Northwest Ctr. Holdings, L.L.C. v. Simon

2024 Ohio 1705

• Court: Ohio Court of Appeals
• Decided: May 3, 2024
• Docket: 29953
• Status: Published

Opinion

[Cite as Northwest Ctr. Holdings, L.L.C. v. Simon, 2024-Ohio-1705.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

NORTHWEST CTR HOLDINGS, LLC : : Appellee : C.A. No. 29953 : v. : Trial Court Case No. 2023 CVG 116 : JUSTIN SIMON DBA SHANKNOMI : (Civil Appeal from Municipal Court) ENTERPRISES, LLC : : Appellant :

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OPINION

Rendered on May 3, 2024

ANDREW R. BARNES, Attorney for Appellant

RICHARD L. CARR, JR. & LUCAS A. STRAKOWSKI, Attorneys for Appellee

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HUFFMAN, J.

{¶ 1} Defendant-Appellant Justin Simon, DBA Shanknomi Enterprises, LLC,

appeals from the trial court’s judgment in favor of Plaintiff-Appellee Northwest Center

Holdings, LLC, on its eviction action. For the reasons outlined below, Appellant’s appeal

will be dismissed as moot.

I. Factual and Procedural Background -2-

{¶ 2} Appellant, a commercial holdover tenant, and Appellee, the landlord, were

parties to a lease that expired in November 2021 after a new lease agreement was not

negotiated between the parties. Under the terms of the expired lease agreement,

Appellant’s rent was due on the first day of each month. In November 2022, December

2022, and January 2023, Appellant failed to pay rent and, instead, attempted to place rent

payments in escrow pursuant to R.C. 5321.07, as permitted for residential tenants, to

force Appellee to make certain repairs to the property. However, Appellant’s request to

deposit rent into escrow was denied because Appellant was a commercial holdover

tenant, not a residential tenant.

{¶ 3} On January 2, 2023, Appellee provided a notice of default of payment and

failure to vacate to Appellant by personal service. On January 6, 2023, Appellee filed a

complaint for eviction against Appellant in the Dayton Municipal Court, asserting claims

for forcible entry and detainer and for damages. Appellee’s complaint was served on

Appellant on January 10, 2023. Appellant filed an answer on February 9, 2023, requesting

a jury trial and asserting counterclaims for breach of contract, retaliatory eviction, and

discrimination.

{¶ 4} The matter proceeded to an eviction hearing on February 10, 2023, but

neither Appellant nor his counsel was present at the hearing. At the hearing, the municipal

court found that Appellee had met the requirements for granting a writ of restitution on its

forcible entry and detainer claim.

{¶ 5} On February 17, 2023, an emergency hearing was held on a Civ.R. 60(B)

motion to vacate filed by Appellant, which sought a new trial on the eviction matter. At the -3-

emergency hearing, the municipal court gave Appellant the opportunity to explain why he

had not been present at the February 10th eviction hearing and to argue the merits of his

Civ.R. 60(B) motion. Appellant’s counsel stated that he had advised opposing counsel

that he was unavailable during the time the eviction hearing was scheduled but opposing

counsel would not agree to a continuance. Appellant testified that he was not present at

the eviction hearing because he had experienced a tire blowout on his way to the court.

The municipal court overruled Appellant’s motion to vacate, noting that Appellant’s

counsel failed to file a notice of appearance on Appellant’s behalf, failed to properly seek

a continuance of the eviction hearing from the court, and failed to pay the deposit required

for the jury demand; it ultimately found that Appellant had not satisfied the requirements

to vacate the eviction judgment.

{¶ 6} Thereafter, through a series of objections and notices of appeal, Appellant

sought to have the eviction judgment vacated. On May 23, 2023, Appellant filed a motion

to transfer the case to the Montgomery County Court of Common Pleas, which was

granted. In August 2023, however, the parties learned that the Montgomery County Court

of Common Pleas had not accepted the transfer because of outstanding objections that

had not been ruled on by the municipal court. On September 26, 2023, the municipal

court overruled Appellant’s objections. Appellant then sought a stay of the writ of

restitution and filed his appeal. On or around November 30, 2023, Appellant vacated the

premises.

II. Assignments of Error

{¶ 7} Appellant asserts the following three assignments of error: -4-

The Trial Court Abused It’s [sic] Discretion by Denying the Jury Trial.

The Trial Court Errored [sic] By Denying the Defendant a New Trial.

The Trial Court Lacked Jurisdiction And Failed [sic] Transfer the Matter.

{¶ 8} Before we address the merits of Appellant’s assignments of error, we must

consider whether this appeal is moot.

{¶ 9} R.C. Chap. 1923 regulates forcible entry and detainer actions. To prevail in

a forcible entry and detainer action, a plaintiff must prove: “(1) that the plaintiff met the

procedural requirements and properly served the tenant with notice of the eviction, (2) the

plaintiff has the right to possess the premises, and (3) the tenant does not have the right

to possession.” Garb-Ko, Inc. v. Benderson, 10th Dist. Franklin Nos. 2AP-430, 12AP-476,

12AP-474, 12AP-475, 2013-Ohio-1249, ¶ 54, citing Admr. of Veterans Affairs v. Jackson,

41 Ohio App.3d 274, 278, 535 N.E.2d 369 (9th Dist.1987).

{¶ 10} “A forcible entry and detainer action is intended to serve as an expedited

mechanism by which an aggrieved landlord may recover possession of real property.”

Wise v. Webb, 2d Dist. Clark No. 2015-CA-50, 2015-Ohio-4298, ¶ 11, citing Miele v.

Ribovich, 90 Ohio St.3d 439, 441, 739 N.E.2d 333 (2000). Such action “decides only the

right to immediate possession of property.” Id., citing Miami Valley Hous. v. Jackson, 2d

Dist. Montgomery No. 25020, 2012-Ohio-5103, ¶ 5.

{¶ 11} “The role of courts is to decide adversarial legal cases and to issue

judgments that can be carried into effect.” Cerise Capital LLC v. Dewberry, 2d Dist.

Montgomery No. 29248, 2022-Ohio-1874, ¶ 11, quoting Cyran v. Cyran, 152 Ohio St.3d

484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 9, citing Fortner v. Thomas, 22 Ohio St.2d 13, 14, -5-

257 N.E.2d 371 (1970); State v. Smith, 2d Dist. Montgomery No. 27981, 2019-Ohio-3592,

¶ 8. “Under the mootness doctrine, American courts will not decide cases in which there

is no longer an actual legal controversy between the parties.” Id., citing In re A.G., 139

Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. “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.”

Cherry v. Morgan, 2d Dist. Clark Nos. 2012-CA-11, 2012-CA-21, 2012-Ohio-3594, ¶ 4,

citing RLJ Mgt. Co., Inc. v. Larry Baldwin, 3d Dist. Crawford No. 3-01-16, 2001 WL

1613014, *2 (Dec. 18, 2001).

{¶ 12} In the instant matter, it is undisputed that Appellant vacated the commercial

property in November 2023, thereby restoring possession of the premises to Appellee.

Because Appellant vacated the property that was the subject of the eviction action and,

thus, Appellee has regained possession of the premises, no actual justiciable controversy

on the eviction claim remains between the parties. Under these circumstances, we could

not provide any meaningful remedy even if we were to find that any of Appellant’s

assignments of error had merit. Thus, based on the record before us, we conclude that

this appeal is moot.

III. Conclusion

{¶ 13} The appeal is dismissed as moot.

EPLEY, P.J. and LEWIS, J., concur.