[Cite as Millennia Hous. Mgt., Ltd. v. Withrow, 2013-Ohio-278.]


                         IN THE COURT OF APPEALS OF OHIO
                            FOURTH APPELLATE DISTRICT
                                  ATHENS COUNTY

MILLENNIA HOUSING
MANAGEMENT, LTD.,               :
                                :
     Plaintiff-Appellee,        :     Case No. 12CA2
                                :
     vs.                        :
                                :
MISTY WITHROW,                  : DECISION AND JUDGMENT ENTRY
                                :
     Defendant-Appellant.       :    RELEASED 01/28/13
                                :
________________________________________________________________
                          APPEARANCES:

Anne Sessums Rubin, SOUTHEASTERN OHIO LEGAL SERVICES, Athens,
Ohio, for Appellant.

Greggory B. Elzey, Javitch, Block & Rathbone, LLC, Columbus, Ohio, for
Appellee.
________________________________________________________________
Harsha, J.

        {¶1}    Misty Withrow appeals the trial court’s judgment that terminated her

occupancy of a federally-subsidized lease issued pursuant to what is commonly

known as “Section 8.” Withrow raises three assignments of error, but because

Withrow did not request a stay of the trial court’s judgment, we find that her

appeal is moot. Accordingly, we dismiss Withrow’s appeal.

                                            I. FACTS

        {¶2}    Millennia terminated Withrow’s federally-subsidized lease due to an

alleged violation of the lease agreement and filed a forcible entry and detainer

complaint against Withrow that sought restitution of the premises. Millennia

alleged that Withrow defaulted upon the terms of tenancy by having an
Athens App. No. 12CA2                                                              2


unauthorized person inside the premises. The trial court subsequently restored

Millennia to the premises and issued a writ of restitution to remove Withrow from

the premises. Withrow did not request a stay of the trial court’s judgment.

                         II. ASSIGNMENTS OF ERROR

      {¶3}   Withrow raises three assignments of error:

      First Assignment of Error:

      “The trial court erred in denying the Appellant tenant’s motion to
      dismiss when the Appellee landlord’s notices to her lacked
      sufficient specificity to enable her to prepare a defense.”

      Second Assignment of Error:

      “The trial court erred in denying the Appellant tenant an opportunity
      to obtain pretrial discovery from the Appellee landlord.”

      Third Assignment of Error:

      “The trial court’s decision granting restitution to the Appellee
      landlord is manifestly against the weight of the evidence and
      contrary to law.”

                                   III. ANALYSIS

      {¶4}   Millennia argues that this appeal is moot because Withrow has

been removed from the premises and it has been restored to the premises.

Withrow asserts that the appeal is not moot because, as a tenant who receives

federal housing assistance, she has a continuing interest in the outcome of the

appeal. Withrow contends that she has a continuing interest in the outcome of

this appeal because an unfavorable court proceeding could affect her eligibility

for future federal housing assistance.

      {¶5}   Before we can address Withrow’s assignments of error, we first

must determine whether the appeal presents a case or controversy or, instead,
Athens App. No. 12CA2                                                                   3

an abstract question not capable of judicial review. E.g., Babbitt v. United Farm

Workers Nat. Union, 442 U.S. 289, 297, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979);

Muskrat v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

              “[I]t is the duty of every judicial tribunal to decide actual
       controversies between parties legitimately affected by specific facts
       and to render judgments which can be carried into effect. It has
       become settled judicial responsibility for courts to refrain from
       giving opinions on abstract propositions and to avoid the imposition
       by judgment of premature declarations or advice upon potential
       controversies.”

Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970), citing Section

4(B), Article IV, of the Ohio Constitution. Accord Kincaid v. Erie Ins. Co., 128

Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, &9. Moreover, the Supreme

Court of Ohio has advised us that it is reversible error for an appellate court to

consider the merits of an appeal that has become moot. See State v. Berndt

(1987), 29 Ohio St3d 3, 4, 504 NE2d 712.

       {¶6}    A case or controversy is lacking and the case is moot “’when the

issues presented are no longer “live” or the parties lack a legally cognizable

interest in the outcome.’” Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct.

1379, 59 L.Ed.2d 642 (1979), quoting Powell v. McCormack, 395 U.S. 486, 496,

89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Accord Erie v. Pap’s A.M., 529 U.S. 277,

287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). “No actual controversy exists

where a case has been rendered moot by an outside event. ‘It is not the duty of

the court to answer moot questions, and when, pending proceedings in error in

this court, an event occurs without the fault of either party, which renders it

impossible for the court to grant any relief, it will dismiss the petition in error.’
Athens App. No. 12CA2                                                                     4

Miner v. Witt (1910), 82 Ohio St. 237, 92 N.E. 21, syllabus.” Tschantz v.

Ferguson, 57 Ohio St.3d 131, 133, 566 N.E.2d 655 (1991). “A cause will

become moot only when it becomes impossible for a tribunal to grant meaningful

relief, even if it were to rule in favor of the party seeking relief.” Joys v. Univ. of

Toledo, 10th Dist. No. 96APE08-1040 (April 29, 1997), citing Miner, 82 Ohio St. at

238-239.

       {¶7}   “A forcible entry and detainer action decides the right to immediate

possession of property and ‘nothing else.’” Goldstein v. Patel, 9th Dist. Nos.

02CA8183, 02CA8199, 2003-Ohio-4386, ¶4, quoting Seventh Urban Inc. v. Univ.

Circle Prop. Dev. Inc., 67 Ohio St.2d 19, 25, 423 N.E.2d 1070, n.11 (1981).

Thus, “[o]nce 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. No. 73970 (Feb. 25,

1999). As the court explained in Crossings Dev. Ltd. Partnership v. H.O.T., Inc.,

96 Ohio App.3d 475, 479-80, 645 N.E.2d 159 (1994):

               “’ [A] moot case arises * * * where a judgment is sought,
       upon a matter which when it is rendered, cannot have any practical
       effect upon the issues raised by the pleadings. This is the status of
       the case at bar. The inquiry is irresistible. Should the case be
       reversed[,] upon another trial below, the paradoxical situation would
       arise that the landlords were seeking to dispossess a tenant who
       had already voluntarily dispossessed himself. It would
       unequivocally appear that the landlord was seeking a right which he
       had already acquired by consummation. * * * The course, if
       plaintiffs secured judgment, would be to give them nothing but that
       which they already have and prayed for, to-wit, the possession of
       the premises and thus it would appear that the reason for this
       possession was because of the situation created by the tenant in
       vacating the property and surrendering the occupancy thereof.’”
Athens App. No. 12CA2                                                                5



Crossings Dev. Ltd. Partnership v. H.O.T., Inc., 96 Ohio App.3d 475, 479-480,

645 N.E.2d 159 (1994), quoting Gelfand v. Stys, 7 Ohio Law Abs. 105, 105

(1929). Consequently, “when a plaintiff is successful and defendant does not

obtain a stay preventing its ouster and the return of the premises to the plaintiff *

* * the issues are rendered moot.” Id. at 481.

       {¶8}   A defendant appealing a judgment of forcible entry and detainer

may overcome a ruling of mootness by obtaining a stay of execution and/or

posting a supersedeas bond. R.C. 1923.14; Tripp v. French, 9th Dist. No.

02CA0004-M, 2002-Ohio-6996, ¶8. Accord Valente v. Johnson, 4th Dist. Nos.

06CA31 and 06CA38, 2007-Ohio-2664, ¶20. Withrow did not obtain a stay of the

judgment, and Millennia was restored to the premises If a defendant fails to

obtain a stay of execution and/or post a supersedeas bond, all issues relating to

forcible entry and detainer are rendered moot. Valente at ¶20; Tripp at ¶8. A

forcible entry and detainer defendant may overcome a mootness ruling by

demonstrating that an exception to the mootness doctrine applies.

       {¶9}   However, we do not believe that Withrow demonstrated that

any exception to the mootness doctrine applies. This court may address an

otherwise moot issue “‘where the issues raised are ‘capable of repetition, yet

evading review.’” State ex rel. Beacon Journal Publishing Co. v. Donaldson, 63

Ohio St.3d 173, 175, 586 N.E.2d 101 (1992), quoting State ex rel. Plain Dealer

Publishing Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1988), paragraph

one of the syllabus. This exception “applies only in exceptional circumstances in

which the following two factors are both present: (1) the challenged action is too
Athens App. No. 12CA2                                                                     6


short in its duration to be fully litigated before its cessation or expiration, and (2)

there is a reasonable expectation that the same complaining party will be subject

to the same action again.” Id., citing Spencer v. Kemna, 523 U.S. 1, 17–18, 118

S.Ct. 978, 140 L.Ed.2d 43 (1998). Further, “there must be more than a

theoretical possibility that the action will arise again.” James A. Keller Inc. v.

Flaherty, 74 Ohio App.3d 788, 792, 600 N.E.2d 736 (10th Dist. 1991).

       {¶10} Additionally, we may consider an appeal (1) when the issue

involves “a matter of great public interest;” or (2) when “there remains a

debatable constitutional question to resolve.” Franchise Developers, Inc. v..

Cincinnati, 30 Ohio St.3d 28, 505 N.E.2d 966 (1987), paragraph one of the

syllabus.

       {¶11} Here, none of these exceptions applies. Withrow has not shown

that a reasonable expectation exists that she will be subject to the same action

again, i.e., having her lease terminated due to the presence of unauthorized

persons. This action is nothing more than a theoretical possibility. Withrow also

has not demonstrated that reviewing Millennia’s decision to terminate her lease

involves a matter of great public importance or a debatable constitutional

question.

       {¶12} Withrow nevertheless asserts that her appeal is not moot because

it involves her constitutionally protected interest in continued occupancy of

federally subsidized housing. Showe Mgt. Corp. v. Moore, 5th Dist. No. 08CA10,

2009-Ohio-2312, ¶38, citing Vienna Forest Apts. v. Passmore, 12th Dist. No.

CA2004-05-104, 2005-Ohio-2368 ¶18, citing Gorsuch Homes, Inc. v. Wooten, 73
Athens App. No. 12CA2                                                               7


Ohio App.3d 426, 432, 597 N.E.2d 554 (2nd Dist. 1992). Withrow essentially

requests that we recognize an additional exception to the mootness doctrine for a

Section 8 tenant. Withrow argues that a tenant who receives subsidized housing

has a continuing interest in the outcome of the appeal from a forcible entry and

detainer action because an unfavorable court proceeding could affect the

tenant’s eligibility for future federal housing assistance. Heritage Court, L.L.C. v.

Merritt, 187 Ohio App.3d 117, 125, 2010-Ohio-1711, 931 N.E.2d 194, ¶26;

Showe Mgt.; Sandefur Management Co. v. Minor, 10th Dist. No. 84AP220, (Apr.

18, 1985). Withrow thus contends that her continuing interest in the outcome of

the appeal renders this case justiciable. She further points out that some Ohio

courts have refused to dismiss a forcible entry and detainer action as moot when

it involves a tenant’s constitutionally protected interest in continued federal

housing assistance. E.g., Showe Mgt.; Sandefur.

       {¶13} Withrow has not persuaded us that we should follow the Fifth and

Tenth District Courts of Appeals and recognize an exception to the mootness

doctrine. She vacated the premises without even attempting to seek a stay of

the trial court’s judgment. See Cleveland Hts. v. Lewis, 129 Ohio St.3d 389,

2011-Ohio-2673, 953 N.E.2d 278, ¶23 (stating that in a misdemeanor case, in

order to prevent appeal from being declared moot on basis that defendant

voluntarily completed sentence, defendant must seek stay of trial court’s

judgment; otherwise, court will infer defendant acquiesced in the judgment or

intentionally abandoned the right of appeal). She has presented no circumstance

that prevented her from seeking a stay. We recognize that Withrow is indigent,
Athens App. No. 12CA2                                                             8


but we are unaware of any rule of law that prevents an indigent person from

seeking a stay of a trial court’s judgment. Under these circumstances, we

conclude that Withrow abandoned her right to appeal the trial court’s judgment.

      {¶14} Accordingly, we dismiss Withrow’s appeal as moot.

                                                          APPEAL DISMISSED.
Athens App. No. 12CA2                                                              9


                               JUDGMENT ENTRY

      It is ordered that the APPEAL BE DISMISSED and that Appellant shall
pay the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Athens County Municipal Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the
date of this entry.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.



                                  For the Court




                                  BY: ________________________________
                                      William H. Harsha, Judge




                             NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
