[Cite as Showe Mgt. Corp. v. Mountjoy , 2020-Ohio-2772.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLINTON COUNTY

SHOWE MANAGEMENT CORPORATION, Appellee,

- vs -

DIANNE MOUNTJOY, Appellant. :

:

:

:

:

: CASE NO. CA2019-06-012

O P I N I O N 5/4/2020

CIVIL APPEAL FROM CLINTO N COUNTY MUNICIPAL COURT Case No. CVG 1900217

C. Bernard Brush, Michael J. Cassone, 5530 Columbia Road SW, Pa taskala, Ohio 43062, for appellee Legal Aid Society of Southwest Ohio, LLC, Lori K. Elliott, Jona than W. Ford, Alpha S. Taylor, 10 Journal Square, Suite 300, Hamilton, Ohio 45011, for appella nt

HENDRICKSON, P.J. {¶1} Appellant, Dianne Mountjoy, appeals a decision of the Clinton C ounty Municipal Court granting a complaint for forcible entry and det ainer filed by appellee, Showe Management Corporation. {¶2} In February 2017, Mountjoy entered into a lease agreement with Showe to rent an apartment in a Wilmington, Ohio apartment complex. The apartment was federallyClinton CA2019-06-012

- 2 - subsidized and Mountjoy did not have a monetary monthly rental obligation. {¶3} The lease agreement included an addendum with a bedbug policy, which required Mountjoy to notify Showe of the presence of bedbugs on any clothing, furniture or personal property. The policy also required Mountjoy to notify Showe when bringing any furniture into the apartment so an inspection could be conducte d. The agreement further indicated that Mountjoy could be responsible for the reasonable cost of c leaning and extermination due to a bedbug infestation. {¶4} In December 2017, Mountjoy had a bedbug infestation. At that t ime, she signed a repayment agreement in which she agreed to repay the c ost of extermination. The apartment was treated and eventually Showe arranged for help fr om her church for the cost of repayment. {¶5} Around a year later, in December 2018, Mountjoy's physician cal led Showe's corporate office and indicated that a bedbug was found on Mount joy during an examination in the physician's office. The physician was concerned because Mountjoy told him the management company was not doing anything about the bedbugs. M ountjoy was given a 30-day notice to vacate the prem ises for failing to report the bedbugs. After receiving the notice, Mountjoy came into the office to report the bedbug infe station to Showe and request an inspection. At that time, she signed a repayment agreement to reimburse Showe for the

cost of extermination. {¶6} An Orkin inspector viewed the apartment and found bedbugs in th ree of the apartment's rooms. The inspector determined that based on the lifecycles of the bugs, the infestation had been in the apartment for four months or longer . Orkin returned and over

two dates treated the infestation. {¶7} Mountjoy failed to reimburse Showe for the cost of the extermin ation and Showe filed a forcible entry and detainer action on March 12, 2 019. Mountjoy was servedClinton CA2019-06-012

- 3 - with a copy of the complaint on March 13, 2019 which indicated that an eviction hearing was set for 3:00 p.m. on March 26, 2019. {¶8} At the eviction hearing, Mountjoy's counsel indicated that an a nswer and jury demand had been filed. A magistrate denied the jury request as untimely as it had just been filed approximately 10 minutes before the hearing. The ma gistrate heard evidence and granted restitution of the premises to Showe. {¶9} Mountjoy filed objections to the magistrate's decision. In her objections, she argued that the magistrate denied her right to a jury trial. M ountjoy stated that the court and opposing counsel were aware of the jury request because it had been faxed to the court and opposing counsel the day prior to the hearing, and an appli cation to proceed in forma pauperis was faxed to the trial court. {¶10} The trial court held a hearing and issued an entry overruling t he objections to the magistrate's decision. The trial court found that Mountjoy made a good faith attempt to fax pleadings to the clerk at 3:42 the day before the hearing, although the documents were not timestamped until about 15 minutes before the hearing. The trial court determined that the Civil Rules of Procedure did not apply to the issue of time liness of a jury demand in an eviction action. Instead, the court applied an "interests of j ustice" standard to find that a jury demand and deposit are untimely if filed fewer than three days prior to the summons date. The court therefore found that the jury demand in this c ase was not timely filed. The

trial court further found that the lease addendum was valid and enforceable and Mountjoy had failed to pay the amounts due. Accordingly, the trial cour t overruled the objections and adopted the magistrate's decision. {¶11} Mountjoy now appeals the trial court's decision and raises two assignments

of error for our review. {¶12} THE TRIAL COURT ERRED BY DENYING APPELLANT HER STATUTORYClinton CA2019-06-012

- 4 - AND CONSTITUTIONAL RIGHT TO A JURY TRIAL. {¶13} In her first assignment of error, Mountjoy argues that the cour t erred in denying her request for a jury trial. She contends that the tr ial court incorrectly determined that Civ.R. 38(B) is not applicable to forcible entry and detai ner proceedings, that there was no local rule restricting when a party may file a jury demand, and that the trial court erred in finding she waived her right to a jury when no waiver was made pursuant to Civ.R. 39. {¶14} Parties to a forcible entry and detainer action have the right to a jury trial. R.C. 1923.10; Fodor v. First Natl. Supermarkets , 63 Ohio St.3d 489, 492 (1992). However, if a party fails to make a proper demand, the right to a jury trial will be waived. Nenadal v.

Landerwood Co. , 8th Dist. Cuyahoga No. 65428, 1994 Ohio App. LEXIS 2079, *7 ( May 12, 1994). {¶15} "Forcible entry and detainer, as authorized in R.C. Chapter 192 3, is a summary proceeding in which a court may make inquiry into dispu tes between landlords and tenants, and, where appropriate, order restitution of the p remises to the landlord." Cuyahoga Metro. Hous. Auth. v. Jackson , 67 Ohio St. 2d 129, 130 (1981). "A forcible entry and detainer action is intended to serve as an expedited mechan ism by which an aggrieved landlord may recover possession of real property." Miele v. Ribovich , 90 Ohio St.3d 439, 441-442 (2000). The underlying purpose behind the forcible ent ry and detainer action is to provide a summary, extraordinary, and speedy method for the rec overy of the possession

of real estate. Jackson at 131. {¶16} Given the summary nature of a forcible entry and detainer actio n, "the drafters

of the Rules of Civil Procedure were careful to avoid encrustin g this special remedy with time consuming procedure tending to destroy its efficacy." Id. While the Civil Rules generally govern procedure in Ohio courts, the rules specifical ly state that they do not apply in forcible entry and detainer proceedings "to the extent that they would by their nature beClinton CA2019-06-012

- 5 - clearly inapplicable." Civ. R. 1(C)(3). Moreover, the Civil R ules are inapplicable if their application would frustrate the purpose of the forcible entry a nd detainer proceeding. State ex rel. GMS Mgt. Co. , 45 Ohio St.3d 51, 54-55, (1989); Larson v. Umoh , 33 Ohio App. 3d 14, 16 (8th Dist 1986). {¶17} Appellant argues that Ohio Civ.R. 38 sets the requirements for requesting a jury trial in a forcible entry and detainer action. This secti on provides that "[a]ny party may demand a trial by jury on any issue triable of right by a jury by serving upon the other parties a demand therefore at any time after the commencement of the ac tion and not later than fourteen days after the service of the last pleading directed t o such issue." Civ.R. 38(B). Mountjoy argues that her jury request, filed the day prior to t he hearing with her answer, was timely under this rule. {¶18} However, R.C. Chapter 1923, the forcible entry and detainer se ction of the Ohio Revised Code, provides that "the claim for restitution of the premises shall be scheduled for hearing in accordance with local court rules, but in no event sooner than the seventh day from the date service is complete." R.C. 1923.06(H )(1). The statute further provides that an answer date for any "other claims" filed with a complaint is 28 days after the date service is complete. R.C. 1923.06(H)(2). Accordingly , the statute contemplates a trial, not a responsive pleading, unless other claims are inclu ded in the complaint. Because an answer is not required, there is no responsive pleading to s erve as "the last pleading directed to [the issue of resti tution of the premises]" as prov ided in Civ.R. 38(B). {¶19} Moreover, the forcible entry and detainer statute specifically provides that "[i]f an action under this chapter is not continued, the place of tri al is not changed, and neither party demands a jury on the return day of the summons, a judge of the court shall try the cause." R.C. 1923.09(A). Because the forcible entry and detai ner statute provides a specific date to request a jury trial, the Civil Rules are inap plicable.Clinton CA2019-06-012

- 6 - {¶20} As mentioned above, a party must demand a jury trial no later t han the return date of the summons. The Revised Code provides specific requir ements for service and summons in a forcible entry and detainer action. R.C. 1923.06( A). Specifically, a summons must be issued which follows a specific format and is served an d returned as provided. Id

. Service of the summons must occur "at least seven days before t he day set for trial." Id

. "Within five days after receiving the summons * * * the person making service shall return the process to the clerk." R.C. 1923.06(D)(3). {¶21} In this case, the summons was received, served and returned on March 13, 2019. Appellant's jury trial request was faxed to the trial co urt on March 25, 2019, which is clearly beyond the time for the return date of the summons. Th erefore, we find that the trial court did not err in denying the request for a jury trial as un timely. Mountjoy's first assignment of error is overruled. {¶22} THE TRIAL COURT ERRED BY GRANTING THE APPELLEE POSSESSION

OF THE PREMISES WHEN APPELLANT FAILED TO PAY THE COST OF BED BU G

EXTERMINATION. {¶23} In her second assignment of error, Mountjoy argues that the tri al court erred in granting the request for forcible entry and detainer. She c ontends that pursuant to Ohio's Landlord-Tenant Act, a landlord cannot shift its obligation to maintain the premises to a tenant and that the failure to find that Mountjoy was negligent or careless in the resulting infestation precludes the imposition of charges for exterminati on. {¶24} Ohio's Landlord-Tenant Act provides for certain rights and resp onsibilities for tenants and landlords. See R.C. Chapter 5321. The act attempt s to balance the rights of

tenants and landlords. Sherwin v. Cabana Club Apts. , 70 Ohio App.2d 11, 18, (8th Dist. 1980). Under the act, a landlord has a statutory duty to maint ain the premises in a habitable condition. R.C. 5321.04. This duty to maintain the premises c annot be shifted to the tenant.Clinton CA2019-06-012

- 7 - See R.C. 5321.13(A). However, a tenant has reciprocal obligations under the act, including a responsibility to keep the premises in a safe, sanitary condi tion. See R.C. 5321.05. Appellant argues that a landlord may not shift its responsibili ty to maintain the premises to

the tenant. See Miller v. Ritchie , 45 Ohio St.3d 222 (1989). {¶25} However, in this case, the basis of the forcible entry and deta iner action was Mountjoy's failure to comply with the terms of the repayment ag reement. The lease addendum signed by Mountjoy specifically indicated that she cou ld be required to repay the cost of treating the apartment for bedbugs. Mountjoy signed th e document and agreed to repay Showe for the cost of the extermination on the basis that the action was necessary

"as a result of carelessness/mi suse/neglect" on her part. {¶26} In addition, the repayment agreement provided that the failure to make payments could result in initiation of eviction proceedings. I t was the failure to make payments under the agreement, not a shifting of the landlord's responsibility, that was the basis for the forcible entry and detainer action. 1 See Green v. Rickman , 12th Dist. Butler No. CA1990-07-013, 1991 Ohio App. Lexis 2241 (May 13, 1991). A ccordingly, we find no error in the trial court's decision to grant Showe's request fo r forcible entry and detainer. Mountjoy's second assignment of error is therefore overruled. {¶27} Judgment affirmed.

RINGLAND and M. POWELL, JJ., concur.

1. Although Mountjoy argues that the repayment agreement was a contract of adhesion that she was required to sign or be evicted, we find no merit to this argument. More over, we find a HUD memorandum dated April 18, 2019 attached to Mountjoy's brief is inapplicable in this c ase as it is dated after the events involved in this case and was not part of the record below.