Kell v. Little

2019 Ohio 98

• Court: Ohio Court of Appeals
• Decided: January 14, 2019
• Docket: 2018CA00064
• Status: Published

Opinion

[Cite as Kell v. Little, 2019-Ohio-98.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

THOMAS KELL : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : STEVE LITTLE : Case No. 2018CA00064 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Canton Municpal Court, Case No. 2018CVG02302

JUDGMENT: Dismissed

DATE OF JUDGMENT: January 14, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

THOMAS KELL, pro se RYAN W. MAXWELL 2538 Daffodil Street NE 401 Market Avenue North Canton, OH 44705 Suite 103 Canton, OH 44702 Stark County, Case No. 2018CA00064 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Steve Little, appeals the May 15, 2018 decision of the

Canton Municipal Court of Stark County, Ohio, denying his motion for new trial, motion

from relief from judgment, and motion to vacate. Plaintiff-Appellee is Thomas Kell.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellee owns property on Dueber Avenue in Canton, Ohio. Appellant

entered into a lease agreement with appellee to lease the subject property. On April 9,

2018, appellee served appellant a three day notice to leave the premises for non-payment

of rent. Because appellant did not comply, appellee filed a forcible entry and detainer

action on April 12, 2018.

{¶ 3} A hearing before a magistrate was held on April 23, 2018. Appellant failed

to appear. By report filed same date, the magistrate ordered a writ of restitution of the

property. A damages hearing was continued to a later date. By judgment entry filed April

23, 2018, the trial court approved and confirmed the magistrate's decision. Appellant did

not file objections. An eviction set-out date was scheduled for May 18, 2018.

{¶ 4} On May 15, 2018, appellant filed a motion for new trial, motion for relief from

judgment, and motion to vacate, claiming he failed to appear at the hearing due to medical

issues and he had a meritorious defense to present. Appellant claimed the three day

notice was deficient and failed to comply with R.C. 1923.04, and he had satisfied his rental

obligation for the month. Appellant also filed a motion to stay the set-out date pending a

decision on the motions. By judgment entry filed same date, the trial court denied the

motions, finding appellant failed to appear, did not request a continuance, and did not file

objections to the magistrate's decision. The trial court also denied the motion to stay. Stark County, Case No. 2018CA00064 3

{¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 6} "THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION AND

IT COMMITTED BOTH PLAIN ERROR AND REVERSIBLE ERROR WHEN IT

GRANTED APPELLEE JUDGEMENT FOR RESTITUTION."

II

{¶ 7} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT

SCHEDULING A HEARING FOR DEFENDANT-APPELLANT'S MOTION FOR NEW

TRIAL/MOTION FOR RELIEF/MOTION TO VACATE AND DENYING DEFENDANT-

APPELLANT'S MOTION FOR NEW TRIAL/MOTION FOR RELIEF/MOTION TO

VACATE.

{¶ 8} At the outset, we note appellant vacated the premises on May 18, 2018.

Appellant's Brief at 8. After filing the notice of appeal, appellant never requested a stay

pursuant to R.C. 1923.14(A). Based upon the well reasoned opinion by this court in AKP

Properties, LLC v. Sharonda Rutledge, 5th Dist. Stark No. 2018CA00058, 2018-Ohio-

5309, we find the issues herein to be moot and therefore do not reach the merits of the

assignments of error. Stark County, Case No. 2018CA00064 4

{¶ 9} The appeal is hereby dismissed.

By Wise, Earle, J.

Gwin, P.J. and

Wise, John, J. concur.

EEW/db 17