2014 Ohio 305
Ohio Ct. App.2014Background
- Plaintiff-appellee Larry G. Sheehe, as executor of Louise J. Demsey’s estate, sued to recover possession of the decedent’s house after she died and appellant Kenneth Demsey (her son) continued to live there and failed to pay court-ordered rent.
- The probate court had ordered Demsey to pay $1,000/month and vacate; he did not comply. The executor served a three-day notice and filed a forcible entry and detainer action in Parma Municipal Court.
- Demsey (through counsel) demanded a jury trial and filed a counterclaim; the forcible entry and detainer trial was repeatedly continued and ultimately set for July 12, 2012.
- On the day of trial, Demsey asserts his newly retained counsel did not appear and he orally requested another continuance; the trial court denied the request, the jury returned for the estate, and a restitution order returned possession to the estate.
- Demsey was removed by July 30, 2012; he did not obtain a stay of execution or immediately appeal the possession order. A later damages trial awarded the estate judgment (capped at $15,000).
- Demsey’s sole appellate claim: the trial court violated his constitutional right to counsel by denying the continuance after counsel’s nonappearance. The appellate court dismissed the appeal as moot because possession could not be restored.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant was denied a constitutional right to counsel when the trial court denied a continuance after his attorney failed to appear | Denied right to counsel in eviction matters; continuance should have been granted | Court properly exercised discretion to deny another continuance in a long‑pending, summary forcible entry and detainer action | Dismissed as moot — even if error, no remedy exists because possession already returned to estate and property has been sold |
Key Cases Cited
- Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 423 N.E.2d 177 (forcible entry and detainer order restoring possession is final and appealable)
- Skillman v. Browne, 68 Ohio App.3d 615, 589 N.E.2d 407 (forcible entry and detainer proceedings are special proceedings affecting substantial rights; possession orders are appealable even absent damages ruling)
- Seventh Urban, Inc. v. Univ. Circle Prop. Dev., Inc., 67 Ohio St.2d 19, 423 N.E.2d 1070 (forcible entry and detainer decides right to immediate possession and nothing else)
- State ex rel. Plain Dealer Pub. Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (doctrine on cases capable of repetition yet evading review)
- Franchise Developers, Inc. v. Cincinnati, 30 Ohio St.3d 28, 505 N.E.2d 966 (mootness exceptions where constitutional question or matters of great public interest remain)