)(3) have generally
    involved procedural rules that would delay the ultimate resolution of an action. The
    Supreme Court held that a then-existing provision of Civ.R. 53(E) imposing an automatic
    stay of execution of judgment was inapplicable to forcible entry and detainer actions
    because of the potential for delaying the time between entry and execution of a judgment.
    Colonial Am. Dev. Co. v. Griffith, 
    48 Ohio St. 3d 72
    , 73 (1990). Similarly, the Supreme Court
    held that a then-existing provision of Civ.R. 53(E) requiring a 14-day delay between a
    referee's report and entry of final judgment "by its nature [was] clearly inapplicable since it
    would destroy the summary nature of forcible entry and detainer proceedings." Jackson at
    132. In that same decision, the court held that Civ.R. 54(B), governing judgments on
    multiple claims, was also inapplicable to forcible entry and detainer actions, because it
    No. 19AP-567                                                                                                  14
    could lead to situations where a judgment of restitution would be provisional and
    unenforceable until other claims were resolved, which would "utterly destroy the summary
    nature of forcible entry and detainer proceedings."
    Id. See also State
    ex rel. GMS Mgt. Co.,
    Inc. v. Callahan, 
    45 Ohio St. 3d 51
    , 55 (1989) ("In light of the summary nature of forcible
    entry and detainer proceedings pursuant to R.C. Chapter 1923, there should, as a general
    rule, be no necessity for trial judges to delay their judgments while developing findings of
    fact and conclusions of law pursuant to Civ.R. 52. Accordingly, we hold that Civ.R. 52 is
    inapplicable to forcible entry and detainer proceedings on the authority of Civ.R. 1(C).").
    {¶ 31} We are unaware of any appellate decisions regarding Civ.R. 43 and the use of
    affidavits to provide testimony at trial, which is unsurprising given the recent adoption of
    the rule. The rule was modeled on Fed.R.Civ.P. 43.4 2015 Staff Note, Civ.R. 43. Courts
    analyzing the analogous federal rule have held that it demonstrates a general preference for
    live testimony to ensure the opportunity for live cross-examination and observation of a
    witness's demeanor. Carter-Wallace, Inc. v. Otte, 
    474 F.2d 529
    , 536 (2d Cir.1972). See
    also In re Adair, 
    965 F.2d 777
    , 779 (9th Cir.1992) (holding that bankruptcy court procedure
    allowing direct testimony to be presented by written declaration did not violate
    Fed.R.Civ.P. 43(a) because it "permits oral cross-examination and redirect examination in
    open court and thereby preserves an opportunity for the judge to evaluate the declarant's
    demeanor and credibility"); 1996 Advisory Committee Note, Fed.R.Civ.P. 43 ("The
    importance of presenting live testimony in court cannot be forgotten. The very ceremony
    of trial and the presence of the factfinder may exert a powerful force for truthtelling. The
    opportunity to judge the demeanor of a witness face-to-face is accorded great value in our
    tradition."). Although the opportunity for cross-examination is not implicated in a hearing
    4 We further note that other states have also adopted similar rules modeled on Fed.R.Civ.P. 43 and courts in
    those states likewise have held that those rules generally require live testimony at trial. See, e.g., Miller v.
    Mees, 
    2011 ND 166
    , ¶ 8 (2011) ("However, N.D.R.Civ.P. 43 generally requires oral testimony at trial and does
    not allow trial by affidavit, and we conclude the district court erred to the extent its decision cited Miller's
    affidavits and to the extent the court may have relied on those affidavits for the custody decision."); Bacompt
    Sys., Inc. v. Peck, 
    879 N.E.2d 1
    , 5 (Ind.Ct.App.2008) ("[P]ursuant to Trial Rule 43(A), testimony was required
    to be taken in open court in order to preserve Bacompt's rights to cross-examination and the ability of the fact-
    finder to observe demeanor and determine credibility. In that Angelina's affidavit was introduced into
    evidence in lieu of her testimony for purposes of establishing—as a matter of fact—the Pecks's purpose in
    seeking to inspect Bacompt's corporate records, we conclude this was error."). (Internal citations omitted);
    Murrow v. Murrow, 
    87 N.C. App. 174
    , 175 (1987) ("Plaintiff contends the trial court erred in ruling that no
    oral evidence would be taken in this equitable distribution action and that only affidavits would be considered
    in determining the issues raised. We agree.").
    No. 19AP-567                                                                               15
    conducted under R.C. 1923.07 when the defendant fails to appear, requiring live testimony
    in that scenario permits the factfinder to judge the witness's demeanor and seek
    clarification of the witness's testimony, if needed.
    {¶ 32} "To prevail in a forcible entry and detainer action, plaintiff must prove:
    (1) that the plaintiff met the procedural requirements and properly served the tenant with
    notice of the eviction, (2) the plaintiff has the right to possess the premises, and (3) the
    tenant does not have the right to possession." Garb-Ko v. Benderson, 10th Dist. No. 12AP-
    430, 2013-Ohio-1249, ¶ 54. In this case, the magistrate found those elements were
    established by the Owen affidavit, which consisted of a mere eight statements. After setting
    forth her competency to testify, authority to testify on behalf of the landlord, and basis of
    knowledge, Owen averred Wimberly had failed to pay her rent, notice to vacate the
    apartment was posted on Wimberly's door, Wimberly was behind on rent at the time the
    notice was posted and at the time the affidavit was made, and Wimberly was still occupying
    the apartment. Live testimony to establish these facts would have taken a few minutes at
    most, and, due to Wimberly's failure to appear at the hearing, there would have been no
    objections or cross-examination to extend the length of the hearing. Requiring a landlord
    to present a witness to give live testimony establishing the elements of a forcible entry and
    detainer claim might briefly extend the length of a trial, but would not destroy the summary
    nature of the action. See Jackson at 132. Therefore, Civ.R. 43(A)'s requirement that witness
    testimony be taken in open court is not clearly inapplicable to a forcible entry and detainer
    action, and Civ.R. 1(C)(3) does not preclude application of the rule to forcible entry and
    detainer actions.
    b. Exceptions recognized under Civ.R. 43
    {¶ 33} T&R alternatively argues Civ.R. 43 does not apply by its own terms, asserting
    there is statutory authorization for a witness to testify by affidavit. Civ.R. 43(A) provides
    that witnesses' testimony shall be taken in open court "unless a statute, the Rules of
    Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise."
    T&R claims R.C. 2319.01 provides an exception to any requirement of testimony in open
    court under Civ.R. 43(A). R.C. 2319.01 states that testimony of witnesses may be taken by
    affidavit, deposition, or oral examination. R.C. 2319.03 further provides that "[a]n affidavit
    may be used to verify a pleading, to prove the service of the summons, notice, or other
    No. 19AP-567                                                                                   16
    process in an action; or to obtain a provisional remedy, and examination of a witness, a stay
    of proceedings, or upon a motion, and in any other case permitted by law." A hearing on a
    forcible entry and detainer action does not fit within any of the enumerated categories set
    forth in R.C. 2319.03; therefore, T&R appears to argue the catch-all provision of the statute
    constitutes an exception to Civ.R. 43.
    {¶ 34} The Supreme Court has addressed R.C. 2319.03 in a case where the plaintiff
    sought injunctive relief prohibiting the use of certain words in a corporate name that it
    claimed would lead to confusion in the mind of the public and other detrimental effects.
    Natl. City Bank v. Natl. City Window Cleaning Co., 
    174 Ohio St. 510
    (1963). Construing
    R.C. 2319.03 together with the statutes governing injunctive relief, the court held affidavits
    could be considered in deciding a request for a temporary injunction, but could not be
    received in evidence in a trial on the issue of whether a permanent injunction should be
    granted.
    Id. at 515.
    The court noted: "[t]he general rule * * * is to the effect that by statutory
    provisions affidavits may be used to obtain a provisional remedy such as a temporary
    injunction, but they may not be admitted as evidence at a trial on the merits where a
    permanent injunction is sought." (Emphasis added.)
    Id. at 515-16.
    At a trial on the merits
    "the adverse party has a right to be confronted by the witnesses against him and, as to
    affidavits, may invoke the rule which excludes hearsay evidence. Consequently, affidavits
    are not generally admissible over objection at the trial to establish facts material to the issue
    being tried."
    Id. at 516.
           {¶ 35} Relying on Natl. City, this court has indicated that the use of affidavits in lieu
    of live testimony at trial is generally disfavored:
    Ohio courts have held that "[a]ffidavits are not generally
    admissible over objection at the trial to establish facts material
    to the issue being tried." Natl. City Bank v. Natl. City Window
    Cleaning Co., (1963), 
    174 Ohio St. 510
    , 516. Because an affidavit
    is not subject to cross-examination, standing alone, it is
    inadmissible at trial. Midstate Educators Credit Union, Inc. v.
    Werner, 
    175 Ohio App. 3d 288
    , 2008-Ohio-641 [(10th Dist.)].
    Also, a trial court is unable to adjudge the credibility of an
    affiant as it would a live witness. In the case at bar, the three
    affidavits went to the very heart of the issue – whether
    appellant committed fraud in forging McMillan's name on
    some of the instruments. Appellant presented no reason for
    why she could not procure the live testimony of the affiants at
    the hearing and subject them to cross-examination and
    No. 19AP-567                                                                                17
    credibility determinations. To have admitted the affidavits
    without allowing appellee to cross-examine the affiants and
    permit the trial court to view the demeanor and gestures of the
    affiants during live testimony would have been grossly unfair
    to appellee.
    Burchfield v. McMillan-Ferguson, 10th Dist. No. 10AP-623, 2011-Ohio-2486, ¶ 25. Other
    courts of appeals have reached a similar conclusion. See Hinkle, Cox, Eaton, Coffield &
    Hensley v. Cadle Co., 
    111 Ohio App. 3d 713
    , 718 (11th Dist.1996) ("[T]he use of affidavits
    would be generally inappropriate when used in considering the merits of a case."); Smithers
    v. Rossford Exempted Village School Dist. Bd. of Edn., 6th Dist. No. 93WD070 (June 10,
    1994) ("Affidavits are generally inappropriate when used in considering the merits of a
    matter."); Valenti v. Valenti, 8th Dist. No. 37742 (Oct. 12, 1978) ("[A]n affidavit may not be
    used in a trial as direct evidence of the issues sought to be established.").
    {¶ 36} Based on these cases interpreting the use of affidavits, pursuant to R.C.
    2319.03, we conclude the catch-all provision of that statute does not constitute an exception
    to the Civ.R. 43 requirement that testimony be given in open court.
    c. Municipal court failed to comply with Civ.R. 43
    {¶ 37} The municipal court magistrate granted judgment in favor of T&R based
    solely on the Owen affidavit, with no live testimony presented in open court. We conclude
    Civ.R. 43 applies to forcible entry and detainer actions and requires that testimony be given
    in open court, unless an exception applies. T&R has failed to demonstrate an exception
    that would apply in this case. Therefore, the municipal court abused its discretion by
    overruling Wimberly's objections and allowing the magistrate's decision to stand.
    5. Exclusion of hearsay evidence contained in Owen affidavit
    {¶ 38} Wimberly further argues the magistrate erred by relying on the Owen
    affidavit because it was hearsay evidence. The Rules of Evidence apply in trials of forcible
    entry and detainer actions. See Evid.R. 101(A) ("These rules govern proceedings in the
    courts of this state, subject to the exceptions stated in division (C) of this rule."); Evid.R.
    101(C) (defining situations where Rules of Evidence do not apply). Generally, hearsay
    evidence is not admissible under the Rules of Evidence, except as otherwise permitted
    under a constitutional provision, statute, or rule. Evid.R. 802. Hearsay is defined as "a
    statement, other than one made by the declarant while testifying at the trial or hearing,
    No. 19AP-567                                                                                 18
    offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Under the
    Rules of Evidence, a statement includes a written assertion. Evid.R. 801(A).
    {¶ 39} The Owen affidavit was undoubtedly hearsay evidence because the
    statements contained in the affidavit were made outside the hearing and offered to prove
    the truth of the matters asserted therein. Evid.R. 803 provides certain exceptions to the
    exclusion of hearsay evidence, but none of those exclusions apply to the Owen affidavit.
    The rule provides an exception for records kept in the course of regularly conducted
    business activity, but that exception would not apply to the Owen affidavit because it was
    not a "memorandum, report, record, or data compilation * * * kept in the course of a
    regularly conducted business activity" and it was prepared for the purpose of litigation.
    Evid.R. 803(6). See also Ford v. Sunbridge Care Ents., 8th Dist. No. 103031, 2016-Ohio-
    1122, ¶ 14 ("[T]he report was not created in the regularly conducted business of diagnosing
    or treating a patient, and a reasonable inference may be made that Dr. Fortgang made the
    Age of Injury Analysis Report solely for purposes of this litigation. And since Dr. Fortgang
    was not available for cross-examination, the report was inadmissible."); Cranford v.
    Buehrer, 2d Dist. No. 26266, 2015-Ohio-192, ¶ 24 ("Dr. Hofmann's sworn statement is not
    a 'memorandum, report, record, or dat[a] compilation,' and it was prepared at the request
    of Cranford's attorneys for purposes of litigation, not as a business record. The statement
    does not fall within Evid.R. 803(6)."). Further, a business record admissible under Evid.R.
    803(6) must be properly identified or authenticated and the record does not reflect any
    identification or authentication of the Owen affidavit in this case. See, e.g., State v. Lawson,
    10th Dist. No. 19AP-68, 2020-Ohio-3004, ¶ 15. Evid.R. 804 provides certain exceptions to
    the hearsay exclusion when a declarant is unavailable as a witness, but there was no
    indication Owen was unavailable to testify at the hearing, as defined by the rule, and none
    of the exceptions provided under the rule would apply to the statements contained in the
    affidavit.
    {¶ 40} T&R argues the Owen affidavit was admissible at the hearing despite being
    hearsay because it contained adequate indicia of reliability. We note that all the cases T&R
    cites in support of this argument involve application of the Confrontation Clause of the
    Sixth Amendment to the United States Constitution, which applies to criminal prosecutions
    and is not implicated in a forcible entry and detainer action. Moreover, T&R has failed to
    No. 19AP-567                                                                                     19
    demonstrate the type of reliability contemplated in those decisions. T&R primarily relies
    on the Supreme Court's decision in State v. Madrigal, 
    87 Ohio St. 3d 378
    (2000), which
    followed the United States Supreme Court's decision in Ohio v. Roberts, 
    448 U.S. 56
    (1980).
    In Roberts, the court held that "[r]eliability can be inferred without more in a case where
    the evidence falls within a firmly rooted hearsay exception." Roberts at 66.5 "In other cases,
    the evidence must be excluded, at least absent a showing of particularized guarantees of
    trustworthiness."
    Id. As set forth
    above, the record does not indicate the Owen affidavit
    would fit within any recognized exception to the hearsay rule under the Rules of Evidence.
    T&R appears to argue the reliability of the Owen affidavit arose from the fact that affidavits
    are regularly used in forcible entry and detainer cases in Franklin County. However, the
    fact that such affidavits are routinely used does not demonstrate any particularized
    guarantees of trustworthiness for statements made by landlords or their employees or
    agents in affidavits intended to support forcible entry and detainer actions. This was not
    an exception such as a hearsay statement to a close family member. See, e.g., State v.
    Yarbrough, 
    95 Ohio St. 3d 227
    , 2002-Ohio-2126, ¶ 46-54 (finding admission of defendant's
    statement to his wife admitting criminal activity did not violate the Confrontation Clause
    in part because statements to close family members have particularized guarantees of
    trustworthiness).
    {¶ 41} Assuming for purposes of analysis that an affidavit could be an acceptable
    form of testimony at a hearing under R.C. 1923.07, in this case the Owen affidavit should
    not have been admitted because it was hearsay evidence not admissible under any
    exception to the general exclusion of hearsay evidence. Therefore, the municipal court
    abused its discretion by overruling Wimberly's objections on this ground and allowing the
    magistrate's decision to stand.
    6. Analysis of whether Blout must be overruled
    {¶ 42} As set forth above, in the present appeal we conclude the municipal court
    abused its discretion by overruling Wimberly's objections and concluding the magistrate
    did not err by accepting the Owen affidavit as evidence. In reaching this conclusion, the
    municipal court held that admission of the Owen affidavit was proper under our decision
    5Additionally, we note that Roberts was subsequently overruled by the United States Supreme Court in
    Crawford v. Washington, 
    541 U.S. 36
    , 60-69 (2004).
    No. 19AP-567                                                                                              20
    in Blout. Therefore, we are faced with the question of whether it is necessary to overrule
    Blout.
    {¶ 43} We do not lightly contemplate overruling a precedent that has guided the
    practice of the municipal court for more than 30 years. The doctrine of stare decisis forms
    "the bedrock of the American judicial system."6 Westfield Ins. Co. v. Galatis, 100 Ohio
    St.3d 216, 2003-Ohio-5849, ¶ 1. Under this doctrine, "courts follow controlling precedent,
    thereby 'creating stability and predictability in our legal system.' " In re Holycross, 112 Ohio
    St.3d 203, 2007-Ohio-1, ¶ 22, quoting Galatis at ¶ 1.
    {¶ 44} Notwithstanding the vital role of stare decisis, there are times when it is
    appropriate for a court to overrule one of its own prior decisions. " 'It does no violence to
    the legal doctrine of stare decisis to right that which is clearly wrong. It serves no valid
    public purpose to allow incorrect opinions to remain in the body of our law.' " State ex rel.
    Bd. of Cty. Commrs. of Lake Cty. v. Zupancic, 
    62 Ohio St. 3d 297
    , 300 (1991), quoting Scott
    v. News-Herald, 
    25 Ohio St. 3d 243
    , 254 (1986) (Holmes, J., concurring). The Supreme
    Court adopted a three-part test for overruling its own decisions, holding that a prior
    decision may be overruled where: "(1) the decision was wrongly decided at that time, or
    changes in circumstances no longer justify continued adherence to the decision, (2) the
    decision defies practical workability, and (3) abandoning the precedent would not create
    an undue hardship for those who have relied upon it." Galatis at ¶ 48. This court has
    applied the Galatis test in determining when it is appropriate to overrule our own prior
    decisions. See Cleveland Constr., Inc. v. Kent State Univ., 10th Dist. No. 09AP-822, 2010-
    Ohio-2906, ¶ 43-44; State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 22-27.
    {¶ 45} The Supreme Court has also recognized that stare decisis has a reduced role
    in cases involving procedural, rather than substantive, rules. Clermont Cty. Transp.
    Improvement Dist. v. Gator Milford, L.L.C., 
    141 Ohio St. 3d 542
    , 2015-Ohio-241, ¶ 10, citing
    State v. Silverman, 
    121 Ohio St. 3d 581
    , 2009-Ohio-1576, ¶ 31-33. Because Blout involved
    the procedures to be used in the trial of a forcible entry and detainer action, we need not
    apply the Galatis standard before overruling it. Gator Milford at ¶ 10. See also State ex
    rel. Russell v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 17AP-240, 2019-Ohio-4947, ¶ 11
    6 The phrase "stare decisis" is shorthand for the maxim "stare decisis et non quieta movere – 'stand by the
    past decisions and do not disturb settled things.' " Rocky River v. State Emp. Relations Bd., 
    43 Ohio St. 3d 1
    ,
    4 (1989), quoting Black's Law Dictionary 1261 (5th Ed.1979).
    No. 19AP-567                                                                              21
    (applying Silverman and Gator Milford when overruling prior decision related to court's
    jurisdiction in mandamus actions).
    {¶ 46} In consideration of R.C. 1923.07 and due to the enactment of Civ.R. 43 after
    Blout was decided, we overrule Blout to the extent it has been interpreted as permitting the
    municipal court to grant judgment on a forcible entry and detainer claim relying solely on
    statements contained in an affidavit without any testimony being offered in open court.
    7. Conclusion as to merits of appeal
    {¶ 47} When the defendant in a forcible entry and detainer action fails to appear,
    R.C. 1923.07 requires the municipal court to try the case as though the defendant was
    present. We conclude a trial conducted pursuant to R.C. 1923.07 is subject to the
    requirements of Civ.R. 43 and the Ohio Rules of Evidence. The trial conducted by the
    magistrate in this case did not comply with Civ.R. 43 because the magistrate relied solely
    on an affidavit submitted by T&R and no testimony was presented in open court. Although
    Wimberly did not appear at the hearing before the magistrate, she raised these issues in
    objections to the magistrate's decision. Therefore, the municipal court abused its discretion
    by overruling Wimberly's objections to the magistrate's decision. Accordingly, we sustain
    Wimberly's sole assignment of error. On remand, the municipal court should vacate the
    judgment in favor of T&R and enter judgment for Wimberly, due to lack of evidence to
    establish the elements of T&R's forcible entry and detainer claim.
    IV. Conclusion
    {¶ 48} For the foregoing reasons, we deny T&R's motion to dismiss Wimberly's
    appeal, sustain Wimberly's sole assignment of error, and reverse the judgment of the
    Franklin County Municipal Court. We remand this matter to that court with instructions.
    Motion to dismiss denied;
    judgment reversed and cause
    remanded with instructions.
    KLATT and BRUNNER, JJ., concur.