K&D MANAGEMENT, L.L.C. v. DEIRDRE MASTEN
No. 98894
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 3, 2013
2013-Ohio-2905
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-771214
JUDGMENT: REVERSED AND REMANDED
BEFORE: S. Gallagher, P.J., Keough, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: July 3, 2013
Edward G. Kramer
The Fair Housing Law Clinic
The Housing Advocates, Inc.
3214 Prospect Avenue
Cleveland, OH 44115
ATTORNEYS FOR APPELLEE
Ami J. Patel
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Cleveland, OH 44113
Thomas P. Owen
Laurence Powers
Powers, Friedman, Linn, P.L.L.
23240 Chagrin Boulevard
Suite 180
Cleveland, OH 44122
{¶1} Defendant-appellant Deirdre Masten appeals from the trial court’s order granting summary judgment in favor of plaintiff-appellee K&D Management, L.L.C. (“Landlord”). For the following reasons, we reverse.
{¶2} Masten became a resident in October 2010 of the Harbor Crest Apartments located in Euclid, Ohio. Landlord manages the property. The parties signed a one-year lease agreement for the term of October 5, 2010 through September 30, 2011. The nonrenewal provision in the lease agreement required a 60-day notice of nonrenewal if either party desired to terminate the lease at the end of the stated term.
{¶3} After Masten allegedly learned that Landlord intended to evict another resident because of the resident’s disabilities, Masten helped the resident with drafting and filing a charge with the Ohio Civil Rights Commission (“OCRC”). The allegations against Landlord were for violations of the Federal Fair Housing Act,
{¶4} Masten subsequently filed her own charge with the OCRC in November 2010 based on Landlord’s alleged discrimination against her. Landlord approached Masten in February 2011 and requested that she drop the charge. Masten agreed with the stipulation that, in exchange for dropping the charge, Landlord would cease the discriminatory practices.
{¶6} On October 10, 2011, Landlord served Masten with a three-day notice to vacate the property. Landlord filed four days later a forcible entry and detainer action in Euclid Municipal Court for eviction of Masten. Masten answered the complaint, and filed a counterclaim under the Acts for discriminatory practices, retaliatory behaviors, and retaliatory eviction that followed the OCRC filings by Masten and, with Masten’s assistance, the other resident. Masten also requested a change in venue. The municipal court granted the change in venue request, and transferred the case on November 9, 2011, to the Cuyahoga County Court of Common Pleas.
{¶7} Landlord filed a motion for summary judgment on February 27, 2012, relating to Count 1 of its complaint for forcible entry and detainer. In an affidavit included with her brief in opposition to the motion, Masten acknowledged receipt of both the three-day notice to vacate and notice of nonrenewal of the lease.
{¶8} On August 3, 2012, the trial court granted Landlord’s motion for summary judgment on Count 1 for forcible entry and detainer, but denied the motion as to Masten’s counterclaims. In its ruling, the court stated in part:
It is well settled that a landlord is required to follow a three-step process before a court will order a tenant to vacate the premises. [Citation
deleted.] The landlord must provide (1) a notice of termination of tenancy; (2) a notice to vacate the premises; and then the landlord must file (3) a Complaint in forcible entry and detainer. [Citation deleted.] In this instance, [Landlord] followed the requisite three-step process.
* * *
In addition to finding that [Landlord] followed the three-step process, the court must also determine whether [Landlord’s] act of not renewing the lease constitutes retaliatory conduct.
O.R.C. § 5321.02 generally prohibits retaliatory conduct by landlords. Notwithstanding section 5321.02,O.R.C. § 5321.03(A)(4) permits a landlord to bring an action for possession of the premises if the tenant is holding over the tenant’s term. On September 30, 2011 Masten’s lease expired pursuant to the terms of the lease. [Landlord] sent notice to Masten that it did not plan to renew her lease; thus, Masten was a holdover tenant.The Eighth District Court of Appeals has held that retaliatory conduct of the landlord may not be raised as a defense in a forcible entry and detainer proceeding when the tenant is holding over his term. See Siegler [v. Batdorff, 63 Ohio App.2d 76, 408 N.E.2d 1383 (8th Dist. 1979)], and Indian Hills [Senior Community v. Sanders, 8th Dist. No. 78780, 2001 Ohio App. LEXIS 3717 (August 23, 2001)].
Accordingly, the Court finds Plaintiff’s motion for summary judgment on count one for forcible entry and detainer to be well taken and granted. Masten shall vacate the premises within 30 days of this entry. On evidence presented to the Court at this stage, Plaintiff’s request for summary judgment on count two of Defendant’s counterclaim is not well taken and is denied. * * *
{¶9} Masten timely appealed and raises four assignments of error for this court’s review. She argues (1) the trial court erred in applying Indian Hills to a holdover tenant who alleges a landlord violates the FHA by not renewing a lease; (2) the trial court’s decision violates the Supremacy Clause of the United States Constitution; (3) the trial court erred in applying Indian Hills to a holdover tenant who alleges a landlord violates the Ohio Fair Housing Act by not renewing a lease; and (4) this court should “reverse”
{¶10} Appellate review of a trial court’s decision on a motion for summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Zemcik v. LaPine Truck Sales & Equip., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998). The court applies the following test:
Pursuant to
Civ.R. 56 , summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).
{¶11} The party moving for summary judgment bears the initial burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party satisfies that burden, the nonmoving party “may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”
{¶12} Prior to reviewing the trial court’s ruling on Landlord’s motion for summary judgment, we must identify the different purposes of R.C. Chapters 1923, 4112, and
{¶13} There is, however, a general inability derived from
{¶14} Under the Ohio Landlord-Tenant Act,
{¶15} Ohio’s Fair Housing Act prohibits, on the other hand, certain unlawful discrimination as defined in
{¶16} The FHA likewise makes it illegal to discriminate in the rental of a dwelling because of a tenant’s disability.1
{¶17} Unlike the general inability to assert a defense in a forcible entry and detainer action under
{¶18} Here, the record supports the trial court’s conclusion that Landlord followed the requisite three-step process to remove a resident from a particular residence. There is no genuine issue of material fact concerning this process. As argued by Masten, however, the trial court erred in applying Indian Hills to a holdover tenant who alleges that a landlord violates the Acts by not renewing a lease.
{¶19} This case is distinguishable from both Siegler, 63 Ohio App.2d 76, 408 N.E.2d 1383, and Indian Hills, 8th Dist. No. 78780, 2001 Ohio App. LEXIS 3717, and we accordingly overrule Masten’s fourth assignment of error that we should overrule Indian Hills because we wrongly decided the case. In Indian Hills and Siegler, the former tenants complained to an appropriate governmental agency of a violation of a building, housing, health, or safety code; complained to the landlord about a violation of
{¶20} The present case is also distinguishable from Palomba v. Hayes, 8th Dist. Nos. 65781 and 66714, 1995 Ohio App. LEXIS 1572 (Apr. 13, 1995). Hayes’s essential argument on appeal was that the trial court prevented her from presenting evidence in a forcible entry and detainer action, either through a defense or joined counterclaim, that Palomba chose not to renew her lease based on race. Id. at *11. The referee in Palomba, however, allowed Hayes to present evidence regarding the alleged discrimination at the first cause hearing, and expressly found the evidence insufficient to support the racial discrimination claim. Id. at *13 and *21. The referee then “granted the writ of eviction based on expiration of the term of the lease with proper exercise of contractual right not to renew.” Id. at *6. The trial court adopted the referee’s conclusion regarding the lack of evidence of racial discrimination. Id. at *5-6.
{¶21} Hayes’s counterclaims alleging racial discrimination remained pending following this ruling. The trial court subsequently granted summary judgment in favor
{¶22} On appeal in Palomba, we found that because of the trial court’s adoption of the referee’s conclusion regarding the lack of evidence of racial discrimination, “the doctrine of collateral estoppel prevented subsequent relitigation of the issue.” Id. at *22. In other words, the trial court considered, but rejected, Hayes’s allegations of racial discrimination as a defense, and then used that ruling to bar Hayes’s counterclaims. We found that the trial court’s use of collateral estoppel was appropriate. Id. at *21-22. Palomba cannot, therefore, be relied on to prevent a tenant from raising a defense of discrimination in a forcible entry and detainer action because the tenant in Palomba was able to raise this defense. Id. at *19.
{¶23} A similar situation occurred in Siegler, 63 Ohio App.2d 76, 408 N.E.2d 1383. The landlord served tenants with a notice of termination of tenancy on March 31, 1978, and a notice to vacate the premises on May 2, 1978. Id. at *77. The landlord attached copies of the notices to its complaint in a forcible entry and detainer action. Id. The tenants raised as an affirmative defense that the landlord retaliated against them in violation of
{¶24} In ruling on the landlord’s motion for summary judgment, the trial court in Siegler relied on the parties’ affidavits and pleadings, and found that the landlord initiated the eviction process on March 31, 1978, prior to the conduct giving rise to the tenants’
{¶25} Our decision in the present case is only intended to prevent a trial court, in a forcible entry and detainer action, from relying on the
{¶26} Our decision is not, however, intended to make a trial court a prisoner to tenants’ assertions of discriminatory practices. As in Palomba, 8th Dist. Nos. 65781 and 66714, 1995 Ohio App. LEXIS 1572, and Siegler, a trial court may summarily dispose of such assertions based on the parties’ pleadings and filings.
[E]ven if a tenant can prove a retaliatory purpose, the tenant is not entitled to remain in possession in perpetuity. If an illegal purpose is dissipated, the landlord can, in the absence of legislation or a binding contract, evict his tenants or raise their rents for economic or other legitimate reasons, or even for no reason at all. The question of permissible or impermissible purpose is one of fact for the court or jury.
{¶28} Similarly, while the FHA protects from retaliation any person who aids another in the exercise of rights protected by the FHA, see
{¶29} Nonspecific, conclusory statements without factual support will not overcome a properly supported motion for summary judgment. Maki, 88 F.3d 361, at 364. If he or she wants the case to move beyond the pleadings stage, a fair housing
{¶30} We acknowledge that Masten’s counterclaims remain pending in the trial court because the court denied Landlord’s motion for summary judgment in connection with them. We also acknowledge that the trial court ordered Masten to vacate the premises within 30 days of its August 3, 2012 entry, and this court denied her request for a stay of proceedings.7 This court’s order vacating the eviction may, therefore, be useless relief for Masten; but given the right to be free from discriminatory eviction under the Acts, vacating the eviction order is a necessity.
{¶31} Masten’s first and third assignments of error are sustained. This renders moot her second assignment of error.
{¶32} Judgment is reversed; the order of eviction is vacated; and this cause is remanded for further proceedings to determine whether Landlord violated the Acts in not renewing Masten’s lease agreement.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
SEAN C. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and EILEEN T. GALLAGHER, J., CONCUR