[Cite as K&D Mgt., L.L.C. v. Masten, 2013-Ohio-2905.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 98894




                         K&D MANAGEMENT, L.L.C.
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                  DEIRDRE MASTEN
                                                         DEFENDANT-APPELLANT




                                  JUDGMENT:
                            REVERSED AND REMANDED



                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-771214

        BEFORE: S. Gallagher, P.J., Keough, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: July 3, 2013
ATTORNEY FOR APPELLANT

Edward G. Kramer
The Fair Housing Law Clinic
The Housing Advocates, Inc.
3214 Prospect Avenue
Cleveland, OH 44115


ATTORNEYS FOR APPELLEE

Ami J. Patel
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Cleveland, OH 44113

Thomas P. Owen
Laurence Powers
Powers, Friedman, Linn, P.L.L.
23240 Chagrin Boulevard
Suite 180
Cleveland, OH 44122
SEAN C. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Deirdre Masten appeals from the trial court’s order

granting summary judgment in favor of plaintiff-appellee K&D Management, L.L.C.

(“Landlord”).    For the following reasons, we reverse.

       {¶2} Masten became a resident in October 2010 of the Harbor Crest Apartments

located in Euclid, Ohio.    Landlord manages the property. The parties signed a one-year

lease agreement for the term of October 5, 2010 through September 30, 2011.           The

nonrenewal provision in the lease agreement required a 60-day notice of nonrenewal if

either party desired to terminate the lease at the end of the stated term.

       {¶3} After Masten allegedly learned that Landlord intended to evict another

resident because of the resident’s disabilities, Masten helped the resident with drafting

and filing a charge with the Ohio Civil Rights Commission (“OCRC”). The allegations

against Landlord were for violations of the Federal Fair Housing Act, 42 U.S.C. 3617,

(“FHA”) and Ohio’s Fair Housing Act, R.C. 4112.02(H) (collectively, “Acts”).

       {¶4} Masten subsequently filed her own charge with the OCRC in November 2010

based on Landlord’s alleged discrimination against her.      Landlord approached Masten in

February 2011 and requested that she drop the charge.              Masten agreed with the

stipulation that, in exchange for dropping the charge, Landlord would cease the

discriminatory practices.
       {¶5} On or around July 11, 2011, Masten learned that she was unsuccessful in her

attempt to drop the OCRC charge against Landlord. Landlord issued on July 12, 2011,

an 81-day notice of nonrenewal of Masten’s lease.         According to the notice, Masten was

required to vacate the property by September 30, 2011.            Masten became a holdover

tenant when she did not vacate the property by that date.

       {¶6} On October 10, 2011, Landlord served Masten with a three-day notice to

vacate the property. Landlord filed four days later a forcible entry and detainer action in

Euclid Municipal Court for eviction of Masten. Masten answered the complaint, and

filed a counterclaim under the Acts for discriminatory practices, retaliatory behaviors, and

retaliatory eviction that followed the OCRC filings by Masten and, with Masten’s

assistance, the other resident.   Masten also requested a change in venue.     The municipal

court granted the change in venue request, and transferred the case on November 9, 2011,

to the Cuyahoga County Court of Common Pleas.

       {¶7} Landlord filed a motion for summary judgment on February 27, 2012,

relating to Count 1 of its complaint for forcible entry and detainer.         In an affidavit

included with her brief in opposition to the motion, Masten acknowledged receipt of both

the three-day notice to vacate and notice of nonrenewal of the lease.

       {¶8} On August 3, 2012, the trial court granted Landlord’s motion for summary

judgment on Count 1 for forcible entry and detainer, but denied the motion as to Masten’s

counterclaims. In its ruling, the court stated in part:

             It is well settled that a landlord is required to follow a three-step
       process before a court will order a tenant to vacate the premises. [Citation
      deleted.] The landlord must provide (1) a notice of termination of tenancy;
      (2) a notice to vacate the premises; and then the landlord must file (3) a
      Complaint in forcible entry and detainer. [Citation deleted.]

              In this instance, [Landlord] followed the requisite three-step process.
      ***

             In addition to finding that [Landlord] followed the three-step
      process, the court must also determine whether [Landlord’s] act of not
      renewing the lease constitutes retaliatory conduct. O.R.C. § 5321.02
      generally prohibits retaliatory conduct by landlords. Notwithstanding
      section 5321.02, O.R.C. § 5321.03(A)(4) permits a landlord to bring an
      action for possession of the premises if the tenant is holding over the
      tenant’s term. On September 30, 2011 Masten’s lease expired pursuant to
      the terms of the lease. [Landlord] sent notice to Masten that it did not plan
      to renew her lease; thus, Masten was a holdover tenant.

             The Eighth District Court of Appeals has held that retaliatory
      conduct of the landlord may not be raised as a defense in a forcible entry
      and detainer proceeding when the tenant is holding over his term. See
      Siegler [v. Batdorff, 63 Ohio App.2d 76, 408 N.E.2d 1383 (8th Dist.
      1979)], and Indian Hills [Senior Community v. Sanders, 8th Dist. No.
      78780, 2001 Ohio App. LEXIS 3717 (August 23, 2001)].
             Accordingly, the Court finds Plaintiff’s motion for summary
      judgment on count one for forcible entry and detainer to be well taken and
      granted. Masten shall vacate the premises within 30 days of this entry.
      On evidence presented to the Court at this stage, Plaintiff’s request for
      summary judgment on count two of Defendant’s counterclaim is not well
      taken and is denied. * * *

      {¶9} Masten timely appealed and raises four assignments of error for this court’s

review.   She argues (1) the trial court erred in applying Indian Hills to a holdover tenant

who alleges a landlord violates the FHA by not renewing a lease; (2) the trial court’s

decision violates the Supremacy Clause of the United States Constitution; (3) the trial

court erred in applying Indian Hills to a holdover tenant who alleges a landlord violates

the Ohio Fair Housing Act by not renewing a lease; and (4) this court should “reverse”
Indian Hills because we wrongly decided the case.           For the following reasons, we

sustain Masten’s first and third assignments of error.

       {¶10}   Appellate review of a trial court’s decision on a motion for summary

judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d

241 (1996); Zemcik v. LaPine Truck Sales & Equip., 124 Ohio App.3d 581, 585, 706

N.E.2d 860 (8th Dist.1998). The court applies the following test:

       Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is

       no genuine issue of material fact, (2) the moving party is entitled to

       judgment as a matter of law, and (3) reasonable minds can come to but one

       conclusion and that conclusion is adverse to the nonmoving party, said party

       being entitled to have the evidence construed most strongly in his favor.

Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).

       {¶11} The party moving for summary judgment bears the initial burden of showing

there is no genuine issue of material fact and it is entitled to judgment as a matter of law.

Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving

party satisfies that burden, the nonmoving party “may not rest upon the mere allegations

or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise

provided in this rule, must set forth specific facts showing that there is a genuine issue for

trial.” Civ.R. 56(E).

       {¶12} Prior to reviewing the trial court’s ruling on Landlord’s motion for summary

judgment, we must identify the different purposes of R.C. Chapters 1923, 4112, and
5321. The underlying action commenced as one to reclaim property where an owner

terminates the leaseholder’s right to rent the property. The owner is provided a summary

action under R.C. Chapter 1923, forcible entry and detainer, to quickly reclaim the

property.   R.C. 1923.02 specifically allows an owner to bring a forcible entry and

detainer action against a tenant who holds over a term. R.C. 1923.061(A) allows that

tenant to assert at trial “[a]ny defense in an action under this chapter.”

       {¶13} There is, however, a general inability derived from Civ.R. 1(C) for a tenant

to assert a defense in a forcible entry and detainer action. The rule refers to the scope

and applicability of the civil rules, and states, “to the extent that they would by their

nature be clearly inapplicable, [they] shall not apply to procedure * * * in forcible entry

and detainer.” Civ.R. 1(C). Forcible entry and detainer is, therefore, designed to be a

summary action allowing speedy relief. Any delay caused through added processes,

including the assertion of defenses, is contrary to the speedy relief intended by R.C.

Chapter 1923.

       {¶14} Under the Ohio Landlord-Tenant Act, R.C. Chapter 5321, however, a tenant

may raise the issue of retaliation as a defense to the landlord’s action for possession if the

landlord brings or threatens to bring an action against the tenant for possession in

retaliation against the tenant’s forming a union, complaining to a governmental agency

about a violation of a building, housing, health, or safety code, or complaining to the

landlord about a breach of the landlord’s statutory obligations. R.C. 5321.02(A). R.C.

5321.03(A)(4) states that notwithstanding R.C. 5321.02, a landlord may initiate a forcible
entry and detainer action under R.C. 1923.02 against a tenant holding over his or her

term. A holdover tenant may not, therefore, use a landlord’s retaliatory action as a

defense under these circumstances. Siegler, 63 Ohio App.2d 76, 408 N.E.2d 1383;

Indian Hills, 8th Dist. No. 78780, 2001 Ohio App. LEXIS 3717.

       {¶15} Ohio’s Fair Housing Act prohibits, on the other hand, certain unlawful

discrimination as defined in R.C. 4112.02(H)(1) and (12). R.C. 4112.02(H)(1) provides

that it is an unlawful discriminatory practice to refuse to rent, lease, or otherwise deny or

make unavailable housing accommodations because of “race, color, religion, sex, military

status, familial status, ancestry, disability, or national origin.” R.C. 4112.02(H)(12) also

provides that it is unlawful to “[c]oerce, intimidate, threaten, or interfere with any person

in the exercise or enjoyment of, or on account of that person’s having exercised or

enjoyed or having aided or encouraged any other person in the exercise or enjoyment of,

any right granted or protected by division (H) of this section.”

       {¶16} The FHA likewise makes it illegal to discriminate in the rental of a dwelling

because of a tenant’s disability.1 42 U.S.C. 3604(f)(1). It is also illegal to discriminate

against anyone in the terms and conditions of a rental because of a tenant’s disability. 42

U.S.C. 3604(f)(2). The statute further prohibits a person from making a statement with

respect to the rental of a dwelling “that indicates any preference, limitation, or



       1
        When interpreting R.C. Chapter 4112, Ohio courts have held that it is appropriate to look to
analogous federal statutes and case law. See Wooten v. Columbus, Div. of Water, 91 Ohio App.3d
326, 334, 632 N.E.2d 605 (10th Dist.1993).
discrimination based on [a disability] or an intention to make any such preference,

limitation, or discrimination.” 42 U.S.C. 3604(c).

       {¶17} Unlike the general inability to assert a defense in a forcible entry and

detainer action under R.C. Chapter 1923, and the express inability to raise retaliation as a

defense under R.C. 5321.03(A)(4), a tenant can assert a counterclaim in an Ohio forcible

entry and detainer proceeding that he or she is being evicted for discriminatory reasons.2

See Gueye v. Tower, S.D.Ohio No. 1:09-cv-385, *11, 2011 U.S. Dist. LEXIS 49987 (May

5, 2011), citing Strader v. Johnson, 10th Dist. No. 98AP-202, 1998 Ohio App. LEXIS

6246, at *1 (Dec. 22, 1998) (asserting FHA counterclaims in an eviction action).3 In

addition, “[a] direct defense can be inserted in the [forcible entry and detainer] action,

such as payment of the rent when non-payment is the reason, or an unlawful

discrimination that is specifically applicable, such as race, or national origin where

appellant was excluded for that reason.” Olympic Realty v. Zaleski, 10th Dist. No.

11AP-971, 2013-Ohio-1245, citing Miele v. Ribovich, 90 Ohio St.3d 439, 739 N.E.2d 333




       2
          Federal fair housing law provides that an aggrieved person may commence a civil action in
an appropriate United States district court or state court to obtain appropriate relief with respect to
such discriminatory housing practice. 42 U.S.C. 3613(a)(1)(A). The failure to seek relief in federal
court is, therefore, not fatal to Masten’s claims in state court.
       3
         See also Maki v. Laakko, 88 F.3d 361 (6th Cir.1996) (complaints concerning eviction from a
rental property on grounds of disability discrimination are actionable under the FHA); Forney v.
Climbing Higher Ents., Inc., 158 Ohio App.3d 338, 345-346, 2004-Ohio-4444, 815 N.E.2d 722
(compulsory counterclaim must be asserted in a forcible entry and detainer case if the landlord seeks
rent in addition to the premises).
(2000). See also Lable & Co. v. Flowers, 104 Ohio App.3d 227, 661 N.E.2d 782 (9th

Dist.1995).

       {¶18} Here, the record supports the trial court’s conclusion that Landlord followed

the requisite three-step process to remove a resident from a particular residence. There is

no genuine issue of material fact concerning this process.               As argued by Masten,

however, the trial court erred in applying Indian Hills to a holdover tenant who alleges

that a landlord violates the Acts by not renewing a lease.

       {¶19} This case is distinguishable from both Siegler, 63 Ohio App.2d 76, 408

N.E.2d 1383, and Indian Hills, 8th Dist. No. 78780, 2001 Ohio App. LEXIS 3717, and

we accordingly overrule Masten’s fourth assignment of error that we should overrule

Indian Hills because we wrongly decided the case. In Indian Hills and Siegler, the

former tenants complained to an appropriate governmental agency of a violation of a

building, housing, health, or safety code; complained to the landlord about a violation of

R.C. 5321.04; or the tenant joined with other tenants for the purpose of negotiating or

dealing collectively with the landlord on any of the terms and conditions of a rental

agreement.4 Masten’s counterclaims of retaliation were not premised on R.C. 5321.02.

Rather, she claimed that Landlord did not renew her lease because she is a member of a

protected category under the Acts, and she also assisted another resident in her OCRC


       4
         See also Ruble v. M & L Props., Ltd., 5th Dist. No. 10-COA-006, 2010-Ohio-6356 (tenant
complained about landlord’s failure to address water seepage in basement); Associated Estates Realty
Corp. v. Samsa, 8th Dist. No. 84297, 2004-Ohio-6635 (tenant complained about landlord’s failure to
repair and maintain premises in a safe manner).
claim against Landlord. Accordingly, the trial court erred in not allowing Masten to

insert a direct defense to the forcible entry and detainer action, an unlawful discrimination

that is specifically applicable, such as race, national origin, or handicap, where the tenant

is allegedly excluded for that reason.5

        {¶20} The present case is also distinguishable from Palomba v. Hayes, 8th Dist.

Nos. 65781 and 66714, 1995 Ohio App. LEXIS 1572 (Apr. 13, 1995). Hayes’s essential

argument on appeal was that the trial court prevented her from presenting evidence in a

forcible entry and detainer action, either through a defense or joined counterclaim, that

Palomba chose not to renew her lease based on race.                   Id. at *11.      The referee in

Palomba, however, allowed Hayes to present evidence regarding the alleged

discrimination at the first cause hearing, and expressly found the evidence insufficient to

support the racial discrimination claim. Id. at *13 and *21. The referee then “granted

the writ of eviction based on expiration of the term of the lease with proper exercise of

contractual right not to renew.”           Id. at *6.     The trial court adopted the referee’s

conclusion regarding the lack of evidence of racial discrimination. Id. at *5-6.

        {¶21} Hayes’s counterclaims alleging racial discrimination remained pending

following this ruling. The trial court subsequently granted summary judgment in favor

        5
          See Newell v. Rolling Hills Apts., 134 F.Supp.2d 1026, *1038 (C.D.Iowa 2001) (“It appears
that the majority of states to consider the question recognize that the landlord’s discriminatory
conduct, that is, discriminatory conduct towards a tenant on the basis of a protected characteristic,
such as race, color, or disability, is a cognizable defense in a forcible entry and detainer action.
[Citations omitted.]”); W.W.G. Corp. v. Hughes, 960 P.2d 720 (Colo.1998) (summarizing the doctrine
of retaliatory eviction as a limitation on a landlord’s traditional right to decline to renew a lease for
any reason, and citing the defining case as Edwards v. Habib, 397 F.2d 687 (D.C.Cir.1968)).
of Palomba on Hayes’s counterclaims based on the doctrine of collateral estoppel because

the referee considered, but rejected, those claims at the first cause hearing.

       {¶22} On appeal in Palomba, we found that because of the trial court’s adoption of

the referee’s conclusion regarding the lack of evidence of racial discrimination, “the

doctrine of collateral estoppel prevented subsequent relitigation of the issue.” Id. at *22.

 In other words, the trial court considered, but rejected, Hayes’s allegations of racial

discrimination as a defense, and then used that ruling to bar Hayes’s counterclaims. We

found that the trial court’s use of collateral estoppel was appropriate. Id. at *21-22.

Palomba cannot, therefore, be relied on to prevent a tenant from raising a defense of

discrimination in a forcible entry and detainer action because the tenant in Palomba was

able to raise this defense. Id. at *19.

       {¶23} A similar situation occurred in Siegler, 63 Ohio App.2d 76, 408 N.E.2d

1383. The landlord served tenants with a notice of termination of tenancy on March 31,

1978, and a notice to vacate the premises on May 2, 1978. Id. at *77. The landlord

attached copies of the notices to its complaint in a forcible entry and detainer action. Id.

The tenants raised as an affirmative defense that the landlord retaliated against them in

violation of R.C. Chapter 5321. Id. The tenants also raised a retaliatory motive in one

of three counterclaims against the landlord. Id.

       {¶24} In ruling on the landlord’s motion for summary judgment, the trial court in

Siegler relied on the parties’ affidavits and pleadings, and found that the landlord initiated

the eviction process on March 31, 1978, prior to the conduct giving rise to the tenants’
claim of retaliation that occurred on April 13, 1978. Id. at *83. Because the alleged

retaliatory conduct occurred after the landlord’s initial notice of termination of tenancy,

this court found the trial court’s grant of summary judgment in favor of the landlord was

appropriate.    Id. at *84.    “[T]he allegation of retaliatory conduct is[, therefore,]

insufficient to prevent the court from rendering summary judgment in the present case.”

Id. at *83.

       {¶25} Our decision in the present case is only intended to prevent a trial court, in a

forcible entry and detainer action, from relying on the R.C. 5321.03(A)(4) exclusion

when a tenant raises a claim of retaliatory or discriminatory eviction under the FHA or

Ohio Fair Housing Act. R.C. Chapter 4112 is a remedial statute enacted for the purpose

of preventing, inter alia, handicap discrimination in housing. R.C. 4112.08 requires the

liberal construction of the provisions of R.C. Chapter 4112 for accomplishment of its

purposes. Our decision fulfills this requirement and recognizes the purpose of R.C.

Chapter 4112.

       {¶26} Our decision is not, however, intended to make a trial court a prisoner to
tenants’ assertions of discriminatory practices. As in Palomba, 8th Dist. Nos. 65781 and
66714, 1995 Ohio App. LEXIS 1572, and Siegler, a trial court may summarily dispose of
such assertions based on the parties’ pleadings and filings.

       [E]ven if a tenant can prove a retaliatory purpose, the tenant is not entitled
       to remain in possession in perpetuity. If an illegal purpose is dissipated,
       the landlord can, in the absence of legislation or a binding contract, evict his
       tenants or raise their rents for economic or other legitimate reasons, or even
       for no reason at all. The question of permissible or impermissible purpose is
       one of fact for the court or jury.

Edwards, 397 F.2d 687, 702 (D.C.1968).
       {¶27} A party can make out a prima facie case for discrimination if he or she can

show that he or she was a member of a class against which discrimination is prohibited;

he or she was qualified to rent the property in question; he or she was evicted; and the

property remained available following the eviction. Maki v. Laakko, 88 F.3d 361, 364

(6th Cir.1996). See Hidden Village, L.L.C. v. Lakewood, 867 F.Supp.2d 920 (N.D.Ohio

2012); Elliott v. Plaza Properties, Inc., S.D.Ohio No. 2:08cv1037, 2010 U.S. Dist. LEXIS

68394 (June 18, 2010).

       {¶28} Similarly, while the FHA protects from retaliation any person who aids

another in the exercise of rights protected by the FHA, see 42 U.S.C. 3617, a plaintiff

must show a “causal connection * * * between the protected activity and the adverse

action” as part of his or her prima facie case. Regional Economic Community Action

Program, Inc. v. Middletown, 294 F.3d 35, 54 (2d Cir.2002). To establish a prima facie

case of retaliation, a plaintiff must show “(1) a protected activity; (2) an adverse

employment action; and (3) a causal link between the protected activity and the adverse

employment action.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1034-1035

(9th Cir.2006).6

       {¶29} Nonspecific, conclusory statements without factual support will not

overcome a properly supported motion for summary judgment. Maki, 88 F.3d 361, at

364. If he or she wants the case to move beyond the pleadings stage, a fair housing

       6
         “Employment discrimination case law interpreting the parties’ respective burdens under
[McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)] is fully
applicable” in FHA discrimination cases. Lindsay v. Yates, 578 F.3d 407, 414, fn. 7 (6th Cir.2009).
discrimination plaintiff must “allege sufficient material facts to state a plausible claim for

relief.” Elliott, *18-19, quoting Kasten v. Ford Motor Co., E.D.Mich. No. 09-11754,

2009 U.S. Dist. LEXIS 101348 (Oct. 30, 2009).

       {¶30} We acknowledge that Masten’s counterclaims remain pending in the trial

court because the court denied Landlord’s motion for summary judgment in connection

with them. We also acknowledge that the trial court ordered Masten to vacate the

premises within 30 days of its August 3, 2012 entry, and this court denied her request for

a stay of proceedings. 7 This court’s order vacating the eviction may, therefore, be

useless relief for Masten; but given the right to be free from discriminatory eviction under

the Acts, vacating the eviction order is a necessity.

       {¶31} Masten’s first and third assignments of error are sustained. This renders

moot her second assignment of error.

       {¶32} Judgment is reversed; the order of eviction is vacated; and this cause is

remanded for further proceedings to determine whether Landlord violated the Acts in not

renewing Masten’s lease agreement.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.


       7
         We learned at the appellate hearing that Masten currently resides in the property, and
voluntarily pays rent through the common pleas court.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR
