[Cite as Marysville Estates v. Bruce, 2013-Ohio-4112.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




MARYSVILLE ESTATES,

        PLAINTIFF-APPELLANT,                             CASE NO. 14-13-12

        v.

RANDY BRUCE,                                             OPINION

        DEFENDANT-APPELLEE.




                        Appeal from Marysville Municipal Court
                             Trial Court No. 12 CVG 307

                       Judgment Reversed and Cause Remanded

                          Date of Decision: September 23, 2013




APPEARANCES:

        Elizabeth J. Birch for Appellant

        Randy Bruce, Appellee
Case No. 14-13-12


ROGERS, J.

       {¶1} Although originally placed on our accelerated calendar, we elect,

pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.

       {¶2} Plaintiff-Appellant,     Marysville       Estates   Mobile   Home    Park

(“Marysville Estates”), appeals the judgment of the Marysville Municipal Court,

denying its request for a writ of execution.           On appeal, Marysville Estates

contends that the trial court erred in denying Marysville Estates’ request on the

bases that it did not pray for such relief in its complaint and did not join the

County Treasurer, Auditor, or Prosecuting Attorney to the action. For the reasons

that follow, we reverse the trial court’s judgment.

       {¶3} It is undisputed that Appellee, Randy Bruce, failed to pay rent to

Marysville Estates, in violation of his lease. Marysville Estates subsequently filed

a complaint for Forcible Entry and Detainer (“FED Complaint”) on April 25, 2012

in the Marysville Municipal Court. On May 8, 2012, an eviction hearing was held

and the magistrate found in favor of Marysville Estates. The Magistrate’s Order

stated, “Plaintiff has requested that a writ of execution upon this judgment for

restitution of the premises at 31 Spruce Drive, Marysville, Ohio 43040 be issued

and delivered to the sheriff, police officer, constable, or bailiff forthwith pursuant

to R.C. 1923.13 causing [Bruce] and [Bruce’s] goods and chattels to be removed

immediately from said premises.” (Docket No. 5, p. 2).


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        {¶4} Once it was clear to Marysville Estates that Bruce had abandoned his

mobile home, Marysville Estates filed a motion for a writ of execution on January

22, 2013. The trial court denied Marysville Estates’ writ of execution on March

21, 2013 stating that Marysville had not joined the Union County Auditor,

Treasurer, and Prosecuting Attorney as necessary parties nor did it pray, in its

FED Complaint, for anything other than restitution of the premises.1 On May 20,

2013, the case was dismissed with prejudice.

        {¶5} Marysville Estates then timely appealed this judgment, presenting

the following assignments of error for our review.

                                    Assignment of Error No. I

        THE TRIAL COURT ERRED IN DENYING APPELLANT’S
        R.C. § 1923.13 POST-EVICTION WRIT OF EXECUTION
        FOR THE DISPOSAL OF THE MOBILE HOME
        ABANDONED       ON   APPELLANT’S  PREMISES, AS
        APPELLANT MET ALL PLEADING REQUIREMENTS
        UNDER OHIO’S ABANDONED MOBILE HOME LAW.

                                   Assignment of Error No. II

        THE TRIAL COURT ERRED IN DENYING APPELLANT’S
        MOTION FOR A POST-EVICTION WRIT OF EXECUTION
        SUBMITTED PURSUANT TO R.C. SECTIONS 1923.12,
        1923.13 AND 1923.14 AS THE AUDITOR, TREASURER AND
        PROSECUTING ATTORNEY ARE NOT NECESSARY
        PARTIES TO THE EVICTION ACTION NOR TO THE POST-
        EVICTION WRIT OF EXECUTION PURSUANT TO R.C.
        SECTIONS 1923.02 AND 1923.13.

1
  On April 14, 2013, Marysville Estates filed a notice of appeal. However, on April 30, 2013, this Court
found that the trial court’s judgment entry was interlocutory in nature and was not a final order as defined
by R.C. 2505.02. Therefore, this court dismissed the appeal for lack of jurisdiction.

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                            Assignment of Error No. I

      {¶6} In its first assignment of error, Marysville Estates argues that the

trial court erred when it denied Marysville Estates’ request for a writ of execution

because it had not asked for such a writ in its FED Complaint. We agree.

      {¶7} R.C. Chapter 1923 governs forcible entry and detainer. Since this

matter involves a bench trial, the provisions of R.C. 1923.09 apply. “Section

1923.12(A) provides that, if a resident has been evicted from a manufactured

home park under Section 1923.09 and has abandoned his manufactured home, the

operator of the park may provide him with written notice to remove the home

within fourteen days.”    Oak Park Mgt. Corp. v. Via, 9th Dist. Wayne No.

07CA0022, 2008-Ohio-2493, ¶ 4 (Opinion of Dickinson, J.). If the owner of the

manufactured home does not remove the home within the fourteen days, then the

park operator may “follow the procedures of division (B) of section 1923.13 and

division (B) of section 1923.14 of the Revised Code to permit the removal of the

home * * * from the manufactured home park, and the potential sale, destruction,

or transfer of ownership of the home * * *.” R.C. 1923.12(A). Further, R.C.

1923.09(B) states:

      [i]f a judgment is entered under this section in favor of a plaintiff
      who is a park operator, the judge shall include in the judgment entry
      authority for the plaintiff to permit, in accordance with section
      1923.12 and division (B) of section 1923.13 and division (B) of
      section 1923.14 of the Revised Code, the removal from the
      manufactured home park and potential sale, destruction or transfer of

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         ownership of the defendant’s manufactured home, mobile home, or
         recreational vehicle.

(Emphasis added.)

         {¶8} Based on a review of the foregoing language, we find that R.C.

Chapter 1923 does not require that a park operator specifically pray for a writ of

execution in a forcible entry and detainer complaint. Instead, it is apparent from

the language that the process to obtain a writ of execution happens after a trial

court rules on the eviction motion. See R.C. 1923.13(A) (“When a judgment of

restitution is entered by a court in an action under [Chapter 1923] * * * at the

request of the plaintiff or the plaintiff’s agent or attorney, that court shall issue a

writ of execution on the judgment * * *.”). Further, a writ of execution is

provided for by statute in Chapter 1923 and to require a party to specifically plead

for a writ of execution in his or her eviction complaint would be redundant. As

such, Marysville Estates was not required to request a writ of execution in its FED

Complaint. Therefore, we find that the trial court erred when it refused to grant

Marysville Estates’ writ of execution because it had not specifically prayed for

such relief in its FED Complaint.

         {¶9} Accordingly, we sustain Marysville Estates’ first assignment of

error.




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                            Assignment of Error No. II

       {¶10} In its second assignment of error, Marysville Estates contends that

the trial court erred when it denied its request for a writ of execution because

Marysville Estates did not seek abatement of taxes or join the County Treasurer,

Auditor, and Prosecutor to this matter. We agree.

       {¶11} The joinder of necessary parties to an action is controlled by Civ.R.

19(A), which provides, in pertinent part, as follows:

       A person who is subject to service of process shall be joined as a
       party in the action if (1) in his absence complete relief cannot be
       accorded among those already parties, or (2) he claims an interest
       relating to the subject of the action and is so situated that the
       disposition of the action in his absence may (a) as a practical matter
       impair or impede his ability to protect his interest or (b) leave any of
       the persons already parties subject to a substantial risk of incurring
       double, multiple, or otherwise inconsistent obligations by reason of
       his claimed interest, or (3) he has an interest relating to the subject of
       the action as an assignor, assignee, subrogor, or subrogee.

In this matter, Civ.R. 19(A)’s requirements are intertwined with R.C.

1923.14(B)(1), which provides, in pertinent part, as follows:

       After a court of common pleas, municipal court, or county court
       issues a writ of execution described in division (B) of section
       1923.13 of the Revised Code, the clerk of court shall send by regular
       mail * * * to the auditor and treasurer of the county in which the
       court is located, a written notice that the home or vehicle potentially
       may be sold, destroyed, or have its title transferred under the
       circumstances described in division (B)(3) or (4) of this section.

Further, R.C. 1923.14(B)(3) provides as follows:



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        [W]ithin sixty days after receiving a writ of execution as described
        in division (B) of section 1923.13 of the Revised Code, the sheriff,
        police officer, constable, or bailiff shall commence proceedings for
        the sale of the manufactured home, mobile home, or recreational
        vehicle that is the subject of the writ * * *.

        {¶12} According to this language, R.C. 1923.14 does not require a plaintiff

to join the County Auditor or Treasurer as parties to the action, rather it only

requires the clerk of court afford them notice after the writ of execution is issued.

Chapter 1923 does not require that the Auditor or Treasurer be joined as parties to

the action before the writ of execution is issued by the trial court.

        {¶13} Based on the provisions of R.C. 1923.14, we are unable to see how

the absence of the County Treasurer, Auditor, and Prosecutor denied complete

relief to Marysville Estates and Bruce, the original parties to this action.

Moreover, the writ of execution does not affect the Treasurer’s, Auditor’s, or

Prosecutor’s ability to collect whatever back taxes Bruce might owe for two

reasons. First, the evidence in the record demonstrates that the mobile home on

the subject property is essentially worthless.2 Second, after the issuance of a writ

of execution, the clerk of courts is required to provide notice to the County

Auditor and Treasurer. The writ simply gives Marysville Estates its real property

back by removing an abandoned and valueless mobile home from its park. Thus,



2
  According to the affidavit of Martha Moore, who specializes in real estate valuation, the mobile home at
issue had a “negative value” due to the damage to the interior as well as an infestation of pests. (Docket
No. 11, Exhibit C, p. 8, 11). In her opinion, Moore would value the home at $0.00.

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under Civ.R. 19, the County Treasurer, Auditor, and Prosecuting Attorney are not

necessary parties to the litigation.

           Summary Nature of Forcible Entry and Detainer Proceedings

       {¶14} Even if there was a violation of Civ.R. 19(A) or a pleading defect,

we would still find that the trial court erred in denying the writ of execution since

it failed to raise the joinder and pleading issues in a timely fashion. Civ.R. 1(C)

provides, “[t]hese rules, to the extent that they would by their nature be clearly

inapplicable, shall not apply to procedure * * * in forcible entry and detainer * *

*.” This is because forcible entry and detainer is a summary proceeding that 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 (2000); see also Haas v. Gerski, 175 Ohio St. 327, 330 (1963). Thus, “[t]he

exception embodied in Civ.R. 1(C) recognizes that, based on the nature of

interests involved, forcible entry and detainer proceedings merit special

consideration.” Miele at 444.

       {¶15} Since forcible entry and detainer proceedings are of summary nature,

trial judges should not delay their judgments while developing findings of fact or

conclusions of law. State ex rel. GMS Mgt. Co., Inc. v. Callahan, 45 Ohio St.3d

51, 55 (1989).      In Callahan, GMS Management Company, Inc. (“GMS”)

requested that the Ohio Supreme Court issue a writ ordering any acting, assigned,


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or sitting judge of the Willoughby Municipal Court to proceed in forcible entry

and detainer cases in a “timely fashion.” Id. at 51. GMS argued that trial court

judges “should not delay [forcible entry and detainer] proceedings by preparing

unsolicited findings of fact and conclusions of law.” Id. at 54. The Ohio Supreme

Court agreed with GMS and held that a trial court judge may enter findings of fact

and conclusions of law only within a seven working day period after a hearing on

the merits. Id. at 55.

        {¶16} Here, Marysville Estates’ eviction hearing was held on May 8, 2012.

On January 22, 2013, Marysville Estates then filed its proposed writ of execution,

which contained the language required by R.C. 1923.13(B). It was not until

almost two months later, on March 21, 2013, when the trial court denied the writ

of execution, stating that Marysville Estates had not joined the proper parties or

had not stated a proper prayer for relief, two defenses that were not raised by

Bruce, who failed to file an answer3 or even appear at the eviction hearing. Thus,

it was improper and untimely for the trial judge to wait two months before raising

the joinder and pleading issues in contravention of the summary nature of forcible

entry and detainer proceedings.




3
 The only pleading required in a forcible entry action is a complaint, as no answer is required by statute.
Howard v. Barner, 73 Ohio Law Abs. 231, 137 N.E.2d 422 (2d Dist. 1952). Therefore, the fact Bruce
chose not to file an answer did not preclude him from asserting any defense he might have had at the
eviction hearing. Lauch v. Monning, 15 Ohio App.2d 112 (1st Dist. 1968).

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         {¶17} Consequently, we sustain Marysville Estates’ second assignment of

error.

         {¶18} Having found error prejudicial to Marysville Estates, in the

particulars assigned and argued, we reverse the trial court’s judgment and remand

this matter for further proceedings consistent with this opinion.

                                                            Judgment Reversed and
                                                                 Cause Remanded

PRESTON, P.J. concurs in Judgment Only.
SHAW, J., concurs.

/jlr




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