408 N.E.2d 1383 | Ohio Ct. App. | 1979
This is an appeal from an order of the trial court granting the motion for summary judgment of plaintiff, Margit Siegler, appellee herein, in a forcible entry and detainer action. Plaintiff filed separate complaints against defendants, Lee Batdorff and Kim Dowling, appellants herein, for forcible entry and detainer in Cleveland Heights Municipal Court on May 16, 1978. In these complaints plaintiff alleged that she was the owner and landlord of the premises located at 1836 and 1838 Rock Court in Cleveland Heights. She further stated that both appellants were residing at the premises on month-to-month tenancies and that she had served them with a notice of termination of tenancy on March 31, 1978, and a notice to vacate the premises on May 2, 1978. Copies of both notices were attached to the complaints.
Appellants' motion for a continuance was granted by the trial court on June 5, 1978. On June 26, 1978, appellants each filed answers to the complaints. In the answers appellants admitted that plaintiff was the owner and landlord of the premises and that they were tenants on a month-to-month tenancy. Appellants denied in their answers that they were served with either a notice of termination of tenancy on March 31, 1978, or a notice to vacate the premises on May 2, 1978. In addition to the denials of plaintiff's allegations, appellants also raised as an affirmative defense that plaintiff retaliated against appellants in violation of R. C. Chapter 5321.
Appellants also raised three counterclaims against plaintiff. In the first claim appellants alleged that plaintiff failed to comply with all applicable building, housing, health and safety codes, in violation of R. C.
On July 6, 1978, appellants filed motions for a continuance and for separate trials. A hearing on the motion for separate trials was heard and overruled by the trial court. The trial court granted the motion for a continuance. Subsequently, on July 17, 1978, by leave of court, plaintiff filed a motion for summary judgment on the issue of possession of the premises. Attached to the motion was an affidavit of plaintiff, stating that she was the owner of the premises, that there was no lease between the parties, and that no rent had been accepted from appellants since May 1, 1978. Alex Hausman, an agent and rent collector of plaintiff, executed an affidavit in which he stated that he had served notice of termination of tenancy on appellants and that he had received no rent from appellants since May 1, 1978. Also attached to the motion was the affidavit of plaintiff's counsel, in which he stated that he had prepared and sent by certified mail to the appellants a notice to vacate the premises. A copy of the return receipt and a certified copy of the deed to the property were also attached in support of the motion.
Appellants filed a motion to dismiss or to join the city of Cleveland Heights as an indispensable party on July 18, 1978. The record shows that the buildings at issue were declared a public nuisance and ordered demolished by the building commissioner of Cleveland Heights on June 14, 1978. On June 23, 1978, plaintiff authorized the city to demolish the buildings at her cost. Appellants argued that because of the authorization to the city, plaintiff was no longer the landlord of the premises.
Plaintiff filed a motion on July 20, 1978, to try separately appellants' counterclaims. On July 26, 1978, appellants filed a brief in opposition to the motion for summary judgment. In this brief appellants argued that the motion was not proper, for there were material issues of fact concerning whether plaintiff was the landlord of the premises and whether proper notice was given to appellants. No supporting affidavits were attached to the brief.
After a hearing was conducted, the trial court, on July 26, 1978, overruled plaintiff's motion for summary judgment and appellants' motion to dismiss for failure to join an indispensable *79
party. The record shows that the trial of the action was scheduled to commence on July 28, 1978. On that date the attorneys for the parties orally stipulated that the actions of appellants involving the complaints to the government agency and attempt to form a union occurred after the notice of termination of tenancy was filed by plaintiff. The parties also stipulated that the 30-day notice of termination complied with the requirements of R. C.
On September 15, 1978, plaintiff filed a motion for summary judgment with respect to the counterclaims. This motion was granted by the court in an entry filed December 6, 1978. On appeal three assignments of error have been raised:
I. It was error for the trial court to grant appellee's motion for summary judgment.
II. It was error for the trial court to grant appellee's motion for separate trial of the counterclaims.
III. It was error for the trial court to deny appellants' motion to dismiss or to join an indispensable party.
The language of Civ. R. 1(C)(3) does not impose a complete prohibition of the application of the Rules of Civil Procedure to forcible entry and detainer proceedings.2 Rather, the Civil Rules will not govern the proceedings when, by their nature, the rules would be clearly inapplicable. One situation in which the Civil Rules would be clearly inapplicable is when the proceeding is established by a statute which also sets out specific procedures to be followed. See, e.g., R. C.
Proceedings in forcible entry and detainer are intended to provide an expeditious means of resolving the issue of possession of lands and tenements. Similarly, the purpose of summary judgment is to provide for an expeditious way in which to dispose of lawsuits when there is no issue of material fact. Bowlds v.Smith (1961),
Civ. R. 56(C) states that a court may render summary judgment when there is no genuine issue of material fact and, after construing the evidence most strongly in favor of the nonmoving party, reasonable minds could come to but one conclusion and that conclusion is adverse to the nonmoving party. SeeHarless v. Willis Day Warehousing Co. (1978),
In the present case appellants argue that there were genuine issues of fact concerning whether (1) plaintiff was the landlord of the premises, (2) notice of termination of tenancy was given, (3) notice to vacate the premises was given, and (4) notice to vacate the premises was retaliatory. Issues are framed by the pleadings. R. C.
With respect to the notice to terminate tenancy and the notice to vacate the premises, the record shows that a copy of each was attached to each complaint for forcible entry and detainer. Consequently, the copies of the notices became part of the pleadings. See Civ. R. 10(C). The record further shows that the motion for summary judgment was filed on July 17, 1978. Attached to this motion were additional copies of the notices as well as affidavits stating that the notices were properly and timely served. A hearing on the motion was held on July 26, 1978. Also on that date appellants filed a brief in opposition to the motion for summary judgment. No counter affidavits were attached to this brief. *82
Civ. R. 56(E) provides that when a motion for summary judgment is made and supported, as provided in the rule, the adverse party may not rest upon the allegations or the denials in the pleadings, but rather, must respond by affidavit or other permissible evidence to show that there is a genuine issue of material fact. An unsupported allegation in the pleadings is not sufficient to defeat a motion for summary judgment which is accompanied by affidavits. Cunningham v. J. A. Meyers Co.
(1964),
In their reply brief appellants argue that the trial court erred by conducting a hearing on the motion for summary judgment less than 14 days after the motion was filed, in contravention of Civ. R. 56(C). The record reflects that the hearing on the motion was held nine days after plaintiff filed her motion for summary judgment. The record does not reflect, however, that appellants objected at the hearing to the shortened time. Consequently, the 14-day requirement was waived. Cf. Perazzo v.Dayton Hasty-Tasty, Inc. (1962),
Appellants also argue that there was a genuine issue of fact concerning whether the giving of notice to vacate by plaintiff to appellants was in retaliation to the acts of appellants. In a landlord-tenant situation the provisions of R. C. Chapter 1923 must be read in light of R. C. Chapter 5321, which governs the rights and obligations of landlords and tenants. These code sections set out a three-step process which must be followed by a landlord before a court will order a tenant to vacate the premises. The three steps are: (1) a notice of termination of tenancy (R. C.
In appellants' answers they alleged that plaintiff's attempt to gain possession of the premises was in retaliation to the acts of appellants of complaining of building code violations to a governmental agency and attempting to form a tenants' union. R. C.
According to the notice of termination, appellants would be holding over their term as of May 1, 1978. Plaintiff filed the notice to vacate on May 2, 1978, the first possible day after the expiration of appellants' tenancy. The immediate filing of the notice to vacate indicates that it was done as the second step of the three-step process of regaining possession, and not done in retaliation to the April 13 acts of appellants. Moreover, R. C.
Appellants also argue with respect to the summary judgment motion that the trial court erred by relying on oral stipulations when ruling on the motion. A court reporter was present at the time the stipulations were made and a copy of the transcript of the proceedings has been included in the *84
record on appeal. From a list of the types of evidence set out in Civ. R. 56(C) upon which a court may rely when ruling on a motion for summary judgment, only documentary evidence may be considered. Oral testimony is not permitted with this motion.Myers v. Travelers Ins. Co. (1968),
The stipulations at issue were that the activity of appellants, for which they argued plaintiff was retaliating, occurred subsequent to the 30-day notice of termination of tenancy and that this notice was given in compliance with R. C.
"The court, after a hearing, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, or third-party claims, or issues, always preserving inviolate the right to trial by jury."
The granting or denying of a motion to separate claims for trial lies within the sound discretion of the trial court.State, ex rel. Jacobs, v. Municipal Court (1972),
A review of the defenses and claims countained in appellants' answers and counterclaims reflect that similar issues were raised. The counterclaims, however, concerned money damages only. Thus, they were separable from the issue of possession raised by plaintiff in her complaint. As was stated earlier, the purpose of forcible entry and detainer proceedings is to provide an expeditious means of resolving the issue of possession of land and tenements. The effect of overruling plaintiff's motion to separate the claims for trial would have delayed this proceeding further. Consequently, the trial court did not err by granting the motion to separate. Although similarity of issues between appellants' defenses and counterclaims did exist, in light of the surrounding circumstances of this case, this similarity of issues alone is not sufficient to establish that the trial court abused its discretion by granting the motion.
In addition to the above, the record shows that the trial court granted plaintiff's motion for summary judgment on July 28, 1978, two days after granting the motion to separate the claims for trial. The summary judgment motion was directed solely to the plaintiff's claim for possession and did not concern appellants' counterclaims. Upon the granting of the motion for summary judgment, the counterclaims remained pending in the trial court for adjudication. Thus, the trial court's ruling on the motion for separation of claims became moot by the court's subsequent ruling. Appellant's second assignment of error is not well taken.
"A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (a) as a practical matter impair or impede his ability to protect that interest or (b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest * * *."
In a forcible entry and detainer proceeding the issue before the court is the right to possession of the property. The issue concerning the demolition order is the physical condition of the structures. In the present case the city is not attempting to gain possession of the premises. Nor can plaintiff's waiver of appeal from the demolition order be read so broadly as to conclude that she is no longer the owner of the property. As was stated earlier, appellants admitted in their answers that plaintiff was the owner and landlord of the premises. In addition, plaintiff attached a certified copy of the deed to the premises to her motion for summary judgment. Thus, the record clearly indicates that plaintiff still holds title to the property. Moreover, plaintiff's waiver of appeal concerns only the demolition of the buildings. It does not affect her right to manage the properties and collect rents.
The issues in the forcible entry and detainer proceeding and the demolition order are not the same. Nor is the adjudication of one issue dependent upon the other. Complete relief can be granted to the parties in the forcible entry and detainer proceeding without joining the city as a party. Consequently, the trial court did not err by overruling appellants' motion to join the city as an indispensable party. Appellants' third *87 assignment of error is overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
JACKSON, P. J., and PATTON, J., concur.
