T&R Props., Inc. v. Wimberly
| Decision Date | 01 September 2020 |
| Docket Number | No. 19AP-567,19AP-567 |
| Citation | 158 N.E.3d 137 |
| Parties | T&R PROPERTIES, INC., Plaintiff-Appellee, v. Traci WIMBERLY, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
On brief: Willis Law Firm LLC, William L. Willis, Jr., Dimitrios G. Hatzifotinos, Solomon J. Parini, Columbus, and Michael K. Jameson, for appellee. Argued: Dimitrios G. Hatzifotinos.
On brief: The Legal Aid Society of Columbus, Melissa C. Benson, and Benjamin D. Horne, for appellant. Argued: Melissa C. Benson.
On brief: Zachary M. Klein, City Attorney, and Lara N. Baker-Morrish, for amicus curiae City of Columbus and Columbus Women's Commission, in support of appellant.
On brief: Bricker & Eckler LLP, Anne Marie Sferra, and Bryan M. Smeenk, Columbus, for amicus curiae Affordable Housing Alliance; Alvis, Inc.; B.R.E.A.D.; Coalition on Homelessness and Housing in Ohio; Community Mediation Services; Community Shelter Board; Human Services Chamber; Student Legal Services at the Ohio State University; and YWCA Columbus, in support of appellant.
On brief: Lardiere McNair, LLC, Chad M. Stonebrook, and Christopher L. Lardiere, for amicus curiae Columbus Apartment Association, in support of appellee.
DECISION
{¶ 1} Defendant-appellant, Traci Wimberly, appeals from a judgment of the Franklin County Municipal Court granting judgment in favor of plaintiff-appellee, T&R Properties, Inc. ("T&R"), on its action for forcible entry and detainer to evict Wimberly from an apartment ("the eviction action"). For the following reasons, we deny T&R's motion to dismiss Wimberly's appeal and reverse the judgment of the municipal court.
{¶ 2} Wimberly leased an apartment in Canal Winchester, Ohio, managed by T&R. On July 29, 2019, T&R filed the eviction action, seeking restitution of the apartment. The complaint alleged Wimberly failed to make her rental payment for July 2019 and had been given the required statutory notice to vacate the premises. The complaint further alleged Wimberly was in default under her lease and had not vacated the apartment. A hearing on the complaint was scheduled for August 12, 2019. Wimberly requested a continuance and the hearing was rescheduled for August 19, 2019. An attorney for T&R appeared at the rescheduled hearing, but Wimberly did not appear and was not represented by counsel. At the rescheduled hearing before a magistrate of the municipal court, the following proceedings occurred:
(Aug. 19, 2019 Tr. at 2.) The trial court record includes a copy of an affidavit made by Donielle Owen ("the Owen affidavit"), bearing a stamp indicating it was filed with the Franklin County Municipal Court Clerk on August 19, 2019. Owen averred: (1) Wimberly failed to pay her rent or was otherwise in default on her lease, (2) a notice to leave the premises was posted on the door of Wimberly's apartment, (3) Wimberly was behind on her rent at the time the notice to leave the premises was posted and at the time the affidavit was made, and (4) Wimberly was still residing in the apartment. This appears to be the affidavit referred to by the magistrate in the hearing transcript. The magistrate entered judgment in favor of T&R finding that, based on the evidence presented, the notice to vacate conformed to the statutory requirements and was served on Wimberly, and T&R proved non-payment of rent by a preponderance of the evidence. The magistrate issued a writ of restitution of the premises.
{¶ 3} Wimberly filed objections to the magistrate's decision, asserting the magistrate violated Civ.R. 43 by relying solely on the Owen affidavit in rendering judgment for T&R and that the Owen affidavit was inadmissible hearsay evidence. The trial court overruled Wimberly's objections concluding it was bound by this court's decision in Oakbrook Realty Corp. v. Blout , 48 Ohio App.3d 69, 548 N.E.2d 305 (10th Dist.1988), and, that based on the holding in Blout , the magistrate did not err by accepting the Owen affidavit as evidence.
{¶ 4} Wimberly appeals and assigns the following sole assignment of error for our review:
The trial court erred when it granted judgment to Plaintiff at trial absent any live witness testimony.
{¶ 5} As context for this appeal, it is useful to understand the existing practice in the municipal court at a hearing on a forcible entry and detainer claim when the defendant is not present. In its decision overruling Wimberly's objections, the municipal court incorporated by reference an earlier decision in Carl Edward Miller Trust v. Jones , Franklin M.C. No. 2018CVG-15385 (June 13, 2018). The Jones decision described the use of affidavits in forcible entry and detainer cases in the municipal court:
Jones at 1-2. Consistent with the characterization in Jones , amici curiae in support of Wimberly, the city of Columbus and the Columbus Women's Commission, assert it is common practice for the municipal court to grant judgment in favor of a landlord in a forcible entry and detainer case based solely on an affidavit when the tenant does not appear. In the present case, the magistrate relied exclusively on the Owen affidavit in concluding the elements of the eviction action had been established and granting judgment in favor of T&R.
{¶ 6} T&R has moved to dismiss Wimberly's appeal, arguing it is moot because her lease term expired and she vacated the apartment that was the subject of the eviction action while the appeal was pending. Wimberly concedes she has vacated the apartment, but argues the appeal should not be dismissed as moot, citing several exceptions to the mootness doctrine. Before addressing the merits of Wimberly's appeal, we must consider T&R's motion to dismiss.
{¶ 7} (Internal citations omitted.) James A. Keller, Inc. v. Flaherty , 74 Ohio App.3d 788, 791, 600 N.E.2d 736 (10th Dist.1991). "No actual controversy exists where a case has been rendered moot by an outside event." Tschantz v. Ferguson , 57 Ohio St.3d 131, 133, 566 N.E.2d 655 (1991). "When a case becomes moot, dismissal of the case is appropriate because the case no longer presents a justiciable controversy." Rithy Properties, Inc. v. Cheeseman , 10th Dist., 2016-Ohio-1602, 63 N.E.3d 752, ¶ 14.
{¶ 8} An action for forcible entry and detainer is a method for an aggrieved landlord to recover possession of real property. Cheeseman at ¶ 15. Judgment in a forcible entry and detainer action only determines the right to immediate possession of the property. Id. "If immediate possession is no longer at issue because the defendant vacates the premises and possession is restored to the plaintiff, then continuation of the forcible entry and detainer action or an appeal of such an action is unnecessary, as there is no further relief that may be granted." Id.
{¶ 9} Because Wimberly has vacated the apartment that was the subject of the eviction action, there is no actual, justiciable controversy between the parties. See id. at ¶ 16 ( ). Notwithstanding this conclusion, we must determine whether any exceptions to the mootness doctrine apply to this appeal.
{¶ 10} One exception to the mootness doctrine arises when the issues raised in an appeal are " ‘capable of repetition, yet evading review.’ " State ex rel. Plain Dealer Publishing Co. v. Barnes , 38 Ohio St.3d 165, 166, 527 N.E.2d 807 (1988), quoting S. Pacific Terminal Co. v. Interstate Commerce Comm. , 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). The Ohio Supreme Court has declared this exception applies in exceptional circumstances, when two factors are present: "(1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action...
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