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Kebe v. Bush

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 5, 2019

ANNE M. KEBE, Plaintiff-Appellant,
v.
LATASHIA JENKINS BUSH, Defendant-Appellee.

          Civil Appeal from the Cleveland Municipal Court Housing Division Case No. 2017 CVG 1759

          Mike Heller Law, L.L.C., and Michael A. Heller, for appellant.

          The Legal Aid Society of Cleveland, and Hazel G. Remesch and Matthew D. Vincel, for appellee. LARRY A JONES, SR., J.:

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR, JUDGE

         {¶ 1} Plaintiff-appellant Anne Kebe ("Kebe") appeals the trial court's decision to deny her motion for relief from judgment. For the reasons that follow, we affirm.

         {¶2} This appeal stems from an eviction action filed in Cleveland Municipal Court, Housing Division, initiated by Kebe against her former tenant, defendant-appellee Latasha Bush ("Bush"). In February 2017, Kebe filed a complaint against Bush for forcible entry and detainer, seeking possession of rental premises located on Fleet Avenue in Cleveland and money damages for alleged damage to the property, unpaid rent, and unpaid utility bills.

         {¶ 3} The trial court subsequently dismissed the forcible entry and detainer action. Bush filed an answer and counterclaim for wrongful withholding of her security deposit. In January 2018, a magistrate presided over a trial. On January 26, 2018, the magistrate issued its decision, finding that Bush was entitled to judgment on Kebe's claims and Kebe was entitled to judgment on Bush's counterclaim. The same day the trial court adopted the magistrate's decision. The judgment entry did not specify the judgment amount for each party.

         {¶4} On February 12, 2018, Kebe filed objections to the magistrate's decision. Bush moved to strike the objections as untimely filed. The trial court granted Bush's motion to strike, agreeing that Kebe's objections to the magistrate's decision were untimely filed. In March, Kebe filed a motion for relief from judgment, which the trial court denied.

         {¶ 5} Kebe filed a notice of appeal. Kebe v. Bush, 8th Dist. Cuyahoga No. 107146. This court sua sponte dismissed the appeal:

When the court adopts, rejects or modifies a magistrate's decision it must also enter a judgment. The judgment entry must contain a clear pronouncement of the court's judgment and a statement of relief must be a complete document separate and apart from that of the magistrate's order. In this matter, the trial court adopted the magistrate's decision, but failed to state the amount of the judgment for each party. Thus, the entry does not contain a clear pronouncement of the court's judgment. Consequently, the order in not a final appealable order and is dismissed.

Id. (Motion No. 518722).

         {¶ 6} Kebe subsequently filed a motion for reconsideration, which this court denied. Id. (Motion No. 523261). Kebe then filed a motion with the trial court requesting the court issue a final judgment entry. In October 2018, the trial court granted judgment to Bush on Kebe's claims in the amount of "$0" and judgment to Kebe on Bush's counterclaim in the amount of "$0." Kebe did not file a motion for relief from judgment from the trial court's judgment. Instead, Kebe filed the instant appeal, raising 11 assignments of error for our review. See Appendix.

         {¶ 7} In the first assignment of error, Kebe claims that the trial court erred in striking her objections to the magistrate's decision.

         {¶ 8} Our standard of review for a motion to strike is whether the trial court abused its discretion by granting or denying the motion. Abernethy v. Abernethy, 8th Dist. Cuyahoga No. 81675, 2003-Ohio-1528, ¶ 7. An abuse of discretion is more than an error of law or judgment; it implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶ 9} The magistrate's decision was filed on January 26, 2018. Pursuant to Civ.R. 53, Kebe had 14 days from the date the magistrate's decision was filed to file her objections. Civ.R. 53(D)(3)(b)(i). Thus, Kebe had until February 9, 2018, to file her objections. Kebe did not file her objections until February 12, 2018; therefore, her objections were untimely filed.

         {¶ 10} "If no timely objections are filed, the court may adopt a magistrate's decision, unless it determines that there is an error of law or other defect evident on the face of the magistrate's decision." Civ.R. 53(D)(4)(c). Civ.R. 53(D)(5) does allow a court to grant an extension for a party to file ...


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