Jones v. Dlugos

2019 Ohio 3039

• Court: Ohio Court of Appeals
• Decided: July 25, 2019
• Docket: 107757
• Status: Published

Opinion

[Cite as Jones v. Dlugos, 2019-Ohio-3039.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

GREGORY A. JONES, ET AL., :

Plaintiffs-Appellees, : No. 107757 v. :

KARL DLUGOS, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: July 25, 2019

Civil Appeal from Rocky River Municipal Court Case No. 18 CVG 549

Appearances:

Vincent Esquire, Ltd., Paul W. Vincent, and Adam James Vincent, for appellees.

Karl Dlugos, pro se, and Lisa Gottschalt, pro se. LARRY A. JONES, SR., J.:

In this accelerated appeal,1 the defendants-appellants Karl Dlugos

and Lisa Gottschalt2 appeal from the March 26, 2018 judgment of the Rocky River

Municipal Court, which “accepted, approved and adopted” the magistrate’s

decision. The decision found the appellants liable for nonpayment of rent. For the

reasons that follow, we dismiss this appeal.

Factual and Procedural History

The record before us demonstrates that in February 2017, the

appellants entered into a land installment contract with the plaintiffs-appellees,

Gregory and Sharon Jones. The contract was for property located in North Olmsted,

Ohio, and the monthly payment was $772.64, plus a $50 late fee, if applicable.

In February 2018, the appellants failed to make payments according

to the contract, and the appellees provided notice to them of their breach and how

it could be remedied according to the terms of their contract. On March 5, 2018, the

appellants made a $500 payment. On March 7, 2018, the appellees filed an action

in the Rocky River Municipal Court; the complaint was for forcible entry and

detainer and forfeiture. The appellants filed an answer in which they claimed, in

part, that the appellees accepted their $500 payment.

1The purpose of an accelerated appeal is to permit this court to render a brief and conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 1.

2The appellants have proceeded pro se throughout the entirety of the proceedings below as well as in this court. A trial before the magistrate was held on March 26, 2018. At the

conclusion of the trial, the magistrate found in favor of the appellees and against the

appellants for nonpayment of rent on the “first cause of action,” that is, the forcible

entry and detainer. The magistrate granted the appellants until April 16, 2018, to

move to plead or file an answer as to the “second cause of action,” that is, the

forfeiture. The trial court “accepted, approved and adopted” the magistrate’s

decision as the judgment of the court.

On April 2, 2018, appellants filed a motion to stay eviction, which was

denied on April 5. A writ of restitution was filed, ordering that the appellants be

“forthwith removed” from the property and the appellees have restitution of it.

Appellants apparently did not vacate the property, and therefore the appellees filed

a request to execute writ of restitution. The appellants filed a motion to set aside

the magistrate’s order and stay the writ of restitution, which the trial court denied.

Thereafter, the appellants filed objections to the magistrate’s order; the objections

were overruled.

On April 13, 2018, appellants filed an answer to the second cause of

the complaint and a counterclaim. Their counterclaim sought an amount for equity

they claim to have in the house.

According to the appellees, the appellants were ordered to be out of

the subject property on April 13, 2018. However, due to the trial court’s schedule,

the date was continued one week, until April 20, 2018. The record demonstrates that on April 19, 2018, appellants filed for Chapter 7 bankruptcy that resulted in an

automatic stay of the case.

The bankruptcy stay was lifted in August 2018, and the eviction

proceedings resumed. On October 4, 2018, the day set for their eviction, appellants

filed an emergency motion for stay of eviction in this court; they also filed an appeal

in this court of the municipal court’s March 2018 judgment that again stayed the

eviction date. Their emergency motion was denied on the same day it was filed,

October 4, 2018. The appellants then filed a second notice of appeal on October 5,

2018, that was transferred to the first appeal. Meanwhile, the eviction proceeded

and the appellants were evicted in October 2018, and the property was restored to

the plaintiffs.

This court dismissed the appeal as untimely, but subsequently

granted appellants’ motion for reconsideration and ordered appellants to file an

App.R. 9(C) statement by November 26, 2018. On November 23, 2018, appellants

filed a “notice of trial court’s inability to settle and approve appellants[’] statement

of evidence as required by App.R. 9.”

This court again dismissed the appeal, this time as moot because the

appellants had been evicted in October 2018. The appellants filed a motion for

reconsideration, which was granted. This court ordered the appellants to show

cause why the record should not be converted into an App.R. 9(A) record.

Appellants filed their show cause, and in February 2019, the praecipe was amended

to an App.R. 9(A) record. Assignments of Error

I. The trial court erred in its decision to not dismiss the case due to the plaintiffs failing to state a claim for which relief can be granted.

II. The trial court committed plain error in accepting “Notice of forfeiture and demand to leave premises” (“Notice”) as being sufficient and properly serviced.

III. The trial court has failed to approve, deny, and certify the Appellants’ statement of evidence as required under App.R. 9(C).

Law and Analysis

The gravamen of the appellants’ contentions in this appeal relate to

their eviction from the subject property. For the reasons that follow, that issue is

now moot. A forcible entry and detainer decides only the right to immediate

possession and nothing else. Seventh Urban, Inc. v. Univ. Circle, 67 Ohio St.2d 19,

25, 423 N.E.2d 1070 (1981), fn. 11. If immediate possession is no longer an issue

due to vacation, then continuation of the forcible entry and detainer action or appeal

is unnecessary. “Once the landlord has been restored to property, the [result of the]

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

the premises, there is no further relief that may be granted.” Long v. MacDonald,

3d Dist. Crawford No. 3-02-10, 2002-Ohio-4693 (holding that the tenant’s appeal

is moot regardless of whether the tenant’s vacation is voluntarily or not); U.S. Sec.

of HUD v. Chancellor, 8th Dist. Cuyahoga No. 73970, 1999 Ohio App. LEXIS 605

(Feb. 25, 1999) (agreeing with HUD’s argument that the tenants-appellants’ appeal

was moot since they vacated the premises and affirming on that basis); see also Riolo v. Navin, 8th Dist. Cuyahoga No. 79809, 2002-Ohio-1551; Blosser v. Bowman, 10th

Dist. Franklin No. 00AP-1140, 2001 Ohio App. LEXIS 1927 (May 1, 2001).

The appellants here have vacated the property; therefore, their

contentions relating to the alleged impropriety of their eviction are now moot. There

was, as mentioned, a second cause of action relating to forfeiture. However, the trial

court did not issue any judgment relating to that cause of action. Further, the trial

court did not issue a judgment relative to appellants’ counterclaim. It is well

established that “[a] court of appeals cannot consider [an] issue for the first time

without the trial court having had an opportunity to address the issue.” State v.

Peagler, 76 Ohio St.3d 496, 501, 668 N.E.2d 489 (1996).

In light of the above, this appeal is dismissed as moot.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, P.J., and ANITA LASTER MAYS, J., CONCUR