[Cite as Scherer v. Lowry , 2021-Ohio-3728.]

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

JAMES SCHERER Appellant

v. ANTHONY JAMES LOWRY, AND ALL OCCUPANTS Appellee C.A. No. 29872

APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 20-CV-04612

DECISION AND JOURNAL ENTRY Dated: October 20, 2021

CALLAHAN, Judge. {¶1} Appellant, James Scherer, appeal s from the Akron Municipal Cour t’s judgment denying his objections to the ma gistrate’s decision and adoptin g the magistrate’s decision. For the reasons below, this Court reverses.

I. {¶2} On August 26, 2020, Mr. Scherer file d an action for forcible en try and detainer, damages, and other claims rela ted to Anthony Lowry’s tenancy at 928 Kelly Avenue in Akron. Mr. Lowry filed an answer and a counterclaim for breach of cont ract of the purchase agreement for the same real property. {¶3} Prior to the scheduled eviction hearing, Mr. Lowry filed a decl aration that he was a covered person under the Cente rs for Disease Control and Prev ention’s (“CDC”) eviction moratorium. In response to the declaration, Mr. Scherer filed a “Request for Hearing on Defendant’s Application/Motion for Moratorium on Eviction” and a motion to strike the2

counterclaim. Mr. Lowry filed a response opposing Mr. Scherer’ s request for a hearing and a

withdrawal of his counterclaim. {¶4} On October 5, 2020, the parties and their counsel appeared via Zoom for the eviction hearing before the magistrate. Later that day, the ma gistrate issued a decision which denied Mr. Scherer a writ, deni ed Mr. Scherer’s motion to strik e the counterclaim and request for hearing, and dismissed Mr. Sche rer’s complaint and Mr. Lowry’s counterclaim. That same day, the trial court adopted the magis trate’s decision and entered a judgment denying Mr. Scherer a writ, ordering the case concl uded, and ordering costs to be pai d by Mr. Scherer. {¶5} Mr. Scherer filed objections to the magistrate’s decision, argu ing that 1) the magistrate violated his due pro cess rights by not affording him a hearing to challenge Mr. Lowry’s declaration and dismissing the complaint, and 2) the ma gistrate’s decision to dismiss, rather than stay, the case was an unconstitutional taking of hi s property and violated his due process rights. Mr. Lowry did not file a response to the objec tions. The trial court denied Mr. Scherer’s objections, adopted the magistrate’s decision, and st ated that Mr. Scherer may refile his complaint at no costs upon the expiration of Mr. Lowry’s de claration. {¶6} Mr. Scherer timely appealed, rai sing two assignments of error.

II.

ASSIGNMENT OF ERROR NO. 1

JAMES SCHERER CONTENDS THAT THE AKRON MUNICIPAL TRIAL COURT JUDGE DENIED HIM DUE PROCESS AND ACCESS TO THE COURTS WHEN THE COURT DISMISSED THE EVICTION ACTION UNDER THE COLOR OF A PRESIDENTIAL EXECUTIVE ORDER/CDC ORDER IN VIOLATION OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.3

{¶7} In his first assignment of error, Mr. Scherer argues that the t rial court erred when it denied him a hearing to challenge Mr. Lowry’s declaration an d dismissed the complaint. We

agree. {¶8} This Court generally reviews a trial court’s action with respec t to a magistrate’s

decision for an abuse of discretion. Fields v. Cloyd , 9th Dist. Summit No. 24150, 2008-Ohio5232, ¶ 9. An abuse of discretion is present when a trial cour t’s decision “‘is contrary to law, unreasonable, not supported by evidence, or grossly unsound.’” Menke v. Menke , 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola , 3d Dist. Logan No. 8-14- 24, 2015-Ohio-1999, ¶ 25. {¶9} While this eviction matter was p ending, the CDC issued an order temporarily halting residential evictions of covered persons for nonpayment of rent to help prevent the spread of COVID-19 (“the moratorium”). See 85 Fed.Reg. 55292-01. The mor atorium was activated in an eviction proceeding upon the te nant providing the landlord a declaration pursuant to the CDC guidelines. Id. The landlord could challenge the tenant’s declaration. See HHS/CDC Temporary Halt in Residential Evictions to Prev ent the Further Spread of COVID-19 Frequently

Asked Questions , https://www.supremecourt.ohio.gov/co ronavirus/resources/CDCFAQs 110320.pdf (accessed Oct. 15, 2021). {¶10} In this case, Mr. Lowry filed a declaration and Mr. Scherer fil ed a “Request for Hearing” challenging the declara tion. The magistrate, however, denied Mr. Scherer’s hearing request and dismissed the case. Mr. Scherer objected to the ma gistrate’s decision, arguing that his due process rights were violated when the magistrate dismis sed the case without affording him a hearing to challenge Mr. Lowry’s CDC declaration. In its ruling on the objections, the4

trial court acknowledge d Mr. Scherer’s right to challenge the d eclaration, but held t hat the proper mechanism to do so was through a show cause motion. The trial court went on to conclude that “[a]n [o]bjection is not the pr oper remedy to dispute the tenan t’s declaration[]” and denied the objections. {¶11} The trial court’s ruling is bas ed upon the erroneous premise th at Mr. Scherer did not file a show cause motion, but r ather challenged Mr. Lowry’s declaration for the first time in the objections to the magistr ate’s decision. Assuming without deciding that a show cause motion is the proper mechanism for a landlord to challenge a tenant’s declaration, the docket and the magistrate’s decision reflect tha t Mr. Scherer filed a “Request for Hearing on Defendant’s Application/Motion for Moratorium on Eviction” prior to the sch eduled eviction hearing. While Mr. Scherer’s “Request for Hearing” was not labeled as a show c ause motion, the hearing request sought “the right to examin e [Mr. Lowry] for v[e]racity and his eligibility under [the moratorium].” See Schmitt v. Ward , 9th Dist. Summit No. 28324, 2017-Ohio-4171, ¶ 5, quoting Lungard v. Bertram , 86 Ohio App. 392, 395 (1st Dist.1949) (recognizing that the o perative effect of a motion or pleadings is determined by the substance and not the caption of the filing). Mr. Scherer’s “Request for Hearing” sought to have Mr. Lowry show c ause that he was a covered person under the moratorium. Acco rdingly, the trial court’s de nial of Mr. Scherer’s objections on the grounds that he did not f ile a show cause motion and onl y challenged Mr. Lowry’s declaration in his objections to t he magistrate’s decision is c ontrary to the record. {¶12} Based upon the foregoing, we concl ude that the tr ial court abus ed its discretion

when it denied Mr. Scherer’s objections and adopted the magistr ate’s decision denying Mr. Scherer a hearing and di smissing the case. {¶13} Mr. Scherer’s first assignme nt of error is sustained.5

ASSIGNMENT OF ERROR NO. 2

JAMES SCHERER CONTENDS THAT THE AKRON MUNICIPAL COURT JUDGE DEPRIVED HIM OF HIS PROPERTY RIGHTS UNDER THE LAW WHEN THE COURT DISMISSED THE EVICTION ACTION UNDER THE COLOR OF A PRESIDENTIAL EXECUTIVE ORDER IN VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 19 OF THE OHIO CONSTITUTION. {¶14} In his second assignment of error, Mr. Scherer argues that the dismissal of his eviction action deprived him of h is property rights under the O hio and United States Constitution. We decline to reach the merits of this assignmen t of error as it has been rendered moot by this Court’s resolution of Mr. Scherer’s first assignme nt of error. See App.R. 12(A)(1)(c).

III. {¶15} Mr. Scherer’s first assignment of error is sustained and the se cond assignment of error is moot. The judgment of t he Akron Municipal Court is re versed, and the matter is

remanded to the trial court for f urther proceedings consistent with this opinion. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Akron 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 consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is6

instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellee.

L YNNE S. CALLAHAN FOR THE COURT

HENSAL, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: ALEXANDER R. FOLK, Attorne y at Law, for Appellant. BRIAN J. WILLIAMS, Attorney at Law, for Appellee.