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Date: 08-08-2022

Case Style:


Case Number: 29248


Christopher B. Epley; Presiding Judge


Jeffrey M. Welbaum
Ronald C. Lewis



On Appeal From a Civil Appeal from Common Pleas Court

Plaintiff's Attorney:

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Defendant's Attorney: STEVEN M. KATZ & ROBERT K. DICUCCIO


Dayton, Ohio - Real Estate lawyer represented Plaintiff-Appellant with appeals from a judgment denying its request for restitution from tenants.

{¶ 1} Cerise Capital LLC appeals from a judgment of the Montgomery County
Court of Common Pleas, which denied its request for restitution of its commercial property
from tenants Jennifer and David Dewberry. For the following reasons, this appeal will
be dismissed as moot.
I. Facts and Procedural History
{¶ 2} On January 15, 2021, the Dewberrys entered into a lease with Cerise Capital
for the commercial property located at 5849-5953 Springboro Pike. The Dewberrys
planned to open a child care center at that location. Ronald Schumaker, president of
Redstone Group, Inc., the sole member of Cerise Capital, signed the lease on behalf of
Cerise Capital.
{¶ 3} The leased area totaled 4,200 square feet. Under the terms of the lease,
2,400 square feet would be delivered upon execution of the lease and 1,800 square feet
would be delivered upon the completion of certain work performed by the landlord. The
parties agreed to a five-year term with an additional five-year option. The lease included
a graduated rent schedule: (1) Months 1-3: Abated; (2) Months 4-6: $1,250; (3) Months
7-60: $2,450; (4) Option Months 61-120: $4,830. The rent was to increase an additional
$1,800 per month 60 days after the landlord delivered the 1,800 square feet portion of
the premises. Section 5 (Rent) of the lease stated that rent “shall be paid to Landlord * *
* at such place as Landlord may from time to time designate in writing.” The Dewberrys
also were required to pay a $4,200 security deposit upon execution of the lease.
{¶ 4} The parties quickly began to have difficulties. According to Schumaker, the
Dewberrys’ initial security deposit check bounced, although it was ultimately paid. On
April 24, 2021, Jennifer Dewberry told Schumaker that she had a rent payment, which
had been due on April 15. Schumaker told her to leave it for him in a cabinet drawer
below a security panel at the premises. Schumaker received and accepted the money
order for $666.67, the prorated amount of rent due for April 2021.
{¶ 5} The Dewberrys had concerns about mold and other issues, and they did not
make a rent payment on May 1, 2021. On May 10, Schumaker inquired about the status
of the rent payment. The Dewberrys proposed to meet with Schumaker at the business
premises on May 15, at which time they would render payment, and Schumaker agreed.
On May 15, Schumaker went to the building, but did not enter; he left when he saw no
other vehicles in the parking lot. The Dewberrys came for the meeting and put the rent
payment, including late fees, in the drawer at the building, as they had previously done.
On May 17, David Dewberry notified Schumaker via text message that the rent payment
was in the drawer; Schumaker never retrieved it.
{¶ 6} On May 20, 2021, Schumaker posted a three-day notice to vacate on the
main entrance to the Dewberrys’ business. On June 17, 2021, Cerise Capital filed a
forcible entry and detainer action in the common pleas court, seeking restitution of the
premises (Count One) and unpaid rent and other damages in excess of $30,000 (Count
Two). The Dewberrys denied the allegations and brought counterclaims for breach of
contract, promissory estoppel, and unjust enrichment. Their prayer for relief asked for
attorney fees and costs related to Cerise Capital’s claims, as well as compensatory
damages, attorney fees, court costs, and both pre-judgment and post-judgment interest
at the statutory rate for their own claims. Cerise Capital asked the trial court to bifurcate
the issues of damages and attorney fees.
{¶ 7} On July 23, 2021, the trial court held a bench trial on whether Cerise Capital
was entitled to immediate possession of the commercial property due to non-payment of
rent. Schumaker stated that rent payments were to be handed to him directly or,
pursuant to Section 29 (Notice) of the lease, mailed to him at his Fairview Drive address
in Carlisle, Ohio. Schumaker testified that there was no ongoing arrangement for rent
payments to be left in the drawer and that he had not received the May rent. David
Dewberry testified that Schumaker had waived the late payment of the May rent in writing
and the payment was still in the drawer. The Dewberrys disagreed that rent was required
to be mailed to Schumaker under the terms of the lease.
{¶ 8} On August 10, 2021, the trial court ruled in favor of the Dewberrys and denied
the request for restitution of the premises. The court found that Cerise Capital had “failed
to meet its burden by demonstrating that Defendants did not pay rent in the months of
April or May, 2021.” The trial court included language pursuant to Civ.R. 54(B). We
note that Civ.R. 54(B) does not apply to forcible entry and detainer actions. Bowshier v.
Bowshier, 2d Dist. Clark No. 2012-CA-40, 2013-Ohio-297, ¶ 34, citing Cuyahoga Metro.
Housing Auth. v. Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d 177 (1981). A judgment
on a forcible entry and detainer action nevertheless is immediately appealable as arising
from a special proceeding. See, e.g., Sholiton Industries, Inc. v. Royal Arms, Ltd., 2d
Dist. Montgomery No. 17480, 1999 WL 355898, *8 (June 4, 1999).
{¶ 9} Cerise Capital appeals from the trial court’s judgment, raising three
assignments of error. It claims that (1) the trial court’s decision was against the manifest
weight of the evidence, (2) the court erred in failing to find that the Dewberrys were
required to pay their rent by mail to the Carlisle address, and (3) the court erred in failing
to find that the Dewberrys did not pay rent as required by the lease.
II. Mootness
{¶ 10} Before we address the merits of Cerise Capital’s assignments of error, we
must consider whether the appeal is moot. In their appellate brief, the Dewberrys state
that due to Cerise Capital’s refusal to continue renovations within the premises, they
“vacated the premises and returned exclusive possession to Plaintiff on February 9,
2022.” They further note that Cerise Capital has received and accepted every rent
payment between April 2021 and January 2022. The Dewberrys supported these
statements with an affidavit from David Dewberry, and they ask us to dismiss the appeal
as moot.
{¶ 11} “The role of courts is to decide adversarial legal cases and to issue
judgments that can be carried into effect.” Cyran v. Cyran, 152 Ohio St.3d 484, 2018-
Ohio-24, 97 N.E.3d 487, ¶ 9, citing Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d
371 (1970); State v. Smith, 2d Dist. Montgomery No. 27981, 2019-Ohio-3592, ¶ 8.
“Under the mootness doctrine, American courts will not decide cases in which there is no
longer an actual legal controversy between the parties.” Id., citing In re A.G., 139 Ohio
St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37.
{¶ 12} “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.”
Miele v. Ribovich, 90 Ohio St.3d 439, 441, 739 N.E.2d 333 (2000). A forcible entry and
detainer action decides only the right to immediate possession of property. Miami Valley
Hous. v. Jackson, 2d Dist. Montgomery No. 25020, 2012-Ohio-5103, ¶ 5. “When the
tenant has vacated the premises and the landlord has again taken possession, the merits
of an eviction action are generally rendered moot.” Wise v. Webb, 2d Dist. Clark No.
2015-CA-50, 2015-Ohio-4298, ¶ 12, citing Cherry v. Morgan, 2d Dist. Clark Nos. 2012-
CA-11 & 2012-CA-21, 2012-Ohio-3594, ¶ 4 (“Once a landlord has been restored to the
property, the forcible entry and detainer action becomes moot because, having been
restored to the premises, there is no further relief that can be granted.”).
{¶ 13} Cerise Capital has not responded to the Dewberrys’ motion to dismiss.
Accordingly, it appears undisputed that the Dewberrys have vacated the commercial
property. Because Cerise Capital has been restored to the premises, we cannot provide
any meaningful remedy, even if we were to find that any of its assignments of error had
merit. Consequently, this appeal is moot.
III. Attorney Fees
{¶ 14} In conjunction with their motion to dismiss, the Dewberrys have requested
attorney fees. They state in their motion that, despite discussions between counsel,
Cerise Capital has refused to dismiss the appeal even though it is now moot. The
Dewberrys have not indicated under what authority we should grant its request.
{¶ 15} Under App.R. 23, an appellate court may require the appellant to pay
reasonable fees if the appellate court determines that the appeal is frivolous. App.R. 23;
Springfield Venture, L.L.C. v. U.S. Bank, N.A., 2015-Ohio-1983, 33 N.E.3d 85, ¶ 51 (2d
Dist.). A frivolous appeal is one that presents issues lacking arguable merit, which
means that, “on the facts and law involved, no responsible contention can be made that
it offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-
Ohio-3242, ¶ 8, citing State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788,
¶ 4. Applying this standard, we decline to award attorney fees for this appeal under
App.R. 23.
{¶ 16} Although not cited by the parties, we note that the lease includes a provision
regarding attorney fees. It states, in pertinent part: “If either party commences an action
against the other party arising out of or in connection with this Lease, the prevailing party
shall be entitled to have and recover from the losing party reasonable attorneys’ fees and
costs of suit including fees and costs of appeal.” Section 31 (Attorneys’ Fees). Whether
the Dewberrys are entitled to attorney fees related to this appeal under Section 31 of the
parties’ lease is a matter to be resolved by the trial court. Our decision not to award
attorney fees under App.R. 23 has no bearing on whether the Dewberrys are entitled
attorney fees for this appeal under the terms of the lease.

Outcome: } Cerise Capital’s appeal will be dismissed as moot.

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