[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, appeals from the Akron Municipal Court’s judgment 

denying his objections to the magistrate’s decision and adopting the magistrate’s decision. For 

the reasons below, this Court reverses. 

I. 

{¶2} On August 26, 2020, Mr. Scherer filed an action for forcible entry and detainer, 

damages, and other claims related to Anthony Lowry’s tenancy at 928 Kelly Avenue in Akron. 

Mr. Lowry filed an answer and a counterclaim for breach of contract of the purchase agreement 

for the same real property. 

{¶3} Prior to the scheduled eviction hearing, Mr. Lowry filed a declaration that he was 

a covered person under the Centers for Disease Control and Prevention’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 the 
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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 magistrate issued a decision which 

denied Mr. Scherer a writ, denied Mr. Scherer’s motion to strike the counterclaim and request for 

hearing, and dismissed Mr. Scherer’s complaint and Mr. Lowry’s counterclaim. That same day, 

the trial court adopted the magistrate’s decision and entered a judgment denying Mr. Scherer a 

writ, ordering the case concluded, and ordering costs to be paid by Mr. Scherer. 

{¶5} Mr. Scherer filed objections to the magistrate’s decision, arguing that 1) the 

magistrate violated his due process rights by not affording him a hearing to challenge Mr. 

Lowry’s declaration and dismissing the complaint, and 2) the magistrate’s decision to dismiss, 

rather than stay, the case was an unconstitutional taking of his property and violated his due 

process rights. Mr. Lowry did not file a response to the objections. The trial court denied Mr. 

Scherer’s objections, adopted the magistrate’s decision, and stated that Mr. Scherer may refile 

his complaint at no costs upon the expiration of Mr. Lowry’s declaration. 

{¶6} Mr. Scherer timely appealed, raising 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. 

 
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{¶7} In his first assignment of error, Mr. Scherer argues that the trial court erred when 

it denied him a hearing to challenge Mr. Lowry’s declaration and dismissed the complaint. We 

agree. 

{¶8} This Court generally reviews a trial court’s action with respect 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 court’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 pending, 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 moratorium was activated in 

an eviction proceeding upon the tenant 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 Prevent the Further Spread of COVID-19 Frequently 

Asked Questions, 

https://www.supremecourt.ohio.gov/coronavirus/resources/CDCFAQs110320.pdf (accessed Oct. 

15, 2021). 

{¶10} In this case, Mr. Lowry filed a declaration and Mr. Scherer filed a “Request for 

Hearing” challenging the declaration. The magistrate, however, denied Mr. Scherer’s hearing 

request and dismissed the case. Mr. Scherer objected to the magistrate’s decision, arguing that 

his due process rights were violated when the magistrate dismissed the case without affording 

him a hearing to challenge Mr. Lowry’s CDC declaration. In its ruling on the objections, the 
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trial court acknowledged Mr. Scherer’s right to challenge the declaration, but held that 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 proper remedy to dispute the tenant’s declaration[]” and denied the 

objections. 

{¶11} The trial court’s ruling is based upon the erroneous premise that Mr. Scherer did 

not file a show cause motion, but rather challenged Mr. Lowry’s declaration for the first time in 

the objections to the magistrate’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 that Mr. Scherer filed a “Request for Hearing on Defendant’s 

Application/Motion for Moratorium on Eviction” prior to the scheduled eviction hearing. While 

Mr. Scherer’s “Request for Hearing” was not labeled as a show cause motion, the hearing 

request sought “the right to examine [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 operative 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 cause that he was a covered 

person under the moratorium. Accordingly, the trial court’s denial of Mr. Scherer’s objections 

on the grounds that he did not file a show cause motion and only challenged Mr. Lowry’s 

declaration in his objections to the magistrate’s decision is contrary to the record. 

{¶12} Based upon the foregoing, we conclude that the trial court abused its discretion 

when it denied Mr. Scherer’s objections and adopted the magistrate’s decision denying Mr. 

Scherer a hearing and dismissing the case. 

{¶13} Mr. Scherer’s first assignment of error is sustained. 
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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 his property rights under the Ohio and United States 

Constitution. We decline to reach the merits of this assignment of error as it has been rendered 

moot by this Court’s resolution of Mr. Scherer’s first assignment of error. See App.R. 

12(A)(1)(c). 

III. 

{¶15} Mr. Scherer’s first assignment of error is sustained and the second assignment of 

error is moot. The judgment of the Akron Municipal Court is reversed, and the matter is 

remanded to the trial court for further 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, directing 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 constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellee. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

HENSAL, P. J. 

TEODOSIO, J. 

CONCUR. 

APPEARANCES: 

ALEXANDER R. FOLK, Attorney at Law, for Appellant. 

BRIAN J. WILLIAMS, Attorney at Law, for Appellee.