2015 Ohio 4298
Ohio Ct. App.2015Background
- Landlord Frederick H. Wise sued tenant Amy T. Webb (and her adult son) in Clark County Municipal Court for forcible entry and detainer, alleging nonpayment of rent for March 2015 under a month-to-month tenancy.
- Wise had a written lease (originally $500/month) and orally raised rent to $695 in May 2014; no written amendment was executed.
- Wise served a three-day notice to vacate on March 10, 2015. Webb tendered two checks after the notice (Mar. 12 for $695; Mar. 31 for $1,390); Wise refused both.
- A magistrate found for Wise at an April 8, 2015 hearing; the trial court adopted the decision and ordered restitution by April 13, 2015. Webb did not file objections or obtain a stay/supersedeas bond.
- Webb appealed pro se on May 8, 2015 and attached the refused checks; the appellate court concluded the appeal was moot because Webb did not seek a stay and was evicted (rendering the forcible entry and detainer action moot).
Issues
| Issue | Plaintiff's Argument (Wise) | Defendant's Argument (Webb) | Held |
|---|---|---|---|
| Whether restitution was proper for nonpayment of rent | Landlord: Tenant failed to pay March 2015 rent after proper 3‑day notice; eviction appropriate | Tenant: She tendered rent payments which landlord refused; eviction improper and landlord should have used 30‑day termination | Court: Appeal is moot for lack of stay; alternatively, no plain error in restitution — landlord complied with 3‑day notice and refusal preserved right to evict |
| Whether accepting late rent after notice waives notice | Landlord: He refused checks so did not waive the notice | Tenant: Landlord regularly accepted late rent previously (implying waiver) | Court: Record lacks evidence of waiver at trial; Webb did not preserve the argument by objections/transcript; no plain error found |
| Procedural preservation of objections to magistrate decision | Landlord: Magistrate decision adopted; plaintiff relied on affidavits and documents | Tenant: Contended trial findings were wrong but did not file objections or provide transcript | Court: Failure to file Civ.R. 53 objections waived all but plain error; no transcript means appellate court cannot review factual disputes |
| Mootness of forcible entry and detainer appeal | Landlord: Eviction executed; remedy on appeal requires stay and supersedeas bond | Tenant: Sought appeal without stay or bond | Held: Appeal dismissed as moot because Webb did not seek a stay or post a supersedeas bond |
Key Cases Cited
- Miele v. Ribovich, 90 Ohio St.3d 439, 739 N.E.2d 333 (2000) (forcible entry and detainer is an expedited remedy to recover immediate possession)