[Cite as Tenancy, L.L.C. v. Roth, 2019-Ohio-4042.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



TENANCY, LLC                                            JUDGES:
                                                        Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                              Hon. John W. Wise, J.
                                                        Hon. Craig R. Baldwin, J.
-vs-
                                                        Case No. 2019 CA 00034
JULIE ROTH

        Defendant-Appellant                             OPINION




CHARACTER OF PROCEEDING:                             Civil Appeal from the Canton Municipal
                                                     Court, Case No. 2018 CVG 3235


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              September 30, 2019



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ANDREW GINELLA                                       MICHELA HUTH
4096 Holiday Street, NW                              P. O. Box 17
Canton, Ohio 44718                                   Bolivar, Ohio 44612
«Court» County, Case No. «Case_No»                                                        2

Wise, J.

       {¶1}   Defendant-appellant Julie Roth appeals the February 19, 2019 and

February 27, 2019, Judgment Entries of the Canton Municipal Court denying her motions

for relief from judgment.

       {¶2}   Plaintiff-Appellee in this matter is Tenancy, LLC.

                            STATEMENT OF THE FACTS AND CASE

       {¶3}   The relevant facts and procedural history are as follows:

       {¶4}   On June 4, 2018, Plaintiff-Appellee Tenancy, LLC, filed a Complaint for

Eviction against Appellant Julie Roth in the Canton Municipal Court, being Case No.

2018-CVG-3235, alleging two causes of action: (1) a forcible entry and detainer action

requesting a writ of restitution of the property for which Appellant had failed to pay rent,

and (2) for money damages for the unpaid rent. (See Appellee's Complaint). The trial

court scheduled a hearing on the Complaint for Eviction for June 15, 2018. Appellant was

served with a copy of the Complaint on June 7, 2018.

       {¶5}   On June 15, 2018, the trial court held a hearing on the first cause of action,

the forcible entry and detainer action. Appellant appeared at the hearing, as did the

Appellee and its attorney. Appellee submitted evidence at the hearing that Appellant had

been properly served with a three-day notice as required by law, and that Appellant had

failed to pay rent for February, March, April, May, and June of 2018. (T. at 5-6). Testimony

was also presented that no rent was offered by or received from the Appellant after the

three-day notice and prior to the hearing. (T. at 6).

       {¶6}   No evidence was presented that Appellant had made, attempted to make,

or was justified in not making, the rent payments for the months alleged.
Stark County, Case No. 2019 CA 00034                                                     3


       {¶7}     Evidence was also presented that Appellant had refused to vacate the

premises, despite her failure to pay rent for five (5) months. (T. at 8).

       {¶8}     Based upon the evidence presented, the Magistrate determined that

Appellant had (1) failed to pay rent due on February 1, 2018, and thereafter, and 2) that

she was duly served with a three day notice, and 3) that she failed to vacate the property,

and 4) that she was duly served with the Complaint as required by law. (June 15, 2018,

Report of the Magistrate C.R. 53). Based upon these findings of fact, the Magistrate

ordered that Appellee's Writ of Restitution be granted. Id. The Magistrate continued the

second cause of action, for money damages for the unpaid rent, until August 15, 2018.

Id.

       {¶9}     The trial court thereafter approved the Report of the Magistrate C.R.53.

(June 15, 2018 Judgment Entry; Magistrates Recommendation Approved).

       {¶10} The set out was scheduled for June 26, 2018, at 2:30p.m. (See June 15,

2018 Writ of Restitution Order to Vacate.

       {¶11} On June 18, 2018, Appellant filed a Motion to Disqualify Magistrate and a

Motion for Staying Set Out. In said motions, Appellant argued, inter alia, that Appellee,

Tenancy, LLC, is not a legal business in Ohio and not the legal owner of the subject

premises. Id.

       {¶12} By Judgment Entry filed June 19, 2018, the trial court denied both Motions.

Appellant did not appeal the June 19, 2018, Judgment Entry.

       {¶13} On June 25, 2018, Appellant filed a Motion for Stay and for Order; a Rule

60 Motion for Relief from Judgment; a Motion to Dismiss; a Motion to Set Aside

Magistrate's Decision; and a Motion for Emergency Reconsideration of Motion to Stay. In
Stark County, Case No. 2019 CA 00034                                                   4

said motions, Appellant once again argued, inter alia, that Tenancy, LLC was not a legal

entity in Ohio and therefore lacked standing to sue, and as such the decision of the

Magistrate and trial court should be vacated and/or reversed.

      {¶14} By Judgment Entry filed June 26, 2018, the trial court denied Appellant’s

Motion to Set Aside and Motion to Dismiss, finding said motions did not raise sufficient

issues to determine that the Magistrate failed to consider all relevant facts or properly

apply the law. The trial court held further that the Motion for Stay and the Emergency

Motion for Reconsideration ‘of a previously denied stay’ failed to raise any issues not

already considered by the Court.

      {¶15} The trial court set Appellant's Motion for Relief from Judgment for hearing

on August 9, 2018.

      {¶16} Appellant did not appeal the trial court's denial of her Motion for Stay and

for Order, Motion to Dismiss, Motion to Set Aside Magistrate's Decision, or Motion for

Emergency Reconsideration of Motion to Stay.

      {¶17} On July 2, 2018, Appellee filed a Notice of Dismissal pursuant to Civ.R.

41(A)(1) dismissing the matter without prejudice. The only claim remaining at the time of

Appellee's dismissal was the Second Cause of Action for money damages, which had

been set for hearing for August 15, 2018.

      {¶18} As a result of Appellee's dismissal, the August 9, 2018, hearing on

Appellant's 60(B), Motion for Relief from Judgment and the August 15, 2018, hearing on

Appellee's second cause of action did not go forward.
Stark County, Case No. 2019 CA 00034                                                   5


      {¶19} On February 14, 2019, Appellant filed a second 60(B) Motion for Relief from

Judgment in which she raised the same arguments regarding standing, purporting to have

new "evidence".

      {¶20} By Judgment Entry filed February 14, 2019, the trial court dismissed

Appellant’s Civ.R. 60(B) motion, finding that because Appellee had dismissed the cause

of action on July 2, 2018, the matter was moot.

      {¶21} On February 26, 2019, Appellant filed a third 60(B) Motion for Relief from

Judgment.

      {¶22} By Judgment Entry filed February 27, 2019, the trial court found that not

only were the issues raised by the Appellant moot due to Appellee's dismissal, but also

found that Appellant had failed to support her Motion with sufficient evidence. The trial

court's Judgment Entry held: "Based on the reasoning expressed in the Courts [sic]

Judgment Entry of 2-19-19 and on finding that Defendant has not supported her 2-26-19

Motion for Relief from Judgment with evidence or presented a meritorious defense, the

relief [requested] by Defendant is denied and the motion is dismissed.

      {¶23} Appellant now appeals, raising the following assignments of error:

                                 ASSIGNMENTS OF ERROR

      {¶24} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING

APPELLANT JULIE ROTH'S FEBRUARY 14, 2019 ‘60(B) MOTION FOR RELIEF FROM

JUDGMENT’.

      {¶25} THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING

APPELLANT JULIE ROTH'S FEBRUARY 26, 2019 ‘60(B) MOTION FOR RELIEF FROM

JUDGMENT.’ ”
Stark County, Case No. 2019 CA 00034                                                      6


                                               I., II.

       {¶26} In both of her assignments of error, Appellant argues that the trial court

erred in denying her motions for relief from judgment. We disagree.

       {¶27} In the instant appeal, Appellant argues that the trial court should not have

granted the original forcible entry and detainer because Tenancy, LLC was not the “title

owner” of the property.

       {¶28} Upon review, we find that Appellant's contentions in this appeal relate to her

eviction from the subject property. For the reasons that follow, we find this issue is moot.

       {¶29} A forcible entry and detainer decides only the right to immediate possession

and nothing else. Seventh Urban, Inc. v. Univ. Circle, 67 Ohio St.2d 19, 25, 423 N.E.2d

1070 (1981), fn. 11. If immediate possession is no longer an issue due to vacation, then

continuation of the forcible entry and detainer action or appeal is unnecessary. “Once the

landlord has been restored to the property, the [result of the] forcible entry and detainer

action becomes moot because, having been restored to the premises, there is no further

relief that may be granted.” Long v. MacDonald, 3d Dist. Crawford No. 3-02-10, 2002-

Ohio-4693 (holding that the tenant's appeal is moot regardless of whether the tenant's

vacation is voluntarily or not); U.S. Sec. of HUD v. Chancellor, 8th Dist. Cuyahoga No.

73970, 1999 WL 126170, 1999 Ohio App. LEXIS 605 (Feb. 25, 1999) (agreeing with

HUD's argument that the tenants-appellants' appeal was moot since they vacated the

premises and affirming on that basis); see also Riolo v. Navin, 8th Dist. Cuyahoga No.

79809, 2002-Ohio-1551; Blosser v. Bowman, 10th Dist. Franklin No. 00AP-1140, 2001

WL 436088, 2001 Ohio App. LEXIS 1927 (May 1, 2001).
Stark County, Case No. 2019 CA 00034                                                      7


       {¶30} In the instant case, Appellant vacated the property; therefore, her

contentions relating to the proper name of the owner of the premises and alleged

impropriety of the eviction are now moot. There was, as mentioned, a second cause of

action relating to money damages. It is well established that “[a] court of appeals cannot

consider [an] issue for the first time without the trial court having had an opportunity to

address the issue.” State v. Peagler, 76 Ohio St.3d 496, 501, 668 N.E.2d 489 (1996).

       {¶31} We also find Appellant's claims are barred by res judicata. The doctrine of

res judicata prevents repeated attacks on a final judgment and applies to all issues that

were or might have been litigated. Rogers v. Whitehall, 25 Ohio St.3d 67, 494 N.E.2d

1387 (1986). “Principles of res judicata prevent relief on successive, similar motions

raising issues which were or could have been raised originally.” Coulson v. Coulson, 5

Ohio St.3d 12, 13, 448 N.E.2d 809 (1983), citing Brick Processors, Inc. v. Culbertson, 2

Ohio App.3d 478, 442 N.E.2d 1313 (5th Dist.1981), paragraph one of the syllabus.

       {¶32} The trial court entered its judgment on June 15, 2018. Appellant did not file

a direct appeal from that judgment. Instead, on February 14, 2019, Appellant filed a

motion to vacate the judgment pursuant to Civ.R. 60(B).

       {¶33} App.R. 4(A) requires that a notice of appeal be filed within 30 days of the

date of the judgment appealed from. This requirement is jurisdictional and may not be

extended by the appellate court. Ditmars v. Ditmars, 16 Ohio App.3d 174, 175, 475 N.E.2d

164 (10th Dist.1984).

       {¶34} If Appellant wanted to challenge the trial court's original judgment, Appellant

could have filed a direct appeal. She did not and is now barred from challenging the trial

court's judgment.
Stark County, Case No. 2019 CA 00034                                                 8


      {¶35} In light of the above, Appellant’s assignments of error are overruled.

      {¶36} The judgment of the Canton Municipal Court, Stark County, Ohio, is

affirmed.


By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.



JWW/d 0917
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