Siegler v. Batdorff

• Decision Date: 28 June 1979
• Citation: 408 N.E.2d 1383,63 Ohio App.2d 76
• Parties: , 17 O.O.3d 260 SIEGLER, Appellee, v. BATDORFF, Appellant. SIEGLER, Appellee, v. DOWLING, Appellant.
• Court: Ohio Court of Appeals

Page 76

63 Ohio App.2d 76

408 N.E.2d 1383, 17 O.O.3d 260

SIEGLER, Appellee, v. BATDORFF, Appellant.

SIEGLER, Appellee, v. DOWLING, Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

June 28, 1979.

Syllabus by the Court

1. The provisions of Civ.R. 56, governing summary judgment, are applicable to proceedings in forcible entry and detainer.

2. Statutory provisions concerning forcible entry and detainer proceedings 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 the tenant to vacate the premises: (1) a notice of termination of tenancy (R.C. 5321.17); (2) a notice to vacate the premises (R.C. 1923.04); and (3) a complaint in forcible entry and detainer.

3. An unsupported allegation in a pleading is not sufficient to defeat a motion for summary judgment which is accompanied by affidavits or other supporting documents.

David A. Schaefer and Charles J. Silverman, Cleveland, for appellee.

Theodore E. Meckler, for appellants.

CORRIGAN, Judge.

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. 5321.04(A) and the rental agreement. Appellants alleged in their second claim that on April 13, 1978, they complained to a governmental agency about the alleged code violations and joined with other tenants to bargain collectively with plaintiff over the terms of the rental agreement. Appellants alleged that plaintiff retaliated against these actions of appellants by filing a notice to vacate and the complaint for forcible entry and detainer. In the third claim appellants alleged that plaintiff's action of filing the notice to vacate and the complaint infringed upon appellants' First Amendment right of free speech.

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 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. 5321.17(B). The stipulations were made before a court reporter and the transcript of this proceeding was included in the record on appeal pursuant to appellants' motion to supplement the record. Subsequent to this, but on the same day (July 28, 1978), the trial court sua sponte reconsidered its previous ruling on the motion for summary judgment and granted the motion. From this order appellants filed notices of appeal. ¹

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.

I.

Appellants argue as their first assignment of error that the trial court erred by granting plaintiff's motion for summary judgment. The initial issue to be addressed is whether or not summary judgment proceedings are applicable to proceedings in forcible entry and detainer. Civ.R. 1(C)(3) states that the Civil Rules, " * * * to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * in forcible entry and detainer * * *."

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 allowed. See, e. g., R.C. 1923.07 (proceedings on default of defendant). The Civil Rules will also be inapplicable if their application would frustrate the purpose of the proceeding. State ex rel. Civil Rights Comm. v. Gunn (1976), 45 Ohio St.2d 262, 266-67, 344 N.E.2d 327.

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), 114 Ohio App. 21, 28, 180 N.E.2d 184. Thus, the summary judgment provisions of the Civil Rules are consistent with the intent of proceedings in forcible entry and detainer, for summary judgment assists, rather than impedes, in the swift disposition of the issue in these proceedings. Cf. Dvorak v. Municipal Civil Service Comm. (1976), 46 Ohio St.2d 99, 102-03, 346 N.E.2d 157.

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. See Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 375 N.E.2d 46. Forcible entry and detainer proceedings are governed by R.C. Chapter 1923. Prior to 1974, the primary issue in such proceedings was the determination of who had the right to lawfully possess the premises. The only other requirement in these proceedings was that plaintiff was under an obligation to notify the tenant at least three days prior to the filing of the complaint to leave the premises or an action for possession would be commenced. R.C. 1923.04. In 1974 the Ohio General Assembly enacted the Ohio Landlord-Tenant Act. (R.C. Chapter 5321.) Among...