Ebbing v. Mathis
2013 Ohio 3880
Ohio Ct. App.2013Background
- Landlord Joseph Ebbing leased a house; tenant Gary Mathis (later joined by Dallace McIntosh) was to deposit $500 monthly into Ebbing’s bank account on the 3rd of each month.
- Ebbing served a three-day R.C. 1923.04 notice to vacate on July 6, 2012 and filed a forcible entry and detainer (FED) action July 9; the first action was dismissed as premature.
- Ebbing filed a second FED action July 25, 2012. Mathis deposited a $500 check into Ebbing’s bank account on August 3, 2012.
- The magistrate found Ebbing had accepted that $500 payment and dismissed the second FED action as a waiver of the three-day notice, divesting the court of jurisdiction. Ebbing objected; the trial court overruled the objection and also denied sanctions against defense counsel.
- After the magistrate’s decision, Ebbing filed a third FED action that resulted in Mathis and McIntosh being ordered to vacate and Ebbing’s damage claim being transferred to common pleas court (monetary amount exceeded municipal limit).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did acceptance of the $500 payment waive the three-day R.C. 1923.04 notice? | Ebbing: He did not accept the payment; he intentionally did not check his account and therefore did not waive the notice. | Mathis: Depositing rent into landlord’s account constitutes acceptance; thus notice was waived. | Court: Acceptance occurred (bank deposit effective acceptance); waiver of notice divested court of jurisdiction; dismissal proper. |
| Does a tenant’s deposit into landlord’s bank account equal landlord acceptance absent contrary bank instructions? | Ebbing: No acceptance occurred here because he took no action to accept. | Mathis: Deposit into landlord’s account is acceptance unless landlord gave bank contrary instructions. | Court: Follows established rule: deposit into landlord’s account constitutes acceptance absent contrary instructions. |
| Is Ebbing entitled to costs/sanctions for alleged frivolous conduct by defense counsel? | Ebbing: Sought costs and sanctions against defense counsel for frivolous conduct. | Mathis: Counsel’s conduct did not merit sanctions. | Court: No sanctionable conduct shown; award of costs denied. |
| May Ebbing raise on appeal a new theory that the $500 was partial payment of past-due May rent (so not future rent)? | Ebbing: For the first time on appeal, argues the $500 was partial payment for May 2012 rent, which would be past-due and not waive notice. | Mathis: Argument was not raised below and is waived. | Court: New theory waived because not raised at trial; cannot be asserted for first time on appeal. |
Key Cases Cited
- Associated Estates Corp. v. Bartell, 24 Ohio App.3d 6 (1985) (acceptance of future rent after serving notice to vacate constitutes waiver of the notice)
- Kachelmacher v. Laird, 92 Ohio St. 324 (1915) (tenant’s deposit into landlord’s bank account constitutes acceptance by landlord absent contrary instructions)