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K&D Management, L.L.C. v. Masten

Court of Appeals of Ohio, Eighth District

July 3, 2013

K&D MANAGEMENT, L.L.C. PLAINTIFF-APPELLEE
v.
DEIRDRE MASTEN DEFENDANT-APPELLANT

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-771214

ATTORNEY FOR APPELLANT Edward G. Kramer The Fair Housing Law Clinic The Housing Advocates, Inc.

ATTORNEYS FOR APPELLEE Ami J. Patel Zashin & Rich Co., L.P.A., Thomas P. Owen Laurence Powers Powers, Friedman, Linn, P.L.L.

BEFORE: S. Gallagher, P.J., Keough, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, PRESIDING JUDGE

{¶1} Defendant-appellant Deirdre Masten appeals from the trial court's order granting summary judgment in favor of plaintiff-appellee K&D Management, L.L.C. ("Landlord"). For the following reasons, we reverse.

{¶2} Masten became a resident in October 2010 of the Harbor Crest Apartments located in Euclid, Ohio. Landlord manages the property. The parties signed a one-year lease agreement for the term of October 5, 2010 through September 30, 2011. The nonrenewal provision in the lease agreement required a 60-day notice of nonrenewal if either party desired to terminate the lease at the end of the stated term.

{¶3} After Masten allegedly learned that Landlord intended to evict another resident because of the resident's disabilities, Masten helped the resident with drafting and filing a charge with the Ohio Civil Rights Commission ("OCRC"). The allegations against Landlord were for violations of the Federal Fair Housing Act, 42 U.S.C. 3617, ("FHA") and Ohio's Fair Housing Act, R.C. 4112.02(H) (collectively, "Acts").

{¶ 4} Masten subsequently filed her own charge with the OCRC in November 2010 based on Landlord's alleged discrimination against her. Landlord approached Masten in February 2011 and requested that she drop the charge. Masten agreed with the stipulation that, in exchange for dropping the charge, Landlord would cease the discriminatory practices.

{¶5} On or around July 11, 2011, Masten learned that she was unsuccessful in her attempt to drop the OCRC charge against Landlord. Landlord issued on July 12, 2011, an 81-day notice of nonrenewal of Masten's lease. According to the notice, Masten was required to vacate the property by September 30, 2011. Masten became a holdover tenant when she did not vacate the property by that date.

{¶6} On October 10, 2011, Landlord served Masten with a three-day notice to vacate the property. Landlord filed four days later a forcible entry and detainer action in Euclid Municipal Court for eviction of Masten. Masten answered the complaint, and filed a counterclaim under the Acts for discriminatory practices, retaliatory behaviors, and retaliatory eviction that followed the OCRC filings by Masten and, with Masten's assistance, the other resident. Masten also requested a change in venue. The municipal court granted the change in venue request, and transferred the case on November 9, 2011, to the Cuyahoga County Court of Common Pleas.

{¶7} Landlord filed a motion for summary judgment on February 27, 2012, relating to Count 1 of its complaint for forcible entry and detainer. In an affidavit included with her brief in opposition to the motion, Masten acknowledged receipt of both the three-day notice to vacate and notice of nonrenewal of the lease.

{¶8} On August 3, 2012, the trial court granted Landlord's motion for summary judgment on Count 1 for forcible entry and detainer, but denied the motion as to Masten's counterclaims. In its ruling, the court stated in part:

It is well settled that a landlord is required to follow a three-step process before a court will order a tenant to vacate the premises. [Citation deleted.] The landlord must provide (1) a notice of termination of tenancy; (2) a notice to vacate the premises; and then the landlord must ...

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