[Cite as Buckeye Mobile Home Estates v. O'Coners, 2022-Ohio-3927.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY
Buckeye Mobile Home Estates Court of Appeals No. F-22-004
Appellee Trial Court No. CVG-21-00812
v.
Timothy O’Coners, et al. DECISION AND JUDGMENT
Appellant Decided: November 3, 2022
*****
Mark L. Powers, for appellee.
Joseph E. Stanford, for appellant.
ZMUDA, J.
{¶ 1} This matter is before the court upon appeal of the judgment of the Fulton
County Court, Western District, awarding restitution of premises in an eviction
proceeding. Finding no error, we affirm. I. Background
{¶ 2} Appellant Timothy O’Coners (appellant) appeals the trial court’s judgment
in an eviction proceeding. Appellant and his wife, Rhonda O’Coners, jointly own a
trailer and rented a lot from appellee, Buckeye Mobile Home Estates (appellee) through
an oral, month-to-month lease. About a year before eviction proceedings, Rhonda
O’Coners moved from the trailer to an apartment in Napoleon, Ohio.
{¶ 3} Appellant is a disabled veteran, and following medical advice, he acquired
two, German shepherd puppies as emotional support animals. Appellee had knowledge
of these puppies, and was aware that appellant intended to train them, but appellant did
not initially inform appellee that the dogs were emotional support animals. The mobile
home park rules permitted pets, but restricted large dogs. Appellee did not immediately
object after appellant’s dogs outgrew the size restrictions. Appellant’s lot was enclosed
by vinyl fencing with two wooden gates.
{¶ 4} After the dogs grew large, appellee received numerous complaints from
other tenants. They complained of incessant barking at night and aggressive behavior
toward other people and pets. According to the complaints, the dogs tried to lunge
through the fence and through the windows of appellant’s residence, with other residents
fearing the dogs would escape through the fence or a window.
{¶ 5} On October 26, 2021, appellee sent a written notice of noncompliance to
appellant, informing him his dogs violated park rules because the dogs were an
2. “annoyance to others [sic] park residents, and that such failures materially affect health
and safety.” Appellee further advised that appellant’s tenancy would terminate on
November 25, 2021, should he fail to remedy the violation.
{¶ 6} On November 26, 2021, appellant sent a request for reasonable
accommodation, referencing an earlier letter he claimed he sent to appellee. Appellant
included a letter from his VA psychiatrist, which stated, in part:
Due to [appellant’s] health condition that meets the definition of
disability under the Fair Housing Act, [appellant] experiences impairment
in functioning. To help alleviate this impairment, I am in support of
[appellant] having up to two Emotional Support Animals (ESA) and request
that [appellant] receive all legal rights associated with having an ESA. This
ESA is necessary for [appellant] as the animals help to reduce stress and
impairment associated with [appellant’s] disability.
{¶ 7} Appellant did not vacate the premises or remove his dogs, and on
December 16, appellee served a three-day notice on appellant pursuant to R.C. 1923.04
and filed a complaint for eviction. As grounds for eviction, appellee noted violation of
regulations regarding the dogs’ barking and aggressive behavior. Appellant received
service of the eviction proceedings on January 6, 2022. The trial court held a hearing on
January 18, 2022.
3. {¶ 8} A representative for appellee testified that appellant began renting the lot in
April 2018. Appellee became aware of appellant’s dogs sometime in 2020 or 2021, after
appellant called and told appellee he was acquiring the dogs so he could train them.
Appellant had received a copy of the mobile home park rules which prohibited large dogs
or conduct that disturbed quiet enjoyment of other tenants. Once the neighbors and other
tenants began complaining to appellee, appellant was asked to remedy the situation and
appellee believed that appellant would leave voluntarily. When appellant did not relocate
and the dogs remained a nuisance, appellee initiated eviction proceedings.
{¶ 9} The trial court heard testimony from appellant’s next-door neighbors (a
husband and wife), who each testified that the dogs became a problem once they were
grown, with “barking at all hours of the day and night,” nearly every night, causing
disruptions to sleep and everyday life. They also indicated the dogs charged the fence
separating the lot between the properties, near the neighbors’ patio. Often, they testified,
appellant commanded the dogs to bark and charge the fence. Appellant’s neighbors
indicated the weight of the dogs moved the fence, and as a result of the noise and
disruption, social gatherings were not possible in the yard.
{¶ 10} The neighbors also noted that the dogs acted aggressively from inside
appellant’s home, charging a side window that faced their house or charging a bay
window visible to passersby. The husband noted:
4. If you’re walking past, whoever you are, you know, the dogs are in that
particular room, they’ll hit the glass, you know, and just bark and carry on,
you know, and you can see the window moving.
The couple feared the windows would not hold and the dogs would break free, as the
windows flexed with the weight of the dogs.
{¶ 11} In addition to this testimony, the neighbors and another tenant observed the
dogs running free. Before the dogs were full grown, appellant’s neighbor was able to
corral them back into the yard, and told appellant that his dogs broke free. After the dogs
grew big and his neighbors believed appellant was training the dogs to charge at them,
appellant’s neighbors did not attempt to catch the dogs, but stayed inside when the dogs
broke free.
{¶ 12} The neighbors specifically testified regarding their fears, indicating
appellant caused fear by “telling the dogs what to do all the time towards us,” noting “we
can’t do anything without him yelling out the door telling his dogs to bark, charge or
whatever. When we get in our car, we have that problem.”
{¶ 13} In addition to appellant’s next-door neighbors, another mobile home tenant
testified that he was often awakened between midnight and 5:00 a.m. by the barking
dogs, especially during warmer months. When he would visit appellant’s next-door
neighbors, appellant’s dogs disrupted cookouts or gatherings by barking against the
fence. He testified that “sometimes you can’t even talk to each other.” He also testified
5. that the dogs charged the front window when he walked by and “people are scared to
even go by.”
{¶ 14} Appellant’s wife testified that when she lived with appellant, she had a
poor relationship with the next-door neighbors. She moved from the trailer about a year
prior to the eviction proceedings and had little knowledge of the incidents described by
the neighbors, having spent only about 20 nights in the trailer since relocating to an
efficiency apartment in Napoleon. Appellant’s wife had no issues with the other tenant
who had testified about the dogs, and blamed the eviction proceedings on the next-door
neighbors.
{¶ 15} Appellant also testified. He claimed the neighbors purposefully incited his
dogs and caused them to bark by slamming doors and shouting at them. He presented
video, which he claimed depicted the neighbors antagonizing his dogs while they were
inside his yard. He also acknowledged he made no formal request for reasonable
accommodation until after the park owner asked him to remove the dogs based on
neighbor complaints.
{¶ 16} As to his ability to find new housing, appellant testified that he informed
the park owner that the Homeless Veterans Assistance Program offered assistance in
finding new housing should he be evicted, once he showed them documentation of a
court-ordered eviction. Even so, appellant testified he would likely have to live in his
truck until that program found him a new home. Appellant also testified that he did not
6. have the means to relocate the trailer to another location. His wife had vacated the park
about a year prior to the eviction proceedings and counsel elicited no testimony from
appellant’s wife regarding her ability to remove the trailer, which she co-owned with
appellant.
{¶ 17} At hearing, appellant’s counsel argued that appellant’s dogs were protected
by law related to assistance animals, and appellee could not evict appellant based on his
emotional support animals without offering a reasonable accommodation. Additionally,
as an equitable concern, counsel argued that appellant did not have the financial means to
remove his trailer from the mobile home park’s lot.
{¶ 18} The trial court issued a written decision, granting possession of the lot to
appellee. The trial court weighed conflicting testimony in reaching its conclusion that
appellee made all requested accommodations, as appellee permitted appellant to keep
dogs over the park rules size restriction. The trial court credited appellant’s and his
wife’s testimony that the dogs were good dogs, and that appellant was an appropriate pet
owner “for the most part,” but concluded appellant and his wife “failed to prevent their
dogs from making unreasonable noise and/or running at large, as [appellant] himself
acknowledge[d] to have occurred on four occasions.” The trial court specifically
addressed appellant’s video evidence as “largely unpersuasive given the limited time
periods and scope.” There was no discussion, within the trial court’s judgment, relative
to financial hardship in removing the trailer from appellee’s lot.
7. {¶ 19} Appellant filed a timely appeal of the judgment, and upon motion by
appellant, the trial court stayed execution of the judgment on the condition appellant
deposit a “use and occupancy bond” in the amount of his monthly rental obligation.
II. Assignment of Error
{¶ 20} In his appeal, appellant raises a single assignment of error:
THE TRIAL COURT ERRED BY NOT CONSIDERING EQUITY
BEFORE IMPOSING FORFEITURE OF APPELLANT’S MOBILE
HOME.
{¶ 21} In arguing error by the trial court, appellant does not directly challenge the
eviction proceeding relative to immediate possession of the lot. Instead, appellant argues
that the eviction operated as a forfeiture of appellant’s mobile home based on appellant’s
lack of resources to pay to remove the mobile home from appellee’s property. The only
issue before the trial court, however, was forfeiture of the lot lease in an eviction
proceeding, a proceeding that did not affect appellant’s or his wife’s ownership of the
mobile home located on the park’s lot.
III. Analysis
{¶ 22} An eviction proceeding concerns only the present possession of specific
property. Haas v. Gerski, 175 Ohio St. 327, 330, 194 N.E.2d 765 (1963). A mobile
home park operator, such as appellee, “may bring an action under Chapter 1923. of the
Revised Code for possession of the premises” if a resident is in violation of the park’s
8. rules. R.C. 4781.37(A)(4). Pursuant to R.C. 1923.02(A)(10) and (11), a park operator
may maintain eviction proceedings upon breach of the park rules, where notice is
provided as required under R.C. 4781.45. R.C. 4781.45, in turn, governs termination of
an agreement with a mobile home park, as follows:
If a resident commits a material violation of the rules of the
manufactured home park, of the department of commerce division of
industrial compliance, or of applicable state and local health and safety
codes, the park operator may deliver a written notification of the violation
to the resident. The notification shall contain all of the following:
(A) A description of the violation;
(B) A statement that the rental agreement will terminate upon a date
specified in the written notice not less than thirty days after receipt of the
notice unless the resident remedies the violation;
(C) A statement that the violation was material and that if a second
material violation of any park or division rule, or any health and safety
code, occurs within six months after the date of this notice, the rental
agreement will terminate immediately;
(D) A statement that a defense available to termination of the rental
agreement for two material violations of park or division rules, or of health
and safety codes, is that the park rule is unreasonable, or that the park or
9. division rule, or health or safety code, is not being enforced against other
manufactured home park residents, or that the two violations were not
willful and not committed in bad faith.
If the resident remedies the condition described in the notice,
whether by repair, the payment of damages, or otherwise, the rental
agreement shall not terminate. The park operator may terminate the rental
agreement immediately if the resident commits a second material violation
of the park or division rules, or of applicable state and local health and
safety codes, subject to the defense that the park rule is unreasonable, that
the park or division rule, or health or safety code, is not being enforced
against other manufactured home park residents, or that the two violations
were not willful and not committed in bad faith.
{¶ 23} Appellant does not dispute his violation of the park rules related to his
barking dogs or the nuisance complaints of other tenants. Appellant also does not claim
he made efforts to remedy any violation, aside from his testimony blaming the other
tenants for his dogs’ behavior or conceding his inability to prevent barking or contain his
dogs on several occasions. Instead, appellant argues the trial court erred in weighing
equitable concerns regarding his ability to remove the trailer he and his wife own from
the appellee’s mobile home park, should he be evicted from his lot in the park. We
review the trial court’s equitable consideration of the case, finding in favor of forfeiture
10. of the lease, for an abuse of discretion. Joseph J. Freed & Assoc., Inc. v. Cassinelli
Apparel Corp., 23 Ohio St.3d 94, 96, 491 N.E.2d 1109 (1986).
{¶ 24} In defense against eviction, appellant did not argue that the park rules were
unreasonable. The obligations embodied in the park’s rules are similar to the obligations
provided by R.C. 4781.39(A), which requires, in part, that a tenant “will not disturb the
resident’s neighbors’ peaceful enjoyment of the manufactured home park.” Violation of
the rule permits a park operator to seek eviction. R.C. 4871.39(C). While not disputing
the propriety of the eviction proceedings, appellant raises equitable concerns unrelated to
the subject of an eviction proceeding, arguing the eviction will cause collateral hardship
because he has insufficient resources to relocate the trailer he co-owns with his wife.
{¶ 25} In support of his equitable argument, appellant primarily relies on Bowling
Green Manor Ltd. Partnership v. Kirk, 6th Dist. Wood No. WD-94-125, 1995 WL
386476 (June 30, 1995) and Gorsuch Homes, Inc. v. Wooten, 73 Ohio App.3d 426, 597
N.E.2d 554 (2d Dist.1992). However, neither case supports appellant’s position.
{¶ 26} In Bowling Green Manor, Kirk leased an apartment in a complex that
provided low-income housing pursuant to a restrictive covenant with the Ohio Housing
Finance Agency, prohibiting eviction of a low-income tenant “for other than good cause”
and defining “low-income” based on federal law and regulations. Bowling Green Manor
at *1. Bowling Green Manor received tax credits in return for maintaining low-income
housing. Id. at * 4.
11. {¶ 27} To qualify as a low-income housing project, Bowling Green Manor was
required to annually certify a tenant’s income to qualify as a low-income tenant. Id. at *
2. After the one-year term, the apartment complex served Kirk with a written 30-day
notice of termination, and “[t]he sole basis for termination listed in the notice was the
lapse of the initial lease.” Id. Kirk did not vacate the apartment, and was served with a
three-day notice as a holdover tenant. Id. The matter proceeded to eviction before the
Bowling Green Municipal Court.
{¶ 28} In the eviction proceeding, Bowling Green Manor argued federal law did
not apply to the eviction, and therefore it did not need to provide notice of “good cause”
grounds for eviction. Id. The trial court granted the complaint for eviction and issued a
writ of restitution. Id.
{¶ 29} On appeal, Kirk argued that, while Bowling Green Manor was not a
“public housing project” as defined by 24 C.F.R. 966.4(1), 24 C.F.R. 882.215 or any
other federal regulation, it obtained a tax credit and entered a written agreement that
required “good cause” to evict a low-income tenant. Id. *4. The issue on appeal,
therefore, concerned proper notice required by a “private landlord of federally subsidized
public housing[.]” Id. at * 5.
{¶ 30} We reversed, finding “the eviction procedures required under both Ohio
law and the federal regulations promulgated by HUD for Section 8 evictions” applied,
and Bowling Green Manor “was required to, among other things, provide [Kirk] with a
12. thirty day written notice of termination setting forth the specific good cause grounds for
termination[.]” Id. Based on this finding, we determined we need not address Kirk’s
equitable argument regarding “forfeiture of her leasehold.”
{¶ 31} The Second District Court of Appeals addressed similar facts in Gorsuch
Homes, Inc. v. Wooten, 73 Ohio App.3d 426, 597 N.E.2d 554 (2d Dist.1992). In that
case, Wooten was a tenant of Gorsuch Homes under a Section 8 federally subsidized
housing program. Id. at 428. Wooten lived at the apartment complex with a 100 percent
subsidy, along with her daughter and teen-aged son. Id. at 429. After her son
participated in spraying graffiti on exterior walls of the building complex, Gorsuch
Homes served her with a 30-day notice of “material noncompliance with the lease
justifying termination” unless Wooten paid the complex for the repair estimate to remedy
the damage caused by her son. Id.
{¶ 32} The lease required Wooten to reimburse for any damage, and Gorsuch
Homes rejected Wooten’s offer to pay in monthly installments and refused to discuss the
actual amount of damages caused by her son, one of three identified as causing the
damage. Id. at 430. Her son was “scheduled to make restitution” for the damage as part
of a juvenile court program, and Wooten wrote Gorsuch Home’s regional manager to
request a meeting. Id. Prior to receiving a response from the regional manager, Gorsuch
Homes served her with a 10-day notice to leave the premises, with the grounds for
termination specified as non-payment of damages within 30 days. Id. Subsequent
13. requests by Wooten for a meeting regarding damages were refused, although Gorsuch
Homes did schedule meetings to address complaints by other tenants regarding Wooten’s
children. Id. at 431.
{¶ 33} The matter proceeded before a referee, and the referee concluded that
Wooten had materially breached the lease regarding her failure to pay the repair estimate
for property damage, and recommended a writ of restitution issue. Id. The referee made
no finding regarding the amount of actual damage caused by Wooten’s son, and Gorsuch
Homes had not paid the bill for the repair to the premises at the time they served notice of
eviction. The trial court entered judgment as recommended and ordered restitution of the
premises. Id.
{¶ 34} On appeal, Wooten argued she was denied due process, because, as a
“tenant in federally subsidized housing,” she was entitled “to have her landlord’s claim
for damages adjudicated at a hearing before a neutral person before her failure to pay the
amount claimed may provide the basis for her eviction.” Id. at 431-432. In reversing, the
Second District noted a tenant’s protected property interest in federally subsidized
housing, and found that “a disputed claim for damages may not become a charge against
a tenant’s property right in her federally subsidized tenancy until the amount of the
damages has been determined.” Id. at 433. The Second District also noted the failure of
Gorsuch Homes to provide a meeting to discuss proposed termination of Wooten’s
tenancy as an additional failure of due process protections. Id. at 434. As to equitable
14. considerations, the Second District determined the trial court failed to consider Wooten’s
equitable defenses to foreclosure. Id. at 436.
{¶ 35} Unlike the present case, both Bowling Green Manor and Gorsuch Homes
concerned Section 8 housing agreements and the rights of tenants in federally subsidized
housing. The reversals, moreover, were based primarily on a lack of the due process
required in Section 8 housing evictions. In Gorsuch Homes, the court found “[t]he due
process requirements of the Fourteenth Amendment apply to private landlords who
provide Section 8 federally subsidized housing for low-income tenants.” Gorsuch Homes
at 432. Furthermore, tenants in federally subsidized housing have “a constitutionally
protected property interest in continued occupancy,” and “absent good cause for eviction,
a tenant may remain in the housing for life[.]” (Citations omitted) Id.
{¶ 36} Here, appellant asserted no claim based on subsidized housing, and the
record contains no facts that would demonstrate any of the due process requirements for
Section 8 evictions applied in this case. In sum, appellant failed to demonstrate a
potential property interest “for life” as in Bowling Green Manor or Gorsuch Homes.
{¶ 37} As to equitable considerations, moreover, appellant argues equity relative
to a collateral issue – removal of his trailer – and not equitable considerations argued as a
defense to the eviction itself. While courts have the power to consider equitable defenses
to “relieve a tenant from the consequences of forfeiture of a leasehold interest[,]” the
consideration generally applies to monetary compensation for a violation in lieu of
15. eviction. See, e.g., Southern Hotel Co. v. Miscott, Inc., 44 Ohio App.2d 217, 337 N.E.2d
660 (10th Dist.1975) (where payment terms had not been strictly applied, trial court
permitted to weigh the equities and permit late payment of amounts due to avoid
forfeiture of the lease); Gorsuch Homes, 73 Ohio App.3d at 436, 597 N.E.2d 554
(“Generally, courts, in balancing the equities, will relieve a tenant from the harsh
consequences of a forfeiture where the payment of money damages will adequately
compensate the landlord.”).
{¶ 38} In circumstances where the violation is not related to nonpayment of rent,
equitable considerations might still apply and weigh against eviction. Appellant cites
numerous examples of courts weighing equities in such cases, but the examples primarily
include public housing tenants and efforts by those tenants to mitigate the violation. See,
e.g., Cuyahoga Metro. Hous. Auth. v. Harris, 139 Ohio Misc.2d 96, 2006-Ohio-6918,
861 N.E.2d 179, ¶ 13 (CMHA sought to evict “an innocent tenant” based on criminal
conduct of an unrelated guest, and tenant had no knowledge of the conduct); Chillicothe
Metropolitan Hous. Auth. v. Anderson, 4th Dist. Ross No. 1406, 1988 WL 69118, (June
28, 1988), *8 (evicted for noise complaints and fights within the unit that disturbed other
tenants and caused damage to the premises); Portage Metro. Hous. Auth. v. Brumley,
11th Dist. Portage No. 2008-P-0019, 2008-Ohio-5534, ¶¶ 94-95 (24 C.F.R.
966.4(l)(5)(vii)(B) provides factors to consider “such as the seriousness of the offending
action, the extent of participation by the leaseholder in the offending action, the effects
16. that the eviction would have on family members not involved in the offending activity
and the extent to which the leaseholder has shown personal responsibility and has taken
all reasonable steps to prevent or mitigate the offending action.”); Bella Vista Apts. v.
Herzner, 125 Ohio Misc.2d 1, 2003-Ohio-4872, 796 N.E.2d 593, ¶ 10 (court weighed the
proven harm to the landlord against the impact of eviction on the tenant); Cincinnati
Metropolitan Hous. Auth. v. Harris, 1st Dist. Hamilton No. 35335, 1983 WL 8893, *1
(June 15, 1983) (considered criminal conduct of family member where tenant acted to
remedy the problem).
{¶ 39} Considering appellant’s legal authority and appellant’s circumstances, we
find little in common between subsidized housing tenants who attempted to mitigate or
remedy violations and appellant’s case. Unlike the tenants in the cited cases, appellant
seeks a weighing of equities that depends on wholly discounting the testimony and
evidence and placing all of the weight on appellant’s claim that an eviction from the
mobile home park lot will result in his loss of the trailer he co-owns with his wife.
However, the evidence before the trial court demonstrated some contrary facts, or that
appellant had some monthly income, some property of unknown value in northern
Michigan, and the potential for assistance in relocating from a veterans program after
eviction. Appellant’s wife also testified that, while she spent some time at the mobile
home park with her husband, she had a separate primary residence in Napoleon, with no
testimony regarding her finances or ability to relocate the trailer.
17. {¶ 40} We find no support in the law for weighing the equities as appellant directs.
Instead, we find the trial court acted within its discretion in weighing the equities,
including the violations, the lack of attempts to remedy the violations, and the hardship to
appellant, prior to ordering eviction of the leased lot. Accordingly, we find appellant’s
sole assignment of error not well-taken.
IV. Conclusion
{¶ 41} Based on the foregoing, we affirm the judgment of the Fulton County
Court, Western District. Appellant is ordered to pay the costs of the appeal pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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