[Cite as Jones v. Dlugos, 2019-Ohio-3039.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
GREGORY A. JONES, ET AL., :
Plaintiffs-Appellees, :
No. 107757
v. :
KARL DLUGOS, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: July 25, 2019
Civil Appeal from Rocky River Municipal Court
Case No. 18 CVG 549
Appearances:
Vincent Esquire, Ltd., Paul W. Vincent, and Adam James
Vincent, for appellees.
Karl Dlugos, pro se, and Lisa Gottschalt, pro se.
LARRY A. JONES, SR., J.:
In this accelerated appeal,1 the defendants-appellants Karl Dlugos
and Lisa Gottschalt2 appeal from the March 26, 2018 judgment of the Rocky River
Municipal Court, which “accepted, approved and adopted” the magistrate’s
decision. The decision found the appellants liable for nonpayment of rent. For the
reasons that follow, we dismiss this appeal.
Factual and Procedural History
The record before us demonstrates that in February 2017, the
appellants entered into a land installment contract with the plaintiffs-appellees,
Gregory and Sharon Jones. The contract was for property located in North Olmsted,
Ohio, and the monthly payment was $772.64, plus a $50 late fee, if applicable.
In February 2018, the appellants failed to make payments according
to the contract, and the appellees provided notice to them of their breach and how
it could be remedied according to the terms of their contract. On March 5, 2018, the
appellants made a $500 payment. On March 7, 2018, the appellees filed an action
in the Rocky River Municipal Court; the complaint was for forcible entry and
detainer and forfeiture. The appellants filed an answer in which they claimed, in
part, that the appellees accepted their $500 payment.
1The purpose of an accelerated appeal is to permit this court to render a brief and
conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 1.
2The appellants have proceeded pro se throughout the entirety of the proceedings
below as well as in this court.
A trial before the magistrate was held on March 26, 2018. At the
conclusion of the trial, the magistrate found in favor of the appellees and against the
appellants for nonpayment of rent on the “first cause of action,” that is, the forcible
entry and detainer. The magistrate granted the appellants until April 16, 2018, to
move to plead or file an answer as to the “second cause of action,” that is, the
forfeiture. The trial court “accepted, approved and adopted” the magistrate’s
decision as the judgment of the court.
On April 2, 2018, appellants filed a motion to stay eviction, which was
denied on April 5. A writ of restitution was filed, ordering that the appellants be
“forthwith removed” from the property and the appellees have restitution of it.
Appellants apparently did not vacate the property, and therefore the appellees filed
a request to execute writ of restitution. The appellants filed a motion to set aside
the magistrate’s order and stay the writ of restitution, which the trial court denied.
Thereafter, the appellants filed objections to the magistrate’s order; the objections
were overruled.
On April 13, 2018, appellants filed an answer to the second cause of
the complaint and a counterclaim. Their counterclaim sought an amount for equity
they claim to have in the house.
According to the appellees, the appellants were ordered to be out of
the subject property on April 13, 2018. However, due to the trial court’s schedule,
the date was continued one week, until April 20, 2018. The record demonstrates
that on April 19, 2018, appellants filed for Chapter 7 bankruptcy that resulted in an
automatic stay of the case.
The bankruptcy stay was lifted in August 2018, and the eviction
proceedings resumed. On October 4, 2018, the day set for their eviction, appellants
filed an emergency motion for stay of eviction in this court; they also filed an appeal
in this court of the municipal court’s March 2018 judgment that again stayed the
eviction date. Their emergency motion was denied on the same day it was filed,
October 4, 2018. The appellants then filed a second notice of appeal on October 5,
2018, that was transferred to the first appeal. Meanwhile, the eviction proceeded
and the appellants were evicted in October 2018, and the property was restored to
the plaintiffs.
This court dismissed the appeal as untimely, but subsequently
granted appellants’ motion for reconsideration and ordered appellants to file an
App.R. 9(C) statement by November 26, 2018. On November 23, 2018, appellants
filed a “notice of trial court’s inability to settle and approve appellants[’] statement
of evidence as required by App.R. 9.”
This court again dismissed the appeal, this time as moot because the
appellants had been evicted in October 2018. The appellants filed a motion for
reconsideration, which was granted. This court ordered the appellants to show
cause why the record should not be converted into an App.R. 9(A) record.
Appellants filed their show cause, and in February 2019, the praecipe was amended
to an App.R. 9(A) record.
Assignments of Error
I. The trial court erred in its decision to not dismiss the case due
to the plaintiffs failing to state a claim for which relief can be
granted.
II. The trial court committed plain error in accepting “Notice of
forfeiture and demand to leave premises” (“Notice”) as being
sufficient and properly serviced.
III. The trial court has failed to approve, deny, and certify the
Appellants’ statement of evidence as required under App.R.
9(C).
Law and Analysis
The gravamen of the appellants’ contentions in this appeal relate to
their eviction from the subject property. For the reasons that follow, that issue is
now moot. A forcible entry and detainer decides only the right to immediate
possession and nothing else. Seventh Urban, Inc. v. Univ. Circle, 67 Ohio St.2d 19,
25, 423 N.E.2d 1070 (1981), fn. 11. If immediate possession is no longer an issue
due to vacation, then continuation of the forcible entry and detainer action or appeal
is unnecessary. “Once the landlord has been restored to property, the [result of the]
forcible entry and detainer action becomes moot because, having been restored to
the premises, there is no further relief that may be granted.” Long v. MacDonald,
3d Dist. Crawford No. 3-02-10, 2002-Ohio-4693 (holding that the tenant’s appeal
is moot regardless of whether the tenant’s vacation is voluntarily or not); U.S. Sec.
of HUD v. Chancellor, 8th Dist. Cuyahoga No. 73970, 1999 Ohio App. LEXIS 605
(Feb. 25, 1999) (agreeing with HUD’s argument that the tenants-appellants’ appeal
was moot since they vacated the premises and affirming on that basis); see also Riolo
v. Navin, 8th Dist. Cuyahoga No. 79809, 2002-Ohio-1551; Blosser v. Bowman, 10th
Dist. Franklin No. 00AP-1140, 2001 Ohio App. LEXIS 1927 (May 1, 2001).
The appellants here have vacated the property; therefore, their
contentions relating to the alleged impropriety of their eviction are now moot. There
was, as mentioned, a second cause of action relating to forfeiture. However, the trial
court did not issue any judgment relating to that cause of action. Further, the trial
court did not issue a judgment relative to appellants’ counterclaim. It is well
established that “[a] court of appeals cannot consider [an] issue for the first time
without the trial court having had an opportunity to address the issue.” State v.
Peagler, 76 Ohio St.3d 496, 501, 668 N.E.2d 489 (1996).
In light of the above, this appeal is dismissed as moot.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR