January Invests., L.L.C. v. IngramJanuary Invests., L.L.C. v. Ingram
Brian and Sabrina Ingram, 6524 Thistle Grove, Morrow, Ohio 45152, defendants-appellants, pro se
O P I N I O N
YOUNG, P.J.
{¶1} Defendants-appellants, Brian and Sabrina Ingram (tenants), appeal the judgment from the Warren County Court of Common Pleas granting summary judgment to plaintiff-appellee, January Investments, L.L.C. (landlord). For the reasons set forth below, we affirm.
{¶2} On July 21, 2004, the parties entered a lease agreement wherein tenants agreed to lease from landlord a home located at 188 Hildebrant Drive in Maineville, Ohio from August 6, 2004 to June 31, 2005. The parties also entered a separate
{¶3} After the lease expired in Junе 2005, tenants continued to lease the residence on a month-to-month basis. In November 2006, despite the fact that the option period had expired, landlord indicated a willingness to sell the house to tenants, but it appears that tenants chose not to purchase at that time. In November 2007, however, tеnants expressed a desire to purchase the home, but the parties failed to enter into any binding agreements on the matter. Landlord made it clear, however, that a potential prerequisite to purchasing the home was timely payment of rent, and that some payments had not been received. In response, tenants sent landlord a $320 check labeled “late fees paid in full,” which landlord subsequently cashed.
{¶4} On or about August 1, 2008, tenants served notice on landlord that they would vacate the premises on August 23, 2008. Later that year, landlord filed a complaint alleging breach of the lease agreement, seeking unpaid rent and late fees, together with interest and costs. Tenants filed an “answer,” containing a general denial of all allegations, claiming that tenants were entitled to a “set-off,” and requesting dismissal of landlord‘s complaint.
{¶5} Landlord moved for summary judgment on May 7, 2009. Landlord argued that tenants failed to answer interrogatories, requests for production, and requests for admissions landlord sent in March. Thus, landlord argued, the civil rules mandated that all unanswered requests for admission be deemed “admitted.” With the support of an itemized affidavit, landlord requested judgment of $4,379 in unpaid rent and late fees, plus attorney fees. In resрonse, tenants filed a “motion requesting dismissal of request for summary judgment, additional time for interrogatories and motion to compel
{¶6} In a hearing on May 28, 2009, the magistrate noted thаt tenants’ motion was not notarized, thus did “not constitute admissible evidence upon a motion for summary judgment” under
{¶7} On June 30, 2009, 33 days after thе entry of the magistrate‘s order, tenants filed their responses to landlord‘s interrogatories and requests for admissions.
{¶8} On July 15, 2009, the magistrate granted landlord‘s motion for summary judgment for $4,379, together with interest and costs, but without attorney fees. In so holding, the magistrate found that tenants failed to timely comply with the magistrate‘s May 28, 2009 order whеn they failed to (1) answer landlord‘s requests for admissions, (2) serve landlord with their answers, and (3) file their answers with the court “no later than June 25, 2009.” The magistrate noted, “[a]pparently, pro se [tenants] did not take this order seriously, because they did not file their answers with the Court until June 30, 2009.” Thus, the magistrate deemed admitted all the issues in landlord‘s requests fоr admissions.
{¶9} Tenants subsequently filed a timely objection to the magistrate‘s decision. Tenants argued that (1) landlord had waived the right to seek additional late fees, (2) landlord did not keep accurate records regarding the late fees, (3) tenants answered
{¶10} After reviewing all evidence submitted in support and opposition to summary judgment, the trial court adopted the magistrate‘s entry in its entirety.
{¶11} Tenants timely appealed, raising one assignment of error:
{¶12} “THE TRIAL COURT ERRED BY DENYING DEFENDANTS’ MOTION TO DISMISS/DENY SUMMARY JUDGMENT AND GRANTING A SUMMARY JUDGMENT FOR PLAINTIFF, LANDLORD INVESTMENTS, LLC.”
{¶13} Summary judgment is a procedural device used to terminate litigation and avoid a formal trial when there are no issues in a case to try. See Forste v. Oakview Constr., Inc., Warren App. No. CA2009-05-054, 2009-Ohio-5516, ¶7. This court reviews summary judgment decisions de novo. Id. Summary judgment is appropriate under
{¶14} The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. State ex rel. Mongtomery v. Maginn, 147 Ohio App.3d 420, 2002-Ohio-183, ¶24. Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the moving party‘s pleadings. Id. at ¶25. The
{¶15} On appeal, tenants argue that material issues have been left “unresolved” in the case at bar. Specifically, it appears tenants assert that: (1) they timely answered landlord‘s interrogatories and requests for admissions when the envelope containing tenants’ responses was postmarked June 25, 2009; (2) landlord requested “late fees [for] made up dates,” and landlord waived the right to seek additional late fees after accepting rent for four years without evicting tenants; (3) landlord committed negligence per se under the Ohio Landlord Tenant Act when she failed to make $1,729.24 worth of “repairs and maintenance” to the home, including installing blinds, lighting units, landscaping and cleaning the chimney; and (4) landlord made an unlawful entry into tenants’ home in violation of
{¶16} Tenants first argue that they complied with the magistrate‘s May 28, 2009 order to file their responses to landlord‘s interrogatories, requests for production and requests for admissions “within twenty-eight days of the entry of [the] order” because the envelope containing their responses was postmarked June 25, 2009 – 28 days after the magistrate‘s order. Landlord, however, argues that a differеnt envelope, postmarked June 29, 2009, actually contained tenants’ responses and that the June 25, 2009 envelope contained an unrelated matter.
{¶17}
{¶18} “Litigants who choose to proceed pro se are presumed to know the law and correct procedure, and are held to the same standards as other litigants.” Childs at ¶29. Litigants proceeding pro se “cannot expect or demand special treatment from the judge, who is to sit as an impartial arbiter.” Id.
{¶19} In the case at bar, tenants did not file their responses with the court until June 30, 2009, despite the magistrate‘s direct order to file “within twenty-eight days of the entry of this order.” Thus, tenants failed to fully comply with the magistrate‘s order requiring tenants to (1) respond to landlord‘s discovery requests; (2) serve landlord with a copy of the responses; and (3) file them with the court on or before June 25, 2009. Thus, neither postmarked envelope presented as evidence complied with the magistrate‘s order.
{¶20} When tenants failed to properly respond to landlord‘s rеquests for admissions, they conclusively admitted the following facts: (1) the parties were under a lease agreement for the home at 188 Hildebrant Drive; (2) pursuant to the lease, $1,350 rent was due on the first day of each month; (3) rent payments not postmarked by the fifth day of each month were subject to a ten perсent late fee, plus an additional $5 per day for each day the balance remained unpaid; (4) a $35 fee applied to all
{¶21} Because tenants were deemed to have admitted to failing to pay rent in a timely manner for 25 months during their tenancy, as well as failing to pay rent altogether for two months, tenants cannot now claim that landlord presented “made up dates” for the late fees. Thus, there is no genuine issue as to the amount of unpaid rent and late fees owed.
{¶22} Tenants next argue that landlord waived her right to pursue additional late fees when she (1) continued to accept rent without evicting tenants, and (2) cashed a check for $320.00 that was marked “late fees paid in full.” Landlord and the magistrate characterized thеse arguments as an attempt to assert the affirmative defenses of waiver and accord and satisfaction. The magistrate held that because tenants’ original answer did not set forth these affirmative defenses, they were waived. The issue before this court is whether tenants’ failure to plead these defenses in their answer was fatal to their review on appeal.
{¶23} Failure to plead an affirmative defense typically results in the waiver of that defense. See
{¶24} Therefore, we decline to address tenants’ arguments related to these defenses because they are not properly before this court.
{¶25} Tenants’ next argument appears to be a claim of negligence per se under
{¶26}
{¶27} Tenants also appear to argue that landlord failed to keep the “common area of the premises in a safe and sanitary condition,” as required by
{¶28} Thus, tenants’ argument that landlord committed negligenсe per se when she failed to perform the aforementioned tasks is without merit.
{¶29} Lastly, tenants appear to argue that landlord violated
{¶30} In summary, we find that landlord presented a meritorious motion for summary judgment, requiring tenants to produce competent evidence showing there were genuine issues of material fact for trial. However, tenants failed to meet that reciprocal burden. Therefore, the trial court properly granted summary judgment in favor of landlord. Accordingly, we overrule tenants’ single assignment of error and affirm the judgment of the Warren County Court of Common Pleas.
{¶31} Judgment affirmed.
BRESSLER and POWELL, JJ., concur.