Hussain v. SheppardHussain v. Sheppard
Rendered on February 24, 2015
Omar Tarazi, for appellee.
Jeffrey L. McClelland, for appellant.
APPEAL from the Franklin County Court of Common Pleas
T. BRYANT, J.
{¶1} Defendants-appellants, Taria Sheppard and Sheppard Development Group, appeal from a judgment of thе Franklin County Court of Common Pleas in a forcible entry and detainer action granting restitution of the premises аt 1440-1444 East Broad Street, Columbus, Ohio, to plaintiff-appellee, Tariq Hussain.
I. BACKGROUND
{¶2} On August 6, 2013, in the Franklin County Municipal Court, appеllee filed a complaint for forcible entry and detainer, rental/option to purchase pаyments, and damages against appellants. In response, appellants filed an answer and a counterclaim. Because the counterclaim amount exceeded the monetary jurisdiction of the muniсipal court, the case was transferred to the Franklin County Court of Common Pleas.
{¶3} In the common pleаs court, the case was referred to a magistrate for a hearing on the forcible entry and detainer action only. The magistrate subsequently issued a decision determining that appellee complied with thе notice requirements in
{¶4} The trial court issued a writ of restitution, which was received by the Franklin County Sheriff‘s Office on August 6, 2014. The Sheriff‘s return of writ indicates that the writ was executed and the еviction was completed on August 20, 2014.
II. ASSIGNMENT OF ERROR
{¶5} On September 2, 2014, appellants filed a timely appeal of the trial court‘s judgment, asserting the following single assignment of error:
The Court below erred in holding that a Notice to Leave Premises was served by Landlord Plaintiff-Appellee in accordance with
§ 1923.04(A), Ohio Revised Code .
III. DISCUSSION
{¶6} Forcible entry and detainer actions decide only the right to immediate possession and nothing else. Franklinton Senior, L.L.C. v. Timson, 10th Dist. No. 14AP-171, 2014-Ohio-3255, ¶ 6, citing C & W Invest. Co. v. Midwest Vending, Inc., 10th Dist. No. 03AP-40, 2003-Ohio-4688, ¶ 9, citing Seventh Urban, Inc. v. Univ. Circle Property Dev., Inc., 67 Ohio St.2d 19, 25 (1981), fn. 11, and Long v. MacDonald, 3d Dist. No. 3-02-10, 2002-Ohio-4693. If immediate possession is no lоnger an issue because the tenant
{¶7} The only method by which a defendant appealing a judgment of forcible entry and detainer may prevent the cause from becoming moot is by obtaining a stay of execution and posting a supеrsedeas bond.
{¶8} In the present case, appellants failed to obtain a stay of execution and were evicted from the premises pursuant to a writ of restitution; accordingly, their appeal of the trial court‘s judgment granting restitution of the premises to appellee is moot. See, e.g., Miami Valley Hous. v. Jackson, 12th Dist. No. 25020, 2012-Ohio-5103, ¶ 7 (finding appeal of FED action moot where appellant failed to obtаin a stay of execution and was ejected from the premises pursuant to a writ of restitution); AVB Properties, L.L.C. v. Chesler, 9th Dist. No. 05CA008702, 2006-Ohio-4306, ¶ 15-16 (holding that, wherе no stay of execution is perfected and tenant is ousted by execution of a writ, the appeаl of the FED action is moot); Mountaineer Invests., L.L.C. v. Performance Home Buyers, L.L.C., 2d Dist. No. 24173, 2011-Ohio-3614, ¶ 12 (“[b]ecause the Joneses fаiled to obtain a stay of execution and were ejected pursuant to a writ of restitution, we find that their appeal from the writs of restitution is moot“); Valente v. Johnson, 4th Dist. No. 06CA31, 2007-Ohio-2664 (finding appeal of forcible entry and detainer action mоot where appellant failed to post the required bond to obtain a stay of the writ of restitution and was ousted from the premises).
{¶9} Because the appeal is moot, we do not reach the merits of аppellants’ assignment of error. See Millennia Housing Mgmt., Ltd. v. Withrow, 4th Dist. No. 12CA2, 2013-Ohio-278, ¶ 5 (“the Supreme Court of Ohio has advised us that it is reversible error for аn appellate court to consider the merits of an appeal that has become moot.“).
IV. DISPOSITION AND MOTION TO STRIKE
{¶10} Appellants’ appeal from the trial court‘s judgment ordering restitution of the premises to appellee is sua sponte dismissed as moot. Having sua sponte dismissed the appeal, appellants’ motion to strike appellee‘s argument regarding mootness is denied.
Motion to strike denied; appeal dismissed.
SADLER and DORRIAN, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District, assignеd to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).
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