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Bowshier v. Bowshier

Court of Appeals of Ohio, Second District

September 20, 2013

ROBERT L. BOWSHIER Plaintiff-Appellee
v.
TEDDY BOWSHIER Defendant-Appellant

Civil Appeal from Clark County (Municipal Court) Trial Court Case No. 12-CVG-667

EDWIN A. GRINVALDS, Atty. Reg. #0030884, Attorney for Plaintiff-Appellee

WILFRED L. POTTER, Atty. Reg. #0029121 Attorney for Defendant-Appellant

OPINION

FAIN, P.J.

(¶ 1} Defendant-appellant Teddy Bowshier appeals from a judgment of the Clark County Municipal Court ordering restitution of the premises, formerly a commercial garage, located at 6 Vanada, in Springfield. The premises were ordered restored to the possession of plaintiff-appellee Robert L. Bowshier, Teddy Bowshier's uncle.[1]

(¶ 2} Teddy contends that the trial court erred by failing to sustain his motion to transfer this case to the Clark County Common Pleas Court; that the trial court deprived him of due process by hearing this case in Robert's absence (who was represented by counsel at the hearing); that the magistrate erred by failing to grant Teddy's request for findings of fact and conclusions of law; that the judgment is not supported by the evidence, and is against the manifest weight of the evidence; and that the trial court erred when it released escrow funds that he had deposited with the clerk of the trial court as ordered by the court of appeals as a condition of its order staying the judgment pending a prior appeal. We find no merit to any of Teddy's contentions. Therefore, the judgment of the trial court is Affirmed.

I. A Garage Becomes the Subject of a Family Dispute

(¶ 3} The property that is the subject of this litigation is a commercial garage that was built by Robert's father for Teddy's father, now deceased, in 1962. It was operated as the West End Body Shop. At some point, the garage became the property of Betty L. Bowshier, now deceased, the mother of Robert Bowshier.

(¶ 4} In 2008, Betty Bowshier gave her son Robert a general power of attorney. Using that power of attorney, Robert conveyed the garage to himself by a general warranty deed, recorded in May 2009.

(¶ 5} In May 2010, Robert and Teddy entered into a transaction concerning the garage, which was in poor condition. They disagree as to the nature of that transaction. According to Teddy, Robert agreed orally to sell him the garage for $25, 000, with monthly payments of $589 over about a five-year time span. Teddy testified that Terry Bowshier, Robert's son, came to him with a written land contract, and told Teddy that Robert wanted a $2, 500 down payment. Teddy did not have $2, 500. At that time, he talked to Robert, and, according to Teddy, Robert agreed that Teddy could either pay the $2, 500 at some time during the five-year life of the contract, or pay extra monthly payments at the end of the five years to cover the $2, 500. According to Teddy, he saw the written contract at that time, but because he was unable to pay the $2, 500, he was not allowed to keep it, or a copy.

(¶ 6} According to Robert, the transaction was a straight lease, with monthly rental payments in the amount of $589.

(¶ 7} Teddy paid $589 a month, and did a lot of work on the garage. According to Teddy, the work included cleaning, power washing, plumbing, electrical, the installation of a new furnace, and the installation of new toilets. Twenty sheets of drywall were installed.

(¶ 8} According to Teddy, in November 2011 he became aware, for the first time, that Robert viewed the $589 payments as rent, not installment payments on a land contract. Teddy, who had moved into the garage in May 2011, stopped making the payments. This litigation ensued.

II. The Course of Proceedings

(¶ 9} Robert brought this action in forcible entry and detainer in February 2012, in the Clark County Municipal Court, claiming that Teddy was a commercial tenant on an oral month-to-month lease, that Teddy had failed to pay the rent due, and that Robert had served Teddy with a written notice to leave the premises on February 10, 2012.

(¶ 10} Teddy filed an answer and counterclaim. In it, he claimed that he had entered into a land contract with Robert for the sale of the property, that in reliance upon that contract, he had made improvements and repairs totaling $18, 000, and had paid installment payments totaling $10, 600. He recited that he had filed a mechanic's lien upon the garage in the office of the Clark County Recorder in the amount of $28, 600. Teddy also claimed that the transfer of the title to the property to Robert was void, because Robert had unlawfully used a power of attorney to transfer the property from Betty Bowshier to himself Teddy sought foreclosure of his mechanic's lien, and an order of specific performance of the land contract.

(¶ 11} Teddy then moved to transfer the cause of action to the Clark County Common Pleas Court, contending that his counterclaim exceeded the jurisdictional amount of the municipal court, and also "involves the title to real property which can only be done by the court of Common Pleas."

(¶ 12} The affidavit of Shawn Bowshier was filed in the municipal court. In it, Shawn Bowshier averred that he was the manager of the property for Robert, that Teddy was a commercial tenant of the property, that Teddy violated the terms of the oral lease by failing to pay rent, that the notice to leave the premises had been served upon Teddy, and that $1, 917 was due as unpaid rent and late fees as of January 31, 2012.

(¶ 13} At the request of the trial court, both parties filed memoranda on the issue of the municipal court's jurisdiction.

(¶ 14} The cause was heard before a magistrate on April 4, 2012. Counsel for both parties were present. Robert, who resides in Florida, was not present. At the outset of the hearing, the averments in Shawn Bowshier's affidavit were read into the record by the trial court, without objection. Robert's counsel stated on the record that: "It's my understanding that Mr. Potter (Teddy's trial counsel) is not contesting the fact that there's been no payments of money since the end of November." Teddy's counsel did not take exception to that statement.

(¶ 15} Robert did not offer any witnesses at the hearing. Teddy presented three witnesses, including himself

(¶ 16} Thirteen days after the hearing, the magistrate rendered a three-page decision, concluding that Robert was entitled to restitution of the premises, and recommending that a writ of restitution be issued effective April 30, 2012. A week later, Teddy requested findings of fact and conclusions of law. Eight days thereafter, the magistrate rendered a decision that: "The Magistrate's Findings of Fact and Conclusions of Law are contained within the Magistrate's Decision, which was filed on April 17, 2012."

(¶ 17} On May 4, 2012, the trial court approved and adopted the magistrate's decision. Teddy filed a timely objection. In response on the objection, the trial court found that Teddy had an oral month-to-month lease of the premises, and had failed to pay rent. The trial court ordered the immediate issuance of a writ of restitution. Teddy appealed.

(¶ 18} During the pendency of this appeal, we stayed execution of the judgment on condition that bond in a monthly amount of $650 be paid either into an escrow or trust account in the names of the parties' counsel, or posted with the clerk of the Clark County Municipal Court. It appears that the latter alternative was chosen.

(¶ 19} We dismissed that appeal, and remanded the cause to the trial court, finding that the trial court had neither addressed Teddy's objections, nor allowed him the full 30 days allowed by Civ.R. 53(D)(3)(b)(iii) for the filing of a transcript in support of objections. Bowshier v. Bowshier, 2d Dist. Clark No. 2012 CA 40, 2013-Ohio-297, ¶ 35-40.

(¶ 20} On remand, the trial court rendered judgment ordering restitution, finding that Teddy had an oral month-to-month lease, and had violated the terms of that lease.

(¶ 21} Robert moved to release the monies deposited with the clerk of the Clark County Municipal Court, which then totaled $4, 550, to himself or his attorney. A hearing date was set for this motion. Teddy's motion to continue the hearing was overruled. Neither Teddy nor his attorney was present at the hearing. The trial court, noting that Teddy had not filed any written opposition to the motion, sustained the motion and ordered the monies released to Robert and his counsel.

(¶ 22} From the judgment of restitution and from the order releasing the appeal bond, Teddy appeals.

III. The Trial Court Did Not Err by Failing to Transfer this Cause to the Common Pleas Court

(¶ 23} Teddy's First Assignment of Error is as follows:

THE MAGISTRATE ERRED AS A MATTER OF LAW WHEN HE DID NOT TRANSFER THIS CASE TO ...

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