Greene Metropolitan Housing Authority v. Melody Manning, 99-LW-0336

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: FAIN, J.
• Parties: GREENE METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellee v. MELODY MANNING, Defendant-Appellant C.A. Case No. 98-CA-55
• Decision Date: 19 February 1999
• Docket Number: 99-LW-0336,C.A. 98-CA-55

GREENE METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellee
v.
MELODY MANNING, Defendant-Appellant

No. C.A. 98-CA-55

99-LW-0336 (2nd)

Court of Appeals of Ohio, Second District, Greene

February 19, 1999

T.C. Case No. 98-CVG-198

PHILLIP L. BEARD, 260 N. Detroit Street, Xenia, Ohio 45385, Atty. Reg. #0023197, Attorney for Plaintiff-Appellee

KRISTEN L. LOUDERBACK, Rural Legal Aid Society of West Central Ohio, 275 S. Allison Avenue, Xenia, Ohio 45385, Atty. Reg. #0064964, Attorney for Defendant-Appellant

OPINION

FAIN, J.

Defendant-appellant Melody Manning appeals from an order of eviction pursuant to an action for forcible entry and detainer filed in the Fairborn Municipal Court by plaintiff-appellee Greene Metropolitan Housing Authority. Manning contends that she was not served with adequate statutory notice prior to the initiation of the eviction complaint. She also contends that the trial court's finding that she breached the terms of her lease agreement is against the manifest weight of the evidence. She further contends that the trial court erred by failing to afford her equitable relief. Finally, she claims that the trial court erred in failing to find that the eviction action was the result of discriminatory conduct by the Housing Authority.

We conclude that the statutory notice to vacate was inadequate in regard to both its service and content. We also conclude that while the findings of the trial court in regard to Manning's breach of the lease agreement are supported by the evidence, the trial court did err by failing to consider or to grant equitable relief. Finally, we decline to address the issue of discrimination, because that matter was not properly raised in the trial court.

The judgment of the trial court is Reversed and Vacated.

I

The appellee has failed to file an appellate brief. Therefore, the facts relevant to this appeal are taken from the appellant's brief, pursuant to App. R. 18(C), which provides, in pertinent part:

***If an appellee fails to file his brief within the time provided by this rule, or within the time as extended, *** in determining the appeal, the court may accept the appellant's statement of the facts and issues as correct ***

Defendant-appellant Melody Manning has rented and lived in a subsidized home owned by plaintiff-appellee Greene Metropolitan Housing Authority (hereinafter "GMHA"), since 1994. Manning is considered blind as a result of nerve damage to her eyes incurred during brain surgery.

Pursuant to the terms of the lease agreement executed by GMHA and Manning, she is required to re-certify her status as an eligible tenant on a yearly basis. On August 29, 1997, GMHA sent a letter to Manning indicating that she needed to complete a re-certification packet; a packet was enclosed with the letter.^[1] On September 3 and 24, 1997, reminders were mailed to Manning regarding the re-certification packets. On September 30, 1997, another reminder was mailed to Manning indicating that she needed to turn in her re-certification packet by October 7, 1997. On October 15, 1997, another letter was mailed to Manning indicating that she needed to return her re-certification packet by October 22, 1997.

Manning called GMHA on November 25, 1997. She left a voice mail message indicating that she needed to talk to a manager about her garage door. She called back the next day, and was informed that her re-certification packet was due by 4:00 p.m. on December 1, 1997. She was told that her assistance would be terminated if the packet was not submitted. According to Manning, she requested her housing manager to come to her home to help her fill out the packet. The request was denied. On December 1, 1997, Manning appeared at the offices of GMHA with a packet. However, the packet she brought with her was a packet for another agency instead of the GMHA re-certification packet. Manning returned on December 3, 1997 with the proper packet filled out for re-certification.^[2]

On December 9, 1997, Manning was served, by personal service, with a thirty-day notice to leave the premises. The notice was based upon Manning's failure to comply with the lease agreement provisions regarding re-certification of eligibility. Manning did not vacate, and on February 4, 1998, a three-day notice was posted on the front door of her home. The notice requested that she vacate the premises no later than February 9, 1998.

On February 17, 1998, GMHA filed a complaint in forcible entry and detainer. Manning was served personally with the complaint and hearing notice. A hearing was held on May 13, 1998. At the conclusion of the hearing the magistrate entered a decision in favor of GMHA. The magistrate's decision was based on the finding that the notices of eviction were properly served and that Manning breached her lease by failing to comply with the re-certification requirements. The judgment entry was adopted and signed by the trial court on the same day the decision was entered.

Manning filed objections to the magistrate's decision on May 26, 1998. She also filed a request for stay of execution of judgment. The stay was granted on June 1, 1998, pending a decision on the objections. Manning appeals from the order evicting her. After Manning perfected her appeal, GMHA filed a Notice of Dismissal, pursuant to Civ. R. 41(A)(1), in the trial court.^[3]

II

Manning's First Assignment of Error is as follows:

THE TRIAL COURT ERRED IN FINDING THAT THE NOTICE TO VACATE WAS SUFFICIENT UNDER THE LAW

Manning contends that the trial court erred by finding that the three-day notice to vacate served upon her by GMHA was legally sufficient.

Pursuant to R.C. 1923.04 , a "party desiring to commence an action under this chapter [forcible entry and detainer] shall notify the adverse party to leave the premises, *** three or more days before beginning the action, by certified mail, return receipt requested, or by handing a written copy of the notice to the defendant in person, or by leaving it at his usual place of abode or at the premises from which the defendant is sought to be evicted." The statute requires that every notice given under this section, by a landlord attempting to recover leased premises, shall contain the following language printed or written in a "conspicuous manner":

You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance

"[C]ompliance with R.C. 1923.04 is a condition precedent to the bringing of an action in forcible entry and detainer." Schlenk v. Cornette (June 21, 1991) Montgomery App. No. 12416, unreported. In an eviction proceeding the trial court must, as a

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