[Cite as Gara v. Gara,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

GERALD GARA : : Plaintiff-Appellee : C.A. CASE NO. 26671 : v. : T.C. NO. 15CVG212 : SHEILA S. GARA, et al. : (Civil appeal from : Municipal Court) Defendant-Appellant : :

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OPINION

Rendered on the ___23rd___ day of ____October____, 2015.

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RYAN L. BRUNK, Atty, Reg. No. 0079237, 125 W. Main Street, New Lebanon, Ohio 45345 Attorney for Plaintiff-Appellee

UPENDRA K. PATEL, Atty. Reg. No. 0065809, 130 W. Second Street, Suite 700 West, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Sheila S. Gara,

filed April 20, 2015. In this forcible entry and detainer action, Gara appeals from the April

14, 2015 Decision & Order of the Municipal Court of Montgomery County, Western

Division, that denied her “Motion to Vacate Entry of Restitution with Memorandum in -2-

Support & Supporting Affidavit,” and her “Motion to Stay Execution of Writ of Execution,”

both of which were filed on April 3, 2015, as well as her “Second Motion to Vacate Entry

of Restitution with Memorandum in Support,” which was filed on April 8, 2015. The

court’s entry provides that Sheila’s eviction from the property at issue “is to proceed

forthwith.” We note that the Appellee herein, Gerald Gara, who is Sheila’s son, did not

file a responsive brief.

{¶ 2} Gerald filed his “Complaint in Forcible Entry and Detainer,” on March 13,

2015, against Sheila and “all other occupants” of 1641 West Main Street, Lebanon. The

complaint provides that Gerald is the owner of the West Main Street premises, and that

Sheila was a tenant there “pursuant to an oral agreement.” According to the complaint,

Sheila “is in default of her oral agreement because [she] has not paid rent and is a

holdover tenant.” The complaint alleges that on January 29, 2015, Gerald served Sheila

“with a 30 day notice to leave the premises pursuant to O.R.C. § 5321.17 and a 3-day

notice to leave the premises pursuant to O.R.C. § 1923.04.” According to the complaint,

Sheila “has, since the 5th day of March, 2015, unlawfully and forcibly detained from the

Plaintiff possession of the above-described premises.” Gerald sought restitution of the

West Main Street premises.

{¶ 3} Attached to the complaint is correspondence, dated January 30, 2015, from

counsel for Gerald to Sheila, which provides that her month to month lease with Gerald

is being terminated, and that she has until March 1, 2015 to vacate the premises and

remove her belongings. The correspondence indicates the following address for Sheila:

101 Mills Place, New Lebanon, and provides: “You should note that a three day notice

to vacate is being served with this letter to terminate your tenancy. Therefore, if you -3-

have not vacated the premises by March 5, 2015 Gerald Gara will be forced to exercise

their (sic) legal rights and initiate a Forcible Entry and Detainer Action in the Montgomery

County Municipal Court.” Also attached to the complaint is a “NOTICE TO LEAVE THE

PREMISES.” The Notice is signed by counsel for Gerald and provides: “You will please

notice that I want you on or before March 5, 2015 to leave the premises that you occupy,

and which you have rented of Gerald Gara situated and described as follows: 1641 West

Main Street in New Lebanon, County of Montgomery and State of Ohio.” The Notice

provides: “YOU ARE BEING ASKED TO LEAVE THE PREMISES IF YOU DO NOT

LEAVE, AN EVICTION ACTION MAY BE INITIATED AGAINST YOU. IF YOU ARE IN

DOUBT REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS AS A TENANT, IT

IS RECOMMENDED THAT YOU SEEK LEGAL ASSISTANCE.” The Notice indicates

“Holdover tenant” as grounds therefore.

{¶ 4} On March 16, 2015, a Summons was issued indicating that a hearing on the

complaint would be held on March 30, 2015 at noon. The Summons reflects the West

Main Street address for Sheila. The ordinary mail receipt reflects that the summons was

mailed on March 20, 2015, and the receipt was filed on March 23, 2015. The Return of

Summons indicates that the “Serving Officer” made “residential service” on March 18,

2015 at the West Main Street address.

{¶ 5} On April 1, 2015, the trial court issued an Entry that provides:

This day this cause came to be heard on the First Cause of Action

and it appearing to the Court that Defendants herein were duly and legally

served with process; that Defendants are in default for answer or

appearance * * *; the Court finds that the facts are set forth in Plaintiff’s -4-

Complaint are true (sic) and that Plaintiff should have restitution of said

premises therein described.

WHEREFORE, IT IS ORDERED AND ADJUDGED that Plaintiff

should have restitution of said premises and recover the costs of this Action.

***

TO THE CLERK: Please issue a writ of restitution in the above

captioned matter.

A “Writ of Restitution Execution” was also issued on April 1, 2015.

{¶ 6} In her first motion of April 3, 2015, Sheila asserted that the court lacked

personal jurisdiction over her when it issued its Entry of April 1, 2015. Sheila asserted

as follows:

* * * Mrs. Gara began residing at the rental premises located at 1641

West Main Street in 1985 with her husband and Plaintiff’s father, Gerald J.

Gara, Sr. In December of 1997 after the death of her husband and

Plaintiff’s father, Defendant quitclaimed her interest in the property at 1641

West Main Street to her sons, the Defendant, and his brother Jody Gara

with the understanding that the Defendant could reside at the property until

she remarried or died, whichever came first.

In August of 2014, Defendant was admitted to the New Lebanon

Center for Genesis HealthCare, located at 101 Mills Place and left twenty

nine years of personal property at the rental premises. She intended on

returning to the rental premises. On January 30, 2015, Plaintiff served

Defendant with a Notice of Termination of her tenancy (Ex.A), pursuant to -5-

R.C. 5321.17, along with a Notice to Vacate (Ex.B) pursuant to R.C.

1923.04. These documents were served to Plaintiff at 101 Mills Place,

which is the address of the nursing home that Defendant resided in at the

time of the service of the notices and currently resides in.

Plaintiff filed a Complaint for Forcible Entry and Detainer against

Defendant on March 13, 2015 and a hearing on restitution was set for March

30, 2015 at 12:00 P.M. Even though Plaintiff knew that Defendant was not

currently residing at the rental premises at the time of the filing of the

Forcible Entry and Detainer, plaintiff instructed the Clerk of courts to serve

Defendant at the rental premises by regular mail and by bailiff posting.

There was no request that Defendant be served at 101 Mills Place, the

address where the notices were sent and where Defendant is currently

residing.

Since Defendant had requested forwarding of her mail from the rental

premises, she received her copy of the summons and complaint on March

30, 2015 after the restitution hearing. This Court granted restitution at the

hearing and subsequently on April 1, 2015, this Court issued the Entry of

Restitution. On that same date, a Writ of Restitution was issued.

Attached to the motion is Sheila’s affidavit containing averments consistent with her

motion.

{¶ 7} In her April 3, 2015 motion to stay execution, Sheila requested a stay “for

the reason that defendant’s [April 3, 2015 motion] has just been filed with this Court and

is currently under consideration. The Writ of Restitution was filed on April 1, 2015.” On -6-

April 6, 2015, Gerald opposed Sheila’s motion to vacate. Gerald asserted in part as

follows:

* * * Defendant has never paid rent nor was there ever a rental

agreement. Plaintiff operates a garage (mechanic business) on the same

property as the rental residence. Defendant was placed in Genesis

Healthcare Nursing Home last summer due to a mental illness and inability

to take care of herself. That said, it could be argued that Defendant

abandoned her personal property. Defendant is on Medicaid, has no

disposable income, and has no resources to store her property.

***

Contrary to Defense counsel’s assertion; Plaintiff’s attorney did not

instruct the court as to the method of service. The court issued service

pursuant to O.R.C. § 1923.06 as is reflected in its records. Defendant was

served at [the] address she indicated she was returning to and which is the

subject of this case. Defendant admits that she received service of

summons via the U.S. regular mail service. It is not incumbent on the

Plaintiff to ensure the timeliness of the U.S. Postal Service and/or the

nursing home’s mail delivery system. Since Defendant did receive service

of summons it cannot be argued that it was not made in a manner

reasonably calculated to apprise the interested parties.

Therefore, this Court should ignore Defendant’s motions as

Defendant has abandoned the personal property or in the alternative that

they are not supported by the law and facts and were simply filed with the -7-

Court to delay what has been a very generously prosecuted case by the

Plaintiff.

{¶ 8} In her second motion, Sheila asserted as follows:

Under R.C. 5321.17(B), a landlord may terminate a month-to-month

tenancy by providing notice of termination to the tenant at least thirty (30)

days prior to the periodic rental date. When proper notice is given, the

tenant becomes a holdover tenant after the thirty day period expires and the

tenant is subject to eviction. R.C. 1923.02(A)(1) provides that an eviction

proceeding may be initiated against tenants holding over their terms.

Proper service of an R.C. 1923.04(A) notice to leave the premises is a

condition precedent to the commencement of an eviction action. * * *

In this case, the Plaintiff asserts that Ms. Gara is a month-to-month

tenant. Therefore in order to terminate Ms. Gara’s tenancy, the Plaintiff, in

this case, was required to provide notice of termination to Ms. Gara thirty

days prior to the next periodic rental date. Based on the letter dated

January 30, 2015 from Plaintiff’s attorney, Ryan Brunk, it appears that the

tenancy was being terminated. Assuming that the letter was served

properly and the tenancy was properly terminated, the earliest date Ms.

Gara would become a holdover tenant is February 28, 2015, which is the

30th day from January 30, [2]015.

Prior to March 1, 2015, Ms. Gara was not a holdover tenant and thus

not subject to a Notice to Leave the Premises under R.C. 1923.04. In this

case, the Plaintiff’s attorney, Ryan Brunk, served the R.C. 1923.04 notices -8-

on or about January 29, 2015, which was prior to [the] R.C. 5321.17 notice

and prior to Ms. Gara purportedly becoming a holdover tenant.

Consequently, since the tenancy was not properly terminated, Ms. Gara did

not become a holdover tenant and thus the Plaintiff had no right to serve

the R.C. 1923.04(A) notice to leave. * * *

A notice to leave pursuant to R.C. 1923.04(A) could only have been

served in this case after the tenancy was terminated. Because the tenancy

in this case had not been terminated pursuant to R.C. 5321.17(B), the notice

to leave served on January 29, 2015 was premature and does not comply

with R.C. Chapter 1923. Therefore, the Plaintiff did not properly

commence this eviction action and the court lacked subject matter

jurisdiction to hear it.

{¶ 9} On April 8, 2015, Sheila filed a “Reply Memorandum to Plaintiff’s Contra

Memorandum to Defendant’s Motion for Stay and Motion to Vacate Entry,” asserting in

part that since she “was not properly served, this Court never obtained jurisdiction over

Ms. Gara and the judgment entered against her is void ab initio.”

{¶ 10} On April 13, 2015, Gerald filed “Plaintiff’s Memorandum Contra to

Defendant’s Second Motion for Stay and Motion to Vacate Entry.”

{¶ 11} In its April 14, 2015 “Decision & Order,” the court concluded that Sheila was

“properly served.” A “Writ of Restitution Execution” dated April 14, 2015 contains the

following language: “This writ of restitution having issued this date, the Defendant is

ordered to vacate the premises before 4-23-15. Should Defendant not vacate, all

Furniture/Property found upon the premises shall be considered abandoned and -9-

disposed of by said Plaintiff.” The Return of Service portion, dated April 15, 2015,

contains the following handwritten language in part: “no answer, taped to door also let

son Gerald know I posted notice,” and “4-23-15 locks changed.”

{¶ 12} On April 20, 2015, Sheila filed a “Motion to Stay Execution Pending Appeal

without Bond,” along with an Affidavit, and on April 29, 2015, the court issued a Decision

& Order that provides: “The court finds that Defendant’s Motion to Stay Execution

pending Appeal without Bond is overruled in part and granted in part. The Motion to Stay

is denied. Defendant’s request to Appeal without Bond is granted.”

{¶ 13} Sheila asserts two assignments of error herein which we will consider

together. They are as follows:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

APPELLANT’S MOTION TO VACATE ITS ENTRY BECAUSE THE TRIAL

COURT LACKED PERSONAL JURISDICTION OVER THE APPELLANT

DUE TO INEFFECTIVE SERVICE OF PROCESS.

And,

THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

APPELLANT’S MOTION TO VACATE ITS ENTRY BECAUSE THE TRIAL

COURT LACKED SUBJECT MATTER JURISDICTION SINCE THE

NOTICE TO VACATE WAS SERVED PREMATURELY AND NOT IN

COMPLIANCE WITH R.C. CHAPTER 1923.

{¶ 14} According to Sheila, the method and place of service herein was not

reasonably calculated to apprise her of the action and afford her an opportunity to answer

and appear, “since both methods were at the rental premises and not at the place [Gerald] -10-

knew [Sheila] was temporarily residing at time of service of process. Therefore, once

[Sheila] had filed a Motion to Vacate together with an uncontradicted, sworn statement

that she never received service of a complaint, the trial court should have * * * vacated

the judgment against her.”

{¶ 15} Shelia further asserts as follows:

In this case, [Gerald] attempts to create a holdover tenancy by

terminating the month-to-month tenancy with a notice of termination on

January 30, 2015. * * * Assuming that the letter was served properly and

the tenancy was properly terminated, the earliest date [Sheila] would

become a holdover tenant is February 28, 2015, which is the 30th day from

January 20, [2]015. Prior to March 1, 2015, [Sheila] was not a holdover

tenant and thus not subject to a Notice to Leave the Premises under R.C.

1923.04.

{¶ 16} As this Court has previously noted:

The Ohio Supreme Court has stated that actions in forcible entry and

detainer determine the right to immediate possession of the property “and

nothing else.” Seventh Urban, Inc. v. University Circle,

,

(1981). A forcible entry and detainer action is intended

to serve as an expedited mechanism by which an aggrieved landlord may

recover possession of real property. Miele v. Ribovich,

, 2000–Ohio–193,

. Once a landlord has been restored

to the property, the forcible entry and detainer action becomes moot

because, having been restored to the premises, there is no further relief that -11-

can be granted. RLJ Management Co., Inc. v. Larry Baldwin, 3d Dist.

Crawford No. 3–01–16, 2001–Ohio–2237.

The only method by which a defendant appealing a judgment of

forcible entry and detainer may prevent the cause from becoming moot is

stated in R.C.1923.141. Long v. MacDonald, 3d Dist. Crawford No. 3–02–

10, 2002–Ohio–4693. The statute provides a means by which the defendant

may maintain, or even recover, possession of the disputed premises during

the course of his appeal by filing a timely notice of appeal, seeking a stay

of execution, and posting a supersedeas bond. Colonial American Dev. Co.

v. Griffith,

,

(1990). If the defendant fails

to avail himself of this remedy, all issues relating to the action are rendered

moot by his eviction from the premises. Long, supra. * * *.

Cherry v. Morgan, 2d Dist. Clark Nos. 2012 CA 11, 2012 CA 21,

.

{¶ 17} While Sheila filed a motion for stay of execution in the trial court, her motion

was overruled, and she failed to obtain a stay with this Court. Accordingly, the instant

appeal is moot. Since Sheila’s appeal is moot, we do not reach the merits of her

assigned errors; therefore, Sheila’s appeal is dismissed2.

1 “* * *If an appeal from the judgment of restitution is filed and if, following the filing of the appeal, a stay of execution is obtained and any required bond is filed with the court of common pleas, municipal court, or county court, the judge of that court immediately shall issue an order to the sheriff, police officer, constable, or bailiff commanding the delay of all further proceedings upon the execution. * * *.” R.C. 1923.14(A). 2 At oral argument, Sheila directed our attention to Gold Key Realty v. Collins, 2d Dist. Greene No. 2013 CA 57,

; Agler Green Cooperative v. Rivers, 10th Dist. Franklin No. 87AP-915,

(Dec. 23, 1987); and Huber Investment Corp. v. Chapman, 2d Dist. Montgomery No. CA14593,

(March 22, 1995). Gold Key Realty involved a subsidized housing tenant, and this Court noted in part that an -12-

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WELBAUM, J., concurs.

FROELICH, P.J., concurring:

I concur that this appeal is moot. 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,

,

(1998), or where there remains a debatable

constitutional issue to resolve or where the matter is one of great public or general

interest. Franchise Developers, Inc. v. Cincinnati,

,

(1987).

However, the unique facts before us, the lack of request for a bond from the

appellate court, and the at-this-point hypothetical nature of collateral consequences

removes this case from any exceptions to mootness.

..........

exception to the mootness doctrine exists, namely that the tenant may “suffer collateral consequences from her eviction, i.e., that her eligibility for project-based assisted housing will be affected.” Id., ¶ 24. This Court further noted that “tenants of federally-subsidized housing have a constitutionally-protected interest in continued occupancy of their housing.” Id., ¶ 25. Sheila is not a subsidized housing tenant, and we cannot conclude that collateral consequences to her eviction exist to except her appeal from the mootness doctrine. Rivers is also a subsidized housing case of no application herein. In Chapman, this Court noted that while “a voluntary vacation of the premises renders a forcible entry and detainer action generally moot, * * * Mr. Chapman countered that [the tenants] had left the premises only in response to an official court ordered eviction notice,” and this Court “found the appeal therefore not moot and * * * overruled the motion to dismiss.” Id., * 1. We note that this Court in Chapman further cited Crossings Dev. Ltd. V. H.O.T., Inc.,

,

(9th Dist. 1994), which held conversely “that it is not the voluntary nature of the departure of a lessee from the premises that renders an appeal from a forcible entry and detainer action moot, but, rather, simply the fact that the lessor has possession of the premises, regardless of the manner by which possession was obtained.” Chapman, fn. 2. This Court in Chapman did not refer to R.C. 1923.14, upon which we rely herein, consistent with Cherry v. Morgan, to conclude that Sheila’s appeal is moot. -13-

Copies mailed to:

Ryan L. Brunk Upendra K. Patel Hon. Adele M. Riley