[Cite as Sheehe v. Demsey, 2014-Ohio-305.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99965
LARRY G. SHEEHE, EXECUTOR
OF THE ESTATE OF LOUISE J. DEMSEY
PLAINTIFF-APPELLEE
vs.
KENNETH DEMSEY
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Civil Appeal from the
Parma Municipal Court
Case No. 11-CVG-01302
BEFORE: Celebrezze, P.J., Keough, J., and Blackmon, J.
RELEASED AND JOURNALIZED: January 30, 2014
ATTORNEY FOR APPELLANT
Robert Troll Lynch
35253 Maplegrove
Suite 102
Willoughby, Ohio 44094
ATTORNEY FOR APPELLEE
S. Robert E. Lazzaro
Costanzo & Lazzaro
13317 Madison Avenue
Lakewood, Ohio 44107
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, Kenneth Demsey, claims he was denied his constitutional right to
counsel in a civil forcible entry and detainer action filed by appellee, Larry G. Sheehe,
executor of the estate of Louise J. Demsey, to evict appellant from a property held by the
estate. After a thorough review of the record and law, we dismiss the appeal as moot.
I. Factual and Procedural History
{¶2} Appellant lived with and cared for his mother, Louise J. Demsey, in a house
she owned. Following her death on June 13, 2010, appellant continued to live in the
house. Louise was survived by five children, including appellant. A probate case
commenced in the Cuyahoga County Probate Court, and Larry G. Sheehe was appointed
executor. On January 18, 2011, the trial court ordered that appellant pay $1,000 per
month in rent to the estate retroactive to the date of Louise’s death and that appellant
vacate the property within 60 days. Appellant did not pay rent or vacate the premises.
{¶3} On March 28, 2011, the executor, after providing appellant a three-day
eviction notice, filed a forcible entry and detainer action with an accompanying claim for
damages in the Parma Municipal Court. Appellant entered an answer through counsel
and demanded a jury trial. Appellant also filed a counterclaim against the estate. After
numerous continuances of the summary forcible entry and detainer proceeding, trial was
set to commence on July 12, 2012. According to appellant, on that day, he
unsuccessfully sought another continuance when no attorney appeared to represent him.1
Appellant informed the court that he had retained new counsel, but the attorney did not
appear for trial.2 The trial court denied the oral motion and the jury trial commenced. A
verdict was rendered in favor of the estate, and an order of restitution of possession of the
property to the estate was issued that same day. Appellant was removed from the property
by July 30, 2012. Appellant did not successfully seek a stay of his removal.
{¶4} A second trial on the issue of damages was conducted on May 7, 2013. The
trial court found that the estate had shown $16,691 in damages, but entered judgment for
the maximum jurisdictional amount of $15,000. Appellant then filed the instant appeal
raising one error: “The lower court erred in not observing the Ohio and federal law
requiring legal counsel in a ‘fundamental-right’ civil matter such as eviction.”
II. Law and Analysis
{¶5} Appellant’s single claim boils down to an argument that the trial court erred
in not granting a continuance when appellant’s attorney did not appear for trial.
Appellant’s argument is based on the denial of his right to counsel in a civil proceeding
that could lead to a deprivation of a property interest. In any event, because appellant’s
No evidence appears in the record to corroborate this assertion. The transcript provided by
1
appellant does not include evidence of any motion to continue made the day of trial and, because it
was an oral motion, no documentation appears in the record.
Appellant’s second attorney, Matthew Lynch, successfully withdrew from the case on May
2
18, 2012. Appellant’s first attorney, Robert Lynch, never withdrew as counsel and represented
appellant after the July trial.
appeal only raises an issue regarding the forcible entry and detainer portion of the
underlying action, this appeal is moot.
{¶6} The trial court conducted a jury trial on the forcible entry and detainer action
on July 12, 2012. The jury found in favor of the estate, and an order of restitution
restoring possession of the premises to the estate was issued on July 12, 2012. Appellant
was removed from the property by July 30, 2012. The order of restitution was final and
appealable when issued. Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129,
132, 423 N.E.2d 177 (1981). Further,
a judgment entry in a forcible entry and detainer action which contains an
order relating to the right to possession of property is a final, appealable
order pursuant to R.C. 2505.02 even absent a specific ruling on the issue of
damages, because a proceeding for forcible entry and detainer is a special
proceeding which affects a substantial right.
Skillman v. Browne, 68 Ohio App.3d 615, 619, 589 N.E.2d 407 (6th Dist.1990).
{¶7} Appellant did not immediately appeal the order or otherwise prevent his
removal from the premises. “Under Ohio law, a forcible entry and detainer action
decides the right to immediate possession of property and ‘nothing else.’” Cleveland Fin.
Assocs., L.L.C. v. Cleveland Banquets, L.L.C., 8th Dist. Cuyahoga No. 95009,
2011-Ohio-931 ¶ 11, quoting Seventh Urban, Inc. v. Univ. Circle Property Dev., Inc., 67
Ohio St.2d 19, 25, 423 N.E.2d 1070 (1981), fn. 11. Therefore, “[o]nce the landowner has
been restored to his property, the forcible entry and detainer action becomes moot because
there is no further relief that may be granted to the landowner.” Id. at ¶ 11. In order to
preserve appellate rights, the evicted party must stay the ejectment. Id. “[I]f a
defendant fails to obtain a stay of execution and/or post a supersedeas bond, all issues
relating to forcible entry and detainer are rendered moot.” Id., citing Tripp v. French, 9th
Dist. Medina No. 02CA0004-M, 2002-Ohio-6996, ¶8.
{¶8} Assuming appellant is correct that the denial of a right to counsel in a civil
eviction proceeding — even though no such right exists in Ohio law — was error by the
trial court, there is no remedy to be had. No court may restore appellant to possession
because the property has been sold. Because a forcible entry and detainer action does no
more than determine rights to possession, no meaningful relief is available. Therefore,
appellant’s claim in this appeal regarding this portion of the appealed judgment is moot.
{¶9} A moot issue may still be addressed if it is capable of repetition, but evades
review. State ex rel. Plain Dealer Pub. Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d
807 (1988), paragraph one of the syllabus. Here, that is not the case. Also, “[a]lthough a
case may be moot with respect to one of the litigants, this court may hear the appeal
where there remains a debatable constitutional question to resolve, or where the matter
appealed is one of great public or general interest.” Franchise Developers, Inc. v.
Cincinnati, 30 Ohio St.3d 28, 505 N.E.2d 966 (1987), paragraph one of the syllabus.
Here, appellant asserts that this is an important constitutional issue — the right to counsel.
But the issue really is whether the trial court abused its discretion in denying appellant’s
seventh motion to continue a proceeding that is designed to swiftly adjudicate possession
of property.3 This is not an important constitutional issue that must be addressed.
The action had been on the court’s docket for 16 months.
3
III. Conclusion
{¶10} The failure to immediately appeal or stay removal from the premises renders
this appeal moot. No matter this court’s determination, possession of the premises
cannot be returned to appellant. Because this is the only issue raised by appellant, this
appeal must be dismissed as moot.
{¶11} Accordingly, the appeal is dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
PATRICIA A. BLACKMON, J., CONCUR
KEY WORDS:
#99965 - Larry G. Sheehe, Exec. v. Kenneth Demsey
Sheehe v. Demsey
Combined Opinion