Olympic Realty v. Zaleski

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 10th District Court of Appeals » 2013 » Olympic Realty v. Zaleski

State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-1245

Case Date: 03/29/2013

Plaintiff: Olympic Realty

Defendant: Zaleski

Preview:[Cite as Olympic Realty v. Zaleski, 2013-Ohio-1245.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Olympic Realty,                                                                              :
Plaintiff-Appellee,                                                                          :   No. 11AP-971
                                                                                                 (M.C. No. 2011 CVG 038034)
v.                                                                                           :
                                                                                                 (REGULAR CALENDAR)
Voytek Zaleski,                                                                              :
Defendant-Appellant.                                                                         :
D    E    C    I    S    I    O    N
Rendered on March 29, 2013
Lardiere  McNair,  LLC,  and  Christopher  L.  Lardiere;
Eastman & Smith LTD, and Colleen L. Maloney, for appellee.
Bricker  &  Eckler  LLP,  Anne  Marie  Sferra,  and  Maggie
Abbulone, for appellant.
Willis Law Firm, LLC, Dimitrios G. Hatzifotinos, William L.
Willis, and Michael  J.  Cassone,  Amicus  Curiae  Columbus
Apartment Association on behalf of appellee.
APPEAL from the Franklin County Municipal Court.
McCORMAC, J.
{¶ 1}  Voytek Zaleski, defendant-appellant ("appellant"), appeals from a judgment
of  the  Franklin  County  Municipal  Court  that  granted  judgment  to  Olympic  Realty,
defendant-appellee ("appellee"), in a forcible entry and detainer case.
{¶ 2}  Appellant asserts two assignments of error:
[I.]  The  trial  court  erred  in  overruling  and  summarily
rejecting Appellant's objections to the Magistrate's decision.

No. 11AP-971                                                                                         2
[II.]  The  trial  court  committed  plain  error  in  failing  to
recognize that Ohio's Fair Housing Act applies to nonrenewal
of a lease.
{¶ 3}  We reject both assignments of error for the reasons stated in this decision
and render final judgment to appellee.
{¶ 4}  This case was consolidated with case No.  11AP-668 for oral argument;
however,  the  cases  were  decided  separately  in  the  trial  court  and  will  be  decided
separately in this court.
{¶ 5}  Appellee entered into a written lease with appellant on August 23, 1999 in
which appellee agreed to rent to appellant the premises known as 4739 Hilton Avenue C-
14, Columbus, Ohio.   The lease was on an annual basis allowing each of the parties to
terminate the lease if the notice requirements in the lease were not followed.  Appellee did
comply with the notice requirement stating that the lease would not be renewed and that
appellant's tenancy would terminate on September 30, 2011.   When appellant did not
vacate  the  premises,  appellee  filed  a  complaint  for  forcible  entry  and  detainer  on
October 7, 2011.
{¶ 6}  The  case  was  assigned  to  a  magistrate  who  conducted  a  hearing  on
November  4,  2011.    The hearing was brief and composed of  11 pages of testimony.
Appellant agreed that he had received a notice to leave alleging that he was a holdover
tenant and that his right to be there had ended.      He further stated that he still lived there.
His testimony was that appellee "in an unlawful, discriminatory practice, during the past
six months he seems to have imposed requirements of me that he has not imposed on
other residents."                                                                                    (Tr. 4.)   Appellant then stated that he was prohibited from walking on
the floor in a manner that caused it to squeak even though other residents were allowed to
make louder noises.   He also said he was prohibited from entering areas directly above
those occupied by the resident below.   Appellant based his refusal to leave the premises
after  his  lease  had  expired  on  appellee's  unlawful  discriminatory  practices.    The
magistrate responded that, "[e]ven if I believe what you say, that he treated you differently
than the other tenants, you still don't get a chance to live there indefinitely. At some point
your tenancy can end, all right?"  (Tr.  11.)    The magistrate stated that appellee did
everything required to end the tenancy and that at the end of the tenancy appellant must
leave.   "You hadn't left, so they're getting today the order that would have you set out if

No. 11AP-971                                                                                    3
they'd have to act on that order."                                                              (Tr. 11.)   He stated that appellant would be given five
days to leave the premises.
{¶ 7}  The magistrate rendered his decision on the same day of the hearing,
November 4, 2011, and it was filed with the court on November 7, 2011.    The magistrate's
decision was a form decision finding that, based on the evidence presented, the magistrate
found that the notice to vacate conforming to R.C. 1923.04 was properly served and that
appellee had proven the allegations set forth in the complaint by a preponderance of the
evidence.     He concluded that appellee was entitled to restitution of the premises and
costs.
{¶ 8}  On the same day of the hearing, November  4,  2011, appellant filed an
objection to the magistrate's decision stating that the magistrate did not give him an
opportunity to substantiate his position and to cite the statute which appellee had violated
which might have given him the opportunity to continue occupancy of the apartment.
Appellant also stated that the magistrate did not give him an opportunity or advise him
that the parties to this action were also involved in litigation in case No.  11AP-668,
currently pending in this court, and that a stay of restitution had been issued in that case.
{¶ 9}  On November 7, 2011, at 9:04 a.m., the trial court entered judgment finding
that appellant's objections are not supported by evidence or record and are denied,
upholding the magistrate's decision.
{¶ 10} It is important to keep in mind that the action herein is one to reclaim
property where the lease holder's right of the property has been terminated by the acts of
the owner.     In this case, the owner has given the tenant notice in accordance with the
rental contract that they will not renew the lease.   Owners are then provided summary
actions called forcible entry and detainer to quickly reclaim the property. R.C. Chapter
1923.   R.C. 1923.02 pertains to "Persons to subject to forcible entry and detainer action.
(A)(1) Against tenants * * * holding over their terms," which is the situation in this case.
R.C. 1923.06 provides that any defense in an action under this chapter may be asserted at
trial.   R.C. 5321.02 states that "a landlord may initiate eviction proceedings against a
tenant holding over their term."
{¶ 11} Appellee commenced this action by proving that appellant had held over his
term by proving the proper notices were given to him and that appellant had refused to
vacate the property.  Appellant was then required to establish a defense if he had one.  The

No. 11AP-971                                                                                    4
only defense raised in appellant's testimony was that he had been treated differently than
other tenants there and that "was an lawful discriminatory practice."    Appellant did not
present anything other then this general statement that he was treated differently than
other tenants and that was unlawful discrimination.    Appellant did not provide any
specific statements regarding the alleged unlawful discrimination.
{¶ 12} In appellant's objections to the magistrate's report he cited Ohio's Fair
Housing Act, R.C. Chapter 4112, that prohibits certain unlawful discrimination in R.C.
4112.02(H)(1) and (4).   R.C. section 4112.02(H)(1) provides that it should be 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,  *  *  *
ancestry, disability, or national origin."   R.C. 4112.02(H)(4) also uses the same categories
regarding holdovers because of "race, color, religion, sex, military status, * * * ancestry,
disability, or national origin."  Never once, even before the magistrate or in his objections
to the court does appellant provide evidence that he was refused holdover because he was
a member of a protected category under Ohio's Fair Housing Act.
{¶ 13} It should be noted that discriminating merely because the lessor did not like
appellant is not enough.  Thus, appellant presented no applicable defense.
{¶ 14} Appellant further states that he should have been able to explain what was
happening in the other action where the issue was whether the owner had proved
violations of the lease that had enabled appellee to oust appellant immediately.   The
validity of the "for cause" termination will be determined in the companion case No. 11AP-
668.  Regardless of the determination, it will not provide a defense in this case.
{¶ 15} The next issue is the application of the Ohio Rules of Civil Procedure to the
summary action of forcible entry and detainer.   Civ.R. 1(C), referring to the scope and
applicability of the civil rules, states an exception to their use where "they would by their
nature be clearly inapplicable, shall not apply to procedure * * *, (3) in forcible entry and
detainer."   Forcible entry and detainer was accepted because it was designed to be a
summary action allowing speedy relief.   Adding procedure through objections that could
be independently raised in another action could delay and hinder the efficacy of a forcible
entry and detainer action.  A direct defense can be inserted in the action, such as payment
of the rent when non-payment is the reason, or an unlawful discrimination that is

No. 11AP-971                                                                                       5
specifically applicable, such as race, or national origin where appellant was excluded for
that reason.  See Miele v. Robovich, 90 Ohio St.3d 439 (2000).
{¶ 16}    It is not a violation of the Civil Rules or rules pertaining to objections to a
magistrate's decision to develop a form report such as the one used in this case and for the
trial court to summarily review it and enter judgment immediately.   Since the normal
objection procedure would encumber the speedy nature of a forcible entry and detainer
action, it is not error for the trial court to adopt procedures helpful in enhancing that goal.
When an issue had been raised by pleading a viable defense, it would be part of the record
of the case.   A viable defense was not asserted prior to or within the hearing.   The alleged
defense, which was untimely raised, was not a defense to this action.     Appellant's first
assignment of error is overruled.
{¶ 17} Appellant had an opportunity to present specific and meaningful objections
to the magistrate and failed to do so.   The fact that appellant was pro se at trial does not
require the trial court to be lenient.  The trial court did not commit plain error in failing to
recognize that Ohio's Fair Housing Act applies to non-renewal of a lease.   It is doubtful
that the plain error doctrine has any application to this case, but, even if it does, there was
no manifest miscarriage of justice.   Appellant has presented no evidence that the trial
court's ruling is a manifest miscarriage of justice.  See Reichert v. Ingersoll, 18 Ohio St.3d
220, 223 (1985); State v. Davis, 127 Ohio St.3d 268, 2010-Ohio-5706.  Appellant's second
assignment of error is overruled.
{¶ 18} Appellant's motion to strike any notice of supplemental authority is denied
as there was no attempt to use the supplemental authority as evidence. Appellant's
motion to strike is moot.
{¶ 19} Appellant's assignments of error are overruled, and the judgment of the
Franklin County Municipal Court is affirmed.
Judgment affirmed.
BROWN and CONNOR, JJ., concur.
McCORMAC,  J.,  retired  of  the  Tenth  Appellate  District,
assigned  to  active  duty  under  authority  of  the  Ohio
Constitution, Article IV, Section 6(C).

Download 11ap-971.pdf