Bowshier v. Bowshier

[Cite as Bowshier v. Bowshier, 2013-Ohio-297.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

ROBERT L. BOWSHIER :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 40

v. : T.C. NO. 12CVG667

TEDDY BOWSHIER : (Civil appeal from
Municipal Court)
Defendant-Appellant :

:

..........

OPINION

Rendered on the 1st day of February , 2013.

..........

EDWIN A. GRINVALDS, Atty. Reg. No. 0030884, 125 Scioto Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee

WILFRED L. POTTER, Atty. Reg. No. 0029121, 234 North Limestone Street, Springfield,
Ohio 45503
Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Teddy Joe

Bowshier, filed June 5, 2012. Teddy’s Notice of Appeal provides that he appeals from the
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May, 30, 2012, decision of the trial court which adopted the magistrate’s decision

concluding that Teddy failed to prove the existence of an oral land contract between him and

Robert Bowshier, his uncle, after Robert filed a Complaint in Forcible Entry and Detainer.

The trial court also granted a writ of restitution of the premises in favor of Robert. Teddy’s

Notice of Appeal also provides that he appeals from the trial court’s June 4, 2012,

“Corrective Entry” which set aside an initially imposed stay of execution of the order

granting Robert Bowshier restitution of the premises. We note that on June 5, 2012, Teddy

filed a “Request for Stay of Order for Purposes of Appeal” in this Court. On June 8, 2012,

this Court granted the motion, noting that the parties agreed to the posting of a monthly

supersedeas bond in the amount of $650.00. The premises at issue include a garage, located

at 6 Vanada Avenue, Springfield, Ohio, that Teddy intended to use for his upholstery

business.

{¶ 2} Robert filed his Complaint in Forcible Entry and Detainer on February 17,

2012, in the Municipal Court of Clark County. Therein he alleged that the parties’ oral

month to month lease of the premises expired on February 16, 2012, and that the terms of

the lease were broken by Teddy’s failure to pay rent. The complaint provides that Robert

provided Teddy with written notice to vacate the premises, and that Robert seeks restitution

of the premises. Further the compliant provides that Teddy owes $1,917.00 in unpaid rent

and late charges through January 31, 2012, and $589.00 for each additional month until

vacated, along with any damages. Attached to the complaint is a Notice to Leave Premises,

addressed to Teddy, which indicates that it was served on February 10, 2012, by Terry

Bowshier. The notice demands that Teddy leave the premises by February 16, 2012,
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“because you have not paid your rent pursuant to Section 1923.02(b) of the Ohio Revised

Code.” The notice is signed by Shawn A. Bowshier, and beneath the signature line, the

notice provides, “Shawn A. Bowshier, agent for Robert L. Bowshier, owner.”

{¶ 3} On March 6, 2012 Teddy filed an Answer and Counterclaim against Robert.

As affirmative defenses, Teddy asserted that he entered into a land contract with the owners

of the premises for the purchase of the property, and that he made improvements to the

property in the amount of $18,000.00, plus payments of $10,600.00, for a total amount of

$28,600.00, “for which amount Teddy Bowshier has filed and perfected a Mechanics Lien.”

Teddy further asserted that Robert “has illegally and unlawfully, utilizing a Power of

Attorney, transferred the Title to 8 Vanada, Springfield, Ohio, to himself, which transfer is

void. * * * As such, [Robert] is not authorized to maintain this action.”

{¶ 4} In his counterclaim, Teddy asserted that the forcible entry action is frivolous

conduct, “pursuant to R.C. 2323.51 and Ohio Civ.R. 11," and that he incurred legal fees in

the amount of $2,500.00 as a result. Teddy asserted in his second cause of action that “in

order for the court to fashion a proper remedy, the proper ownership of the subject property

herein must be established,” and that Robert transferred ownership of the property “from his

mother to himself” by self-dealing. Teddy’s third cause of action provides that he “is

demanding payment in full of $28,600 to remove the mechanics lien. Said demand having

been refused by plaintiff by the filing of this compliant in forcible entry and detainer,

counterclaimant is requesting that the mechanics lien * * * be foreclosed and the property

sold to satisfy the mechanics lien with the sale proceeds.” Finally, in his fourth cause of

action, Teddy sought specific performance of the parties’ oral land contract. Attached is
 4

Teddy’s Affidavit for Mechanics Lien and a General Warranty Deed, dated April 29, 2009,

which provides that Betty L. Bowshier grants to Robert the property at issue. Beneath the

signature block the deed provides, “Betty L. Bowshier, by Robert L. Bowshier, her

attorney-in-fact.”

{¶ 5} On March 6, 2012, Teddy filed a Motion to Transfer, asking the court to

transfer the matter to the Clark County Court of Common Pleas. The motion provides,

“The counter claimant of defendant (sic) exceeds the jurisdictional amount of this court and

involves title to the real property which can only be done by the court of Common Pleas.”

{¶ 6} On March 7, 2012, Robert filed the Affidavit of Shawn Bowshier, dated

February 27, 2012. The affidavit provides in part that Shawn is the manager of the Vanada

premises for Robert, and that Teddy “became a commercial tenant,” and that the “terms of

the oral agreement have been broken * * * for reason of non-payment of rent.”

{¶ 7} On March 13, 2012, Teddy filed a “Memorandum of Defendant” (sic) “to

establish that this court does not have jurisdiction over the forcible entry and detainer action

in this case. When title to real property is placed in question, this Court is without

jurisdiction to hear the matter pursuant to Ohio law.” Teddy relied upon this Court’s

decision in Ryan v. Kenley, 2d Dist. Montgomery No. 19534, 2003-Ohio-2088. Teddy

further asserted that “[a]t initial hearing, this court raise[d] the issue of the statute of frauds

requiring land contracts to be in writing. That is a correct statement of law but there are

equitable doctrines that remove an oral land contract from the operation of the statute of

frauds. One of those equitable doctrines that remove[s] a land contract from the operation

of the statue of frauds is the doctrine of partial performance.” Teddy asserted that he is
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entitled to enforce his oral Land Contract since, in reliance thereof, he has performed acts

which changed his position to his prejudice, namely taken possession of the property and

made payments and improvements. Teddy further asserted that “the doctrine of unjust

enrichment also removes this controversy from the Statute of Frauds.” Finally, Teddy again

asserted that Robert “and his agents are not the proper legal owners of the subject property

because he transferred the property to himself by POA.” Teddy concluded, “This matter

must be transferred to the Common Pleas Court for adjudication for enforcement of the Land

contract, determination of title of the real property, foreclosure of the Mechanics lien and

damage against Plaintiff.”

{¶ 8} On March 14, 2012, Robert filed “Plaintiff’s Memorandum.” Robert

asserted that an “action in forcible entry and detainer is limited to determining the present

right of possession of the property[,]” and “determination of title is only incidental to the

determination of the right to present possession.” Robert asserted that the “Counterclaim

raised by the defendant in the present case is one which the municipal court is wholly

without jurisdiction to hear, regardless of the amount of damages sought.” Further, Robert

asserted that “under the mandatory requirements of Civ.R. 12(H), the court must dismiss the

claim if the court lacks subject matter jurisdiction.”

{¶ 9} On April 4, 2012, a hearing was held before the Magistrate. On April 17,

2012, the Magistrate issued a decision which indicates that Teddy, represented by counsel, as

well as counsel for Robert, were present at the hearing. Robert did not appear at the hearing.

The Magistrate’s decision provides as follows:

The parties agreed that defendant took possession of a property at 6
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Vanada, Springfield, Ohio 45506 and started making monthly payments of

$589.00 to the Plaintiff in May of 2010. The parties agree that the

Defendant stopped paying in November of 2011. The parties do not agree on

whether they have a lease agreement or a land contract.

Plaintiff is alleging that the parties entered into an oral month to

month commercial lease for the premises. Plaintiff offers the affidavit of

Shawn Bowshier in support.

Defendant alleges that the parties entered into an oral land contract for

the purchase of 6 Vanada, Springfield, Ohio 45506. Defendant testified that

Robert Bowshier offered to sell him the property on a land contract for

$2,500.00 down and $589.00 per month for five years. The Defendant

believes the purchase price was $25,000.00, however, he is unsure if he is

paying any interest. He is sure that the $589.00 per month included taxes

and insurance on the property although he does not know the cost of the taxes

or insurance.

Defendant further testified that after his initial Conversation with

Robert Bowshier, Terry Bowshier came to his home and presented a written

land contract and asked for the $2,500.00 down payment. Defendant did not

have the $2,500.00 and therefore Terry Bowshier left with the document

unsigned. Defendant then called Robert Bowshier and according to the

Defendant the parties agreed that he could pay the $2,500.00 over time or at

the end of the term.
 7

Defendant further offers that he has spent a substantial amount of time

and money to get the garage cleaned up and usable. Defendant replaced the

furnace, repaired drywall, cleaned and made repairs to the plumbing.

Defendant offers this as evidence that he was not merely renting the property.

***

In this case the Defendant bears the burden of proof to the standard of

clear and convincing evidence that there was indeed an oral land contract and

that he in reliance on such contract has “undertaken unequivocal acts” “which

have changed his position to his detriment”. In this vain, the Defendant has

presented evidence of the improvements * * * he has made to the property.

The Magistrate finds that the improvements made are not out of line with

improvements made in many commercial and even residential leases. The

fact that the Defendant improved the property by making necessary repairs in

order to use the building in his commercial venture is not indicative that he

was purchasing the property rather than leasing. Furthermore, by his own

testimony the Defendant was presented with a written land contract that

Plaintiff’s agent refused to execute without payment of the $2,500 down

payment. Moreover, the Defendant labeled one of his payments as “G

rent[.]” * * *

Taking into account all the evidence presented at the hearing the

Magistrate finds that the Defendant has failed to prove by clear and

convincing evidence that there was an oral land contract. * * *
 8

The Magistrate further finds that even if there were an oral land

contract the Defendant has failed to prove by clear and convincing evidence

that the doctrine of part performance should remove this contract for the sale

of real property from the Statute of Frauds.

Wherefore, the Magistrate finds the parties have an oral month to

month lease and Defendant has violated the terms of the lease for the reason

of non-payment of rent.

The Defendant was served a notice to vacate on February 16, 2012

and has failed to vacate.

The Plaintiff is entitled to restitution of the premises.

The Magistrate recommends a writ of restitution be issued effective

April 30, 2012.

{¶ 10} On April 24, 2012, Teddy filed a “Request for Finding[s] of Fact and

Conclusions of Law.” Specifically, Teddy requested “the basis for the finding that the

expenditure of $18,000 on a building worth $25,000 to $35,000 are not out of line with

improvements made in many commercial and residential leases; and , findings of facts and

conclusions of law concerning cases cited by Defendant” regarding the issue of jurisdiction.

The Magistrate issued a decision on May 2, 2012, that provides, “The Magistrate’s Findings

of Fact and Conclusions of Law are contained within the Magistrate’s Decision, which was

filed on April 17, 2012.” On May 4, 2012, the trial court adopted the Magistrate’s decision

and ordered a writ of restitution effective April 30, 2012.

{¶ 11} On May 8, 2012, Teddy filed an “Objection to Decision by Magistrate,” in
 9

which he asserted that he objected “to the decision of the Magistrate to find that there was

not clear and convincing evidence and for the Magistrate decision to ignore the case law,

because he had no jurisdiction. He, (sic) also objects to the Magistrate[’]s decision not to

issue (sic) on the findings of the facts and conclusions of law on the issue of jurisdiction.”

The Objection also provides, “This requested information is necessary to perfect a proper

appeal.” In his supporting memorandum, Teddy repeated his arguments that the Magistrate

lacked jurisdiction over the matter, in reliance upon Ryan. Teddy objected to the

“Magistrate issuing a ruling that found no land contract * * * .” Teddy further asserted that

it “was error for the Magistrate to use the Affidavit of Plaintiff as evidence in a contested

hearing without the opportunity for cross examination.” Teddy asserted that the Magistrate

“used extra judicial information [in] finding that the expenditures of Defendant of over

$18,000 was ‘not out of line’ with those of residential and commercial leases.” Teddy

asserted that the decision of the Magistrate “ignores the doctrine of unjust enrichment, which

also removes this controversy from the Statute of Frauds, and the fact that defendant had a

‘Mechanics Lien’ which is outside of this court’s jurisdiction.” Finally, Teddy again

asserted that Robert engaged in self-dealing when he transferred the property to himself.

{¶ 12} On May 30, 2012, the trial court issued a Decision that provides in part:

“The Court has reviewed Defendant’s objections as well as the supporting documents filed

by both parties. The Court has also thoroughly reviewed the decision of the magistrate.”

The court then indicated that it adopted the Magistrate’s decision in its entirety, which the

court repeated verbatim. The transcript of the hearing before the Magistrate was not filed

below in the trial court. This Court granted Teddy’s “Motion to Extend Time and Show
 10

Cause,” which was filed on August 3, 2012, in which he requested an extension of time to

file the transcript herein. The transcript was filed on September 4, 2012.

{¶ 13} On September 17, 2012, Robert filed a motion requesting that the stay

imposed by this Court be lifted due to Teddy’s failure to post the monthly supersedeas bond

due on September 1, 2012. Teddy opposed the motion, asserting that he made the payment

although it was untimely. This Court overruled Robert’s motion, noting that the bond was

posted on September 20, 2012.

{¶ 14} On October 24, 2012, Robert filed a second motion to lift the stay, and on

October 16, 2012, this Court sustained the motion. On November 16, 2012, Teddy filed a

motion to reinstate the stay pending appeal. On December 13, 2012, this Court granted a

reinstatement of the stay pending appeal.

{¶ 15} Teddy asserts four assignments error. His first assigned error is as follows:

“THE MAGISTRATE ERRED AS A MATTER OF LAW WHEN HE DID NOT

TRANSFER THE CASE TO COMMON PLEAS COURT.”

{¶ 16} Teddy asserts that the “Mechanics Lien Foreclosure and the Unjust

Enrichment Claim both exceeded the jurisdictional limits of municipal court, and the

voidable title question required transfer” of the entire matter. Teddy asserts that he

requested specific performance of the oral land contract, and that the doctrines of partial

performance and unjust enrichment remove the controversy from the Statute of Frauds.

Finally, he asserts that Robert “and his agents are not the proper legal owners of the subject

property because [Robert] transferred the property to himself.”

{¶ 17} Chapter 1901 of the Ohio Revised Code governs municipal courts. R.C.
 11

1901.18 provides as follows:

(A) Except as otherwise provided in this division or

section 1901.181 of the Revised Code, subject

to the monetary jurisdiction of municipal courts

as set forth in section 1901.17 of the Revised

Code, a municipal court has original

jurisdiction within its territory in all of the

following actions or proceedings and to

perform all of the following functions:

***

(3) In any action at law based on contract, to determine, preserve, and

enforce all legal and equitable rights involved in the contract, to decree an

accounting, reformation, or cancellation of the contract, and to hear and

determine all legal and equitable remedies necessary or proper for a complete

determination of the rights of the parties to the contract.

***

(8) In any action of forcible entry and detainer.

{¶ 18} R.C. 1901.17 provides that a “municipal court shall have original

jurisdiction only in those cases in which the amount claimed by any party, or the appraised

value of the personal property sought to be recovered, does not exceed fifteen thousand

dollars * * *.”

{¶ 19} Civ.R. 13(J) provides, “In the event that a counterclaim, cross-claim, or
 12

third-party claim exceeds the jurisdiction of the court, the court shall certify the proceedings

in the case to the court of common pleas.”

{¶ 20} Civ.R. 12(H)(3) provides: “Whenever it appears by suggestion of the parties

or otherwise that the court lacks jurisdiction on the subject matter, the court shall dismiss the

action.”

{¶ 21} A cause of action for forcible entry and detainer is created by Chapter 1923

of the Ohio Revised Code. “An action in forcible entry and detainer is solely a possessory

action. * * * It does not determine the title to real property. The gist of the action is the

right to present possession.” Haas v. Gerski, 175 Ohio St. 327, 194 N.E. 2d 765 (1963).

“A forcible entry and detainer action is intended to serve as an expedited mechanism by

which an aggrieved landlord may recover possession of real property.” Miele v. Ribovich,

90 Ohio St.3d 439, 441, 2000-Ohio-193, 739 N.E.2d 333. “An action of forcible entry and

detainer is an action at law based on contract and under R.C. 1901.18[(A)(3)], the municipal

court has equitable jurisdiction. Behrle v. Beam” [6 Ohio St.3d 41, 451 N.E.2d 237

(1983)]. Terra Management Co. v. Bishop, 2d Dist. Montgomery No. CA 9919, 1987 WL

5312 (Jan. 2, 1987).

{¶ 22} In Ryan, 2003-Ohio-2088, upon which Teddy relies, Ryan appealed from

the judgment of the County Court of Montgomery County, Area One, in favor of Craig

Kenley, on Ryan’s forcible entry and detainer claim. In his Answer, Kenley admitted

Ryan’s legal title but claimed an “‘equitable title to the property.’” Id., ¶ 5. After a

hearing, the court “concluded that Kenley is the ‘equitable owner’ of the property and,

therefore, that Ryan is not entitled to restitution of the premises even though he holds the
 13

legal title to the property.” Id., ¶ 6.

{¶ 23} In addition to entering judgment in favor of Kenley on Ryan’s forcible entry

and detainer claim, the court transferred all remaining claims to the court of common pleas

“for that court’s determination in a quiet title action between these parties that was then

pending.” Id., ¶ 7. On appeal, Ryan asserted that the county court lacked jurisdiction to

resolve Kenley’s equitable title defense, “or, on that basis, find that Kenley owns an

equitable title in the land in derogation of Ryan’s legal title, because the court lacked

jurisdiction to do those things.” Id., ¶ 8. This Court, citing R.C. 1907.01, noted that

county courts are statutory in nature, and that “R.C. 1907.05 1 limits the jurisdiction of

county courts in civil actions in which title to real property is disputed to those matters

identified in paragraphs (A) and (B) of that section. Those matters do not comprehend

claims for forcible entry and detainer.” Id., ¶ 13. This Court further determined that

“R.C. 1907.05 creates an exception to the general jurisdiction conferred by R.C.

1907.031(A)(6) on county courts to hear and determine actions for forcible entry and

detainer when the claims or defenses presented bring the title to the real property concerned

‘in question.’” Id., ¶

{¶ 24} This Court further noted as follows:

1
R.C. 1907.05 provides as follows:
County courts have jurisdiction in civil actions in which the title to
real estate may be drawn in question as follows:
(A) In actions for trespass on real estate in which the damages
demanded do not exceed fifteen thousand dollars;
(B) In actions to recover from the owner of adjoining land the equal
proportion of the expense incurred in obtaining evidence in surveys to fix
corners or settle boundary lines.
 14

It has been held that when an action in forcible entry and detainer is

filed in municipal court and involves several issues which the municipal court

does not have jurisdiction to determine, it is error for the court to decide only

the forcible entry and detainer claim for relief, rather than to transfer the

entire action to the common pleas court for complete adjudication upon all

issues involved. O’Hara Realty v. Lloyd (1996), 116 Ohio App.3d 439.

We agree with the sense of O’Hara that judicial economy is better

served when all competing and related claims for relief between parties are

determined by the same court in a single action. The quiet title action before

the court of common pleas, to which the county court referred the other

claims before it, is such a vehicle for relief.

Plaintiff Ryan’s assignment of error is sustained. The judgment from

which the appeal was taken will be reversed, and the cause will be remanded

to the trial court on our special mandate to also refer the forcible entry and

detainer claims and defenses to the common pleas court for its determination

in the quiet title action.

{¶ 25} In O’Hara Realty, with which rationale this Court agreed, the Seventh

District reversed the judgment of the county court that dismissed the tenant’s counterclaim,

as lacking in merit, and remanded the matter with instructions to certify the case to the

common pleas court, since the tenant’s counterclaim exceeded the monetary jurisdiction of

the county court.

{¶ 26} Regarding Teddy’s counterclaim addressed to legal title to the premises,
 15

there is no statutory authority conferring jurisdiction on the municipal court to determine

legal title to the premises at issue herein. Civ.R.12 mandates dismissal of the counterclaim,

and Civ.R. 13 does not constitute authority to certify the entire matter to the court of

common pleas. By its language, Civ.R. 13 requires transfer when the counterclaim exceeds

the municipal court’s jurisdiction, as in O’Hara. Ryan is distinguishable, in that the

forcible entry and detainer action as well as Kenley’s equitable defense were transferred

pursuant to a special mandate to an already pending quiet title action in the court of common

pleas. Regarding Teddy’s assertion that his counterclaim to foreclose his Mechanics Lien

and his “Unjust Enrichment Claim” exceed the municipal court’s monetary jurisdiction, and

subject the entire matter to transfer to the court of common pleas, we initially note that

Teddy’s counterclaim does not contain a claim of unjust enrichment or seek damages on that

basis. His unjust enrichment argument was raised in his supporting memorandum to his

motion to transfer as a bar to the application of the Statute of Frauds. Regarding the

Mechanics Lien, we note that pursuant to R.C. 1311.02, Teddy is not a proper lien claimant.

R.C. 1311.02 requires the existence of a contractual relationship and delineates who can

assert a Mechanics Lien as follows:

Every person who performs work or labor upon or furnishes

material in furtherance of any improvement undertaken by virtue of a

contract, express or implied, with the owner, part owner, or lessee of any

interest in real estate, or the owner’s, part owner’s, or lessee’s authorized

agent, and every person who as a subcontractor, laborer, or material supplier,

performs any labor or work or furnishes any material to an original contractor
 16

or any subcontractor, in carrying forward, performing, or completing any

improvement, has a lien to secure the payment therefor upon the

improvement and all interests that the owner, part owner, or lessee may have

or subsequently acquire in the land or leasehold to which the improvement

was made or removed.

{¶ 27} We further note that R.C. 1901.18 does not confer jurisdiction on municipal

courts to foreclose Mechanics Liens on real property, and like the counterclaim to quiet title,

it is subject to dismissal pursuant to Civ.R. 12.

{¶ 28} Teddy’s counterclaims seeking foreclosure of his Mechanics Lien and

determination of legal title to the Vanada premises were subject to mandatory dismissal,

pursuant to Civ.R. 12(H)(3), and not certification, pursuant to Civ.R. 13(J), to the court of

common pleas. In other words, the municipal court had jurisdiction to determine the action

in forcible entry and detainer, and Teddy’s first assigned error is overruled.

{¶ 29} We will next address Teddy’s fourth assigned error. It is as follows:

“THE TRIAL COURT ABUSED ITS DISCRETION BY NOT CONDUCTING A

‘DE NOVO’ REVIEW OF THE MAGISTRATE’S DECISION.”

{¶ 30} According to Teddy, ”It is obvious from the Judgment Entry of the

reviewing court, and the fact that a transcript of the hearing was not prepared and filed until

after the Appeal was filed, that the reviewing Judge did [not] conduct a proper ‘de novo’

review of the court’s magistrate’s (sic) Decision.”

{¶ 31} “Civ.R 53(D) places upon the reviewing court the ultimate authority and

responsibility over an appointed magistrate’s findings and rulings. Hartt v. Munobe, 67
 17

Ohio St.3d 3, 6, 615 N.E.2d 617, 1993-Ohio-177.” Ohio Environmental Protection Agency

v. Lowry, 10th Dist. Franklin No. 10AP-1184, 2011-Ohio-6820, ¶ 11.

{¶ 32} Civ.R. 53(D)(4) provides in relevant part:

***

(d) Action on objections. If one or more objections to a magistrate’s

decision are timely filed, the court shall rule on those objections. In ruling

on objections, the court shall undertake an independent review as to the

objected matters to ascertain that the magistrate has properly determined the

factual issues and appropriately applied the law. * * *

(e) Entry of judgment or interim order by court. A court that adopts,

rejects, or modifies a magistrate’s decision shall also enter a judgment or

interim order.

{¶ 33} Teddy directs our attention in part to Bennett v. Bennett, 2d Dist. Clark No.

11-CA-52, 2012-Ohio-501, 969 N.E.2d 344, as well as Civ.R. 54(A). Civ.R. 54(A)

provides, “‘Judgment’ as used in these rules includes a decree and any order from which an

appeal lies as provided in section 2505.02 of the Revised Code. A judgment shall not

contain a recital of pleadings, the magistrate’s decision in a referred matter, or the record of

prior proceedings.” In Bennett, this Court dismissed the appeal and remanded the matter,

determining that since the trial court’s judgment of divorce was a mere recital of the

Magistrate’s decision, it did not constitute a final judgment subject to appeal. This Court

noted therein as follows:

The appellate jurisdiction of the courts of appeal to review final
 18

judgments and orders of lower courts of record is as may be provided by

legislative enactment. Section 3(B)(2), Article IV, Ohio Constitution. That

jurisdiction is limited to final orders, judgments, and decrees. Id.; R.C.

2505.03(A). Final orders and judgments are defined by R.C. 2505.02.

“A final appealable order has three essential characteristics: It is final

under Civil Rule 54(B); appealable under RC Ch. 2505; and meets the

definition of an order, judgment, or decree. Each of these characteristics is a

separate requirement, the absence of any of which will deprive the court of

jurisdiction to hear the appeal.” (Emphasis sic.) * * * Id., ¶ 13-14.

{¶ 34} We note that actions for forcible entry and detainer are unique in that Civ.R.

1(C) provides that the Civil Rules “to the extent that they would by their nature be clearly

inapplicable, shall not apply to procedure * * * (3) in forcible entry and detainer.” We

further note that the Supreme Court of Ohio has determined that Civ.R. 54 (B) does not

apply to forcible entry and detainer actions. Cuyahoga Metropolitan Housing Authority v.

Jackson, 67 Ohio St. 2d 129, 132, 423 N.E.2d 177 (1981) (“[W]e hold that a judgment entry

giving or denying a present right to possession of property under R.C. Chapter 1923 is

appealable even though all the causes of action have not been adjudicated.”)

{¶ 35} Research produces no authority for the proposition that Civ.R. 53(D)(4)(d)

and (e) are not applicable in forcible entry and detainer actions, thus, the trial court’s

decision is not a judgment within the meaning of the Civil Rules, since it merely recites the

Magistrate’s decision verbatim without addressing Teddy’s objections. As in Bennett, this

appeal is subject to dismissal and remand.
 19

{¶ 36} Regarding the absence of a transcript, we note that Civ.R. 53(D)(3)(b)(iii)

provides:

Objection to magistrate’s factual finding; transcript or affidavit. An

objection to a factual finding, whether or not specifically designated as a

finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript

of all the evidence submitted to the magistrate relevant to that finding or an

affidavit of that evidence if a transcript is not available. With leave of court,

alternative technology or manner of reviewing the relevant evidence may be

considered. The objecting party shall file the transcript or affidavit with the

court within thirty days after filing objections unless the court extends the

time in writing for preparation of the transcript or other good cause. If a

party files timely objections prior to the date on which a transcript is

prepared, the party may seek leave of court to supplement the objections.

{¶ 37} “Addressing the parameters of Civ.R. 53(D)(3)(b)(iii), Ohio Appellate courts

repeatedly have recognized a trial court errs in ruling on a party’s objections to a

magistrate’s factual findings without allotting the party the requisite 30 days to obtain the

necessary transcript. * * * Lincoln v. Callos Mgt. Co., 2d Dist. No. 23848, 2010-Ohio-4921,

¶ 10.” Lowry, ¶ 14. In Lincoln, the trial court failed to allow Lincoln 30 days within which

to file a transcript of the proceedings before the Magistrate, and this Court concluded,

“Although this issue was not raised by either party in the instant appeal, it was plain error for

the trial court to overrule Lincoln’s objections without first allowing him the requisite 30

days from the filing of his objections to file a transcript of the hearing before the magistrate.”
 20

Id., ¶ 10.

{¶ 38} Teddy filed his objections on May 8, 2012, and the trial court issued its

decision on May 30, 2012, thereby denying him the 30 days within which to file a transcript

of the proceedings before the Magistrate.

{¶ 39} Teddy’s fourth assigned error is sustained, and this appeal is dismissed and

the matter is remanded for further proceedings. Teddy shall cause the transcript of the

proceedings before the Magistrate to be filed in the trial court within 10 days of this

decision.

{¶ 40} Teddy’s remaining assignments of error are as follows:

“THE MAGISTRATE ERRED AS A MATTER OF LAW WHEN HE DID NOT

RESPOND TO REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW.”

And,

“THE DECISION OF THE MAGISTRATE WAS BASED UPON INSUFFICIENT

EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶ 41} Having dismissed this appeal and remanded the matter, we do not reach

these assignments of error.

..........

FROELICH, J. concurs.

HALL, J., concurring:

{¶ 42} I agree that this matter should be remanded to the trial court because the

trial court’s ruling on the objections to the magistrate’s decision was before the expiration of

30 days for filing of the transcript allowed by Civ. R. 53(D)(3)(b)(iii).
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{¶ 43} However, I disagree with the conclusion that the trial court’s decision was

insufficient to be a judgment. The majority cites our decision in Bennett v. Bennett, 2d Dist.

Clark No. 11 CA 52, 2012-Ohio-501, 969 N. E.2d 344 for the proposition that the trial

court’s entry is inadequate. I dissented in Bennett for the reason that I was of the opinion that

the entry overruling objections and adopting a magistrate’s decision was adequate. To be

consistent, I am of the same opinion here, the trial court’s decision was sufficient.

{¶ 44} Nonetheless, the case should be remanded

to the trial court for further proceedings.

..........

Copies mailed to:

Edwin A. Grinvalds
Wilfred L. Potter
Hon. Eugene S. Nevius