[Cite as Showe Mgt. Corp. v. Mountjoy, 2020-Ohio-2772.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLINTON COUNTY




 SHOWE MANAGEMENT                                     :
 CORPORATION,
                                                      :   CASE NO. CA2019-06-012
        Appellee,
                                                      :        OPINION
                                                                5/4/2020
     - vs -                                           :

                                                      :
 DIANNE MOUNTJOY,
                                                      :
        Appellant.




               CIVIL APPEAL FROM CLINTON COUNTY MUNICIPAL COURT
                               Case No. CVG 1900217


C. Bernard Brush, Michael J. Cassone, 5530 Columbia Road SW, Pataskala, Ohio 43062,
for appellee

Legal Aid Society of Southwest Ohio, LLC, Lori K. Elliott, Jonathan W. Ford, Alpha S. Taylor,
10 Journal Square, Suite 300, Hamilton, Ohio 45011, for appellant



        HENDRICKSON, P.J.

        {¶1}    Appellant, Dianne Mountjoy, appeals a decision of the Clinton County

Municipal Court granting a complaint for forcible entry and detainer filed by appellee, Showe

Management Corporation.

        {¶2}    In February 2017, Mountjoy entered into a lease agreement with Showe to

rent an apartment in a Wilmington, Ohio apartment complex. The apartment was federally
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subsidized and Mountjoy did not have a monetary monthly rental obligation.

       {¶3}   The lease agreement included an addendum with a bedbug policy, which

required Mountjoy to notify Showe of the presence of bedbugs on any clothing, furniture or

personal property. The policy also required Mountjoy to notify Showe when bringing any

furniture into the apartment so an inspection could be conducted. The agreement further

indicated that Mountjoy could be responsible for the reasonable cost of cleaning and

extermination due to a bedbug infestation.

       {¶4}   In December 2017, Mountjoy had a bedbug infestation. At that time, she

signed a repayment agreement in which she agreed to repay the cost of extermination. The

apartment was treated and eventually Showe arranged for help from her church for the cost

of repayment.

       {¶5}   Around a year later, in December 2018, Mountjoy's physician called Showe's

corporate office and indicated that a bedbug was found on Mountjoy during an examination

in the physician's office. The physician was concerned because Mountjoy told him the

management company was not doing anything about the bedbugs. Mountjoy was given a

30-day notice to vacate the premises for failing to report the bedbugs. After receiving the

notice, Mountjoy came into the office to report the bedbug infestation to Showe and request

an inspection. At that time, she signed a repayment agreement to reimburse Showe for the

cost of extermination.

       {¶6}   An Orkin inspector viewed the apartment and found bedbugs in three of the

apartment's rooms. The inspector determined that based on the lifecycles of the bugs, the

infestation had been in the apartment for four months or longer. Orkin returned and over

two dates treated the infestation.

       {¶7}   Mountjoy failed to reimburse Showe for the cost of the extermination and

Showe filed a forcible entry and detainer action on March 12, 2019. Mountjoy was served

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with a copy of the complaint on March 13, 2019 which indicated that an eviction hearing

was set for 3:00 p.m. on March 26, 2019.

       {¶8}   At the eviction hearing, Mountjoy's counsel indicated that an answer and jury

demand had been filed. A magistrate denied the jury request as untimely as it had just

been filed approximately 10 minutes before the hearing. The magistrate heard evidence

and granted restitution of the premises to Showe.

       {¶9}   Mountjoy filed objections to the magistrate's decision. In her objections, she

argued that the magistrate denied her right to a jury trial. Mountjoy stated that the court

and opposing counsel were aware of the jury request because it had been faxed to the court

and opposing counsel the day prior to the hearing, and an application to proceed in forma

pauperis was faxed to the trial court.

       {¶10} The trial court held a hearing and issued an entry overruling the objections to

the magistrate's decision. The trial court found that Mountjoy made a good faith attempt to

fax pleadings to the clerk at 3:42 the day before the hearing, although the documents were

not timestamped until about 15 minutes before the hearing. The trial court determined that

the Civil Rules of Procedure did not apply to the issue of timeliness of a jury demand in an

eviction action. Instead, the court applied an "interests of justice" standard to find that a

jury demand and deposit are untimely if filed fewer than three days prior to the summons

date. The court therefore found that the jury demand in this case was not timely filed. The

trial court further found that the lease addendum was valid and enforceable and Mountjoy

had failed to pay the amounts due. Accordingly, the trial court overruled the objections and

adopted the magistrate's decision.

       {¶11} Mountjoy now appeals the trial court's decision and raises two assignments

of error for our review.

       {¶12} THE TRIAL COURT ERRED BY DENYING APPELLANT HER STATUTORY

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AND CONSTITUTIONAL RIGHT TO A JURY TRIAL.

         {¶13} In her first assignment of error, Mountjoy argues that the court erred in

denying her request for a jury trial. She contends that the trial court incorrectly determined

that Civ.R. 38(B) is not applicable to forcible entry and detainer proceedings, that there was

no local rule restricting when a party may file a jury demand, and that the trial court erred in

finding she waived her right to a jury when no waiver was made pursuant to Civ.R. 39.

         {¶14} Parties to a forcible entry and detainer action have the right to a jury trial. R.C.

1923.10; Fodor v. First Natl. Supermarkets, 63 Ohio St.3d 489, 492 (1992). However, if a

party fails to make a proper demand, the right to a jury trial will be waived. Nenadal v.

Landerwood Co., 8th Dist. Cuyahoga No. 65428, 1994 Ohio App. LEXIS 2079, *7 (May 12,

1994).

         {¶15} "Forcible entry and detainer, as authorized in R.C. Chapter 1923, is a

summary proceeding in which a court may make inquiry into disputes between landlords

and tenants, and, where appropriate, order restitution of the premises to the landlord."

Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St. 2d 129, 130 (1981). "A forcible entry

and detainer action is intended to serve as an expedited mechanism by which an aggrieved

landlord may recover possession of real property." Miele v. Ribovich, 90 Ohio St.3d 439,

441-442 (2000). The underlying purpose behind the forcible entry and detainer action is to

provide a summary, extraordinary, and speedy method for the recovery of the possession

of real estate. Jackson at 131.

         {¶16} Given the summary nature of a forcible entry and detainer action, "the drafters

of the Rules of Civil Procedure were careful to avoid encrusting this special remedy with

time consuming procedure tending to destroy its efficacy." Id. While the Civil Rules

generally govern procedure in Ohio courts, the rules specifically state that they do not apply

in forcible entry and detainer proceedings "to the extent that they would by their nature be

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clearly inapplicable." Civ. R. 1(C)(3). Moreover, the Civil Rules are inapplicable if their

application would frustrate the purpose of the forcible entry and detainer proceeding. State

ex rel. GMS Mgt. Co., 45 Ohio St.3d 51, 54-55, (1989); Larson v. Umoh, 33 Ohio App. 3d

14, 16 (8th Dist 1986).

       {¶17} Appellant argues that Ohio Civ.R. 38 sets the requirements for requesting a

jury trial in a forcible entry and detainer action. This section provides that "[a]ny party may

demand a trial by jury on any issue triable of right by a jury by serving upon the other parties

a demand therefore at any time after the commencement of the action and not later than

fourteen days after the service of the last pleading directed to such issue." Civ.R. 38(B).

Mountjoy argues that her jury request, filed the day prior to the hearing with her answer,

was timely under this rule.

       {¶18} However, R.C. Chapter 1923, the forcible entry and detainer section of the

Ohio Revised Code, provides that "the claim for restitution of the premises shall be

scheduled for hearing in accordance with local court rules, but in no event sooner than the

seventh day from the date service is complete." R.C. 1923.06(H)(1). The statute further

provides that an answer date for any "other claims" filed with a complaint is 28 days after

the date service is complete. R.C. 1923.06(H)(2). Accordingly, the statute contemplates a

trial, not a responsive pleading, unless other claims are included in the complaint. Because

an answer is not required, there is no responsive pleading to serve as "the last pleading

directed to [the issue of restitution of the premises]" as provided in Civ.R. 38(B).

       {¶19} Moreover, the forcible entry and detainer statute specifically provides that "[i]f

an action under this chapter is not continued, the place of trial is not changed, and neither

party demands a jury on the return day of the summons, a judge of the court shall try the

cause." R.C. 1923.09(A). Because the forcible entry and detainer statute provides a

specific date to request a jury trial, the Civil Rules are inapplicable.

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      {¶20} As mentioned above, a party must demand a jury trial no later than the return

date of the summons. The Revised Code provides specific requirements for service and

summons in a forcible entry and detainer action. R.C. 1923.06(A). Specifically, a summons

must be issued which follows a specific format and is served and returned as provided. Id.

Service of the summons must occur "at least seven days before the day set for trial." Id.

"Within five days after receiving the summons * * * the person making service shall return

the process to the clerk." R.C. 1923.06(D)(3).

      {¶21} In this case, the summons was received, served and returned on March 13,

2019. Appellant's jury trial request was faxed to the trial court on March 25, 2019, which is

clearly beyond the time for the return date of the summons. Therefore, we find that the trial

court did not err in denying the request for a jury trial as untimely.      Mountjoy's first

assignment of error is overruled.

      {¶22} THE TRIAL COURT ERRED BY GRANTING THE APPELLEE POSSESSION

OF THE PREMISES WHEN APPELLANT FAILED TO PAY THE COST OF BED BUG

EXTERMINATION.

      {¶23} In her second assignment of error, Mountjoy argues that the trial court erred

in granting the request for forcible entry and detainer. She contends that pursuant to Ohio's

Landlord-Tenant Act, a landlord cannot shift its obligation to maintain the premises to a

tenant and that the failure to find that Mountjoy was negligent or careless in the resulting

infestation precludes the imposition of charges for extermination.

      {¶24} Ohio's Landlord-Tenant Act provides for certain rights and responsibilities for

tenants and landlords. See R.C. Chapter 5321. The act attempts to balance the rights of

tenants and landlords. Sherwin v. Cabana Club Apts., 70 Ohio App.2d 11, 18, (8th Dist.

1980). Under the act, a landlord has a statutory duty to maintain the premises in a habitable

condition. R.C. 5321.04. This duty to maintain the premises cannot be shifted to the tenant.

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See R.C. 5321.13(A). However, a tenant has reciprocal obligations under the act, including

a responsibility to keep the premises in a safe, sanitary condition. See R.C. 5321.05.

Appellant argues that a landlord may not shift its responsibility to maintain the premises to

the tenant. See Miller v. Ritchie, 45 Ohio St.3d 222 (1989).

        {¶25} However, in this case, the basis of the forcible entry and detainer action was

Mountjoy's failure to comply with the terms of the repayment agreement.                              The lease

addendum signed by Mountjoy specifically indicated that she could be required to repay the

cost of treating the apartment for bedbugs. Mountjoy signed the document and agreed to

repay Showe for the cost of the extermination on the basis that the action was necessary

"as a result of carelessness/misuse/neglect" on her part.

        {¶26} In addition, the repayment agreement provided that the failure to make

payments could result in initiation of eviction proceedings. It was the failure to make

payments under the agreement, not a shifting of the landlord's responsibility, that was the

basis for the forcible entry and detainer action.1 See Green v. Rickman, 12th Dist. Butler

No. CA1990-07-013, 1991 Ohio App. Lexis 2241 (May 13, 1991). Accordingly, we find no

error in the trial court's decision to grant Showe's request for forcible entry and detainer.

Mountjoy's second assignment of error is therefore overruled.

        {¶27} Judgment affirmed.


        RINGLAND and M. POWELL, JJ., concur.




1. Although Mountjoy argues that the repayment agreement was a contract of adhesion that she was required
to sign or be evicted, we find no merit to this argument. Moreover, we find a HUD memorandum dated April
18, 2019 attached to Mountjoy's brief is inapplicable in this case as it is dated after the events involved in this
case and was not part of the record below.

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