JOSEPH P. EBBING, Plaintiff-Appellant, v. GARY MATHIS, JR., et al., Defendants-Appellees.
CASE NO. CA2012-10-201
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
6/3/2013
[Cite as Ebbing v. Mathis, 2013-Ohio-2273.]
CIVIL APPEAL FROM HAMILTON MUNICIPAL COURT Case No. 12CVG01526
Molly Russell, 215 East Ninth Street, Cincinnati, Ohio 45202, for defendant-appellee, Gary Mathis, Jr.
Dallace McIntosh, 517 East Avenue, Hamilton, Ohio 45011, defendant-appellee, pro se
O P I N I O N
S. POWELL, J.
{¶ 1} Plaintiff-appellant, Joseph P. Ebbing, appeals from the judgment of the Hamilton Municipal Court finding against him and in favor of defendants-appellants, Gary Mathis, Jr. and Dallace McIntosh, on Ebbing‘s forcible entry and detainer action. For the reasons that follow, we affirm the judgment of the trial court.
{¶ 2} Mathis and McIntosh leased a residence in Hamilton, Ohio. Ebbing is the
{¶ 3} On July 25, 2012, Mathis appeared before the magistrate with his counsel, Molly Russell, who argued the trial court did not have jurisdiction to rule on Ebbing‘s forcible entry and detainer (FED) complaint because he filed it, prematurely, by one day. The magistrate agreed and dismissed Ebbing‘s FED complaint. The trial court overruled Ebbing‘s objections to the magistrate‘s decision, and his request for an award of costs against Attorney Russell.
{¶ 4} Ebbing now appeals, assigning the following as error:
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT COMMITTED UNLAWFUL AND REVERSIBLE ERRORS TO THE PREJUDICE OF PLAINTIFF; FIRST IN CONSIDERING, AND AGAIN IN GRANTING DEFENDANT‘S
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF PLAINTIFF IN DENYING WITHOUT A HEARING, EBBING‘S CAUSE AGAINST RUSSELL.
{¶ 9} In his first assignment of error, Ebbing argues the trial court erred in dismissing his FED action for lack of subject matter jurisdiction, without conducting a trial and
{¶ 10}
Except as provided in division (B) or (C) of this section, a party desiring to commence an action under this chapter shall notify the adverse party to leave the premises, for the possession of which the action is about to be brought, 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.
{¶ 11}
{¶ 12} Here, Ebbing stated in his complaint that, on July 6, 2012, he provided Mathis and McIntosh with written notice to leave the premises, a copy of which he attached to the complaint. Therefore, under
{¶ 13} Ebbing raises six arguments in support of his assignment of error. All of them lack merit.
{¶ 14} First, Ebbing argues the trial court was without authority to consider any matter except a motion for a continuance raised under
{¶ 15} Second, Ebbing asserts that the trial court was not permitted to dismiss his FED action under
{¶ 16} Third, Ebbing contends that his failure to wait an additional day before bringing his FED action did not deprive the trial court of jurisdiction to rule on his complaint. We disagree with this argument for the reasons set forth in the cases cited above, including Knoll Group Mgt. Co., 4th Dist. No. 93 CA 553, 1994 WL 326347 at *4.
{¶ 17} Fourth, Ebbing asserts that the trial court lacked jurisdiction to consider the “question” that Attorney Russell supposedly presented to the trial court when she stated, “we believe that there‘s a question of jurisdiction on the first cause [or first claim in Ebbing‘s complaint].” (Emphasis added.) Ebbing contends that, by asking this “question,” Attorney Russell was improperly seeking to have the trial court “‘interpret’
{¶ 18} When Attorney Russell used the word “question” in her statement to the trial court that “we believe that there‘s a question of jurisdiction on the first cause[,]” she was merely arguing it was the defense‘s position that the trial court lacked subject matter jurisdiction over the case due to Ebbing‘s failure to comply with
{¶ 19} Fifth, Ebbing argues the trial court‘s refusal to conduct a trial on his FED complaint deprived him of his state and federal rights to open access to the courts, due process of law and the equal protection of law. We disagree. All Ebbing has to do in this action is to file his action against Mathis and McIntosh, again, this time, in compliance with
{¶ 20} Finally, Ebbing asserts that the trial court fraudulently construed
{¶ 21} Consequently, Ebbing‘s first assignment of error is overruled.
{¶ 22} In his second assignment of error, Ebbing argues the trial court erred in denying his claims against Attorney Russell because her unlawful conduct caused needless delay and cost. Again, we strongly disagree. There was nothing unlawful about Attorney Russell‘s
{¶ 23} Accordingly, Ebbing‘s second assignment of error is overruled.
{¶ 24} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.