Opinion
No. 108946
06-04-2020
JEFF DI FIORE, Plaintiff-Appellee, v. SHERITA Q. BOOKER, ET AL., Defendants-Appellants.
Appearances: Jeff Di Fiore, pro se. Sherita Q. Booker, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cleveland Municipal Court Division of Housing
Case No. 19-CVG-009185
Appearances:
Jeff Di Fiore, pro se. Sherita Q. Booker, pro se. ANITA LASTER MAYS, P.J.:
{¶ 1} In this appeal, assigned to the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 11.1, defendant-appellant Sherita Q. Booker ("tenant") challenges the Cleveland Municipal Housing Court's judgment for restitution of residential premises to plaintiff-appellee Jeff Di Fiore ("landlord") in a forcible entry and detainer action under R.C. Chapter 1923.
The second cause of action for back rent and damages remains pending.
{¶ 2} Tenant, co-tenant Damien Jackson ("Jackson"), and landlord appeared pro se before the trial court. Di Fiore and tenant appear pro se for purposes of this appeal. We affirm the trial court's judgment. The apposite facts follow.
Jackson is not an appellant in this case because Jackson did not sign the notice of appeal.
"[E]ach appellant, acting pro se, must be named in the text of the notice of appeal and personally sign the notice of appeal and appellate briefs. Otherwise, the signing of the notice of appeal by one non-lawyer pro se individual on behalf of another pro se individual would constitute the unauthorized practice of law." (Emphasis deleted.) Hineman v. Brown, 11th Dist. Trumbull No. 2002-T-0006, 2003-Ohio-926, ¶ 30.
{¶ 3} Tenant was a resident of the premises located in Cleveland, Ohio when purchased by landlord in 2012. According to the record, rent in the amount of $650 was due on or before the first of each month. On January 4, 2019, landlord served a three-day notice for failure to pay rent for January 2019, an outstanding balance of $200 due for August 2018 rent, and for unpaid late fees, water, and sewer charges. Landlord filed the detainer action on June 14, 2019. The record does not reflect that rent payments were made to landlord after the notice was served or a refusal by landlord to accept rent.
{¶ 4} Tenant did not file a formal answer or counterclaim prior to the restitution hearing. However, tenant did file a document entitled "Communication to the Court" on June 25, 2019, that informed the trial court of a pending action filed by tenants against landlord in Booker et al. v. Di Fiore, Cleveland M.C. No. 2018-CVG-18950 filed December 17, 2018 ("2018 Case"). Tenant attached a copy of the 2018 Case docket to the communication in addition to a 2015 shut off notice from the Cleveland Water Department. Tenant also claimed in the communication that tenant was ordered to make monthly rent deposits in the 2018 Case and complied with that order beginning in February 2019.
{¶ 5} In the 2018 Case, tenant and landlord debated responsibility for the water and sewer bills and repairs to the premises. Tenant moved for injunctive relief to prevent the water utility's threat to terminate water services. Tenant also prayed for damages due to the water issue, landlord's alleged failure to maintain the premises, and recovery of a purported $1,500 payment to repair a gas line at the premises in 2017.
{¶ 6} A preliminary injunction was granted in that case and tenant was instructed to deposit $100 per month with the trial court pending final resolution of the water and sewer claims. The trial court subsequently denied tenant's request for injunctive relief, consolidated the damages claims in the 2018 Case with those of the instant case, and ordered that the restitution hearing move forward. The case has been stayed pending this appeal.
{¶ 7} In a July 25, 2019 judgment entry, issued in the instant case, the trial court recognized that both cases "involve identical parties, albeit in opposite postures as plaintiff and defendant, arising out of the same landlord/tenant relationship, and concerning the same premises." Journal entry (July 25, 2019), p. 1. The trial court consolidated the "money claims" in the two cases, set the restitution hearing for July 19, 2019, ordered that the parties meet with the court's alternative dispute resolution specialist prior to the hearing, and declared that "the case shall immediately proceed to hearing on the first cause of action" if an agreement was not reached. Id.
{¶ 8} Mediation was unsuccessful. The arguments advanced by tenant at the July 19, 2019 restitution hearing are those set forth in the 2018 Case as well as in the instant appeal. Tenant claims the action was filed in retaliation for the 2018 Case and that they have been making monthly rent deposits in the 2018 Case beginning with the March 1, 2019 rent. Tenant requests that the rent deposited in the 2018 Case be released to tenant, damages for water service interruptions, to have the eviction removed from tenant's record, and for adequate time to vacate the premises.
Tenant filed a formal answer and counterclaim on August 19, 2019, one month after the restitution hearing and without seeking leave to file in light of the 28-day filing deadline pursuant to Civ.R. 13(A). However, tenant was empowered to advance a defense at the forcible entry and detainer hearing pursuant to R.C. 1923.061. Shelton v. Huff, 11th Dist. Trumbull No. 2012-T-0101, 2014-Ohio-1344, ¶ 23.
Tenants stated in their initial communication to the court that deposits began in February 2019. --------
{¶ 9} The August 6, 2019 magistrate's decision granted restitution of the premises for nonpayment of rent. The trial court's judgment entry of the same date confirmed the decision and set the consolidated money damages claims for pretrial on September 12, 2019.
{¶ 10} Tenant filed a motion to stay execution and objections to the magistrate's decision. On August 20, 2019, the trial court issued a judgment entry that overruled the objections, affirmed the magistrate's decision, and denied the stay.
The defendants state that they object to the magistrate's decision because 1) the court allegedly ordered them to bring photographs of the premises to the court; 2) the plaintiff allegedly said they did not have to leave the premises; 3) their attorney did not represent them, and 4) the court * * * allegedly said that the defendants could not be evicted because of "picture of the home not being attended."Journal entry (Aug. 20, 2019), p. 1-2.
{¶ 11} The trial court determined the objections lacked merit and were not supported by the record. Tenant was not represented by an attorney in the instant case and tenant's counsel in the 2018 Case withdrew on August 8, 2019. The trial court also explained that the objections were filed out of time and were not supported by a transcript or affidavit as required by the civil rules of procedure. Journal entry (Aug. 20, 2018), p. 1, citing Civ.R. 53(D)(3)(b)-(c); KME Consulting L.L.C. v. Yager, 8th Dist. Cuyahoga No. 84417, 2004-Ohio-6650, ¶ 5.
{¶ 12} In addition, we add that for purposes of appeal, "a party is barred from raising any error" "connected with the trial court's adoption of a magistrate's finding of fact or conclusion of law unless that party timely objected to the finding or conclusion as required under the rule." K.M.E. Consulting L.L.C. at ¶ 6, citing State ex rel. Booher v. Honda of Am. Mfg., Inc., 88 Ohio St.3d 52, 53-54, 723 N.E.2d 571 (2000).
{¶ 13} Landlord canceled execution of the writ of restitution while the parties attempted to settle the matter. An agreed judgment entry was drafted by the housing court mediator, but a final resolution was not forthcoming.
{¶ 14} Tenant appealed the restitution judgment on August 29, 2019. This court denied landlord's motion to dismiss the appeal for tenant's failure to file a brief that complies with App.R. 16(A) and to meet court-ordered deadlines. On March 15, 2020, landlord requested a vexatious litigator designation under Loc.App.R. 23.
{¶ 15} We first address several preliminary matters pertinent to our analysis. "Under Ohio law, pro se litigants are held to the same standard as all other litigants." Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312, 2008-Ohio-3130, ¶ 29, citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996). App.R. 16(A) governs the content and format of appellate briefs. App.R. 16(A)(7) requires that a party cite legal authority to support the party's arguments.
{¶ 16} Tenant has submitted two nonconforming briefs. We elect to address tenant's second amended brief in the interest of justice. However, we caution that "it is not the duty of an appellate court to search the record for evidence to support an appellant's argument as to any alleged error." Rodriguez v. Rodriguez, 8th Dist. Cuyahoga No. 91412, 2009-Ohio-3456, ¶ 7.
{¶ 17} We also note that tenant has attached multiple documents to the notice of appeal in addition to the trial court's decision, but we are unable to discern which, if any, of those documents were before the trial court. This court's review is "'limited to the record as it existed at the time the trial court rendered judgment.'" Clemens v. Nelson Fin. Group, Inc., 10th Dist. Franklin No. 14AP-537, 2015-Ohio-1232, ¶ 24, quoting Fifth Third Mtge. Co. v. Salahuddin, 10th Dist. Franklin No. 13AP-945, 2014-Ohio-3304, ¶ 13. Therefore, new evidence will not be entertained.
{¶ 18} As a final procedural point, no transcript has been filed in this case. The onus is on an appellant to file the transcript or such parts of the transcript that are necessary for evaluating the trial court's decision. Lakewood v. Collins, 8th Dist. Cuyahoga No. 102953, 2015-Ohio-4389, ¶ 9, citing App.R. 9(B), and State v. Peterson, 8th Dist. Cuyahoga No. 96958, 2012-Ohio-87, ¶ 7. Without the filing of a transcript or alternative record under App.R. 9(C) or (D), "[w]e presume that the trial court considered all the evidence and arguments raised." Miranda v. Saratoga Diagnostics, 2012-Ohio-2633, 972 N.E.2d 145, ¶ 26 (8th Dist.).
{¶ 19} Therefore, "we accept the factual findings of the trial court as true and limit our review to the legal conclusions of the trial court." Bailey v. Bailey, 8th Dist. Cuyahoga No. 981173, 2012-Ohio-5073, ¶ 8, citing Snider v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-965, 2012-Ohio-1665, ¶ 8.
{¶ 20} The August 6, 2019 magistrate's decision, affirmed by the trial court, contains a summary of the 2018 Case.
The parties are currently before this Court in a companion matter, Booker, et al. v. Difiore, 18 CVG 18950. In that matter, Tenants sought injunctive relief regarding a pending water shut off. The Court initially granted the request. But, ultimately sustained Landlord's objections, vacated the injunction, and set the current matter for trial on the claim for possession.Magistrate's decision (Aug. 6, 2019), p. 1.
The Tenants' claims for money damages based upon conditions and Landlord's counterclaim for water/sewer charges and property damages remain pending in the 2018 case. The money damage claims in both matters have been consolidated for hearing at a future date yet to be set.
On the date of trial, the parties met briefly with [a housing court mediator] to explore possible settlement. However, the parties were unable to reach terms. Therefore, the matter proceeded to trial on Plaintiffs claim for possession based upon non-payment of rent.
{¶ 21} As part of its findings of fact, the trial court acknowledged: (1) service has been completed; (2) the rental premises are properly registered with the city of Cleveland; (3) the lease provides for a monthly rent of $650; (4) proper service of the three-day notice to leave premises; and (5) the cited grounds in the notice are for nonpayment of rent, late fees, and water/sewer charges.
{¶ 22} The trial court cited additional facts:
{¶ 9.} Tenants last paid rent directly to Landlord for December 2018, leaving a balance due on the account from a partial payment in August 2018.
* * *
{¶12.} After service of the notice. Tenants did not pay rent again directly to Landlord.
{¶13.} Instead, on or about March 1, 2019, Tenants began depositing their rent under case number 18CVG18950. They continued to deposit $650 per month under the 2018 case number through July 2019.Magistrate's decision (Aug. 6, 2019), p. 2.
{¶14.} Tenants testified that they believed that the magistrate and/or the settlement conference manager directed them to deposit their rent under 2018CVG18950.
{¶15.} There is a Court order directing Tenants to deposit $100 per month to secure the payment of the water and sewer charges in the 2018 case. See copy of the docket from 2018CVG18950 as attached to Tenant's June 25, 2019 Communication as filed in this present matter.
{¶ 23} The trial court granted restitution based on nonpayment of rent. "[T]here is no order in either matter directing tenants to deposit their rent or the sum of $650." Id. at p. 3. "While conditions may rise as a defense to paying rent, based upon the testimony presented, the Court was not persuaded that the conditions identified were of such a nature as to be a defense." Id. The damages portion of the case was set for pretrial conference along with the "consolidated matter" in September 2019. Id. On August 29, 2019, appellants filed a notice of appeal.
{¶ 24} R.C. Chapter 1923 governs forcible entry and detainer actions. A forcible entry and detainer action, particularly where based on nonpayment of rent, typically involves two causes of action. The first cause of action, also known as an eviction, seeks restitution to the landlord of possession of the premises. The second cause of action is usually for back rent and damages. See Skerl v. Sheet Metal Prods. Co., 8th Dist. Cuyahoga No. 43743, 1982 Ohio App. LEXIS 11386, at *1-2 (July 1, 1982).
{¶ 25} A forcible entry and detainer action "is a civil remedy provided by statute and intended to affect only the question of the present right to possess real property." Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 131, 423 N.E.2d 177 (1981). "'The purpose of the forcible entry and detainer statutes is to provide a summary, extraordinary, and speedy method for the recovery of possession of real estate in the cases especially enumerated by statute.'" Id., quoting 24 Ohio Jurisprudence 2d 455, Forcible Entry and Detainer, Section 2.
{¶ 26} The trial court's conclusions of law provide that tenants were properly served, failed to pay the full amount of rent for August 2018, and failed to pay rent for January and February 2019. The trial court rejected tenant's argument that tenant lawfully deposited rent with the court. "Under Ohio law, a tenant must be current in rent in order to begin rent depositing or they must seek a court order permitting them to deposit rent" per R.C. 5321.07. Magistrate's decision (Aug. 6, 2019), p. 2. Tenant began to deposit rent in March 2019 in the 2018 Case. As the trial court recognized, "a court speaks only through its written entries as docketed." Id. at p. 3, citing Infinite Sec. Solutions, L.L.C. v. Karam Properties II, 143 Ohio St.3d 346, 2015-Ohio-1101, 37 N.E.3d 1211, ¶ 29. "There is no order in either matter directing Tenants to deposit their rent or the sum of $650 with the Court." Id.
{¶ 27} The trial court also concluded that tenant failed to prevent evidence that tenant "paid $1,500 to repair a gas line to the Premises in 2017" or that a repair was made. Id. In addition,
[t]enant also asserted that Landlord had agreed, and then failed to make, repairs including a problem with water in the basement.Id.
While conditions may rise to a defense to paying rent, based upon the testimony presented, the Court was not persuaded that the conditions identified were of such a nature to be a defense.
{¶ 28} Tenant complains that the eviction is retaliatory under R.C. 5321.02(A) that prevents a landlord from evicting or taking other detrimental actions against a tenant for exercising statutory rights such as requesting repairs or making complaints to governmental agencies about housing or safety violations. However, a tenant in default of the rent obligation is not protected.
{¶ 29} R.C. 5321.03 serves as an exception to the R.C. 5321.02 provisions.
[R]etaliation as a defense in an eviction proceeding will be of no avail to a tenant who is in default in the payment of his rent. R.C. 5321.03(A)(1). An action in forcible entry and detainer will lie against such a tenant notwithstanding R.C. 5321.02, which is specifically subject to a landlord's rights under R.C. 5321.03.Smith v. Wright, 65 Ohio App.2d 101, 106, 416 N.E.2d 655 (8th Dist.1979).
{¶ 30} Accepting the trial court's findings of fact as true and based on this court's analysis of the applicable law, we do not find as a matter of law that the trial court erred. We affirm the trial court's judgment.
{¶ 31} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court, Division of Housing, 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. /s/_________
ANITA LASTER MAYS, PRESIDING JUDGE LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR
Bank of New York v. Jackson, 8th Dist. Cuyahoga No. 99874, 2013-Ohio-5133, ¶ 9, fn. 1.