Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County TRIAL NO. 17CV-12430 Municipal
Aid Society of Greater Cincinnati, Amanda Toole and Ashley
Richardson Butler, for Defendant-Appellant.
In this eviction action, defendant-appellant Tiffany Anderson
appeals from the judgment of the Hamilton County Municipal
Court issuing a writ of restitution of the leased premises in
favor of the landlord, plaintiff Kristin Dixon. We determine
that the trial court erred in issuing the writ of
restitution, because Anderson had voluntarily vacated the
leased premises prior to the issuance of the trial
court's writ, and therefore Dixon's
forcible-entry-and-detainer claim was moot.
Dixon filed this eviction action against Anderson in June
2017. The complaint alleged a forcible-entry-and-detainer
claim, as well as claims for money damages. The matter
proceeded to trial before a magistrate. Anderson testified
that she planned to vacate the premises by June 30. The
magistrate nevertheless determined that Dixon should be
granted a writ of restitution of the property. Anderson filed
objections to the magistrate's decision. On June 30, the
magistrate issued an order staying her decision contingent
upon Anderson paying a bond by July 5. On July 5,
Anderson's counsel filed a notice of return of
possession, stating that Anderson had vacated the leased
premises. Dixon did not file a response. On July 13, the
trial court issued a writ of restitution. Anderson filed a
In a single assignment of error, Anderson argues that the
trial court erred in granting Dixon a writ of restitution of
As a jurisdictional matter, we note that although Dixon's
damages claim remained pending at the time Anderson filed her
notice of appeal, the trial court's issuance of a writ of
restitution is a final, appealable order, despite the pending
claim, because Civ.R. 54(B) is inapplicable in
forcible-entry-and-detainer proceedings. See Cincinnati
Metro. Hous. Auth. v. Brown, 1st Dist. Hamilton No.
C-120580, 2013-Ohio-4143, ¶ 6, citing Cuyahoga
Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 132,
423 N.E.2d 177 (1981). Therefore, we have jurisdiction over
Anderson's appeal. See Brown at ¶ 6.
Claim Was Moot
In a forcible-entry-and-detainer action, when a tenant
vacates a leased property, the issue of restitution of the
property becomes moot. See Schwab v. Lattimore, 166
Ohio App.3d 12, 2006-Ohio-1372, 848 N.E.2d 912, ¶ 11
(1st Dist.); Allison v. Braunlin, 113 Ohio App. 511,
512, 179 N.E.2d 79 (10th Dist.1961); Crossings Dev. Ltd.
Partnership v. H.O.T., Inc., 96 Ohio App.3d 475, 480,
645 N.E.2d 159 (9th Dist.1994). This is because
"[f]orcible entry and detainer actions decide the right
to immediate possession of property and nothing else."
Long v. MacDonald, 3d Dist. Crawford No. 3-02-10,
2002-Ohio-4693, ¶ 8; see Rithy Properties, Inc. v.
Cheeseman, 2016-Ohio-1602, 63 N.E.3d 752, ¶ 15
(10th Dist.) ("If immediate possession is no longer at
issue because the defendant vacates the premises and
possession is restored to the plaintiff, then continuation of
the forcible entry and detainer action or an appeal of such
an action is unnecessary, as there is no further relief that
may be granted.").
In a case similar to the one at bar, the Second Appellate
District reversed and vacated a trial court's judgment
ordering a writ of restitution where the evidence showed that
the tenant had vacated the property prior to the trial court
issuing a writ of restitution. See Richmond's Ent.,
Inc. v. Anderson, 2d Dist. Montgomery No. 26674,
2016-Ohio-609. In Richmond's Ent, Inc., the
tenant had vacated the leased premises prior to the hearing
before the magistrate, but after the complaint had been
filed, and the tenant moved to dismiss the
forcible-entry-and-detainer claim as moot. The landlord
opposed the motion to dismiss, because the tenant had
returned the keys on the day of trial, thus the magistrate
recommended issuance of the writ. The tenant filed objections
and the trial court overruled the objections and issued the
writ. In reversing the trial court's judgment, the
appellate court determined that "[b]ecause the only
issue in a forcible-entry-and-detainer action is the right to
immediate possession of the premises, and [the landlord]
admittedly had obtained possession prior to the hearing,
there was nothing for the magistrate or the trial court to
decide with regard to restitution of the premises. The issue
was moot." Id. at ¶ 7.
The record reflects that the writ of restitution in this case
was not issued by the trial court until after Anderson had
left the leased property. Although the magistrate had
recommended issuance of a writ, the magistrate had ordered a
stay of her decision until July 5. Anderson vacated the
property, and notified the court of such on July 5. No
evidence in the record contradicts these facts. Therefore,
the trial court erred in entering the writ on July 13,
because the forcible entry-and-detainer claim was moot.
In conclusion, we sustain Anderson's assignment of error.
We reverse the trial court's judgment ordering a writ of
restitution, and we remand the matter to the trial court to
dismiss the ...