[Cite as White v. Bergman, 2015-Ohio-4137.]


                                      COURT OF APPEALS
                                   ASHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                      JUDGES:
JAMES E. WHITE, ET AL                         :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Sheila G. Farmer, J.
                     Plaintiffs-Appellees     :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 15-COA-010
JASON BERGMAN                                 :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Ashland Municipal
                                                  Court, Case No. 14-CV-G-0806



JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           October 2, 2015



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JEFFREY W. KRUEGER                                ANDREW BUSH
Box 360135                                        46 W. Main Street
Cleveland, OH 44136                               Ashland, OH 44805
Ashland County, Case No. 12-COA-010                                                      2

Gwin, P.J.

       {¶1}   Appellant appeals the March 5, 2015 judgment entry of the Ashland

Municipal Court.

                                   Facts & Procedural History

       {¶2}   On October 9, 2014, appellees James and Donna White filed a complaint

for forcible entry and detainer against appellant Jason Bergman with regards to the

property located at 476 U.S. 250 North in Greenwich, Ohio. The complaint states that

appellant has possession of the property, but is not a tenant and has no lease with

appellees. In their complaint, appellees state they are entitled to possession of the

premises and they request restitution with respect to possession of the premises.

Appellant filed an answer to the complaint on October 17, 2014.

       {¶3}   The trial court conducted a bench trial on December 1, 2014. James

testified that he is a member of J&D White Development Co., LLC and this is the LLC

for his real estate. His wife Donna is the other member of the LLC. With regards to the

property located at 476 U.S. 250 North in Greenwich, Ohio, he is the manger of the

property as it is owned by J&D White Development Co., LLC. He pays the bills and his

maintenance employee does the maintenance at the property. His daughter lives on

the property. He does not charge her rent and they have no formal lease agreement.

There are no restrictions on her use of the property. Appellant is the live-in boyfriend of

James' daughter and does not pay rent or have a lease with either appellees or the

LLC.   James stated that he has never given appellant permission to occupy the

property.
Ashland County, Case No. 12-COA-010                                                     3


       {¶4}    On cross-examination, James testified that his daughter is occupying the

premises as his guest and she has his permission to live there. She comes and goes

as she wishes and has lived there for two (2) years. James stated that appellant is an

occupier on the premises. Further, that he is not seeking to kick his daughter out of the

premises, unless it comes down to it, and he will if he has to. James testified that his

daughter will continue to have possession of the property even if James is successful in

evicting appellant from the property.

       {¶5}    On re-direct, James testified that he has access to the property, has keys,

and can access the property anytime he desires, but that he does not intrude on his

daughter's privacy. At the close of the appellees' case, counsel for appellees requested

that the complaint be amended to conform to the evidence to reflect that appellees are

agents and managers, rather than owners of the property. The motion was granted by

the trial court.

       {¶6}    The trial court issued a judgment entry on March 5, 2015. The trial court

found appellees to be managers of the property and thus "landlords" for purposes of

Chapter 1923 of the Revised Code. Further, that appellees do not seek eviction of their

daughter, who is not named as a party to this action.         The trial court stated that

appellees believe that appellant engaged in illegal acts at the home, but presented no

admissible evidence to support that allegation.

       {¶7}    The trial court found that appellant is not a tenant because he has no

rental agreement and does not pay rent to appellees.            However, the trial court

determined that, pursuant to R.C. 1923.02(A)(5), a forcible entry and detainer action

may lie against an "occupier" who lacks color of title. Since "occupier" is not defined in
Ashland County, Case No. 12-COA-010                                                     4


R.C. 1923.02(A)(5), the trial court applied the ordinary and customary use of the term.

The trial court cited cases in which non-tenants living in the home by invitation of

another have been found to be "occupiers" for purpose of Chapter 1923 of the Revised

Code. The trial court found, based upon the evidence presented, that appellant is an

"occupier" pursuant to R.C. 1923.02(A)(5) who lacks the color of title and appellees are

entitled to possession of the premises with respect to him. The trial court noted that

appellees could evict their daughter pursuant to the same statutory provision; however,

there is no authority for the proposition that choosing not to evict their daughter limits

their ability to evict appellant.    The trial court granted appellees restitution of the

premises at 476 U.S. 250 in Greenwich, Ohio, with respect to appellant.

       {¶8}   Appellant appeals the March 5, 2015 judgment entry of the Ashland

Municipal Court and assigns the following as error:

       {¶9}   "I. THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT

WAS SUBJECT TO THE                  FORCIBLE ENTRY AND DETAINER STATUTES

PURSUANT TO R.C. 1923.02(A)(5) AND THAT THE REMEDY SOUGHT WAS

AVAILABLE UNDER CHAPTER 1923."

                                                 I.

       {¶10} Appellant argues that the trial court erred in finding he was subject to the

forcible entry and detainer statute pursuant to R.C. 1923.02(A)(5).

       {¶11} The trial court conducted a bench trial in this case. As an appellate court,

we are not fact finders; we neither weigh the evidence nor judge the credibility of

witnesses. Our role is to determine whether there is relevant, competent, and credible

evidence upon which the fact finder could base his or her judgment.          Peterson v.
Ashland County, Case No. 12-COA-010                                                     5

Peterson, 5th Dist. Muskingum No. CT2003-0049, 2004-Ohio-4714, citing Cross Truck

v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (Feb. 10, 1982). Questions of

law are reviewed by this Court de novo. Erie Ins. Co. v. Paradise, 5th Dist. Fairfield No.

2008CA00084, 2009-Ohio-4005.

      {¶12} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d

517, the Ohio Supreme Court clarified the standard of review appellate courts should

apply when assessing the manifest weight of the evidence in a civil case. SST Bearing

Corp. v. Twin City Fan Companies, Ltd., 1st Dist. Hamilton No. C110611, 2012–Ohio–

2490. The Ohio Supreme Court held the standard of review for manifest weight of the

evidence for criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997), is also applicable in civil cases. Id. A reviewing court is to examine

the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine “whether in resolving conflicts in the evidence,

the finder of fact clearly lost its way and created such a manifest miscarriage of justice

that the judgment must be reversed and a new trial ordered.” Id., quoting Twearson v.

Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist. Lorain 2001); See also

Sheet Metal Workers Local Union No. 33 v. Sutton, 5th Dist. Stark No. 2011 CA00262,

2012–Ohio–3549 citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist. Hamilton 1983). “In a civil case, in which the burden of persuasion is only by a

preponderance of the evidence, rather than beyond a reasonable doubt, evidence must

still exist on each element (sufficiency) and the evidence on each element must satisfy

the burden of persuasion (weight).” Id.
Ashland County, Case No. 12-COA-010                                                        6


       {¶13} Appellant first argues that R.C. 1923.02(A)(5) is not applicable to him

because the second portion of the statute "contemplates that a complaintant relying on

such subsection be seeking possession of the subject property." We disagree.

       {¶14} Forcible entry and detainer is a legal action specifically designed to

determine the right of possession between parties who are in controversy upon the

question. Fodor v. First Nat'l Supermarkets, Inc., 53 Ohio St.3d 489, 589 N.E.2d 17

(1992). R.C. 1923.02(A)(5) provides for the filing of a forcible entry and detainer action

against a defendant who is "an occupier of lands or tenements, without color of title, and

[when the] complaintant has the right of possession to the property."

       {¶15} When interpreting a statute, a court’s principal concern is the legislative

intent in enacting the statute.    State v. S.R., 63 Ohio St.3d 590, 589 N.E.2d 1319

(1992). It is a fundamental rule under Ohio law that a court must first look to the

statute’s language itself to determine the legislative intent. Id. In interpreting a statute,

“words and phrases shall be read in context and construed according to the rules of

grammar and common usage * * *.” Independent Insurance Agents of Ohio, Inc. v.

Fabe, 63 Ohio St.3d 310, 587 N.E.2d 814 (1992). Courts do not have the authority to

ignore the plain language of a statute under the guise of statutory interpretation, but

must give effect to the words used. State ex rel. Fenley v. Ohio Historical Society, 64

Ohio St.3d 509, 597 N.E.2d 120 (1992).

       {¶16} In this case, it is clear from the plain language of R.C. 1923.02(A)(5) that

the complaintant must have the "right to possession." There is nothing in the plain

language of the statute to indicate that, to utilize the section, a plaintiff is required to
Ashland County, Case No. 12-COA-010                                                   7


affirmatively possess the property themselves or seek possession of the property to the

exclusion of all others.

       {¶17} Appellant secondly contends that, even if R.C. 1923.02(A)(5) applies, it is

not applicable to him in this case because appellees are not seeking the remedy under

this section, possession of the premises, since they intend to let their daughter remain

on the premises. We disagree.

       {¶18} We find this case analogous to the case of Sanders v. Favors, 1st Dist.

Hamilton No. C-950304, 1995 WL 763681 (Dec. 29, 1995). In Sanders, the defendant

was an occupier of the premises as he was the guest of his aunt, who was a tenant.

The defendant had no leasehold nor the plaintiff's permission to occupy the premises,

but argued that he was on the property as the guest of the tenant, his aunt, and thus

was not subject to the forcible entry and detainer statute of R.C. 1923.02(A)(5). The

court stated that, "the fact that Dunn [tenant] may have allowed Favors [defendant] and

his children to stay at the home with her does not, without more, defeat Sanders'

[plaintiffs'] forcible entry and detainer action against Favors." Id. Thus, the occupier

was evicted while the tenant was allowed to remain in the property.

       {¶19} In this case, like in Sanders, appellant was an occupier of the premises

because he was the guest of appellees' adult daughter. Appellant's occupancy of the

premises is not rooted in common law, contract/leasehold law, or any legally

enforceable basis. Appellees have the right to posses the premises as they own the

property through a limited liability company and they are the landlords of the premises

pursuant to Chapter 1923 of the Revised Code.        The fact that appellees' daughter

allowed appellant to stay with her at the property does not, without more, defeat
Ashland County, Case No. 12-COA-010                                                  8

appellees' forcible entry and detainer action against him. See also, Estate of Wos, 6th

Dist. Lucas No. L-05-1408, 2006-Ohio-4302; Barnick v. Barnick, 8th Dist. Cuyahoga No.

87997, 2007-Ohio-635.       Further, the complaint in this case specifically requests

restitution of the premises against appellant.

       {¶20} Based upon the foregoing, we overrule appellant's assignment of error.

The March 5, 2015 judgment entry of the Ashland Municipal Court is affirmed.




By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur
