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Ebbing v. Mathis

Court of Appeals of Ohio, Twelfth District

September 9, 2013

JOSEPH P. EBBING, Appellant,
v.
GARY MATHIS, JR., et al., Appellees.

CIVIL APPEAL FROM HAMILTON MUNICIPAL COURT Case No. 12 CVG 01718

Joseph P. Ebbing, appellant, pro se

Molly T. Russell, Lori Elliott, Legal Aid Society of Southwest Ohio, LLC, for appellee, Gary Mathis, Jr.

Dallace McIntosh, appellee, pro se

OPINION

RINGLAND, J.

(¶ 1} Plaintiff-appellant, Joseph P. Ebbing, appeals from the judgment of the Hamilton Municipal Court dismissing his forcible entry and detainer action against defendants-appellants, Gary Mathis, Jr. and Dallace McIntosh. For the reasons that follow, we affirm the judgment of the trial court.

(¶ 2} In January 2012, Mathis signed a one-year lease to rent a house in Hamilton, Ohio. Ebbing is the property's landlord. The lease required Mathis to deposit $500 every month into Ebbing's bank account "upon the 3rd day of each and every month." At some point during Mathis' tenancy, McIntosh allegedly became his co-tenant.

(¶ 3} On July 6, 2012, Ebbing served Mathis and McIntosh with a "Notice to Leave the Premises." On July 9, 2012, Ebbing, acting pro se, brought a forcible entry and detainer (FED) action against Mathis and McIntosh in the Hamilton Municipal Court, for failure to pay rent. Ebbing sought a writ of restitution in his first cause of action and past due rent and damages in his second cause of action. The trial court dismissed Ebbing's FED action on the ground that he had filed it one day prematurely.[1] On July 25, 2012, Ebbing filed a second FED action against Mathis and McIntosh that was similar to his first. Mathis filed an answer and counterclaim on August 14, 2012.

(¶ 4} On August 15, 2012, a "first cause" hearing was held. Mathis presented evidence that he deposited a $500 check into Ebbing's bank account on August 3, 2012. The magistrate instructed Ebbing to check the status of his account to see if Mathis had deposited the $500 check into Ebbing's account and continued the hearing until August 22, 2012. On that day, Ebbing informed the magistrate that he intentionally did not check his bank account as the magistrate had requested to see if Mathis had deposited $500 into it, because he did not want it to appear that he had accepted a $500 rent payment from Mathis. The magistrate found that Ebbing had accepted the $500 payment from Mathis and dismissed Ebbing's second FED action on the ground that, by accepting a rent payment from Mathis after serving him with an R.C. 1923.04 notice to vacate the premises, Ebbing waived the statutorily-required notice and thus divested the trial court of subject matter jurisdiction to rule on his second FED action. Ebbing filed an objection to the magistrate's decision and a motion for costs arising from the alleged frivolous conduct of Mathis' attorney, Molly Russell.

(¶ 5} The trial court overruled Ebbing's objection to the magistrate's decision and his motion for costs. The trial court first noted that, after the magistrate filed his decision, Ebbing filed a third FED action in the Hamilton Municipal Court that resulted in (1) Mathis and McIntosh being ordered to remove themselves from the premises, and (2) Ebbing's claim for damages being transferred to the Butler County Common Pleas Court because the amount of damages Ebbing sought was in excess of the municipal court's jurisdictional monetary limit. The trial court then determined that, as a result of the outcome in Ebbing's third FED action, his second FED action, which was pending before the court, had been rendered moot. The trial court added that if it would have decided Ebbing's objection on the merits, it would have affirmed the magistrate's decision to dismiss on the same grounds cited by the magistrate.

(¶ 6} Ebbing now appeals from the trial court's decision and assigns the following as error:

(¶ 7} Assignment of Error No. 1:

(¶ 8} THE TRIAL COURT COMMITTED UNLAWFUL AND REVERSIBLE ERRORS TO THE PREJUDICE OF PLAINTIFF WHEN DISMISSING ...


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