[Cite as Springboro Commons Retirement Villa, Inc. v. Feltner , 2021-Ohio-544.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

SPRINGBORO COMMONS RETIREMENT VILLA, INC., Appellant,

- vs -

CHARLES FELTNER, Appellee, :

:

:

:

:

: CASE NO. CA2020-07-040

O P I N I O N 3/1/2021

CIVIL APPEAL FROM WARREN COUNTY COURT Case No. 2019CVG001370

Kathleen Mezher & Associates, Kathleen D. Mezher, 8075 Beechmon t Avenue, Cincinnati, Ohio 45255, for appellant Pro Seniors, Inc., Karen S. Donnelly, 7162 Reading Road, Suite 1150, Cincinnati, Ohio 45237, for appellee

PIPER, J. {¶1} Appellant, Springboro Commons Retirement Villa, Inc., appeals a decision of the Warren County Court granting summary judgment in favor of a ppellee, Charles Feltner. 1 {¶2} Feltner has been a tenant of Springboro Commons, a federally su bsidized

1. Pursuant to Loc.R. 6(A), we sua sponte remove this case fro m the accelerated calendar for the purposes of issuing this opinion.Warren CA2020-07-040

- 2 - residence for senior citizens, since July 2018. Springboro Com mons served Feltner with a 30-day termination notice indicating its intention to terminate his lease on August 31, 2019. Springboro Commons alleged within its termination notice that F eltner had violated the terms of his lease by violating "health, safety, or right to pe aceful enjoyment of the premises." Thereafter, Feltner filed a complaint with the Ohio Civil Rights Commission and the United States Department of Housing and Urban Development ( "HUD") alleging

discrimination. {¶3} During the pendency of the investigation into Feltner's claims by the Ohio Civil Rights Commission, Springboro Commons permitted Feltner to rema in on its premises and accepted rent payments from him for August, September, and Octo ber 2019. Eventually,

the commission found that the eviction was not the result of di scrimination, and Springboro Commons served Feltner with a three-day notice to vacate on or before December 5, 2019 as a holdover tenant. Springboro Commons no longer accepted re nt from Feltner after the issuance of its three-day notice. {¶4} When Feltner had not vacated the premises per the three-day not ice, Springboro Commons filed a forcible entry and detainer action i n the trial court. Feltner filed an answer denying the allegations in Springboro Commons' evicti on notices, and discovery occurred. During this time, Feltner paid rent in escrow throug h the trial court for the portion

of his rent that HUD did not subsidize. The trial court issued a scheduling order that required dispositive motions to be filed by April 15, 2020. {¶5} Feltner filed his motion for summary judgment on April 15, 2020 per the scheduling order. In his motion, Feltner argued that the 30-da y termination of lease notice was deficient, and that Springboro Commons waived the notice by accepting future rent payments after serving him with the termination notice. Spring boro Commons did not file a motion for summary judgment. However, 12 days later, Springbor o Commons filed a motionWarren CA2020-07-040

- 3 - for leave to file its motion for summary judgment out of time. The trial court granted Feltner's motion for summary judgment and denied Springboro Commons' moti on for leave. Springboro Commons now appeals the trial court's decisions, rai sing two assignments of

error. {¶6} Assignment of Error No. 1: {¶7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. {¶8} Springboro argues in its first assignment of error that the tri al court erred by granting Feltner's motion for summary judgment. {¶9} We review a trial court's decision granting summary judgment de novo. Estate of Mennett v. Stauffer Site Servs., L.L.C. , 12th Dist. Warren Nos. CA2019-09-096 and CA2019-10-110, 2020-Ohio-4355. "De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial." Matthews v. Texas Roadhouse Mgt. Corp. , 12th Dist. Butler No. CA2020-03-037, 2020-Ohio-5229, ¶ 4. {¶10} Summary judgment is proper "if there are no genuine issues of m aterial fact to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is a dverse to the nonmoving party." Drew v. Weather Stop Roofing Co., L.L.C. , 12th Dist. Clermont No. CA2019-10-082, 2020-Ohio-2771, ¶ 10. {¶11} The moving party bears the initial burden of informing the cour t of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Dresher

v. Burt , 75 Ohio St. 3d 280, 292 (1996). Once this burden is met, the nonmoving party may not rest upon the mere allegations or denials of the pleadings but must supply evidentiary materials setting forth specific facts showing there is a genui ne issue of material fact forWarren CA2020-07-040

- 4 - trial. Anderson v. Jancoa , 12th Dist. Butler No. CA2019-01-018, 2019-Ohio-3617, ¶ 23. Summary judgment is proper if the nonmoving party fails to set forth such facts. Id. In determining whether a genuine issue of material fact exists, th e evidence must be construed in favor of the nonmoving party. Palmer v. Mossbarger , 12th Dist. Madison No. CA2014- 04-011, 2015-Ohio-231. {¶12} A tenant's obligations are listed in R.C. 5321.05, one of which includes the

need to conduct himself or herself "in a manner that will not d isturb his neighbors' peaceful enjoyment of the premise." R.C. 5321.05(A)(8). When a landlor d seeks to terminate a tenancy for violation of the statutory obligations, it must pro vide notice to the tenant in accordance with R.C. 5321.11, which requires a 30-day notice be fore tenancy termination. {¶13} Once notice of the termination has been provided, R.C. 1923.04 provides, a party desiring to commence an action under this chapter shall notify the adverse party to leave the premises, for the possession of which the action is about to be brought, three or more days before beginning the action, by certified mail, retur n receipt requested, or by handing a written copy of the notice t o the defendant in person, or by leaving it at the defendant’s us ual place of abode or at the premises from which the defendant is sought to be evicted. However, and as this court has previously noted, a landlord wai ves the right to terminate a tenancy for a breach, other than nonpayment of rent, by accepti ng future rent payments after delivering a notice of termination of tenancy. 2 N. Face Properties v. Dong Lin , 12th Dist. Warren No. CA2012-09-083, 2013-Ohio-2281. A landlord "accepts" future rent by cashing a check tendered after notice of the breach has been is sued terminating the tenancy. Id . at ¶ 11. {¶14} After reviewing the record, we find that Feltner is entitled to judgment as a

2. As used in eviction jurisprudence, "future rent payments" h as been used to represent payments accepted for a period of tenancy after notice of termination has been pr ovided. Ebbing v. Mathis , 12th Dist. Butler No. CA2013-01-014, 2013-Ohio-3880, ¶ 18-19

.Warren CA2020-07-040

- 5 - matter of law. In order to effectively terminate Feltner's mon th-to-month tenancy for an alleged statutory violation of tenant obligations, Springboro C ommons had to first effectuate a termination of tenancy notice 30 days prior to the end of the tenancy period. According to Springboro's termination letter, Feltner's tenancy would ter minate on August 31, 2019. However, it is undisputed that Springboro Commons accepted futu re payments after the August 31 termination date, which was rent for September and Oc tober 2019. {¶15} Springboro Commons relies upon Country Squire Apts. v. Morales , 6th Dist. Wood No. 91WD096, 1992 Ohio App. LEXIS 4018 (Aug. 7, 1992), for the proposition that a landlord does not per se waive a termination notice by accept ing rental payments. In

Morales , the Sixth District declined to establish a rule that acceptan ce of any rent after a termination notice is given establishes waiver of that terminat ion notice by the landlord. However, the court limited its ruling to a specific situation w here the landlord accepts rent for a period of time for which rental liability has already accrued. {¶16} The Morales court noted that a landlord may accept rent to pay for liabili ty already incurred during the pendency of an eviction matter with out waiving a termination notice. However, by accepting rent payments for periods after the notice of termination of tenancy, waiver occurs because accepting rent for continuing th e tenancy is inconsistent with a landlord's intent to terminate the tenancy and enforce a n order to vacate. The court further noted that a landlord's acceptance of rents for a time after a tenant has been ordered to vacate shows a willingness on the part of the landlord to pe rmit the tenant to continue to occupy the premises. "Such permissive occupance is directly in consistent with an order that the tenant be off the premises." Id . at * 10. {¶17} In Morales , the landlord gave notice on May 31, 1991 for the tenant to va cate the premises on or before June 30, 1991. On June 1, 1991, the landlord accepted rent for

the month of June from the tenant. The Morales Court thus determined that the landlordWarren CA2020-07-040

- 6 - did not accept payment for any period after the date on which t he tenant had been ordered to vacate the premises so that acceptance of this rent was not inconsistent with the notice to vacate. Here, however, the facts are readily distinguishabl e in that Springboro Commons accepted rental payments covering Feltner's future occupancy du ring September and October 2019, all of which occurred after the August 31 termina tion date listed on the notice. {¶18} Springboro Commons, who alleged that Feltner violated peaceful occupancy rules, knew of Feltner's alleged breach at the time it issued t he 30-day notice in July 2019 ending the tenancy. However, and even if a pending investigati on from Ohio's Civil Rights Commission or HUD was ongoing, Springboro Commons accepted rent payments from Feltner in direct contradiction to its expressed intent to term inate Feltner's tenancy. This attempt to simultaneously terminate the tenancy at the end of A ugust while also continuing the tenancy by accepting rents after the termination date is co ntrary to the specific requirements of R.C. 5321.11 and R.C. 1923.04. {¶19} The fact that Springboro Commons stopped accepting rent from Fe ltner after December does not change the analysis, as the first step in evi cting a periodic tenant is to effectively terminate the tenancy. By accepting Feltner's rent for September and October, Springboro Commons accepted Feltner as an ongoing tenant so tha t its three-day notice for holding over was invalid. Without first ending Feltner's t enancy term, Springboro Commons could not evict him for holding over. Thus, Feltner is entitled to judgement as a matter of law, and the trial court did not err in granting his motion for summary judgment. Accordingly, Springboro Commons' first assignment of error is o verruled. {¶20} Assignment of Error No. 2: {¶21} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. {¶22} Springboro Commons argues in its second assignment of error tha t the trialWarren CA2020-07-040

- 7 - court erred in denying its motion for summary judgment. {¶23} Given our finding that Feltner is entitled to judgment as a mat ter of law, Springboro Commons' argument that it is entitled to summary jud gment is rendered moot, and its second assignment of error is overruled. {¶24} Judgment affirmed.

HENDRICKSON and M. POWELL, JJ., concur.