Franklinton Senior, L.L.C. v. Timson

[Cite as Franklinton Senior, L.L.C. v. Timson, 2014-Ohio-3255.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Franklinton Senior, LLC, :
Plaintiff-Appellee, :
No. 14AP-171
v. : (C.P.C. No. 13CV-09-9871)
John W. Timson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on July 24, 2014
Powers Friedman Linn, PLL, and Sarah S. Graham, for
appellee.
John W. Timson, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} John W. Timson, defendant-appellant, appeals the judgment of the
Franklin County Court of Common Pleas granting judgment in favor of plaintiff-appellee,
Franklinton Senior LLC, on a forcible entry and detainer action and issuing a writ of
restitution.
{¶ 2} On July 19, 2013, in the Franklin County Municipal Court, appellee filed a
forcible entry and detainer action ("FED action") against appellant seeking to obtain
restitution of the premises at 750 West Rich Street, Unit 303, Columbus, Ohio 43222
("the premises"). The action included a second cause of action for money damages. In
response, appellant filed an answer and a counterclaim. The counterclaim amount
exceeded the monetary jurisdiction of the municipal court and, therefore, was transferred
to the Franklin County Court of Common Pleas.
No. 14AP-171 2
{¶ 3} In the common pleas court, the case was referred to a magistrate for a
hearing on the FED action. Appellant did not appear at the hearing. The magistrate
found that appellant had been served with adequate and legal notice of the hearing well in
advance of the hearing. The magistrate then found that appellant had failed to pay his
rent for over one year. Accordingly, he determined that appellee was entitled to
immediate restitution of the premises. On February 25, 2014, the court entered judgment
in favor of appellee and ordered a writ of restitution to issue.
{¶ 4} Appellant did not file objections to the magistrate's decision. However, on
March 3, 2014, appellant filed a notice of appeal along with a request for an emergency
stay. The record does not reveal that the trial court ruled on the request for an emergency
stay.
{¶ 5} At oral argument, appellant informed the court that he has vacated the
premises. Consistent with this, appellee asserts in its brief that appellant was physically
removed from the premises on March 20, 2014 pursuant to the Franklin County Sheriff's
Department execution of a writ of restitution. The record was transmitted to this court on
March 13, 2014; therefore, subsequent filings are not part of the record before this court.
Nevertheless, considering appellant's admission at oral argument that he has vacated the
premises, we take judicial notice of the common pleas clerk of court's record of documents
filed after March 13, 2014 and note that said record reveals that the eviction was
completed on March 20, 2014. Appellant appeals the judgment of the trial court and
asserts the following six assignments of error:
[1.] THE COURT OF ADMINISTRATIVE JUDGE CHARLES
SCHNEIDER, ERRED IN HIS FAILURE AND REFUSAL TO
PROVIDE A HEARING DATE ON THE DISPOSITIVE
MOTION TO DISMISSS FOR FAILURE TO STATE A CLAIM
AND THE LACK OF THE COURT'S JURISDICTION. THIS
VIOLATED APPELLANT'S [AND OTHERS] RIGHTS
SECURED BY ARTICLE I, SECTION 16, OHIO CONSTI-
TUTION AND THE 14TH AMENDMENT TO THE UNITED
STATE'S CONSTITUTION.
[2.] THE COURT OF ADMINISTRATIVE JUDGE CHARLES
SCHNEIDER ERRED IN ITS FAILURE TO TIMELY RULE
AND HIS DENIAL OF A MOTION TO STRIKE THE
PLEADINGS OF ATTORNEY SARAH GRAHAM,
No. 14AP-171 3
CLEVELAND, AS THE ATTORNEY OF RECORD ERIC
WILLISON HAD NOT WITHDRAWN IN ACCORDANCE
WITH FRANKLIN COUNTY RULE 1801 [B] DEPRIVING
APPELLANT OF HIS 1ST AND 14TH AMENDMENTS TO THE
US CONSTITUTION; ARTICLE 1 SECTION 16 OF THE OHIO
CONSTITUTION, AND THE PREAMBLE TO THE LOCAL
FRANKLIN COUNTY COURT RULES.
[3.] THE COURT OF JUDGE SCHNEIDER ERRED IN
REFERING THIS INSTANT CASE WHICH DEMANDED
TRIAL BY JURY ON BOTH THE FED AND ITS "MOTION
TO DISMISS – LACK OF JURISDICTION"; SPECIFIC
ANSWER DENING AND INITIAL COUNTER CLAIM FOR
COMPENSATORY AND PUNITIVE DAMAGES; TO ANYONE
OTHER THAN LAWFULLY APPOINTED MAGISTRATE
PURSUANT TO ORCP53 [A AND C] DEPRIVING
PLAINTIFF OF HIS 1ST AND 14TH AMENDMENTS TO THE
US CONSTITUTION, ARTICLE 1 SECT 16 TO THE OHIO
CONSTITUTION.
[4.] THE COURT OF JUDGE SCHNEIDER AND HIS
UNLAWFULLY ASSIGNED MAGISTRATES ERR IN
HOLDING AND PROCEEDING WITH LESS THAN 10 DAYS
NOTICE TO DEFENDANT APPELLANT BECAUSE OF
PROVISIONS OF A SPEEDY HEARING/TRIAL IN ORC
2945.71 SPECIFICALLY WAVES ANY SPEEDY TRIAL
PROVISIONS IF ANY MOTIONS OR REQUEST OR
CONTINUANCE IS FILED WHICH HAS DEPRIVED
APPELLANT OF HIS 1ST AND 14TH AMENDMENTS TO THE
US CONSTITUTION, AND TO HIS RIGHTS TO A TRIAL BY
JURY AS REQUIRED BY THIS HONORABLE COURT IN A
UNANIMOUS DECISAION IN NCR V TIMSON, 38 OHIO
APP. 3RD 798 [1992] THE RIGHT TO A TRIAL BY JURY WAS
AGAIN CONFIRMED BY THE VERY SUMMONS IN THIS
INSTANT CASE.
[5.] THE COURTS OF ADMINISTRATIVE JUDGE CHARLES
SCHNEIDER ERRED IN FAILING TO APPOINT MAGI-
STRATES PURSUSANT TO 53 1 FC LOCAL RULES AND
THE REFERALLS TO VARIOUS NON-APPOINTED
MAGISTRATES ERRED IN THEIR UNSCHEDULED AND
NON-PUBLISHED TRIAL DATES OF DECEMBER 10TH,
2013 JANUARY 23RD, 2014; FEBRUARY 6TH, 2014, FEB 10TH,
2014, FEB 20TH, 2014 DEPRIVING DEFENDANT OF
PUBLISHED TRIAL SCHEDULES, TIMELY WRITTEN
NOTICES, OR A VOICE COMMUNICATION TO THE
No. 14AP-171 4
BLIND, TRIAL BY JURY OR RULING UPON HIS MOTION
TO DISMISS. IN VIOLATION OF RIGHTS SECURED BY
THE 1ST AND 14TH AMENDMENTS TO THE US
CONSTITUION, ARTICLE I SECTION 16 OF THE OHIO
CONSTITUTION, OHIO RULES OF CIVIL PRCEDURE
LAWS CITED SUPRA.
[6.] THE COURT ERRED IN ITS WRIT OF EXECUTION
RECOMMENDED BY NON APPOINTED MAGISTRATE
PETTUCCI OF FEB 20, 2014 BY JUDGE SCHNEIDER ON
FEB 25, 2014 BEING LESS THAN 5 DAYS FOR DEFEND-
ANT TO OBJECT TO THE NON-NON PUBLISHED
HEARING OF FEB 20, 2014 THAT FAILED TO RULE ON
HIS MOTION TO DISMISS AND OR MOTION TO STRIKE
AND DEPRIVED APPELLANT OF HIS CONSTITUTIONAL
RIGHTS TO TIMELY NOTICE AND A TRIAL BY JURY. SEE
NCR VS TIMSON, 38 OHIO APP. 3RD, P798 APPLIED.
(Emphasis sic; sic passem.)
{¶ 6} In the present case, we find appellant's assignments of error to be moot
because appellant has vacated the premises. As this court stated in C & W Invest. Co. v.
Midwest Vending, Inc., 10th Dist. No. 03AP-40, 2003-Ohio-4688:
A FED action decides only the right to immediate possession
and nothing else * * * If immediate possession is no longer an
issue due to vacation, and the landlord has restored the
property, then continuation of the FED action or an appeal of
such is unnecessary, as there is no further relief that may be
granted.
Id. at ¶ 9, citing Seventh Urban, Inc. v. Univ. Circle, 67 Ohio St. 2d 19, 25, fn. 11 (1981),
and Long v. MacDonald, 3d District No. 3-02-10, 2002-Ohio-4693 (holding that the
tenant's appeal is moot regardless of whether the tenant's vacation is voluntary or not).
{¶ 7} Because the assignments of error are moot, we decline to address the
merits.
{¶ 8} Accordingly, appellant's six assignments of error are moot, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and KLATT, JJ., concur.
__________________