[Cite as NVDA Properties, L.L.C. v. Lambert, 2013-Ohio-5222.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
NVDA PROPERTIES, LLC : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 13CA85
JOSEPH LAMBERT :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Shelby Municipal
Court, Case No. CVG 13-204
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: November 22, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
SHEREE STUDER GREGORY S. REICHENBACH
BENHAM & REAM Box 256
150 Mansfield Avenue Bluffton, OH 45817
Shelby, OH 44875
[Cite as NVDA Properties, L.L.C. v. Lambert, 2013-Ohio-5222.]
Gwin, P.J.
{¶1} Defendant-appellant Joseph Lambert appeals the September 6, 2013
Judgment Entry of the Shelby Municipal Court in favor of Plaintiff-appellee NVDA
Properties, LLC.
Facts and Procedural History
{¶2} This appeal arises from a forcible entry and detainer action initiated by
Appellee in the Shelby Municipal Court.
{¶3} On September 6, 2013, following a hearing, the judge issued a Judgment
Entry granting Appellee a writ of restitution. A writ of restitution was issued on
September 6, 2013. On September 16, 2013, appellant filed a Motion to Stay Execution
of Judgment. On September 18, 2013, an Order and Judgment Entry was filed with the
handwritten notion, “on writ of restitution only not signed 9-18-13.” No judge’s signature
appears on the document. Appellant concedes in his Brief that he has vacated the
premises. (Appellant’s Brief at n.1).
Assignments of Error
{¶4} Appellant now appeals, assigning as error:
{¶5} “I. THE TRIAL COURT'S JUDGMENT ON THE FORCIBLE ENTRY AND
DETAINER CLAIM MUST BE VACATED, BECAUSE DEFENDANT-APPELLANT WAS
PREVENTED FROM CROSS-EXAMINING PLAINTIFF-APPELLEE'S WITNESS, AND
FROM TESTIFYING HIMSELF, REGARDING THE TERMS OF THE RENTAL
AGREEMENT.
{¶6} “II. THE TRIAL COURT'S JUDGMENT ON THE FORCIBLE ENTRY AND
DETAINER CLAIM MUST BE VACATED BECAUSE THERE IS INSUFFICIENT
Richland County, Case No. 13CA85 3
EVIDENCE IN THE HEARING RECORD TO SUPPORT ENTERING JUDGMENT IN
FAVOR OF NVDA ON THE FORCIBLE ENTRY AND DETAINER.”
{¶7} Since appellant vacated the premises, the first issue that must be
addressed by this Court is whether the appeal is moot, and if the appeal is moot,
whether it should be decided on the merits by this court.
{¶8} Generally, vacation of the residence at issue renders the issues in a
forcible entry and detainer action moot, thereby depriving the Court of jurisdiction to
proceed. The Ohio Supreme Court has stated that forcible entry and detainer actions
decide the right to immediate possession of property and “nothing else.” Seventh Urban,
Inc. v. Univ. Circle Property Dev., Inc., 67 Ohio St.2d 19, 25, n. 11, 423 N.E.2d
1070(1981). “Once a landlord has been restored to property, the forcible entry and
detainer action becomes moot because, having been restored to the premises, there is
no further relief that may be granted to the landlord.” United States Secy. of Hous. and
Urban Dev. v. Chancellor, 8th Dist. Cuyahoga No. 73970, 1999 WL 126170(Feb 25,
1999). See Crossings Dev. Ltd. Partnership v. H.O.T., Inc., 96 Ohio App.3d 475, 479-
80, 645 N.E. 2d 159(9th Dist. 1994); Reck v. Whalen, 114 Ohio App.3d 16, 19, 682
N.E.2d 721(2nd Dist. 1996). Therefore, a tenant's vacation of the premises renders all
the issues in regards to a forcible entry and detainer action moot. United States Secy. of
Hous. and Urban Dev., supra. See Crossings Dev. Ltd. Partnership, 96 Ohio App.3d at
480, 645 N.E. 2d 159(9th Dist. 1994); Alex-Bell Oxford Ltd. Partnership v. Woods, 2nd
Dist. Montgomery No. 16038, 1998 WL 289028(June 5, 1998). Accordingly, we find the
issue in this case to be moot because appellee’s immediate possession is no longer an
Richland County, Case No. 13CA85 4
issue. Showe Management Corp. v. Moore, 5th Dist. Licking No. 08CA10, 2009-Ohio-
2312, ¶36; Kajganic v. Miller, 5th Dist. Stark No. 2007CA00282, 2008-Ohio-4530, ¶11.
{¶9} In the instant matter, Appellee was successful in its action, obtained a writ
of restitution, and appellant has left the premises. Accordingly, any error in the trial court
proceedings relative to Appellee's forcible entry and detainer action is rendered moot.
Such is true because Appellee is now in possession of the property and any decision
rendered by this Court would have no effect on the forcible entry and detainer action. Id.
(“[The Revised Code] does not provide jurisdiction to place a defendant who is out of
possession into possession.”) Miller, 5th Dist. Stark No. 2007CA00282, 2008-Ohio-
4530, ¶11. Appellant's assigned errors are therefore moot and overruled.
{¶10} Accordingly, we dismiss Lambert's appeal as moot.
{¶11} APPEAL DISMISSED.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG: clw 1112
[Cite as NVDA Properties, L.L.C. v. Lambert, 2013-Ohio-5222.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NVDA PROPERTIES, LLC :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOSEPH LAMBERT :
:
:
Defendant-Appellant : CASE NO. 13CA85
For the reasons stated in our accompanying Memorandum-Opinion, the appeal is
dismissed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
NVDA Properties, L.L.C. v. Lambert
Combined Opinion