Schwab v. Lattimore
This text of 848 N.E.2d 912 (Schwab v. Lattimore) 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.
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{¶ 1} Defendant-appellant, Regina Lattimore, appeals the judgment of the Hamilton County Municipal Court granting a writ of restitution to plaintiffappellee, Christopher J. Schwab, in an eviction action.
{¶ 2} On January 1, 2005, Lattimore signed an agreement to rent an apartment from Schwab for one year. On September 15, 2005, Schwab filed a complaint for eviction and damages. Lattimore filed an answer and a counterclaim in which she sought damages arising out of the alleged defects in the residence.
{¶ 3} A hearing was conducted before a magistrate. At the hearing, Schwab testified that Lattimore had failed to pay one month’s rent. Lattimore was permitted to adduce evidence of her alleged damages, and she requested an offset against her rent under R.C. 1923.061 because of the alleged defects in the property.
{¶ 4} The magistrate explicitly declined to consider the issue of an offset and recommended that Schwab be granted a writ of restitution. The trial court accepted that recommendation and issued the writ.
{¶ 5} On appeal, Lattimore now argues, in four assignments of error, that the court erred in granting Schwab’s claim for restitution of the premises.
{¶ 6} We begin with the third assignment of error, in which Lattimore challenges the trial court’s subject-matter jurisdiction. She argues that Schwab failed to present evidence that he had complied with the three-day notice requirement of R.C. 1923.04.
{¶ 7} We find no merit in this assignment. In her answer, Lattimore admitted that she had received the required notice, and our review of the notice reveals no deficiencies in its form or its content. The trial court was properly vested with jurisdiction, and the third assignment of error is overruled.
{¶ 8} In her first and second assignments of error, Lattimore argues that the trial court erred in refusing to consider the issue of an offset under R.C. 1923.061. She argues that had the court considered her counterclaim under R.C. *15 1923.061 at the time it considered Schwab’s complaint for a writ of restitution, the rent due would have been less than she had actually paid. As a result, Lattimore argues, Schwab would not have been entitled to a writ of restitution.
{¶ 9} The rental period as stated in the lease terminated on January 1, 2006, and Lattimore concedes that she has already vacated the premises. Accordingly, Lattimore agrees that this court cannot order that she be returned to possession of the premises. We must determine, then, whether the case is moot.
{¶ 10} The duty of a court of appeals is to decide controversies between parties by a judgment that can be carried into effect, and the court need not render an advisory opinion on a moot question or a question of law that cannot affect the issues in a case. 1 Thus, when circumstances prevent an appellate court from granting relief in a case, the mootness doctrine precludes consideration of those issues. 2
{¶ 11} In this case, we cannot render a judgment that could be carried into effect. Schwab has taken possession of the apartment, and the term of the lease has expired. As a result, this court can grant no relief to Lattimore even if we were to hold that the trial court had erred in declining to rule on her counterclaim. And because the order granting the writ of restitution is the only judgment on appeal, any decision regarding the propriety of the trial court’s proceedings would be purely advisory in nature.
{¶ 12} Lattimore argues, though, that the case is not subject to the mootness doctrine because the challenged action is capable of repetition yet evades review. She argues that the common practice of the municipal court is to delay the determination of an offset under R.C. 1923.061 until after the tenant has lost possession of the premises. She maintains that in light of that practice, the issue of the tenant’s right to retain possession under R.C. 1923.061 would be moot in virtually every case.
{¶ 13} We hold that Lattimore has failed to demonstrate that this case falls under the exception to the mootness doctrine for cases that are capable of repetition yet evade review. The Supreme Court of Ohio has held that “[tjhis exception applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable *16 expectation that the same complaining party will be subject to the same action again.” 3
{¶ 14} Here, even if Lattimore had established that the writ of restitution is normally carried into effect before a tenant can present a claim under R.C. 1923.061, she has not demonstrated any likelihood that she will be subject to the action again. Accordingly, the exception to the mootness doctrine does not apply.
{¶ 15} Lattimore also argues that the issue before the court is of great public interest. Even though a case may be moot, a court may hear the appeal when the case presents a constitutional question or a matter of great public or general interest. 4
{¶ 16} Here, there is no argument that the case presents a constitutional question. And Lattimore has not convinced us that the narrow issue presented is of such great public interest that we should exceed our entrusted role of deciding justiciable controversies. Accordingly, we hold that the case is moot and not within the exceptions that Lattimore has asserted.
{¶ 17} In the fourth and final assignment of error, Lattimore contends that the trial court erred in denying her request for findings of fact and conclusions of law. Our disposition of the first and second assignments of error renders the fourth assignment moot as well.
{¶ 18} Having held that the case is moot, we hereby dismiss the appeal.
Appeal dismissed.
. In re Bailey, 1st Dist. Nos. C-040014 and C-040479, 2005-Ohio-3039, 2005 WL 1413269, at ¶ 9, jurisdictional motion overruled, 107 Ohio St.3d 1423, 2005-Ohio-6124, 837 N.E.2d 1208.
. Id., citing State ex rel. Eliza Jennings, Inc. v. Noble (1990), 49 Ohio St.3d 71, 74, 551 N.E.2d 128, and Hamilton Cty. Community Mental Health Bd. v. Wells (Nov. 8, 1995), 1st Dist. No. C-940716, 1995 WL 653824.
. State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St.3d 229, 231,
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848 N.E.2d 912, 166 Ohio App. 3d 12, 2006 Ohio 1372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwab-v-lattimore-ohioctapp-2006.