[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
