[Cite as Scott v. Schuster, 2019-Ohio-4448.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

JOYCE SCOTT, et al.                                   C.A. No.       29253

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DAVID SCHUSTER                                        BARBERTON MUNICIPAL COURT
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CVG 1801514

                                  DECISION AND JOURNAL ENTRY

Dated: October 30, 2019



        HENSAL, Judge.

        {¶1}     Joel Helms appeals a judgment of the Barberton Municipal Court that denied him

and Joyce Scott, Executrix of the Estates of James and Mildred Helms, a writ of restitution. For

the following reasons, this Court affirms.

                                                 I.

        {¶2}     According to Ms. Scott, David Schuster’s brother resided in an apartment unit in a

building owned by members of the Helms family. When Mr. Schuster’s brother died, Mr.

Schuster moved into the apartment. According to Ms. Scott, although there was no written lease,

Mr. Schuster was required to pay the electric bill for the apartment. When the bill went unpaid

and the power was turned off, Mr. Schuster was allowed to run an extension cord to a different

unit. The power for that unit and others was eventually turned off for non-payment as well, so

Mr. Helms and Ms. Scott decided to evict Mr. Schuster. After serving Mr. Schuster with a three-
                                                  2


day notice, they filed a forcible entry and detainer action against him.        They also sought

restitution for the unpaid electric bills.

        {¶3}    The matter proceeded to a hearing before a magistrate. During the hearing, Mr.

Schuster alleged that he paid the electric bill the first two months he was in the unit and that he

has not received any additional bills from Mr. Helms. Following the hearing, the magistrate

found that Mr. Schuster had a month-to-month tenancy and that Mr. Helms and Ms. Scott had

not provided him with the 30-day notice required under Revised Code Section 5321.17. It,

therefore, ordered that a writ of restitution would not be issued. Mr. Helms objected, but the

municipal court overruled his objections and entered a judgment that a writ of restitution would

not be issued. Mr. Helms has appealed, assigning as error that the municipal court incorrectly

concluded that Mr. Schuster had a month-to-month tenancy.

                                                  II.

                                     ASSIGNMENT OF ERROR

        DID THE MAGISTRATE MAKE ASSUMPTION OF RIGHTS OF TENANCY
        REQUIRING 30-DAY NOTICE VS. PRESUMED RIGHTS OF
        FAMILY/TRUST REQUIRING 3-DAY NOTICE CONTRARY TO
        EVIDENCE?

        {¶4}    Mr. Helms argues that the municipal court incorrectly bestowed the rights of a

tenant to Mr. Schuster.       According to Mr. Helms, because there was no written lease or

agreement for the apartment unit and he and Ms. Scott did not receive any value from Mr.

Schuster, they did not have a tenant and landlord relationship. “Whether a contract exists is a

question of law.” Benefits Evolution, L.L.C. v. Atlantic Tool & Die Co., 9th Dist. Summit No.

25405, 2011-Ohio-4062, ¶ 25.         “An oral contract may be ascertained from the parties’ words,

deeds, acts, and silence.” Zelina v. Hillyer, 9th Dist. Lorain No. 05CA008661, 2005-Ohio-5803,

¶ 12.
                                                   3


       {¶5}    Section 5321.01(D) provides that a “[r]ental agreement” is “any agreement or

lease, written or oral, which establishes or modifies the terms, conditions, rules, or any other

provisions concerning the use and occupancy of residential premises by one of the parties.” Ms.

Scott testified that she and Mr. Helms allowed Mr. Schuster to live in his brother’s former

apartment. She testified that they did not want it to be permanent but that, if it was to become

permanent, Mr. Schuster would have to pay the electric bill. She also testified that she and Mr.

Helms made a demand for Mr. Schuster to pay the electric bill if he was going to stay in the

apartment. Mr. Helms and Ms. Scott both testified that they were seeking to evict Mr. Schuster

because he had failed to pay the electric bills.

       {¶6}    Upon review of the record, we conclude a rental agreement formed because there

was an oral agreement between Mr. Schuster, Mr. Helms, and Ms. Scott that established the

conditions under which Mr. Schuster could occupy the apartment unit. Specifically, Ms. Scott

and Mr. Helms would allow Mr. Schuster to reside in the apartment unit as long as he paid the

electric bill. According to Mr. Schuster, he paid the bills he received. Because it was not

disputed that the unit’s electricity usage is billed monthly, we conclude that the trial court

correctly determined that the oral rental agreement created a month-to-month tenancy. Under

Section 5321.17(B), a landlord may terminate a month-to-month tenancy by giving notice at

least 30 days before the periodic rental date. Mr. Helms does not dispute that he and Ms. Scott

did not provide Mr. Schuster with a 30-day notice. We, therefore, conclude that the trial court

did not err when it declined to order a writ of restitution. Mr. Helms’s assignment of error is

overruled.
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                                                III.

       {¶7}    Mr. Helms’s assignment of error is overruled. The judgment of the Barberton

Municipal Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Barberton

Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                       JENNIFER HENSAL
                                                       FOR THE COURT


CARR, P. J.
SCHAFER, J.
CONCUR.

APPEARANCES:

JOEL HELMS, pro se, Appellant.

DAVID SCHUSTER, pro se, Appellee.
