DocketNumber: No. 97 CA 2515.
Citation Numbers: 720 N.E.2d 101, 130 Ohio App. 3d 293
Judges: PETER B. ABELE, Judge.
Filed Date: 2/10/1998
Status: Precedential
Modified Date: 1/13/2023
This is an appeal from a Portsmouth Municipal Court judgment dismissing a complaint filed by Danielle Haney, plaintiff below and appellant herein, against Kenneth and Tammy Roberts, defendants below and appellees herein.
Appellant assigns the following errors:
"First Assignment of Error:
"Ms. Haney's claims are not barred since Civ. R. 13(A) is clearly inapplicable to forcible entry and detainer actions seeking only restitution."
"Second Assignment of Error:
"Ms. Haney's claims are not barred since res judicata is inapplicable here."
On February 4, 1997, appellant filed the instant action alleging that appellees, her former landlords, had failed to properly maintain the rental premises. In the five counts of her complaint, appellant alleged that appellees (1) breached the oral month-to-month rental agreement, (2) negligently and/or intentionally failed to comply with statutory and county code obligations, (3) willfully and/or negligently failed to correct the conditions of disrepair with malice and reckless disregard for appellant's health and safety, (4) failed to fulfill their obligations under the rental agreement, and (5) violated their obligations under R.C.
On March 27, 1997, appellees filed a motion to dismiss the action pursuant to Civ. R. 12(B)(1), 12(B)(6), and 13(A). In a memorandum in support of the motion, appellees noted that all five of the counts in the complaint arose out of the landlord-tenant relationship that was involved in a forcible entry and detainer action filed by appellees against appellant in Portsmouth Municipal Court case No. 96CVG1540. Appellees claim that Civ. R. 13(A), the compulsory counterclaim rule, required appellant to raise her claims in that forcible entry and detainer action. Appellees further claim that because appellant did not raise her claims in that action, the doctrine of res judicata
bars her from raising the claims in this action. Appellees citedMaduka v. Parries (1984),
On April 4, 1997, appellant filed a memorandum opposing appellees' motion to dismiss. In the memorandum, appellant raised the following arguments: (1) the doctrine of res judicata only applies when the parties had a full and fair opportunity to litigate all their claims in the prior action, (2) the forcible entry and detainer action was dismissed before appellant had a full twenty-eight days as required by Civ. R. 12 to answer the complaint and file any counterclaims, and (3) R.C.
On April 30, 1997, the trial court entered judgment granting appellees' motion to dismiss. The trial court wrote as follows:
"This matter came on before the Court on defendant's Motion to dismiss said cause pursuant to doctrine of res judicata.
"The Court finds that on December 12, 1996, defendants brought an action against the plaintiff in forcible entry and detainer seeking no damages in that action.
"The Court further finds that on January 9, 1997, the matter was ordered dismissed as moot, for the reason that Danielle Haney had vacated the premises.
"[The Court] * * * finds said motion to be well taken, and hereby ORDERS this case be dismissed at plaintiffs costs based upon the doctrine of res judicata."
Appellant filed a timely notice of appeal from the trial court's April 30, 1997 judgment.
For many reasons, we agree with appellant that Civ. R. 13(A) is not applicable to forcible entry and detainer actions1 in which the plaintiff seeks no money *Page 296 damages. Civ. R. 1(C) provides that rules inconsistent with forcible entry and detainer actions shall not apply to those actions:
"(C) Exceptions. These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * in forcible entry and detainer * * *."
In our view, due to the nonsummary nature of the Civ. R. 13(A) compulsory counterclaim rule and due to the summary nature of the forcible entry and detainer statutes, the rule is clearly inapplicable to actions brought pursuant to the statutes.
We note that Civ. R. 13(A) requires defendants to assert counterclaims that arise out of the same transaction or occurrence as the main claim. The rule provides:
"(A) Compulsory counterclaims. A pleading shall state as a counterclaim to any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction."
According to Civ. R. 13(A), if a defendant fails to assert a compulsory counterclaim, the defendant may not assert the claim in a later action.
One of the forcible entry and detainer statutes, R.C.
"Judgments under this chapter are not a bar to a later action brought by either party."
In Reck v. Whalen (1996),
The Ohio Supreme Court, when holding that other Civil Rules are clearly inapplicable to forcible entry and detainer actions, has focused on the summary nature of such actions. In Cuyahoga Metro.Hous. Auth. v. Jackson (1981),
"Forcible entry and detainer, as authorized in R.C. Chapter
"The purpose of the forcible entry and detainer statutes is toprovide immediate possession of real property." (Emphasis added.)Id.,
In Cuyahoga Metro. Hous. Auth., the court held that due to the summary nature of forcible entry and detainer actions, Civ. R. 53(E) and 54(B) by their nature are clearly inapplicable to such proceedings. For the same reason, in State ex rel. GMS Mgt. Co.,Inc. v. Callahan (1989),
When examining the applicability of the Civil Rules to summary proceedings analogous to forcible entry and detainer actions, courts have focused on the need to preserve the summary nature of the proceedings. In Pegan v. Crawmer (1995),
"Because time for a hearing is set at the commencement of the small claims action and responsible pleadings are not provided for under the applicable provisions of R.C. Chapter
In Puckett v. Osborne (June 28, 1979), Franklin App. No. 78AP-866, unreported, the court noted that although Civ. R. 13(A) requires a compulsory counterclaim to be set forth in a pleading, the small claims statutes do not require a responsive pleading.
In light of the fact that the Ohio Supreme Court, when holding that other Civil Rules are clearly inapplicable to forcible entry and detainer actions, has focused on the summary nature of such actions, we must likewise focus on the summary nature of such actions. In light of the fact that decisions examining the applicability of the civil rules to summary proceedings analogous to forcible entry and detainer actions have focused on the need to preserve the summary nature of the proceedings, we must likewise focus on the need to preserve that summary nature.
We agree with appellant that application of Civ. R. 13(A) to forcible entry and detainer actions would severely impede the summary nature of such actions. Although Civ. R. 13(A) requires a compulsory counterclaim to be set forth in a pleading, the forcible entry and detainer statutes do not require a responsive pleading. For that reason, Civ. R. 13(A) should be inapplicable to forcible entry and detainer actions. Indeed, in the case subjudice, appellant notes that the court dismissed the forcible entry and detainer action before the time period for filing a Civ. R. 13(A) compulsory counterclaim had expired.
In Smith v. Wright (1979),
"Although forcible entry and detainer is a summary proceeding and a suit for damages is a regular civil proceeding, the joinder of these two causes of action is specifically provided for by R.C.
The Smith court noted that the two causes of action remain subject to separate procedural rules:
"However, the September 20, 1978 judgment of the trial court determined only the first cause of action, i.e., forcible entry and detainer. It could not have determined the claim for back rent since the 28 days allotted by Civ. R. 12(A)(1) for answering a complaint had not yet run at that time. The trial court could not enter judgment in the matter prior to the answer date." Id.,
The Smith court concluded that although R.C.
The language of R.C.
"A trial in an action for forcible entry and detainer for residential premises, or for a storage space at a self-service storage facility, as defined in division (A) of section
The statute uses the permissive word "may" rather than the mandatory word "shall." At least two Ohio appellate courts have held that R.C.
Appellees cite Jemo Assoc., Inc. v. Garman (1982),
"Whether the particular counterclaim in this case is compulsory under Civ. R. 13(A) or permissive under Civ. R. 13(B) was not briefed by the parties, and the resolution of the question is not necessary to our decision." Id.,
In Sherman and Maduka, unlike in the case sub judice, the landlord joined the forcible entry and detainer action with a suit for back rent. Although Civ. R. 13(A) is inapplicable to the forcible entry and detainer action, it is applicable to the suit for back rent. When a landlord sues for back rent, the tenant has a Civ. R. 13(A) duty to assert any compulsory counterclaims in the action for back rent.
In summary, we hold that if a landlord files an action for forcible entry and detainer and does not join that action with any other action, the tenant need not file any counterclaims. Civ. R. 13(A) does not apply in forcible entry and detainer actions to require tenants to assert compulsory counterclaims. Pursuant to R.C.
Accordingly, based upon the foregoing reasons, we sustain appellant's first assignment of error.
Appellant cites Grava v. Parkman Twp. (1995),
"A valid, final judgment rendered on the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." (Emphasis added.)
The doctrine does not apply unless the previous judgment was rendered on the merits. In the case sub judice, the previous forcible entry and detainer action was not rendered on the merits, but rather was declared moot. We emphasize that it appears that the moot declaration in the previous action occurred before the time expired during which appellant could have filed a counterclaim. Thus, the doctrine of res judicata does not bar appellant's counterclaim in the case sub judice.
Appellant argues that the applicability of the doctrine of resjudicata cannot be decided during proceedings on a Civ. R. 12(B) motion to dismiss. In support of this argument, appellant citesShaper v. Tracy (1995),
"A motion to dismiss is not the proper method to resolve the question posited by the commissioner. According to State ex rel.Freeman v. Morris (1991),
In Freeman, the court reasoned:
"Civ. R. 8(C) designates res judicata as an affirmative defense. Civ. R. 12(B) enumerates defenses that may be raised by motion and does not mention res judicata. Accordingly, we hold that the defense of res judicata may not be raised by motion to dismiss under Civ. R. 12(B)." Id. at 109,
In light of Shaper and Freeman, we agree with appellant that the trial court erred by granting appellees' motion to dismiss onres judicata grounds. See, also, Jim's Steak House, Inc. v.Cleveland (1998),
Accordingly, based upon the foregoing reasons, we sustain appellant's second assignment of error.
Judgment reversed and cause remanded.
STEPHENSON, P.J., and HARSHA, J., concur.
In White, Ohio Landlord Tenant Law (1997) 288-289, Section 13.2, the author described the R.C. Chapter
"Most tenants are evicted from leased premises pursuant to the statutory proceeding called forcible entry and detainer. This procedure is governed by Chapter 1923 of the Ohio Revised Code. A forcible entry and detainer action is a statutory remedy which provides a summary method for a landlord to obtain restitution of the leased premises. A summary proceeding is one where the trial is conducted promptly and simply, without the aid of a jury and without strict observance of all the rules which normally govern civil proceedings. In Carroll v. O'Connor [O'Conner][(1874)