Kettering Square Apts. v. CrawfordKettering Square Apts. v. Crawford
Attorney for Plaintiff-Appellee
DEBRA LAVEY, Atty. Reg. No. 0073259, 130 West Second Street, Suite 700 West, Dayton, Ohio 45402
Attorney for Defendant-Appellant
HALL, P.J.
{¶ 1} The trial court granted Kettering Square Apartments (KSA) restitution of the apartment in which Marshie Crawford lives, because she violated her lease. Crawford has appealed several of the court‘s entries. Finding no error in any of them, we affirm them all.
I. Background
{¶ 2} On November 23, 2016, KSA served Crawford, who lives in a federally subsidized apartment, with a 30-day notice of termination of her lease. The notice states that she breached her lease by failing to maintain her apartment in a safe and sanitary condition. According to the notice, earlier thаt year, on May 19 her apartment failed a housekeeping inspection. A letter delivered on May 27 explained why it failed and gave a date for reinspection. A month later, on June 27, the apartment was again inspected and again failed. On September 1, Crawford‘s attorney sent KSA a letter stating that Crawford is disabled and asking thаt it give her a “reasonable accommodation in the form of a two-week extension of time to address any failed inspection items.” KSA did not respond to the letter or talk to Crawford about her request. However it was not until almost four months later, on December 27, KSA served Crawford a 10-day notice of termination, and then on Januаry 9, 2017, it served her a 3-day notice of termination. Crawford did not leave. On January 19, KSA filed a complaint for forcible entry and detainer against her, asking for restitution of the premises. On March 14, after a hearing, a magistrate issued a decision granting restitution. The same day, the trial court adopted the magistrate‘s decision and entered a writ of restitution ordering Crawford to vacate her apartment by March 23.
{¶ 3} Three days after the trial court granted restitution, Crawford filed objections to the magistrate‘s decision and a motion to stay execution pending a ruling on the objections. She also filed a praecipe for preparation of a transcript оf the magistrate‘s hearing and a motion to supplement objections when the transcript is filed. On March 20, the trial court overruled the motion to stay, saying that a stay may be granted only after an appeal is filed. The next day, March 21, Crawford appealed this ruling. The day after that, March 22, the trial court stayed execution of the writ of restitution, stating that the filing of the appeal “now puts [Crawford‘s] request for stay properly before this Court for a decision on the merits on the motion for stay.” The court also overruled Crawford‘s objections, though it did so “not on the merits of the objections, but on the basis that in a forcible entry and detainer action objections are not the proper method to challenge the issuance of the writ of restitution. A direct appeal is the proper method to challenge that decision.” On April 5, the trial court granted Crawford‘s motion to stay, pending the underlying appeal, and ordered her to post a use and occupancy bond. A week later, оn April 13, Crawford filed a notice of appeal from the March 14 judgment granting restitution and she filed a notice of appeal from the March 22 entry overruling her objections.
{¶ 4} All three of Crawford‘s appeals are before us now. KSA has not filed a brief in any of the appeals.
II. Appeal of the March 20 entry overruling the motiоn for stay
{¶ 5} Crawford‘s first appeal is from the trial court‘s March 20 judgment overruling her motion for a stay pending objections. The sole assignment of error contends that the trial court erred by overruling this motion. The court ultimately did grant Crawford‘s motion for a stay pending this appeal on April 5. Consequently the question whether the court
{¶ 6} The sole assignment of error for that appeal is overruled.
III. Appeal of the March 22 entry overruling objections
{¶ 7} Crawford assigns two errors to that part of the March 22 entry overruling her objections. The first assignment of error alleges that the trial court erred by concluding that the Ohio Rules of Civil Procedure do not apply to forcible entry and detainer proceedings. And the second assignment оf error alleges that the trial court erred by concluding that filing objections to a magistrate‘s decision is not necessary or appropriate in a forcible entry and detainer proceeding.
{¶ 8} In its March 22 entry, the trial court says, “In the Court‘s Entry filed 20 March 2017, the Court noted that the Ohio Rules of Civil Procedure do not apply to a procedure in forcible entry and detainer.” We doubt that the trial court‘s statement reflects a conclusion that none of the civil rules applies in a forcible entry and detainer proceeding. Rather, we suspect that the trial court was simply being consistent with what the court said in the March 20 entry: ”
{¶ 9} Concerning objections, in its March 22 entry, the trial court expressed its opinion that becаuse an action in forcible entry and detainer is a summary proceeding, filing objections to the writ of restitution “is not a necessary or appropriate step in the appeal process.” The trial court quotes Griffith that “[i]f judgment is entered against a defendant in a forcible entry and detainer action, he or she may delаy execution and thereby eviction by filing a timely appeal pursuant to
{¶ 10} The objection provisions in
{¶ 11}
{¶ 12} Fortunately, in this case, we can avoid the procedural quagmire, because
{¶ 13} Here, even if the trial court erred by overruling Crawford‘s objections, the error was harmless. None of the issues that Crawford raises in her objections are questions of fact. Indeed, few facts in this case are disputed. Rather, her objections raise primarily questions of law, which we can resolve as well as the trial court. And based on our de novo review of the March 14 judgment, we conclude that the trial court correctly adopted the magistrate‘s decision and granted KSA restitution. Compare In the Matter of I.U., 2d Dist. Champaign No. 2007 CA 9, 2007-Ohio-6264; Goldfuss v. Traxler, 3d Dist. Wyandot No. 16-08-12, 2008-Ohio-6186, ¶ 28 (relying on additional grounds not relied on by the trial court to conсlude that the writ of restitution was appropriate). We explain those reasons next in our review of the March 14 judgment.
{¶ 14} Both assignments of error in this appeal are overruled.
IV. Appeal of the March 14 judgment granting restitution
{¶ 15} In her appeal of the March 14 judgment granting KSA restitution, Crawford presents three assignments of error, each of which is an objection to the magistrate‘s decision that Crawford filed in the trial court.
A. Was the November 23, 2016 notice of termination defective?
{¶ 16} The first assignment of error argues that the trial court did not have subject matter jurisdiction over the case because the 30-day notice of termination that KSA served Crawford on November 23, 2016, was defective. Crawford contends that the notiсe fails to specify the acts or omissions that constitute a violation of the lease.
{¶ 17} The governing Ohio statute provides that “[i]f the tenant fails to fulfill any obligation imposed upon him by section 5321.05 of the Revised Code that materially affects health and safety, * * * the landlord may deliver a written notice of this fact to the tenant spеcifying the act or omission that constitutes noncompliance with the pertinent obligations and specifying that the rental agreement will terminate upon a date specified in the notice * * *.”
{¶ 18} The November termination notice states that Crawford‘s tenancy is being terminated because of her “material non-compliance with the leаse and community rules.” The notice then quotes a provision in the lease that requires the tenant to obey the community rules and specifically quotes the rule that a tenant must keep her apartment unit ” ‘in a decent, safe, and sanitary condition (including appliances), at all times.’ ”
(1) Your unit was inspected on 5/19/16 for your Annual Recertification. The unit failed the housekeeping inspection and a letter was delivered on 5/27/16 explaining the deficiencies and giving you the date of re-inspection.
(2) Your unit was re-inspected on 6/27/16 and again failed.
{¶ 19} Crawford says that at the hearing KSA did not present either the inspection reports or the letter explaining the deficiencies. She also says that KSA presented no testimony as to the substance of the failed inspections or referеnced letter and that there is nothing in the record to show that either the inspection or letter explaining the deficiencies were sufficient to satisfy the specificity requirement. We have said that a court may look beyond the written notice to determine whether the specificity requirements of the federal regulation wеre satisfied: “Facts and circumstances otherwise known to the family and of which they are given notice by reference through the written termination notice are within the contemplation of the regulation.” Northland Village Apts. v. Hamp, 2d Dist. Montgomery No. 12407, 1991 WL 108717, *1 (Jun. 20, 1991).
{¶ 20} Here, KSA presented photographs of Crawford‘s apartment that were taken during the inspections. A KSA employee testified about the problems that the pictures showed. The employee also testified that she showed Crawford the pictures and told her that she would give her a copy so that she could see the things that needed to be done. Crawford did not present any evidence that she did not know what thе problems were. Based on the evidence, the court could reasonably have found that Crawford knew why
{¶ 21} The first assignment of error is overruled.
B. Did KSA waive the breach?
{¶ 22} The second assignment of error argues that KSA waived Crawford‘s breach by accepting rent payments after the breach.
{¶ 23} The aрplicable rule is that “[a] landlord who accepts future rent payments after serving a notice to vacate is deemed to have waived the notice to vacate as a matter of law because such acceptance is inconsistent with the notice to vacate.” Eureka Multifamily Group v. Terrell, 6th Dist. Lucas No. L-14-1152, 2015-Ohio-1861, ¶ 13, citing Colbert v. McLemore, 8th Dist. Cuyahoga No. 81961, 2003-Ohio-3255, ¶ 7. Here, KSA did not accept any payments from Crawford after it served her with the first notice of termination in this case. There is no dispute in the record that the last rent payment that KSA accepted from her was in August 2016 or that KSA served Crawford the 30-day notice of termination the following Novembеr. KSA did accept rent from Crawford after the failed inspections in May and June 2016, but in August, KSA was apparently still hoping that Crawford would remedy the breach.
{¶ 24} The second assignment of error is overruled.
C. Did KSA fail to grant Crawford a reasonable accommodation?
{¶ 25} The third assignment of error argues that KSA failed to grant Crawford a reasonable accommodation because оf her disability.
{¶ 26} On September 1, 2016, Crawford‘s attorney sent KSA a letter asking that it give Crawford a reasonable accommodation because she is disabled. Specifically, the letter states that “Ms. Crawford requests a reasonable accommodation in the form of a
{¶ 27} The third assignment of error in this appeal is overruled.
V. Conclusion
{¶ 28} We have overruled each of the assignments of error presented in each of Crawford‘s appeals. Therefore all of the appealed judgments are affirmed.
DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Derrick Strahorn
Debra Lavey
Hon. James F. Long