Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 08-05-2022

Case Style:


Case Number: 2021-CA-43


Mary E. Donovan; Presiding Judge

Michael L. Tucker - concurs
Christopher B. Epley _ dissents



Civil Appeal from Municipal Court

Plaintiff's Attorney:

Click Here to Watch How To Find A Lawyer by Kent Morlan

Click Here For The Dayton, OH - Landlord and Tenant Law Lawyer Directory

If no lawyer is listed, call 918-582-6422 and cMoreLaw will help you find a lawyer for free.

Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.

Re: MoreLaw National Jury Verdict and Settlement


MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.

MoreLaw will publish litigation reports submitted by you free of charge - 855-853-4800

Defendant's Attorney: LAURENCE A. LASKY


Dayton, Ohio - Landlord and Tenant Law lawyer represented defendant with appealing from a denial for restitution.

Hometown Apartments, LLC, dba Laurel Springs Apartments (“Laurel
Springs”) appeals from a judgment of the Fairborn Municipal Court that denied Laurel
Springs’s request for restitution of Kenneth Hoffa’s apartment to Laurel Springs. Hoffa
was deceased when the complaint was filed. As such, the complaint was a nullity, and
the trial court did not err in denying restitution. The judgment of the trial court is affirmed.
{¶ 2} Laurel Springs filed a complaint in forcible entry and detainer against
“Kenneth Hoffa (Deceased) and all others” on October 19, 2021. Count One of the
complaint alleged that Hoffa’s rent was in arrears in the amount of $605, that Laurel
Springs had served notice upon Hoffa three or more days before commencing the action
to vacate the premises, and that Hoffa “refuses to leave said premises and surrender
possession thereof.” Count Two of the complaint requested “a money judgment” in the
amount of $605 “plus back rent and damages and all other rent and damages up to and
including the time the Defendant vacates the premises.” A copy of the Notice to Leave
the Premises was attached to the complaint, along with an affidavit of Pam Chris, the
owner and manager of Laurel Springs.
{¶ 3} The trial court scheduled a hearing on the complaint before a magistrate on
November 3, 2021. At the hearing, counsel for Laurel Springs informed the court that
Hoffa was deceased. The following exchange occurred:
[THE MAGISTRATE]: * * * I looked at the complaint prior to coming
in today * * * and I noticed that – we can’t properly serve the deceased
individual as the defendant. So do you have any other additional
information that you can provide to –
* * *
[COUNSEL FOR LAUREL SPRINGS]: Your Honor, * * * this is
obviously not a case of first impression. As the court knows, under Ohio
law, there’s no requirement of personal service on count one of an eviction
The statute says regarding the notice, quote, it simply says the threeday notice should be left, quote, where the defendant may be found. * * *
Number two, regarding service on the eviction component, which is
all we’re here for, we’re not seeking a money judgment
So it is our position and there’s case law out of three different
districts, including Franklin County, and I believe Montgomery County as
well, in these cases which indicates if you are simply seeking restitution of
the premises and you’re not seeking a money judgment and they do go on
and discuss these kinds of cases, then there’s no requirement of any
service other than door service.
Because here’s our circumstance here. Our position is that there’s
stuff left in the apartment. There may or may not be conflicting interest
regarding relatives who may be contacting my client saying we want the
And therefore we filed the eviction so that we can legally get a court
order to allow us to retake the apartment.
And * * * when relatives call us, we’re free and fair to tell them here’s
the move out date, if you would like the items, they’ll be placed out front.
So we go above and beyond in each one of these cases but it’s our
position that there’s no requirement of initiating an action through Probate
Court because we’re not going to be presenting a bill to any estate. We
just simply want the premises back.
{¶ 4} The magistrate advised counsel that he would “like to see” that there had
been “some notice or some attempt to notify” next of kin or an executor or administrator
of Hoffa’s estate. The magistrate asked counsel to present relevant case law and
proposed continuing the matter for a week. The magistrate then proceeded to hear the
testimony of Laurel Springs owner/property manager Pam Chris
{¶ 5} Chris testified that Hoffa was 72 years old and had just been terminated from
Lowe’s when he died. She stated that she had learned that Hoffa had a son, Kenneth
Hoffa Jr., who resided in Florida, with whom she had not spoken. Chris testified that she
had not been served with anything suggesting that an estate had been opened on Hoffa’s
behalf or contacted by any lawyers regarding his apartment, but she had been contacted
by Hoffa’s relatives; his sister, Diane Hoffa, wanted Hoffa’s belongings from the
apartment. Chris stated that Hoffa’s rent had been $535 per month and that he had
resided in the premises pursuant to a lease. She testified that he had not paid rent for
October 2021, and she identified the notice to leave the premises that she had placed on
the apartment door. Chris testified that she did not know Hoffa’s date of death, but that
his apartment was “infested * * * with gnats because of his body being in there.” She
testified that she had “biohazard” clean the premises, but that the smell was still there
because of all of his belongings and rotten food.
{¶ 6} On November 16, 2021, the magistrate found that the Laurel Springs had
issued a proper notice to vacate within the required time, and that Hoffa was in default as
a result of his death and non-payment of rent. The decision found that “[a] decedent’s
death terminates his will to continue a tenancy by implication of law,” citing Sutherland v.
Moore, 10th Dist. Franklin No. 88AP-482, 1988 WL 96231 (Sept. 15, 1988), quoting Say
v. Stoddard, 27 Ohio St. 478 (1875). On this basis, the magistrate recommended that
Laurel Springs be granted restitution of the premises and recover the cost of this suit. In
an amended decision issued on November 30, 2021, the magistrate noted that
“Defendant(s) did not appear [at the hearing] although served with summons and
{¶ 7} On December 1, 2021, the trial court declined to adopt the magistrate’s
decision, finding an error of law. The trial court took “judicial notice” that Laurel Springs
had named a deceased person as the defendant and concluded that, “[o]bviously, service
cannot be made on a deceased person. The proper party Defendant is either the
administrator or executor of the deceased’s estate or the deceased’s next of kin.” The
court granted Laurel Springs 21 days to amend its complaint and noted that its failure to
do so would result in the case being dismissed without prejudice at Laurel Springs’s cost.
{¶ 8} Laurel Springs filed a notice of appeal on December 8, 2021.
{¶ 9} Laurel Springs asserts the following assignment of error:
{¶ 10} Laurel Springs argues that the trial court “frustrated the underlying statutory
purpose of forcible entry and detainer actions,” which is to create “an expedited purpose
to address the recovery and possession of rental properties.” It also argues that the civil
rules regarding service are not applicable to a forcible entry and detainer action and that
the court’s docket establishes that service was perfected by the posting of the summons
and complaint on October 20, 2021. Laurel Springs argues that there was no
requirement for it to provide additional service of any sort.
{¶ 11} Laurel Springs further asserts that the magistrate correctly concluded that
the leasehold of a tenant “ceased to exist once he passed away.” Laurel Springs points
out that there was no language in the lease that bound any heirs or assigns of the tenant
or “extend[ed] any rights or obligations therein” beyond the death of the tenant.
According to Laurel Springs, the lease terminated upon Hoffa’s death, Laurel Springs was
entitled to possession of the premises due to Hoffa’s undisputed failure to pay rent, and
the trial court erred in mandating that Laurel Springs bring other persons in as parties.
Although Laurel Springs suggests that the lease was attached to its complaint, we note
that the lease was not attached, and it is not part of record before this court.
{¶ 12} As noted by the Ohio Supreme Court:
“Forcible entry and detainer, as authorized in R.C. Chapter 1923, is
a summary proceeding in which ‘any judge of a county court’ may make
inquiry into disputes between landlords and tenants, and, where
appropriate, order restitution of the premises to the landlord.” Cuyahoga
Metro. Hous. Auth. v. Jackson (1981), 67 Ohio St.2d 129, 130, 21 O.O.3d
81, 82, 423 N.E.2d 177, 178. A forcible entry and detainer action is
intended to serve as an expedited mechanism by which an aggrieved
landlord may recover possession of real property. Id. at 131 * * *; see, also,
Haas v. Gerski (1963), 175 Ohio St. 327, 330, 25 O.O.2d 212, 214, 194
N.E.2d 765, 767. Thus, “[g]iven its summary nature, the drafters of the
Rules of Civil Procedure were careful to avoid encrusting this special
remedy with time consuming procedure tending to destroy its efficacy.”
Jackson * * * at 131 * * *.
The Ohio Rules of Civil Procedure “prescribe the procedure to be
followed in all courts of this state in the exercise of civil jurisdiction.” Civ.R.
1(A). The rules are generally applicable to all civil proceedings in Ohio;
however, there are exceptions. See Civ.R. 1(C); see, also, Jackson * * * at
130 * * *. One such exception provides that the rules, “to the extent that
they would by their nature be clearly inapplicable, shall not apply to
procedure” in forcible entry and detainer actions. Civ.R. 1(C)(3). * * *
(Footnote omitted.) Miele v. Ribovich, 90 Ohio St.3d 439, 441-42, 739 N.E.2d 333 (2000).
{¶ 13} As this Court has noted: “ ‘An action in forcible entry and detainer is solely
a possessory action. * * * It does not determine the title to real property. The gist of the
action is the right to present possession.’ ” Bowshier v. Bowshier, 2d Dist. Clark No.
2012-CA-40, 2013-Ohio-297, ¶ 21, quoting Haas, 175 Ohio St. 327, 194 N.E.2d 765
{¶ 14} As noted by the Eighth District in Sherman v. Carlin, 46 Ohio App.3d 149,
150-151, 546 N.E.2d 433 (8th Dist.1988):
As a general rule, a lease for a term of years does not terminate by
operation of law upon the death of the lessee but passes to his personal
representative, who becomes bound as assignee for the remaining term.
Mills v. Connor (1922), 104 Ohio St. 409, 135 N.E. 616, paragraph one of
the syllabus; Becker v. Walworth (1887), 45 Ohio St. 169, 12 N.E. 1,
paragraph one of the syllabus. However, a lease may be so personal in its
terms as to manifest the parties’ intention that the lease terminate upon the
tenant’s death. Cf. Bracken v. Wagner (App. 1956), 74 Ohio Law Abs. 85,
3 O.O.2d 25, 134 N.E.2d 382; In re Estate of Logan (P.C.1955), 71 Ohio
Laws Abs. 85, 3 O.O.2d 25, 134 N.E.2d 382; In re Estate of Logan (P.C.
1955), 71 Ohio Law Abs. 391, 131 N.E.2d 454. See, also, In re Estate of
Lewis (Mo. App. 1973), 492 S.W.2d 385; Goodman v. Jardine (Fla. App.
1977), 353 So.2d 896.
{¶ 15} Here, the lease is not part of our record. Laurel Springs’s representative,
Chris, stated that Hoffa had relatives, including a son and a sister. Following the general
rule set forth above, and in the absence of any evidence that Hoffa’s lease was so
personal in its terms as to manifest the parties’ intention that the lease terminate upon his
death, we find that the trial court properly concluded that the “proper party is either the
administrator or executor of the deceased’s estate or the deceased’s next of kin,” and the
court properly instructed Laurel Springs to amend its complaint to name the proper party.

Accordingly, Laurel Springs’s assignment of error is overruled.

EPLEY, J., dissents:

By design, statute, and rule, a forcible entry and detainer action is summary
in nature. The Rules of Civil Procedure are modified for the typical Count 1 of an eviction
action – restitution of the premises; for the typical Count 2 – money damages – they are
not. See Civ.R. 1(C) (“These rules, to the extent that they would by their nature be clearly
inapplicable, shall not apply to procedure * * * (3) in forcible entry and detainer, * * *[.]”).
A hearing on the restitution claim may occur after seven days from service. R.C.
1923.06(H)(1). In contrast, in other civil filings (including claims filed with the request for
restitution of the property), a defendant has 28 days to answer the complaint. R.C.
1923.06(H)(2); Civ.R. 12(A)(1). A hearing on the non-eviction claims would not be
scheduled until the expiration of those days, if at all.
{¶ 24} The summary nature of eviction actions is evidenced by the service of
process instructions. Specifically, R.C. 1923.06(D)(2)(c) states that service is achieved
by “posting a copy in a conspicuous place on the subject premises if service cannot be
made pursuant to divisions (D)(2)(a) and (b) of this section.” The (D)(2)(a) and (b)
subsections relate to giving the document to the defendant at the property or leaving the
document with another person at the property.
{¶ 25} The (D) section of the statute does not distinguish between a living and a
deceased tenant. By contrast, the next sequential section – (F) – details how to evict a
deceased manufactured home park resident. Notably, a landlord or owner of a
manufactured home lot cannot simply post the complaint in a conspicuous place on the
subject premises. Instead, service must be made either (1) on the executor or
administrator appointed by the probate court, if known, or (2) on the known spouse and
immediately family members of the decedent, plus service by publication. R.C.
1923.06(F). Presumably this is because a manufactured home resident may have an
equitable or ownership interest in the structure on the rented lot of a manufactured home
{¶ 26} The forcible entry and detainer statute regarding service of process is clear,
unambiguous, and practical. With the addition of the service provisions for manufactured
home park residents in 2007, the legislature made a distinction between service of
deceased manufactured home park residents and other tenants. See also R.C.
1923.04(A) & (C) (providing differing notice requirements for a deceased resident of a
manufactured home park and others). We should not graft requirements for service of
other deceased tenants into R.C. 1923.06(D) when the legislature has not done so.
{¶ 27} In addition, the cases cited by the majority are inapposite to the case at bar.
In Mills, 104 Ohio St. 409, 135 N.E. 616 (1922), the decedent/testator procured a 10-year
lease for a business property that included, among other things, a “moving picture
theater.” The lease set out that the lessee could not, without consent of the lessor, sublet
any part of the first floor or basement of the premises, or assign the lease. The lease
further stated that the first floor and basement could only be used for the purpose of
maintaining a theater. It was also provided that all the conditions of the lease should
bind the heirs, executors, administrators, successor, and assigns of the parties. Finally,
the lessees had the right to re-lease the premises for a further five-year period after the
end of the original 10-year term.
{¶ 28} The decedent in Mills paid the rent and otherwise complied with all the terms
of the agreement until his death, approximately two years before the expiration of the
lease. He left a will which stated that the theater business was to be sold, but if there
were legal impediments to its sale, then it was his will that the theater continue operating
for “the life of the lease” under the direction of his cousin, with profits being split between
family members. The theater continued showing “moving pictures” until close to the end
of the original 10-year lease, when the decedent’s estate tried to invoke the five-year
option contemplated by the lease. The owner of the building declined, and the suit was
{¶ 29} The court noted that, as a general rule, the representative of a decedent
may not carry on the decedent’s business after his death unless such authority is
specifically granted. It was also clear that the rights of the plaintiff as trustee to operate
the business (as appointed by the probate court) were limited to the clear and express
language of the will; he had no power as to any other matters connected with the estate.
The will only granted the authority for the family to run the theater business until the end
of the lease, and it gave them no rights to anything else. It did not even give them the
authority to control or use the equipment of the theater after the lease. Therefore,
because the right to execute a new five-year lease was not explicitly granted in the will,
the lessor did not have to grant a new five-year term to the decedent’s family. Mills did
not involve an eviction action or the requirements for notice and service of summons for
any action.
{¶ 30} In Sherman v. Carlin, 46 Ohio App.3d 149, 150, 546 N.E.2d 433 (8th
Dist.1988), James Holland signed an agreement to rent an apartment for one year
beginning on August 1, 1984. Five days later, he died. The lease agreement provided
that its terms were binding on the parties’ “heirs, successors, representatives and
assigns.” After Holland’s death, his estate continued to pay rent for five months and then
stopped. Sherman, the owner of the property, brought suit. The Eighth District held
that, “[a]s a general rule, a lease for a term of years does not terminate by operation of
law upon the death of the lessee but passes to his personal representative, who becomes
bound as assignee for the remaining term.” Id. at 150, citing, e g., Mills, 104 Ohio St.
409, 135 N.E. 616, paragraph one of the syllabus. The appellate court further
recognized that “a lease may be so personal in its terms as to manifest the parties’
intention that the lease terminate upon the tenant’s death.” Id. at 150.
{¶ 31} Even without that general proposition of law, the terms of the contract were
clear: the “heirs, successors, representatives and assigns” were bound to the terms of
the lease agreement. The Eighth District found the contract was clear and unambiguous,
so it had to follow the four corners of the contract. Holland’s estate was liable for the
remaining time on the contract (although there would be a trial to determine if the lessor
attempted to mitigate his loss by finding a new renter). Significantly, Sherman dealt with
money damages, not service of process for restitution of the premises, which is the
situation at bar.
{¶ 32} Here, Hoffa’s rent was overdue, and he was found deceased in the
apartment. Laurel Springs filed suit against “Kenneth Hoffa (Deceased) and all others.”
The “and all others” is common language so that any unknown occupants would be
evicted once the notice is posted on the door pursuant to statute.
{¶ 33} Under the lead opinion, the landlord would have to open an estate in
probate court, appoint an administrator, and serve the administrator before gaining the
premises back. The Revised Code does not require that process, and there is no case
law interpreting the code in that manner. It would be a different situation if money
damages were sought; one would not be able to obtain money from a deceased person
without first obtaining approval through the probate process. However, that is not the
case here. Accordingly, I respectfully dissent.

Outcome: The judgment of the trial court is affirmed.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case