State ex rel. AIY Properties, Inc. v. Scott

2023 Ohio 3893

Procedural entryThis page is a short order in State ex rel. AIY Properties, Inc. v. Scott. Read the opinion of the Court — 224 N.E.3d 1287 →

Ohio Court of Appeals·Decided October 24, 2023·No. 113276·Published

Opinion

[Cite as State ex rel. AIY Properties, Inc. v. Scott, 2023-Ohio-3893.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL. AIY PROPERTIES, INC., :

Relator, : No. 113276 v. :

JUDGE W. MONA SCOTT, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT GRANTED DATED: October 24, 2023

Writ of Procedendo Order No. 568744

Appearances:

Sarah S. Graham, for relator.

Mark Griffin, Cleveland Director of Law, for respondent.

MARY EILEEN KILBANE, P.J.:

AIY Properties, Inc. (“AIY”), the relator, has filed a complaint for a writ

of mandamus. AIY seeks an order from this court that requires Judge W. Mona

Scott, the respondent, to issue a writ of restitution and an order of eviction in the forcible entry and detainer action that is currently pending in AIY Properties, Inc.

v. Tiffany Blevins, Cleveland M.C. No. 2023-CVG-010107.

Although AIY requests a writ of mandamus, we employ our plenary

authority to sua sponte convert the request for a writ of mandamus into a complaint

for procedendo. State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St.3d 61, 741

N.E.2d 517 (2001). Procedendo shall issue when a court has either refused to render

a judgment or has unnecessarily delayed entering judgment. State ex rel. R.W.

Sidley, Inc. v. Crawford, 100 Ohio St.3d 113, 2003-Ohio-5101, 796 N.E.2d 929.

“[P]rocedendo is more appropriate since ‘an inferior court’s refusal or failure to

timely dispose of a pending action is the ill a writ of procedendo is designed to

remedy.’” State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33, 35, 656 N.E.332 (1995),

quoting State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110, 637 N.E.2d 319

(1994). For the following reason, we grant a peremptory writ of procedendo on

behalf of AIY.

I. Facts and Procedural History

The following facts are gleaned from the complaint for procedendo and

the docket maintained in Cleveland M.C. No. 2023-CVG-1010107:1

(1) AIY is the manager of residential property located at 1903 Pleasantdale Road, Apt. 9, Cleveland, Ohio 44109; (2) the tenant did not make monthly rental payments after March 2023;

1 This court is permitted to take judicial notice of court filings that are readily

accessible from the internet. In re Helfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio- 1933, ¶ 35, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 974 N.E.2d 516, ¶ 8, 10 (court can take judicial notice of judicial opinions and public records accessible from the internet). (3) on August 17, 2023, AIY served the tenant with a “3 day notice to vacate” pursuant to R.C. 1923.04; (4) on September 5, 2023, AIY filed a complaint for forcible entry and detainer; (5) on October 3, 2023 a forcible entry and detainer hearing was held; (6) on October 5, 2023, judgment was entered for AIY on the claim for forcible entry and detainer with an ordered “move out” set for October 17, 2023; (7) on October 10, 2023, AIY filed a request for a writ of restitution; (8) as of October 17, 2023, Judge Scott has not issued a writ of restitution and a writ of eviction.

II. Legal Analysis

To be entitled to a writ of procedendo, AIY must demonstrate a clear

legal right to require Judge Scott to proceed, a clear legal duty on the part of Judge

Scott to proceed, and the lack of an adequate remedy in the ordinary course of the

law. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 671 N.E.2d 24 (1996); State ex

rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 650

N.E.2d 899 (1995). If it appears beyond doubt that AIY is entitled to a writ of

procedendo, a peremptory writ shall be issued. State ex rel. Stern v. Mascio, 81 Ohio

St.3d 297, 691 N.E.2d 253 (1998); State ex rel. Findlay Publishing Co. v. Schroeder,

76 Ohio St. 3d 580, 669 N.E.2d 835, 839 (1996).

Forcible entry and detainer actions are governed by R.C. Chapter 1923.

The purpose of the forcible entry and detainer statutes is to provide a summary,

extraordinary, and speedy method for the recovery of possession of real property.

Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 131, 423 N.E.2d 177

(1981); 24 Ohio Jurisprudence 2d 455, Forcible Entry and Detainer, Section 2.

“‘[G]iven its summary nature, the drafters of the Rules of Civil Procedure were careful to avoid encrusting this special remedy with time consuming procedure

tending to destroy its efficacy.’” Miele v. Ribovich, 90 Ohio St.3d 439, 441, 739

N.E.2d 333 (2000), quoting Jackson at 131.

R.C. 1923.02(A)(9) creates a cause of action for forcible entry and

detainer “[a]gainst tenants who have breached an obligation imposed upon them by

a written rental agreement.” It is undisputed that the tenant breached the terms of

the lease by failing to pay rent. R.C. 1923.04(A) requires the landlord give the tenant

notice of the eviction action “three or more days before beginning the action, by

certified mail, return receipt requested, or by handing a written copy of the notice to

the defendant in person, or by leaving it at the defendant’s usual place of abode or

at the premises from which the defendant is sought to be evicted.” AIY provided the

tenant with the required three-day notice. Also, the facts demonstrate that AIY

complied with all of the requirements of R.C. 1923.01 et seq. for immediate

possession of the real property currently occupied by the tenant. AIY is entitled to a

peremptory writ of procedendo that requires Judge Scott to immediately issue a writ

of restitution and an order of eviction.

III. Duties Under R.C. Chapter 1923

R.C. 1923.09(A) provides that if the judge finds the complaint for

forcible entry and detainer to be true, the judge shall render a general judgment

against the defendant, in favor of the plaintiff, for restitution of the premises and

costs of suit. Once again, this court is perplexed by the conduct of Judge Scott that

seems to thwart the purpose of R.C. Chapter 1923 by not providing a summary, extraordinary, and speedy method for the recovery of possession of AIY’s real

property. In fact, seven prior complaints for mandamus or procedendo, plus an

appeal, and two pending complaints for mandamus or procedendo have been filed

with this court in the past year that demonstrate Judge Scott’s delay in issuing writs

of restitution and orders of evictions:

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