NVDA Properties, L.L.C. v. Lambert

[Cite as NVDA Properties, L.L.C. v. Lambert, 2013-Ohio-5222.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: NVDA PROPERTIES, LLC : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 13CA85 JOSEPH LAMBERT : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Shelby Municipal Court, Case No. CVG 13-204

JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: November 22, 2013 APPEARANCES: For Plaintiff-Appellant For Defendant-Appellee

SHEREE STUDER GREGORY S. REICHENBACH BENHAM & REAM Box 256 150 Mansfield Avenue Bluffton, OH 45817 Shelby, OH 44875

[Cite as NVDA Properties, L.L.C. v. Lambert, 2013-Ohio-5222.] Gwin, P.J.

{¶1} Defendant-appellant Joseph Lambert appeals the September 6, 2013 Judgment Entry of the Shelby Municipal Court in favor of Plaintiff-appellee NVDA Properties, LLC.

Facts and Procedural History

{¶2} This appeal arises from a forcible entry and detainer action initiated by Appellee in the Shelby Municipal Court.

{¶3} On September 6, 2013, following a hearing, the judge issued a Judgment Entry granting Appellee a writ of restitution. A writ of restitution was issued on September 6, 2013. On September 16, 2013, appellant filed a Motion to Stay Execution of Judgment. On September 18, 2013, an Order and Judgment Entry was filed with the handwritten notion, “on writ of restitution only not signed 9-18-13.” No judge’s signature appears on the document. Appellant concedes in his Brief that he has vacated the premises. (Appellant’s Brief at n.1).

Assignments of Error

{¶4} Appellant now appeals, assigning as error:

{¶5} “I. THE TRIAL COURT'S JUDGMENT ON THE FORCIBLE ENTRY AND

DETAINER CLAIM MUST BE VACATED, BECAUSE DEFENDANT-APPELLANT WAS

PREVENTED FROM CROSS-EXAMINING PLAINTIFF-APPELLEE'S WITNESS, AND

FROM TESTIFYING HIMSELF, REGARDING THE TERMS OF THE RENTAL

AGREEMENT.

{¶6} “II. THE TRIAL COURT'S JUDGMENT ON THE FORCIBLE ENTRY AND

DETAINER CLAIM MUST BE VACATED BECAUSE THERE IS INSUFFICIENT

Richland County, Case No. 13CA85 3

EVIDENCE IN THE HEARING RECORD TO SUPPORT ENTERING JUDGMENT IN

FAVOR OF NVDA ON THE FORCIBLE ENTRY AND DETAINER.”

{¶7} Since appellant vacated the premises, the first issue that must be addressed by this Court is whether the appeal is moot, and if the appeal is moot, whether it should be decided on the merits by this court.

{¶8} Generally, vacation of the residence at issue renders the issues in a forcible entry and detainer action moot, thereby depriving the Court of jurisdiction to proceed. The Ohio Supreme Court has stated that forcible entry and detainer actions decide the right to immediate possession of property and “nothing else.” Seventh Urban, Inc. v. Univ. Circle Property Dev., Inc., 67 Ohio St.2d 19, 25, n. 11, 423 N.E.2d 1070(1981). “Once a landlord has been restored to property, the forcible entry and detainer action becomes moot because, having been restored to the premises, there is no further relief that may be granted to the landlord.” United States Secy. of Hous. and Urban Dev. v. Chancellor, 8th Dist. Cuyahoga No. 73970, 1999 WL 126170(Feb 25, 1999). See Crossings Dev. Ltd. Partnership v. H.O.T., Inc., 96 Ohio App.3d 475, 479-80, 645 N.E. 2d 159(9th Dist. 1994); Reck v. Whalen, 114 Ohio App.3d 16, 19, 682 N.E.2d 721(2nd Dist. 1996). Therefore, a tenant's vacation of the premises renders all the issues in regards to a forcible entry and detainer action moot. United States Secy. of Hous. and Urban Dev., supra. See Crossings Dev. Ltd. Partnership, 96 Ohio App.3d at 480, 645 N.E. 2d 159(9th Dist. 1994); Alex-Bell Oxford Ltd. Partnership v. Woods, 2nd Dist. Montgomery No. 16038, 1998 WL 289028(June 5, 1998). Accordingly, we find the issue in this case to be moot because appellee’s immediate possession is no longer an Richland County, Case No. 13CA85 4 issue. Showe Management Corp. v. Moore, 5th Dist. Licking No. 08CA10, 2009-Ohio-2312, ¶36; Kajganic v. Miller, 5th Dist. Stark No. 2007CA00282, 2008-Ohio-4530, ¶11.

{¶9} In the instant matter, Appellee was successful in its action, obtained a writ of restitution, and appellant has left the premises. Accordingly, any error in the trial court proceedings relative to Appellee's forcible entry and detainer action is rendered moot. Such is true because Appellee is now in possession of the property and any decision rendered by this Court would have no effect on the forcible entry and detainer action. Id. (“[The Revised Code] does not provide jurisdiction to place a defendant who is out of possession into possession.”) Miller, 5th Dist. Stark No. 2007CA00282, 2008-Ohio-4530, ¶11. Appellant's assigned errors are therefore moot and overruled.

{¶10} Accordingly, we dismiss Lambert's appeal as moot.

{¶11} APPEAL DISMISSED. By Gwin, P.J., Hoffman, J., and Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE

WSG: clw 1112 [Cite as NVDA Properties, L.L.C. v. Lambert, 2013-Ohio-5222.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

NVDA PROPERTIES, LLC : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JOSEPH LAMBERT : : : Defendant-Appellant : CASE NO. 13CA85

For the reasons stated in our accompanying Memorandum-Opinion, the appeal is dismissed. Costs to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE