[Cite as Millennia Hous. Mgt., Ltd. v. Withrow, 2013-Ohio-278.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

MILLENNIA HOUSING 

MANAGEMENT, LTD., : 

 : 

 Plaintiff-Appellee, : Case No. 12CA2 

 : 

 vs. : 

 : 

MISTY WITHROW, : DECISION AND JUDGMENT ENTRY

 : 

 Defendant-Appellant. : RELEASED 01/28/13 

 : 

________________________________________________________________ 

APPEARANCES: 

Anne Sessums Rubin, SOUTHEASTERN OHIO LEGAL SERVICES, Athens, 

Ohio, for Appellant. 

Greggory B. Elzey, Javitch, Block & Rathbone, LLC, Columbus, Ohio, for 

Appellee. 

________________________________________________________________ 

Harsha, J. 

{¶1} Misty Withrow appeals the trial court’s judgment that terminated her 

occupancy of a federally-subsidized lease issued pursuant to what is commonly 

known as “Section 8.” Withrow raises three assignments of error, but because 

Withrow did not request a stay of the trial court’s judgment, we find that her 

appeal is moot. Accordingly, we dismiss Withrow’s appeal. 

I. FACTS 

{¶2} Millennia terminated Withrow’s federally-subsidized lease due to an 

alleged violation of the lease agreement and filed a forcible entry and detainer 

complaint against Withrow that sought restitution of the premises. Millennia 

alleged that Withrow defaulted upon the terms of tenancy by having an 
Athens App. No. 12CA2 2

unauthorized person inside the premises. The trial court subsequently restored 

Millennia to the premises and issued a writ of restitution to remove Withrow from 

the premises. Withrow did not request a stay of the trial court’s judgment. 

II. ASSIGNMENTS OF ERROR 

{¶3} Withrow raises three assignments of error: 

First Assignment of Error: 

“The trial court erred in denying the Appellant tenant’s motion to 

dismiss when the Appellee landlord’s notices to her lacked 

sufficient specificity to enable her to prepare a defense.” 

Second Assignment of Error: 

“The trial court erred in denying the Appellant tenant an opportunity 

to obtain pretrial discovery from the Appellee landlord.” 

Third Assignment of Error: 

“The trial court’s decision granting restitution to the Appellee 

landlord is manifestly against the weight of the evidence and 

contrary to law.” 

III. ANALYSIS 

{¶4} Millennia argues that this appeal is moot because Withrow has 

been removed from the premises and it has been restored to the premises. 

Withrow asserts that the appeal is not moot because, as a tenant who receives 

federal housing assistance, she has a continuing interest in the outcome of the 

appeal. Withrow contends that she has a continuing interest in the outcome of 

this appeal because an unfavorable court proceeding could affect her eligibility 

for future federal housing assistance. 

{¶5} Before we can address Withrow’s assignments of error, we first 

must determine whether the appeal presents a case or controversy or, instead, 
Athens App. No. 12CA2 3

an abstract question not capable of judicial review. E.g., Babbitt v. United Farm 

Workers Nat. Union, 442 U.S. 289, 297, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); 

Muskrat v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 55 L.Ed. 246 (1911). 

“[I]t is the duty of every judicial tribunal to decide actual 

controversies between parties legitimately affected by specific facts 

and to render judgments which can be carried into effect. It has 

become settled judicial responsibility for courts to refrain from 

giving opinions on abstract propositions and to avoid the imposition 

by judgment of premature declarations or advice upon potential 

controversies.” 

 

Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970), citing Section 

4(B), Article IV, of the Ohio Constitution. Accord Kincaid v. Erie Ins. Co., 128 

Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, &9. Moreover, the Supreme 

Court of Ohio has advised us that it is reversible error for an appellate court to 

consider the merits of an appeal that has become moot. See State v. Berndt

(1987), 29 Ohio St3d 3, 4, 504 NE2d 712. 

{¶6} A case or controversy is lacking and the case is moot “’when the 

issues presented are no longer “live” or the parties lack a legally cognizable 

interest in the outcome.’” Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 

1379, 59 L.Ed.2d 642 (1979), quoting Powell v. McCormack, 395 U.S. 486, 496, 

89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Accord Erie v. Pap’s A.M., 529 U.S. 277, 

287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). “No actual controversy exists 

where a case has been rendered moot by an outside event. ‘It is not the duty of 

the court to answer moot questions, and when, pending proceedings in error in 

this court, an event occurs without the fault of either party, which renders it 

impossible for the court to grant any relief, it will dismiss the petition in error.’ 
Athens App. No. 12CA2 4

Miner v. Witt (1910), 82 Ohio St. 237, 92 N.E. 21, syllabus.” Tschantz v. 

Ferguson, 57 Ohio St.3d 131, 133, 566 N.E.2d 655 (1991). “A cause will 

become moot only when it becomes impossible for a tribunal to grant meaningful 

relief, even if it were to rule in favor of the party seeking relief.” Joys v. Univ. of 

Toledo, 10th Dist. No. 96APE08-1040 (April 29, 1997), citing Miner, 82 Ohio St. at 

238-239. 

{¶7} “A forcible entry and detainer action decides the right to immediate 

possession of property and ‘nothing else.’” Goldstein v. Patel, 9th Dist. Nos. 

02CA8183, 02CA8199, 2003-Ohio-4386, ¶4, quoting Seventh Urban Inc. v. Univ. 

Circle Prop. Dev. Inc., 67 Ohio St.2d 19, 25, 423 N.E.2d 1070, n.11 (1981). 

Thus, “[o]nce a landlord has been restored to property, the forcible entry and 

detainer action becomes moot because, having been restored to the premises, 

there is no further relief that may be granted to the landlord.” United States 

Secy. of Hous. and Urban Dev. v. Chancellor, 8th Dist. No. 73970 (Feb. 25, 

1999). As the court explained in Crossings Dev. Ltd. Partnership v. H.O.T., Inc., 

96 Ohio App.3d 475, 479-80, 645 N.E.2d 159 (1994): 

“’ [A] moot case arises * * * where a judgment is sought, 

upon a matter which when it is rendered, cannot have any practical 

effect upon the issues raised by the pleadings. This is the status of 

the case at bar. The inquiry is irresistible. Should the case be 

reversed[,] upon another trial below, the paradoxical situation would 

arise that the landlords were seeking to dispossess a tenant who 

had already voluntarily dispossessed himself. It would 

unequivocally appear that the landlord was seeking a right which he 

had already acquired by consummation. * * * The course, if 

plaintiffs secured judgment, would be to give them nothing but that 

which they already have and prayed for, to-wit, the possession of 

the premises and thus it would appear that the reason for this 

possession was because of the situation created by the tenant in 

vacating the property and surrendering the occupancy thereof.’” 
Athens App. No. 12CA2 5

Crossings Dev. Ltd. Partnership v. H.O.T., Inc., 96 Ohio App.3d 475, 479-480, 

645 N.E.2d 159 (1994), quoting Gelfand v. Stys, 7 Ohio Law Abs. 105, 105 

(1929). Consequently, “when a plaintiff is successful and defendant does not 

obtain a stay preventing its ouster and the return of the premises to the plaintiff * 

* * the issues are rendered moot.” Id. at 481. 

{¶8} A defendant appealing a judgment of forcible entry and detainer 

may overcome a ruling of mootness by obtaining a stay of execution and/or 

posting a supersedeas bond. R.C. 1923.14; Tripp v. French, 9th Dist. No. 

02CA0004-M, 2002-Ohio-6996, ¶8. Accord Valente v. Johnson, 4th Dist. Nos. 

06CA31 and 06CA38, 2007-Ohio-2664, ¶20. Withrow did not obtain a stay of the 

judgment, and Millennia was restored to the premises If a defendant fails to 

obtain a stay of execution and/or post a supersedeas bond, all issues relating to 

forcible entry and detainer are rendered moot. Valente at ¶20; Tripp at ¶8. A 

forcible entry and detainer defendant may overcome a mootness ruling by 

demonstrating that an exception to the mootness doctrine applies. 

{¶9} However, we do not believe that Withrow demonstrated that 

any exception to the mootness doctrine applies. This court may address an 

otherwise moot issue “‘where the issues raised are ‘capable of repetition, yet 

evading review.’” State ex rel. Beacon Journal Publishing Co. v. Donaldson, 63 

Ohio St.3d 173, 175, 586 N.E.2d 101 (1992), quoting State ex rel. Plain Dealer 

Publishing Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1988), paragraph 

one of the syllabus. This exception “applies only in exceptional circumstances in 

which the following two factors are both present: (1) the challenged action is too 
Athens App. No. 12CA2 6

short in its duration to be fully litigated before its cessation or expiration, and (2) 

there is a reasonable expectation that the same complaining party will be subject 

to the same action again.” Id., citing Spencer v. Kemna, 523 U.S. 1, 17–18, 118 

S.Ct. 978, 140 L.Ed.2d 43 (1998). Further, “there must be more than a 

theoretical possibility that the action will arise again.” James A. Keller Inc. v. 

Flaherty, 74 Ohio App.3d 788, 792, 600 N.E.2d 736 (10th Dist. 1991). 

{¶10} Additionally, we may consider an appeal (1) when the issue 

involves “a matter of great public interest;” or (2) when “there remains a 

debatable constitutional question to resolve.” Franchise Developers, Inc. v.. 

Cincinnati, 30 Ohio St.3d 28, 505 N.E.2d 966 (1987), paragraph one of the 

syllabus. 

{¶11} Here, none of these exceptions applies. Withrow has not shown 

that a reasonable expectation exists that she will be subject to the same action 

again, i.e., having her lease terminated due to the presence of unauthorized 

persons. This action is nothing more than a theoretical possibility. Withrow also 

has not demonstrated that reviewing Millennia’s decision to terminate her lease 

involves a matter of great public importance or a debatable constitutional 

question. 

{¶12} Withrow nevertheless asserts that her appeal is not moot because 

it involves her constitutionally protected interest in continued occupancy of 

federally subsidized housing. Showe Mgt. Corp. v. Moore, 5th Dist. No. 08CA10, 

2009-Ohio-2312, ¶38, citing Vienna Forest Apts. v. Passmore, 12th Dist. No. 

CA2004-05-104, 2005-Ohio-2368 ¶18, citing Gorsuch Homes, Inc. v. Wooten, 73 
Athens App. No. 12CA2 7

Ohio App.3d 426, 432, 597 N.E.2d 554 (2nd Dist. 1992). Withrow essentially 

requests that we recognize an additional exception to the mootness doctrine for a 

Section 8 tenant. Withrow argues that a tenant who receives subsidized housing 

has a continuing interest in the outcome of the appeal from a forcible entry and 

detainer action because an unfavorable court proceeding could affect the 

tenant’s eligibility for future federal housing assistance. Heritage Court, L.L.C. v. 

Merritt, 187 Ohio App.3d 117, 125, 2010-Ohio-1711, 931 N.E.2d 194, ¶26; 

Showe Mgt.; Sandefur Management Co. v. Minor, 10th Dist. No. 84AP220, (Apr. 

18, 1985). Withrow thus contends that her continuing interest in the outcome of 

the appeal renders this case justiciable. She further points out that some Ohio 

courts have refused to dismiss a forcible entry and detainer action as moot when 

it involves a tenant’s constitutionally protected interest in continued federal 

housing assistance. E.g., Showe Mgt.; Sandefur. 

{¶13} Withrow has not persuaded us that we should follow the Fifth and 

Tenth District Courts of Appeals and recognize an exception to the mootness 

doctrine. She vacated the premises without even attempting to seek a stay of 

the trial court’s judgment. See Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 

2011-Ohio-2673, 953 N.E.2d 278, ¶23 (stating that in a misdemeanor case, in 

order to prevent appeal from being declared moot on basis that defendant 

voluntarily completed sentence, defendant must seek stay of trial court’s 

judgment; otherwise, court will infer defendant acquiesced in the judgment or 

intentionally abandoned the right of appeal). She has presented no circumstance 

that prevented her from seeking a stay. We recognize that Withrow is indigent, 
Athens App. No. 12CA2 8

but we are unaware of any rule of law that prevents an indigent person from 

seeking a stay of a trial court’s judgment. Under these circumstances, we 

conclude that Withrow abandoned her right to appeal the trial court’s judgment. 

{¶14} Accordingly, we dismiss Withrow’s appeal as moot. 

APPEAL DISMISSED. 
Athens App. No. 12CA2 9

JUDGMENT ENTRY

 It is ordered that the APPEAL BE DISMISSED and that Appellant shall 

pay the costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the 

Athens County Municipal Court to carry this judgment into execution. 

 Any stay previously granted by this Court is hereby terminated as of the 

date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. Exceptions. 

Kline, J. & McFarland, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.