2020 Ohio 4279
Ohio Ct. App.2020Background
- Tenant Traci Wimberly leased an apartment managed by T&R Properties; landlord sued for forcible entry and detainer alleging nonpayment of July 2019 rent.
- Hearing was continued to Aug. 19, 2019; Wimberly did not appear. Magistrate relied solely on an affidavit by landlord employee Donielle Owen and entered judgment for T&R with writ of restitution.
- Wimberly filed objections arguing Civ.R. 43 requires testimony in open court and the Owen affidavit was inadmissible hearsay; the municipal court overruled, relying on this court's earlier Blout decision.
- T&R moved to dismiss the appeal as moot after Wimberly vacated; the appellate court denied dismissal under exceptions (capable of repetition yet evading review; matter of public interest).
- The Tenth District held Civ.R. 43 and the Ohio Rules of Evidence apply to trials under R.C. 1923.07 when a defendant fails to appear; affidavits alone are insufficient and the Owen affidavit was inadmissible hearsay.
- The court overruled Blout to the extent it was read to permit judgment solely on an affidavit without live testimony and reversed the municipal-court judgment, remanding with instructions.
Issues
| Issue | Plaintiff's Argument (T&R) | Defendant's Argument (Wimberly) | Held |
|---|---|---|---|
| Mootness of appeal | Appeal moot because tenant vacated; dismiss | Appeal not moot; exceptions apply (repetition, public interest) | Appeal not dismissed; exceptions apply (repetition evading review; public interest) |
| Applicability of Civ.R. 43 to R.C. 1923.07 trials | Civ.R. 43 inapplicable under Civ.R.1(C)(3) because eviction proceedings are summary | Civ.R. 43 applies; testimony must be in open court | Civ.R. 43 applies; testimony generally must be taken in open court in these trials |
| Admissibility of affidavit as sole evidence when tenant absent | Affidavits are permitted/discretionary; statute allows affidavit use | Affidavit is hearsay and inadmissible without live testimony | Affidavit alone (Owen) was hearsay and not admissible; live testimony required absent a recognized exception |
| Precedent: effect of Oakbrook Realty Corp. v. Blout | Blout allows discretionary admission of affidavits; binds practice | Blout insufficient after Civ.R. 43; conflicts with rules | Overruled Blout to the extent it permitted judgment based solely on affidavit without live testimony |
Key Cases Cited
- Oakbrook Realty Corp. v. Blout, 48 Ohio App.3d 69 (10th Dist. 1988) (held trial court has discretion to admit affidavits when tenant absent)
- Natl. City Bank v. Natl. City Window Cleaning Co., 174 Ohio St. 510 (1963) (affidavits may support provisional relief but generally are inadmissible at trial on the merits)
- Miele v. Ribovich, 90 Ohio St.3d 439 (2000) (Civ.R. 53 provisions may apply in forcible entry and detainer where not inconsistent with summary nature)
- Colonial Am. Dev. Co. v. Griffith, 48 Ohio St.3d 72 (1990) (certain civil-rule provisions are inapplicable to forcible entry and detainer when they would defeat summary nature)
- Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216 (2003) (stare decisis / test for overruling precedent)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard)
- Ohio v. Roberts, 448 U.S. 56 (1980) (hearsay reliability framework later abrogated)
- Crawford v. Washington, 541 U.S. 36 (2004) (altered Confrontation Clause analysis relied upon in some cited authorities)