Day v. Baker, Unpublished Decision (10-18-2004)

2004 Ohio 5529
CourtOhio Court of Appeals
DecidedOctober 18, 2004
DocketCase No. CA2003-06-140.
StatusUnpublished
Cited by2 cases

This text of 2004 Ohio 5529 (Day v. Baker, Unpublished Decision (10-18-2004)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Day v. Baker, Unpublished Decision (10-18-2004), 2004 Ohio 5529 (Ohio Ct. App. 2004).

Opinion

OPINION
{¶ 1} Defendant-appellant, Anita Baker, appeals the decision of the Butler County Area I Court entering judgment in favor of plaintiff-appellee, Ray Day, after Day brought a forcible entry and detainer action against Baker. We affirm the area court's decision.

{¶ 2} Baker owns a mobile home and rented space from Day at his mobile home park. After Baker had been cited numerous times by the city of Oxford for operating a kennel in a residential district, Day served Baker with a three-day notice to vacate the premises. The notice, dated March 27, 2003, ordered Baker to vacate by April 1, 2003. On April 7, 2003, Day filed a forcible entry and detainer action against Baker pursuant to R.C. 1923.02. The complaint alleged that Baker violated mobile home park rules regarding the number of allowable pets, and also violated city of Oxford regulations.

{¶ 3} After a hearing on April 18, 2003, an area court magistrate issued an entry finding that Baker violated the rules of the mobile home park, and that she was in default on rent. Having found that Baker properly received the three-day notice to vacate pursuant to R.C. 1923.04, the magistrate ordered Baker to vacate the premises by noon on April 25, 2003.

{¶ 4} Baker filed objections to the magistrate's decision. The area court sustained Baker's objections related to the nonpayment of rent, but overruled Baker's objections as to the mobile home park rule violations. Therefore, the court ruled that the magistrate's eviction order remained in effect.

{¶ 5} Baker now appeals, assigning 15 errors. In her first assignment of error, Baker argues that she complied with the terms of the three-day notice and therefore could not be lawfully evicted. The three-day notice stated the following to Baker: "you will be allowed to stay in this mobile home park only if you immediately comply with our rules and the city of Oxford's code requirement on pets."

{¶ 6} The three-day notice was dated March 27, 2003. Day stated to the area court that he delivered the notice to Baker on that date. At the eviction hearing on April 18, 2003, Baker admitted to the area court that she currently had four dogs at her mobile home. The park rules, as modified by a June 1, 2002 letter included in the record, state that residents are allowed no more than two pets per home. Therefore, the record shows that Baker had not complied with the terms of the three-day notice. Accordingly, Baker's first assignment of error is overruled.

{¶ 7} In her second and thirteenth assignments of error, Baker argues that she did not violate park rules regarding pets. Day stated to the area court that he delivered a copy of the park rules to Baker. Day also stated that he informed all park residents in a letter that only two dogs were allowed per home. Day provided that letter, dated June 1, 2002, to the area court. Baker claimed that she never received the letter.

{¶ 8} A reviewing court should presume that a trial court's findings of fact are accurate because the trial court is best able to view the witnesses, observe their demeanor, gestures, and voice inflections, and use those observations in weighing the credibility of the witnesses. Seasons Coal Co., Inc. v. City ofCleveland (1984), 10 Ohio St.3d 77, 80. We accept the trial court's findings of fact unless clearly erroneous. See WillisRefrigeration, Air Conditioning Heating, Inc. v. Maynard (Jan. 18, 2000), Clermont App. No. CA99-05-047.

{¶ 9} The area court specifically found that Baker violated the park rules. Baker herself admitted at the eviction hearing that she currently had four dogs at her home, a violation of park rules. The record does not indicate that the area court's factual determination that Baker violated park rules was "clearly erroneous." The area court was in the best position to determine the credibility of Day and Baker, including as to whether Baker received the June 1, 2002 letter. Accordingly, Baker's second and thirteenth assignments of error are overruled.

{¶ 10} In her third assignment of error, Baker argues that federal law "deems therapy animals exempt from * * * pet rules." Attached to her appellate brief, Baker includes a letter from Jeffrey Musgrove, a clinical psychologist, who has provided psychological counseling to Baker since January 2003. The letter discusses the mental and emotional benefits Baker's dogs have provided her in dealing with clinically diagnosed depression and the suicide of her husband in 1998. We note that this letter was not before the area court when it made its decision.

{¶ 11} Baker does not state in her brief the specific federal law that exempts her from the pet rules, and we cannot find such federal law. The Fair Housing Amendments Act of 1988 (Section 3601 et seq., Title 42, U.S. Code) does contain prohibitions against disability discrimination. However, Baker clearly did not offer sufficient proof to the area court that she was disabled within the meaning of Section 3602(h), Title 42, U.S. Code, or that Day was required to "reasonably accommodate" her within the meaning of Section 3604(f)(3)(B), Title 42, U.S. Code by allowing her to have more than two dogs at her home.

{¶ 12} We also note that because the psychologist's letter was not part of the area court's record and was not considered by the area court, we cannot consider the letter in making our decision. A reviewing court cannot consider evidence the trial court did not use when reaching its decision. See App.R. 9(A);Murphy v. City of Reynoldsburg, 65 Ohio St.3d 356, 360,1992-Ohio-95. See, also, In re Guardianships of Ahmed, Belmont App. No. 02 BE 56, 2003-Ohio-6390, at ¶ 19 ("exhibits attached to a brief are not part of the record and cannot be considered on appeal"). Based on the record before us, we overrule Baker's third assignment of error.

{¶ 13} In her fourth assignment of error, Baker argues that Day "is estopped from proceeding with * * * [the] eviction" because he accepted future rent. According to an April 16, 2003 letter included in the record, Day accepted rent through April 2003. That rent was paid on behalf of Baker by her prayer group. Baker argues that because Day accepted rent for a period of time after he served the three-day notice to vacate on March 27, 2003, he should not have been able to proceed with the eviction. In support of her argument, Baker cites Marchioni v. Wilson (M.C. 1984), 20 Ohio Misc.2d 10.

{¶ 14} We find Marchioni distinguishable from this case. InMarchioni, the landlord sought eviction based solely on the tenant's nonpayment of rent. The landlord's acceptance of rent following the service of the three-day notice to vacate led the tenant to believe that the landlord would allow her to remain on the premises. In this case, Day's eviction action was not based on unpaid rent. Day's notice to vacate and his forcible entry and detainer complaint alleged as the grounds for eviction Baker's violation of park rules and the city of Oxford code. It does not logically follow that Day's acceptance of rent led Baker to believe that Day would not proceed with the eviction.

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Bluebook (online)
2004 Ohio 5529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-baker-unpublished-decision-10-18-2004-ohioctapp-2004.