Cherry v. Morgan

2012 Ohio 3594

• Court: Ohio Court of Appeals
• Decided: August 10, 2012
• Docket: 2012 CA 11, 2012 CA 21
• Status: Published

Opinion

[Cite as Cherry v. Morgan, 2012-Ohio-3594.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

PAUL W. CHERRY :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 11

2012 CA 21 v. : T.C. NO. 11 CVG 3908 LARRY N. MORGAN : (Civil appeal from Defendant-Appellant : Municipal Court)

:

..........

OPINION

Rendered on the 10th day of August , 2012.

PAUL W. CHERRY, 107 Thomas Street, Athens, Alabama 35611 Plaintiff-Appellee

LARRY N. MORGAN, P. O. Box 843, Springfield, Ohio 45501 Defendant-Appellant

DONOVAN, J.

{¶ 1} Defendant-appellant Larry N. Morgan appeals a judgment of the Clark

County Municipal Court which adopted the magistrate’s decision ordering restitution of real 2

property located at 302 Fremont Avenue in Springfield, Ohio, to plaintiff-appellee Paul W.

Cherry.

{¶ 2} On October 20, 2011, Cherry purchased the property located 302 Fremont

Avenue from the Estate of Roberta G. Honaker. Cherry served Morgan, who was living on

the property at the time, with a three-day notice to vacate on November 22, 2011. After

Morgan refused to leave, Cherry filed a complaint in forcible entry and detainer on

December 12, 2011. A hearing was held before the magistrate regarding Cherry’s

complaint on January 4 and 11, 2012. Both parties appeared pro se at the hearing.

{¶ 3} The magistrate’s decision ordering restitution and the trial court’s judgment

adopting the magistrate decision were both issued on January 11, 2012. Pursuant to the

restitution order, Morgan was required to vacate the property by January 16, 2012. On

January 12, 2012, Morgan filed a request for a stay from the trial court’s judgment ordering

him to vacate the property in question. The trial court issued an entry overruling Morgan’s

request for a stay on January 13, 2012. On January 19, 2012, Morgan filed a change of

address with the trial court. Morgan filed objections on January 23, 2012. On February 6,

2012, Morgan filed a notice of appeal of the trial court’s decision with this Court.1

{¶ 4} The Ohio Supreme Court has stated that actions in forcible entry and

detainer determine the right to immediate possession of the property “and nothing else.”

Seventh Urban, Inc. v. University Circle, 67 Ohio St.2d 19, 25, 423 N.E.2d 1070 (1981). A

forcible entry and detainer action is intended to serve as an expedited mechanism by which

1 We note that in an entry dated March 7, 2012, the trial court overruled Morgan’s objections. 3

an aggrieved landlord may recover possession of real property. Miele v. Ribovich, 90 Ohio

St.3d 439, 441, 2000-Ohio-193, 739 N.E.2d 333. Once a landlord has been restored to the

property, the forcible entry and detainer action becomes moot because, having been restored

to the premises, there is no further relief that can be granted. RLJ Management Co., Inc. v.

Larry Baldwin, 3d Dist. Crawford No. 3-01-16, 2001-Ohio-2237.

{¶ 5} The only method by which a defendant appealing a judgment of forcible

entry and detainer may prevent the cause from becoming moot is stated in R.C. 1923.14.

Long v. MacDonald, 3d Dist. Crawford No. 3-02-10, 2002-Ohio-4693. The statute provides

a means by which the defendant may maintain, or even recover, possession of the disputed

premises during the course of his appeal by filing a timely notice of appeal, seeking a stay of

execution, and posting a supersedeas bond. Colonial American Dev. Co. v. Griffith, 48 Ohio

St.3d 72, 549 N.E.2d 513 (1990). If the defendant fails to avail himself of this remedy, all

issues relating to the action are rendered moot by his eviction from the premises. Long,

supra. While Morgan filed a motion for a stay of execution with the trial court which was

overruled, he failed to seek a stay with this Court nor did he post a supersedeas bond.

Accordingly, the instant appeal is moot.

{¶ 6} Thus, because the appeal is moot, we do not reach the merits of Morgan’s

claims; therefore, his appeal is dismissed.

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Paul W. Cherry Larry N. Morgan 4

Hon. Thomas E. Trempe