[Cite as Kell v. Little, 2019-Ohio-98.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THOMAS KELL : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
STEVE LITTLE : Case No. 2018CA00064
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municpal
Court, Case No. 2018CVG02302
JUDGMENT: Dismissed
DATE OF JUDGMENT: January 14, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS KELL, pro se RYAN W. MAXWELL
2538 Daffodil Street NE 401 Market Avenue North
Canton, OH 44705 Suite 103
Canton, OH 44702
Stark County, Case No. 2018CA00064 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Steve Little, appeals the May 15, 2018 decision of the
Canton Municipal Court of Stark County, Ohio, denying his motion for new trial, motion
from relief from judgment, and motion to vacate. Plaintiff-Appellee is Thomas Kell.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellee owns property on Dueber Avenue in Canton, Ohio. Appellant
entered into a lease agreement with appellee to lease the subject property. On April 9,
2018, appellee served appellant a three day notice to leave the premises for non-payment
of rent. Because appellant did not comply, appellee filed a forcible entry and detainer
action on April 12, 2018.
{¶ 3} A hearing before a magistrate was held on April 23, 2018. Appellant failed
to appear. By report filed same date, the magistrate ordered a writ of restitution of the
property. A damages hearing was continued to a later date. By judgment entry filed April
23, 2018, the trial court approved and confirmed the magistrate's decision. Appellant did
not file objections. An eviction set-out date was scheduled for May 18, 2018.
{¶ 4} On May 15, 2018, appellant filed a motion for new trial, motion for relief from
judgment, and motion to vacate, claiming he failed to appear at the hearing due to medical
issues and he had a meritorious defense to present. Appellant claimed the three day
notice was deficient and failed to comply with R.C. 1923.04, and he had satisfied his rental
obligation for the month. Appellant also filed a motion to stay the set-out date pending a
decision on the motions. By judgment entry filed same date, the trial court denied the
motions, finding appellant failed to appear, did not request a continuance, and did not file
objections to the magistrate's decision. The trial court also denied the motion to stay.
Stark County, Case No. 2018CA00064 3
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 6} "THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION AND
IT COMMITTED BOTH PLAIN ERROR AND REVERSIBLE ERROR WHEN IT
GRANTED APPELLEE JUDGEMENT FOR RESTITUTION."
II
{¶ 7} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT
SCHEDULING A HEARING FOR DEFENDANT-APPELLANT'S MOTION FOR NEW
TRIAL/MOTION FOR RELIEF/MOTION TO VACATE AND DENYING DEFENDANT-
APPELLANT'S MOTION FOR NEW TRIAL/MOTION FOR RELIEF/MOTION TO
VACATE.
{¶ 8} At the outset, we note appellant vacated the premises on May 18, 2018.
Appellant's Brief at 8. After filing the notice of appeal, appellant never requested a stay
pursuant to R.C. 1923.14(A). Based upon the well reasoned opinion by this court in AKP
Properties, LLC v. Sharonda Rutledge, 5th Dist. Stark No. 2018CA00058, 2018-Ohio-
5309, we find the issues herein to be moot and therefore do not reach the merits of the
assignments of error.
Stark County, Case No. 2018CA00064 4
{¶ 9} The appeal is hereby dismissed.
By Wise, Earle, J.
Gwin, P.J. and
Wise, John, J. concur.
EEW/db 17
Kell v. Little
Combined Opinion