Portage Metropolitan Housing Authority v. Brown

I respectfully dissent from the foregoing opinion as I find its reasoning to be somewhat bewildering. I concur with the majority's explication of the requirements of R.C. 5321.05 and5321.11 and agree that the thirty-day notice provision of R.C.5321.11 is inapplicable in scenarios where the reasons for eviction are criminal activities which are not included in R.C.5321.05. Accord, Parker, supra.

However, while I concur in the legal analysis set forth by the majority, I cannot agree with the factual conclusions the opinion sets forth. Examination of the referee's report indicates that the referee, rather than "avoiding" the issue of notice, confronted the issue squarely in his finding that there was insufficient evidence of illegal conduct to reach the question of whether a thirty-day written notice was required by statute when the tenant's behavior included illegal activities. In the referee's view, insufficient evidence existed *Page 743 of criminal activities by the appellee, and thus the concomitant legal question was irrelevant.

The trial court, in its judgment entry, stated that "having reviewed the finding and recommendations of the referee, [it] approve[d] and hereby order[ed], adjudge[d], and decree[d] that the same be entered of record and made an order of this court. * * *" Nowhere can this author discover that the trial court "inferred" that it was not necessary for the appellant to provide appellee with a thirty-day notice with respect to an illegal conduct allegation on a proper factual predicate. Instead, it appears patent that the trial court adopted the referee's findings that there was insufficient evidence of criminal conduct and offered no comment on the question of whether thirty days' notice was required to evict should the appellee have been found to have been engaged in such activities.

The majority rests its decision to affirm solely upon the spectre of this alleged inference in the trial court's laconic judgment entry. However, the judgment of the majority opinion is to affirm the decision of the trial court itself. As a result, the action propounded by the majority is simply to offer an advisory opinion, in the event that this hypothetical situation (not considered by either the referee or the trial court) arises again. The majority offers no opinion, other than the fact that the issue is moot, as to whether the trial court's decision is against the manifest weight of the evidence, choosing instead to make its legal analysis a gelding in the case sub judice.

I further take exception to the disposal of the appellant's second assignment as moot by the majority. The question of whether a landlord is required to give thirty days' notice under R.C. 5321.11, when a tenant is engaged in activities not covered by R.C. 5321.05, may, in the abstract, be of greater public interest than the factual question of whether the eviction action in this case was wrongfully maintained. However, the two questions are, in this case, so intertwined, that it seems inexplicable to pronounce solely on the legal question, underRuprecht, supra, and dismiss the factual question as moot.

If this court is to determine that this case considers questions of great public interest, despite their alleged mootness (as the record itself demonstrates no such evidence of a subsequent eviction), I would suggest that we consider all of the assignments raised by the appellant. Examination of the referee's findings indicates that there was clearly competent, credible evidence which would indicate that criminal activity was occurring in appellee's apartment. Therefore, appellant was within its rights to forgo the thirty-day R.C. 5321.11 notice when commencing its eviction action.

As I would reverse the trial court on the second assignment as well as address legal issues raised in the first assignment, which I feel were addressed *Page 744 neither directly or inferentially by the trial court, I would vote to reverse in the case at bar. I cannot, however, agree with the reasoning expressed by the majority and I must, therefore, respectfully dissent.