[Cite as Moran v. Gaskella, 2012-Ohio-1158.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
RANDI MORAN, ET AL                             :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                      Plaintiffs-Appellees     :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CA-21
DOROTHY GASKELLA, ET AL                        :
                                               :
                 Defendants-Appellants         :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Mount Vernon
                                                   Municipal Court, Case No. 11CVG00741

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            March 19, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JAY W. NIXON                                       DAVID B. STOKES
121 East High Street                               21 W. Church St., Ste. 206
Mount Vernon, OH 43050                             Newark, OH 43055
[Cite as Moran v. Gaskella, 2012-Ohio-1158.]


Gwin, P.J.

        {1}     Defendants-appellants Dorothy Gaskella and Dwight Allen appeal a

judgment of the Municipal Court of Mount Vernon, Knox County, Ohio, granted in favor

of plaintiffs-appellees Randi and Lori Moran on appellees’ forcible entry and detainer

action. Appellants assign six errors to the trial court:

        {2}     “I.    APPELLEES           FAILED   TO     ADEQUATELY   DEMONSTRATE

OWNERSHIP OF THE PREMISES.

        {3}     “II. APPELLEES’ EVICTION WAS UNLAWFULLY RETALIATORY.

        {4}     “III. THE TRIAL COURT ERRED IN OVERRULING APPELLANTS’ ORAL

MOTION TO DISMISS.

        {5}     “IV. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANTS’

MOTION FILED SEPTEMBER 30, 2011.

        {6}     “V. THE TRIAL COURT ERRED IN RULING THAT APPELLANTS’

‘WRITING’ IS INSUFFICIENT TO MEET THE REQUIREMENTS OF THE STATUTE OF

FRAUDS.

        {7}     “VI. THE TRIAL COURT ERRED BY NOT FINDING AN ORAL

CONTRACT/RENTAL AGREEMENT HEREIN.”

        {8}     The trial court conducted a hearing on September 23, 2011, and recited

the facts in its judgment entry of October 6, 2011. Appellant Dorothy Gaskella and her

late husband Frank Gaskella began renting a lot for a mobile home on March 1, 1990,

from Iris Moran. Appellants presented a receipt signed by Iris Moran acknowledging a

$75.00 rental payment for rent on Lot Number 3 from April 1, to May 1, 1990. The

receipt also contained the phrase “Thirty-year lease”. Appellees argued the handwriting
Knox County, Case No. 2011-CA-21                                                        3


of the phrase was different from the rest of the receipt but presented no expert

testimony on handwriting analysis.

      {9}    The trial court found Iris Moran was the appellees’ predecessor in interest,

and appellees were aware of appellants’ occupancy of the premises when they acquired

title to the property. The court found appellees received monthly rental payments from

appellants for several months after they acquired possession of the premises.

      {10}   The trial court found the document containing the phrase “Thirty-year

lease” did not contain all the essential terms of a rental contract. The court concluded

appellants’ occupancy of the property is a month-to-month tenancy and that appellees

are permitted to terminate the lease. The court issued a writ of restitution with an

eviction date of November 1, 2011, and granted judgment for rent for June, July,

August, September and October, 2011 at the rate of $130.00 per month or a total of

$650.00 plus interest at a rate of 4% per annum.

                                                I.

      {11}   In their first assignment of error, appellants argue appellees did not

present any documentary evidence showing they owned the premises, although

appellants concede appellee Lori Moran testified she was the legal owner of the

premises. Appellants did not offer any evidence to the contrary.

      {12}   Essentially, appellants argue the testimony was insufficient as a matter of

law. Our standard of reviewing the sufficiency of the evidence in a civil case is whether,

after viewing the evidence in a light most favorable to the prevailing party, the judgment

is supported by competent and credible evidence. Technical Constructions v. Cooper,

8th Dist. No. 96021, 2011-Ohio-5252, at ¶ 14.
Knox County, Case No. 2011-CA-21                                                        4


       {13}   We find the evidence was sufficient to establish appellees’ claims. The

first assignment of error is overruled.

                                               II.

       {14}   In their second assignment of error, appellants argue the eviction was

retaliatory because appellants and appellees had some conflict over dogs and trees.

       {15}   It appears from the record appellants did not raise the matter in the trial

court. They argue they would have done so if the court had granted them extra time to

further move or plead after the hearing. They argue it was necessary because appellees

amended their complaint on the day of the hearing. At the hearing, appellants amended

their complaint to substitute appellant Dwight Allen’s name for a John Doe defendant

originally named in the complaint. The amended complaint did not alter any claims

against the appellants. Counsel for appellants stated he had no objection to proceeding

with the trial under the amended complaint.

       {16}   We find appellants waived the issue. The second assignment of error is

overruled.

                                               III.

       {17}   In their third assignment of error, appellants argue the trial court should

have dismissed the matter because appellants accepted their June rent payment,

thereby waiving the 30-day notice of termination served on appellants on May 31, 2011.

       {18}   If a landlord accepts future rent payments after serving a notice to vacate,

the landlord is deemed to have waived the notice to vacate as a matter of law because

the action of accepting rental payment is inconsistent with the notice to vacate.

However, if the landlord accepts payment for past-due rent, this does not act as a
Knox County, Case No. 2011-CA-21                                                             5

waiver of the three-day notice.      Associated States Corporation v. Bartell, 24 Ohio

App.3d 6, 9, 492 N.E. 2d 841 (1985).

       {19}   Appellees subsequently filed a three-day notice to vacate pursuant to R.C.

1923.04 on July 1, 2011. We find they did not waive the notice to vacate and were

entitled to the rent payment for the month of June, 2011.

       {20}   We find the trial court did not err in overruling appellant’s motion to

dismiss the action. The third assignment of error is overruled.

                                                IV.

       {21}   In their fourth assignment of error, appellants argue the court erred in not

sustaining their motion to reconsider its denial of their motion to dismiss.

       {22}   Because we find the trial court did not err in overruling the motion to

dismiss, we find it also did not err in overruling the motion to reconsider that judgment.

       {23}   The fourth assignment of error is overruled.

                                                V.

       {24}   In their fifth assignment of error, appellants argue the trial court erred in

ruling their receipt from Iris Moran containing the words “thirty-year lease” was

insufficient to meet the requirements of the statute of frauds.

       {25}   The trial court found that normally many obligations of the landlord and/or

the tenant are set forth in a written lease.          However, some obligations may be

determined by the conduct of the parties or predecessors in interest, such as who mows

the lawn, maintains the premises and driveway, and pays the utilities, trash removal,

and taxes. The trial court found in the case at bar, the conduct of the parties and of

their predecessors in interest proves many details of the agreement between the
Knox County, Case No. 2011-CA-21                                                           6


parties. However, the court found there was no proof with respect to how the rent is to

be determined. There is no proof of any limitation on the amount or frequency that the

rent may be increased, nor any formula for calculating a rent increase.

       {26}    Considering the alleged lease is for thirty years, we agree with the trial

court a provision for changes in the rent is an essential term. We further agree with the

trial court the omission of the provision is fatal. As the trial court correctly concluded, a

defective lease creates a month-to-month tenancy.            Kilcoyne Properties LLC v.

Fischbach, 5th Dist. No. 03CA072, 2004-Ohio-7272 at ¶ 43.

       {27}    The fifth assignment of error is overruled.

                                                 VI

       {28}    In their sixth assignment of error, appellants argue the trial court erred in

not finding an oral contract/rental agreement.

       {29}    At the hearing, Carol Cline, appellant Dorothy Gaskella’s daughter,

testified she spoke with appellees after her mother informed her appellees had asked

appellants to move. Cline testified appellees indicated if appellants paid $130.00 per

month, they could stay as long as they wanted. She testified this was a $20.00 increase

in the rent.

       {30}    Appellee Randi Moran testified the rent increase was not any kind of lease

term or renegotiation of the lease.      He testified the increase was simply because

appellants were not paying the same amount as the other tenants, although he

conceded appellants were responsible for their gas bill whereas at least one other

renter was not.
Knox County, Case No. 2011-CA-21                                                       7


       {31}   The trial court was the finder of fact here, and found appellees more

credible than appellants.   We may not reverse a judgment of the trial court if the

judgment is supported by competent and credible evidence. Vogel v. Wells, 57 Ohio St.

3d 91, 96, 566 N.E. 2d 154 (1991). This is because the trial court has the opportunity to

observe the witnesses and the nuances of their behavior, and can weigh the credibility

of the testimony in a manner which a reviewing court cannot. Seasons Coal Company

v. Cleveland, 10 Ohio St. 3d 77, 461 N.E. 2d 1273 (1984).

       {32}   We find the trial court’s judgment is supported by evidence in the record.

Accordingly, the sixth assignment of error is overruled.

       {33}   For the foregoing reasons, the judgment of the Mount Vernon Municipal

Court is affirmed.



By Gwin, P. J.,

Farmer, J., and

Wise, J., concur




                                              _________________________________
                                              HON. W. SCOTT GWIN


                                              _________________________________
                                              HON. SHEILA G. FARMER


                                              _________________________________
WSG:clw 0305                                  HON. JOHN W. WISE
[Cite as Moran v. Gaskella, 2012-Ohio-1158.]


                 IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


RANDI MORAN, ET AL                              :
                                                :
                        Plaintiffs-Appellants   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
DOROTHY GASKELLA, ET AL                         :
                                                :
                                                :
                     Defendants-Appellees       :       CASE NO. 2011-CA-21




   For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Mount Vernon Municipal Court is affirmed. Costs to appellant.




                                                    _________________________________
                                                    HON. W. SCOTT GWIN


                                                    _________________________________
                                                    HON. SHEILA G. FARMER


                                                    _________________________________
                                                    HON. JOHN W. WISE
