Summary
holding automatic stay provision of Civ.R. 53 did not apply in forcible entry and detainer actions
Summary of this case from T&R Props., Inc. v. WimberlyOpinion
No. 88-1930
Submitted October 18, 1989 —
Decided January 24, 1990.
Forcible entry and detainer — Civ. R. 53(E)(7) — Automatic stay provision inapplicable.
O.Jur 3d Ejectment § 116. O.Jur 3d Reference § 44.
The automatic stay provision of Civ. R. 53(E)(7) is inapplicable to forcible entry and detainer actions. ( Cuyahoga Metro. Housing Auth. v. Jackson, 67 Ohio St.2d 129, 21 O.O. 3d 81, 423 N.E.2d 177, approved and followed.)
CERTIFIED by the Court of Appeals for Montgomery County, No. CA 10879.
In January 1988, plaintiff-appellee, Colonial American Development Company ("Colonial American"), sent defendant-appellant, Daniel Griffith, a three-day notice to vacate his apartment for alleged violation of his lease. On January 19, Colonial American filed a complaint and sent Griffith a summons, initiating an action in forcible entry and detainer pursuant to R.C. 1923.14. When Griffith did not attend the appearance set for February 5, 1988 to answer the complaint, a referee recommended and the judge filed an entry approving a default judgment for Colonial American.
On February 16, Griffith filed an answer. Three days later, Griffith filed objections to the referee's report and recommendation, which were overruled on March 4, 1988. On March 14, more than thirty days after the February 5 default judgment was entered, Griffith moved for stay of execution of the judgment and for a supersedeas bond, and filed a notice of appeal to the Court of Appeals for Montgomery County. The motion was granted.
On October 5, 1988, the court of appeals dismissed the appeal as untimely filed. The court of appeals held, based on Civ. R. 1(C) and our decision in Cuyahoga Metro. Housing Auth. v. Jackson (1981), 67 Ohio St.2d 129, 21 O.O. 3d 81, 423 N.E.2d 177, that Civ. R. 53(E)(7) did not extend the time in which Griffith could file his appeal, because the automatic stay provision of Civ. R. 53(E)(7) does not apply to forcible entry and detainer actions. The court, finding its decision to be in conflict with the decision of the Court of Appeals for Franklin County in Crossroads Somerset Ltd. v. Newland (1987), 40 Ohio App.3d 20, 531 N.E.2d 327, certified the record of the case to this court for review and final determination.
R. Daniel Sykes, for appellee.
Legal Aid Society of Dayton, William L. Archer and Dorothy M. Kantosky, for appellant.
Bruce H. Kiracofe, urging reversal for amicus curiae Columbus Housing Law Project, Inc.
Appellant Daniel Griffith asserts that the court of appeals erred in holding that Civ. R. 53(E)(7) is inapplicable to forcible entry and detainer actions. Had the automatic stay required by Civ. R. 53(E)(7) been applied in this case, his appeal would not have been dismissed for being untimely filed. This case is controlled by Cuyahoga Metro. Housing Auth. v. Jackson (1981), 67 Ohio St.2d 129, 21 O.O. 3d 81, 423 N.E.2d 177, and, consistent with that decision, we affirm the court of appeals.
Civ. R. 53(E)(7) was amended in 1985. The pre-1985 version at issue in Jackson, supra, delayed entry of a judgment for fourteen days following the filing of a referee's report. As amended, Civ. R. 53(E)(7) provides for an automatic stay not of the entry but of the execution of a judgment until the court deals with objections to a referee's report. Appellant contends that the rule as amended does not impede the summary nature of a forcible entry and detainer action by delaying the proceeding. In a case on similar facts, the Court of Appeals for Franklin County reached the same conclusion, finding "* * * that the element of delay which formed the basis for the Jackson decision has been eliminated. * * *" Crossroads Somerset Ltd. v. Newland (1987), 40 Ohio App.3d 20, 25, 531 N.E.2d 327, 332. We disagree and hold that the automatic stay provision of Civ. R. 53(E)(7) remains inapplicable to forcible entry and detainer actions.
Civ. R. 53(E)(7) provides:
"Permanent and interim orders. The court may enter judgment on the basis of findings of fact contained in the referee's report without waiting for timely objections by the parties, but the filing of timely written objections to the referee's report shall operate as an automatic stay of execution of that judgment until the court disposes of those objections and thereby vacates, modifies or adheres to the judgment previously entered. The court may make an interim order on the basis of findings of facts contained in the referee's report without waiting for or ruling on timely objections by the parties where immediate relief is justified and such an interim order shall not be subject to the automatic stay caused by the filing of timely objections to the report, but no interim order shall extend more than twenty-eight (28) days from the date of its entry, unless within that time, for good cause shown, the court extends it for one like period."
Civ. R. 1(C) provides in part that the Ohio Rules of Civil Procedure, "`* * * to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * (3) in forcible entry and detainer * * *." Our determination in Jackson that Civ. R. 53(E) was by its nature clearly inapplicable to forcible entry and detainer actions was based on the potential for delay of what is intended to be a summary proceeding. Jackson, supra, at 131-132, 21 O.O. 3d at 83, 423 N.E.2d at 179. We endorsed that principle earlier this year in State, ex rel. GMS Management Co., v. Callahan (1989), 45 Ohio St.3d 51, 543 N.E.2d 483, holding Civ. R. 52 inapplicable in forcible entry and detainer actions because of the need to avoid delay. Id. at 55, 543 N.E.2d at 487.
The amended version of Civ. R. 53(E)(7) does not eliminate but merely postpones the potential for delay to the period between entry and execution of a judgment. Judge Brogan recognized this problem in his opinion below: "If the rule applies to forcible [entry and] detainer actions, the defendant need only wait until the bailiff is about to levy execution and then file an objection to the court's judgment. This objection will act to stay enforcement of the judgment without the necessity of the defendant posting security to protect the plaintiff's interests. * * *"
If judgment is entered against a defendant in a forcible entry and detainer action, he or she may delay execution and thereby eviction by filing a timely appeal pursuant to App. R. 4 and by posting a supersedeas bond. This procedure has the advantage of protecting the interests of both parties to the action.
The judgment of the court of appeals is therefore affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, H. BROWN and RESNICK, JJ., concur.