Fogelman v. StoyerFogelman v. Stoyer
Rendered on November 15, 2011
Ryan J. Fogelman, pro se.
Donald W. Stoyer, pro se.
APPEAL from the Franklin County Municipal Court.
FRENCH, J.
{¶1} Defendant-appellant, Donald Stoyer (“Stoyer“), appeals the judgment of the Franklin County Municipal Court, which granted judgment in favor of plaintiff-appellee, Ryan Jay Fogelman (“Fogelman“), on Fogelman‘s action for forcible entry and detainer and complaint for damages. For the following reasons, we affirm.
{¶2} On August 5, 2010, Fogelman filed an action for forcible entry and detainer and complaint for damages against Stoyer. In his complaint, Fogelman alleged that Stoyer had violated the terms of a lease agreement by failing to vacate property at 753 Mithoff Street at the end of the lease term. Fogelman sought $1,275 in damages for unpaid rent.
{¶3} The court issued notices to the parties that an eviction hearing and trial were set for August 19, 2010, before a magistrate of the municipal court.
{¶4} On August 19, 2010, Stoyer filed an answer and motion to dismiss the complaint. In his memorandum in support, Stoyer argued that another case (case No. 2009-CVR-03976) concerning these parties had been filed in the municipal court, which transferred the matter to the common pleas court because Stoyer‘s counterclaim exceeded the monetary jurisdiction of the municipal court. That matter was now before the common pleas court as case No. 10-CVH-9917. Stoyer contended that Fogelman‘s action for forcible entry and detainer should not go forward until the case before the common pleas court was resolved.
{¶5} Many things happened on August 20, 2010, including the following: (1) a magistrate issued a decision that denied Stoyer‘s motion to dismiss, found that the court had jurisdiction to decide Fogelman‘s cause of action for eviction, despite the existence of a separate action between the parties in the common pleas court, and found that Fogelman had given Stoyer more than 30 days notice, which was sufficient to terminate
{¶6} On October 27, 2010, Fogelman filed an amended complaint. In it, he sought to recover $1,489.50 for mowing expenses, unpaid rent and late fees, and court costs.
{¶7} On November 1, 2010, Stoyer filed a second motion to dismiss and a motion for transcripts. On November 9, 2010, Stoyer filed an answer, a motion to dismiss Fogelman‘s amended complaint, and a motion for sanctions.
{¶8} On November 23, 2010, Fogelman moved for summary judgment on his claim for monetary damages. Stoyer filed a memorandum contra. In it, Stoyer argued that Fogelman‘s motion was a plagiarized version of a motion filed in the common pleas matter and that the municipal court lacked subject-matter jurisdiction.
{¶9} On December 14, 2010, the trial court issued a judgment entry in which it took the following actions: (1) denied Stoyer‘s motion for transcripts and motion for leave; (2) denied Stoyer‘s motions to dismiss; and (3) denied Fogelman‘s motion for summary judgment.
II. ASSIGNMENTS OF ERROR
{¶11} Stoyer filed a timely appeal, and he raises the following assignments of error:
[I.] Did the magistrate abuse his discretion by not considering the defense that it lacked subject matter jurisdiction of the landlord‘s unsigned lease pursuant to
O.R.C. § 1310.15 ?[II.] Did the trial court error by not considering a defense that it lacked subject matter jurisdiction through a violation of the notice requirements pursuant to
O.R.C. § 1923.04 since this tenant was not given notice for non payment of rent within the notice received that was only for a month to month reoccurrence?[III.] Did the municipal court error by allowing the landlord to proceed with Amended Complaint without leave pursuant to
O.R.C. § Civil R. 15(A) ?
(Emphasis sic.)
III. DISCUSSION
{¶12} As an initial matter, we note that Stoyer has not filed a transcript of any of the proceedings in the trial court. The duty to provide a transcript for appellate review falls upon the appellant because the appellant bears the burden of showing error by
{¶13} Fogelman, however, has filed a partial transcript of the December 21, 2010 trial. To the extent that transcript sheds light on Stoyer‘s assignments of error, we will consider it. We turn, then, to the assignments of error.
A. FIRST ASSIGNMENT OF ERROR
{¶14} In his first assignment of error, Stoyer contends that the magistrate abused his discretion by failing to consider his argument that the municipal court lacked subject-matter jurisdiction over this case because the action relied on an unsigned lease. Stoyer‘s reliance on a jurisdictional argument in this context is misplaced.
{¶15} The issue of subject-matter jurisdiction involves “a court‘s power to hear and decide a case on the merits and does not relate to the rights of the parties.” Vedder v. Warrensville Hts., 8th Dist. No. 81005, 2002-Ohio-5567, ¶14. Here, there is no question that the municipal court had the power to hear a forcible entry and detainer action and a complaint for damages within its jurisdictional limit. See
{¶16} Stoyer‘s real contention is that the court lacked jurisdiction because Fogelman had filed a separate action for unpaid rent. While Fogelman also filed that
{¶17} In its judgment and entry, the trial court concluded that it had jurisdiction over the case involving 753 Mithoff Avenue because it was a separate matter. We agree. By his complaint, Fogelman sought to remove Stoyer from that address based on the rental agreement concerning that property and sought damages relating to that property alone. Therefore, we agree that the common pleas action did not preclude the subsequent municipal court action.
{¶18} Stoyer also cites
{¶19} The copy of the lease attached to the complaint is signed by Stoyer and dated June 25, 2009. The lease provided for monthly rent in the amount of $475, beginning on July 1, 2009, and ending on July 31, 2010. Section 4 of the lease states that, if neither party terminates the agreement prior to its expiration, the agreement will automatically renew “on a month-to-month basis and may be terminated thereafter by either party upon the giving of written notice to the other party thirty (30) days prior to
{¶20} As for enforcement of the lease, in his complaint, Fogelman alleged that he gave notice of termination to Stoyer in writing on May 11, 2010, and he attached a copy of the notice to his complaint. The magistrate found that Fogelman gave notice of termination more than 30 days before expiration, and the trial court agreed. That finding supports the trial court‘s legal conclusion that Fogelman complied with the lease‘s termination provision.
{¶21} Finally, although Stoyer contends that the lease is not enforceable against him because Fogelman did not sign it, he does not explain what other agreement allowed him to occupy property owned by Fogelman after Fogelman notified him of the termination and gave him more than 30 days to vacate. Without evidence of a different agreement between the parties, we have no basis on which to conclude that the trial court erred by assessing damages for Stoyer‘s occupation and use of the property pursuant to the terms of the lease agreement, whether we construe it as a 13-month lease or a month-to-month lease.
{¶22} For all these reasons, we overrule Stoyer‘s first assignment of error.
B. SECOND ASSIGNMENT OF ERROR
{¶23} In his second assignment of error, Stoyer contends that the trial court lacked jurisdiction because Fogelman‘s notice to Stoyer violated
{¶25} The notice Fogelman attached to his complaint contains the exact language required by the statute, and it is in very large, bold print. In his complaint, Fogelman alleged that he had placed the notice on the door of Stoyer‘s residence. The notice is dated August 1, 2010; Fogelman filed his complaint on August 10, 2010.
{¶26} The magistrate found that Fogelman had met the requirements of
{¶27} For all these reasons, we overrule Stoyer‘s second assignment of error.
C. THIRD ASSIGNMENT OF ERROR
{¶28} In his third assignment of error, Stoyer contends that the trial court erred by allowing Fogelman to amend his complaint without leave. It is unclear to us whether
{¶29}
{¶30}
{¶31} Here, Fogelman filed an amended complaint on October 27, 2010, which was after Stoyer had filed his answer. It does not appear that Fogelman asked for leave to make this amendment. While Stoyer filed an answer to the amended complaint and moved to dismiss it, however, there is no record of Stoyer objecting to the amended complaint on the ground that Fogelman did not seek leave to file it. Because Stoyer did not raise this issue in the trial court, we decline to address the issue here. See Hudson v. P.I.E. Mut. Ins. Co., 10th Dist. No. 10AP-480, 2011-Ohio-908, ¶12 (stating the well-established rule that a litigant‘s failure to raise an issue before the trial court waives the litigant‘s right to raise the issue on appeal).
{¶33} For all these reasons, we overrule Stoyer‘s third assignment of error.
IV. CONCLUSION
{¶34} In summary, we overrule Stoyer‘s first, second, and third assignments of error. We affirm the judgment of the Franklin County Municipal Court.
Judgment affirmed.
BRYANT, P.J., and SADLER, J., concur.