COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65781 & 66714 SILVIA PALOMBA : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARIE HAYES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 13, 1995 CHARACTER OF PROCEEDING : Civil appeal from Cleveland Municipal Court : Case No. 93-CVG-8993 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Patrick J. Cooney Kermit J. Lind Morrison & Laino Co., L.P.A. 1950 Lee Road Suite 510 Cleveland Heights, Ohio 44118 1965 East Sixth Street Cleveland, Ohio 44114 G. Michael Curtin Keller & Curtin 330 Hanna Building 1422 Euclid Avenue Cleveland, Ohio 44115-1901 - 2 - HARPER, J.: Plaintiff-appellee, Silvia Palombo, filed a complaint in forcible entry and detainer with the Cleveland Municipal Court, Housing Division, on April 22, 1993. She indicated therein that defendant-appellant, Marie Hayes, was unlawfully residing in the premises located at 17530 Neff Road, Apartment 7, Cleveland, Ohio, 1 since April 13, 1993. On May 11, 1993, Hayes filed an answer which listed affirmative defenses as well as three counterclaims against Palombo. Among the defenses listed were that Palombo's allegations of non-compliance with the lease and her imposition of different tenancy requirements on Hayes were racially motivated. As to her counterclaims, Hayes asserted that Palombo violated several sections of the Fair Housing Act of 1968, as amended, specifically Sections 3604(a) and (b), 3613, 3617, Title 42, U.S.Code; sections of Ohio's Civil Rights law, R.C. 4112.02(H) and 4112.051; and Section 1982, Title 42, U.S.Code. A hearing before a referee occurred on May 12, 1993. Hayes, through her counsel, orally moved for joinder of Palombo's claims and her counterclaims pursuant to R.C. 1923.81 to allow the case to proceed as any other civil action with continued rent ordered into court under R.C. 1923.061. She argued that the joinder should be allowed since her answer and counterclaims were filed before the 1 The complaint also originally contained a second cause of action, "Termination of lease dated April 15, 1993," but it has a line drawn through it. - 3 - hearing date. Upon Palombo's objection to the motion, the referee took it under advisement and continued with the first cause hearing. It was established during the hearing that the parties entered into a one-year lease agreement for the premises on April 15, 1992. All tenants were required to enter into a twelve-month lease; Palombo used standard lease forms which she purchased from the store. The leases contained no rules regarding overnight guests or visitors. The lease provided, however, in provisions 4 and 5 that the apartment was to be used solely as a private single family residence, with no more than two occupants, one adult and one child. Palombo expressly noted in the lease that Hayes and her son were to be the sole occupants of the apartment and the keys were not to be provided to any other party. Also, a thirty days written notice to vacate the premises requirement is contained in provision 22. Palombo visited the rental property which housed twelve units once or twice a week. No rental manager resided in the building. Sometime after Hayes moved into the apartment, Palombo received complaints from other residents regarding Hayes' tenancy. The residents reported that an unknown male was entering the building with a key; Palombo herself witnessed a non-tenant entering without a key in December 1992. Palombo requested that the reporting residents put their observations into writing, and the letters were introduced into evidence at the hearing as - 4 - business records. Palombo sent "notices" to Hayes commencing on January 5, 1993 stating an intent to evict and not renew Hayes' lease for breach of that lease. An attorney, in a letter dated January 5, 1993, notified Hayes that she was in violation of three provisions of her lease and had been served with a three-day notice to vacate. Palombo sent a second letter to Hayes on January 15, 1993 reiterating the violations and ordering her to vacate the premises by February 15, 1993. Palombo followed up with another letter and "Notice to Leave Premises" on March 9, 1993, advising Hayes that her lease was not being renewed and she had to vacate the premises by April 15, 1993. Palombo forwarded a second "Notice to Leave Premises" on April 15, 1993. She set forth in this notice that the eviction and termination of the lease were based upon the March 9, 1993 letter. Hayes nonetheless sent a rental payment to Palombo for the month of April 1993. Palombo returned the check to Hayes with a note explaining the return. Palombo acknowledged at the hearing that Hayes did not violate any lease provision pertaining to overnight guests or visitors. Rather, the violation occurred when Hayes provided a third party with a key to her apartment since the lease specifically prohibited this act. Moreover, it appeared that the man who entered the building was living in Hayes' apartment, also in violation of the express terms of the lease which limited occupancy to Hayes and her - 5 - son. Hayes denied that anyone other than herself or her son were residents of the apartment. She admitted to having overnight guests, but believed that such guests were not in violation of the lease because she observed white tenants with overnight guests. Hayes also related that she did not receive any complaints from other tenants about either the guests or non-tenants entering the building with a key. One of Hayes' guests was Nathaniel Williams, her fiance. Williams stayed overnight at the apartment on eight or nine occasions a month, and sometimes as often as fifteen times. With regard to the key, according to Williams, either Hayes or her son would throw him the key from a window upon his arrival so that he could enter the building. On May 12, 1993, the trial court approved and confirmed the referee's recommendation that judgment be entered in favor of Palombo in the first cause eviction action. The recommendation was based on Palombo's non-renewal of the lease rather than any violation of the lease agreement. The referee stated in part: "The undersigned referee found no substantial lease violating [sic] or evidence of racial discrimination but granted the writ of eviction based on expiration of the term of the lease with proper exercise of contractual right not to renew." (Emphasis added.) Hayes filed objections to the referee's report on May 21, 1993. She first reasserted the theme of her counterclaims that "Palombo was imposing different terms and conditions of occupancy - 6 - on the Defendant based on her race, Black, and would have renewed the tenancy after the termination of the lease agreement but for her race in violation of both the Ohio and Federal Civil Rights Acts." Hayes also suggested that since Palombo based the non- renewal of the lease on an alleged breach of the lease, but the referee found no said breach, the referee's recommendation was in error. She argued, therefore, that Palombo's forcible entry and detainer action should have been dismissed. Finally, Hayes asserted that the referee should have joined the complaint and counterclaims and granted a continuance so that she could "continue her tenancy under the same terms and conditions as white tenant." In other words, since she was ordered to vacate the premises following the first cause hearing, no money damages could compensate her for the "lost housing opportunity" in the event she prevailed on her counterclaims. Following Palombo's response to Hayes' objections, the trial court overruled the objections and affirmed its previous decision of May 13, 1993 in a journal entry dated June 23, 1993. Hayes filed a notice of appeal from this ruling with this court on June 30, 1993, App. No. 65781. Palombo filed a general denial to Hayes' counterclaims on August 12, 1993 and a motion for summary judgment on November 15, 1993. She argued in the latter that the doctrines of res judicata and collateral estoppel precluded litigation of the issues set for trial in December 1993. - 7 - The trial court granted summary judgment in favor of Palombo on December 29, 1993. Hayes filed a notice of appeal from this 2 ruling, App. No. 66714. Appellant Hayes assigns error as follows: "A. THE TRIAL COURT ERRED IN CONSIDERING THE PLAINTIFF'S CLAIM TO BE PLED IN THE ALTERNATIVE WHERE ONLY ONE CLAIM WAS RAISED "B. THE TRIAL COURT ERRED IN REFUSING TO CONSIDER DEFENDANT-APPELLANT'S DEFENSES TO THE FORCIBLE ENTRY AND DETAINER ACTION PURSUANT TO O.R.C. [SECTION] 1923.061(A) "C. THE TRIAL COURT ERRED BY REFUSING TO GRANT THE DEFENDANT-APPELLANT'S MOTION FOR JOINDER AND CONTINUANCE AFTER THE FILING OF THE COUNTERCLAIM PURSUANT TO O.R.C. [SECTIONS] [sic] 1923.061(B) and 1923.081 "D. THE TRIAL COURT ERRED IN PROCEEDING ON THE FORCIBLE ENTRY AND DETAINER CLAIM WHERE THE DEFENSES AND THE COUNTERCLAIMS RAISED FAIR HOUSING VIOLATIONS WHICH ARE COMPULSORY COUNTERCLAIMS, THE REMEDY FOR WHICH IS RETENTION OF THE TENANCY "E. THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT ON THE DEFENDANT'S COUNTERCLAIMS BASED ON THE DOCTRINE OF 3 RES JUDICATA" Palombo's complaint set forth that Hayes was unlawfully on the premises since April 15, 1993. Hayes, in her first assignment of error, asserts that the trial court erred in considering that Palombo's non-renewal of the lease was connected to a breach of the lease rather than a simple non-renewal. Hayes submits that Civ.R. 8(A) does not allow for two alternative claims when a party sets 2 This court consolidated App. Nos. 65781 and 66714 for record, briefing, hearing and disposition on February 1, 1994. 3 Hayes' first four assignments of error deal with the trial court's rulings in App. No. 65781 whereas her fifth assignment of error addresses the grant of summary judgment, App. No. 66714. - 8 - forth only one in a pleading. She argues, therefore, that the trial court conducted an improper hearing since it departed from Palombo's single claim for relief, i.e., holding over beyond the term of the lease. Civ.R. 1(B) relates to the construction of the Rules of Civil Procedure. It sets forth that the rules be "construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice." Civ.R. 8 provides general pleading requirements with section (F) emphasizing the liberal construction notion set forth in Civ.R. 1(B). It reads as follows: "All pleadings shall be so construed as to do substantial justice." Finally, Civ.R. 8(E)(2) allows a party to set forth alternative or hypothetical pleadings. The civil rules of construction obviously allow a trial court to examine a complaint under alternative theories to those asserted by a party. For example, when construing a Civ.R. 12(B)(6) motion to dismiss, "a complaint should not be dismissed merely because a plaintiff's allegations do not support the particular theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory. Nor should a complaint be dismissed that does not state with precision all the elements that give rise to a legal basis for recovery." Thomas W. Garland, Inc. v. St. Louis (C.A. 8, 1979), 596 F.2d 784. See, also, Innovative Digital Equipment, Inc. v. Quantum Technology, Inc. (N.D. Ohio, 1984), 597 F.Supp. 983; Rogers v. - 9 - Target Telemarketing Services (1990), 70 Ohio App.3d 689. Applying the foregoing to the instant case, this court finds that the trial court followed the liberal rules of construction in reviewing whether Palombo sought to not renew Hayes' lease based upon a breach of the lease agreement. Though the same conclusion would have been reached even if the trial court found a breach of the lease, we stress that no harm came to Hayes as a result of the trial court's action because the court failed to find that she violated her lease. The referee's conclusion, which the trial court adopted, was that Palombo simply exercised her right to not renew Hayes' lease. Hayes' first assignment of error is overruled. For her second assignment of error, Hayes avers that the trial court erred in not allowing her to present any defenses to the forcible entry and detainer action. She argues that the court's disallowance of such evidence violated R.C. 1923.061(A) which provides, "[a]ny defense in an action under this chapter may be asserted at trial." Hayes' defense which is at issue in this assignment of error was that Palombo violated provision 17 of the lease agreement which provided for renewal and extension of the lease. The evidence that Hayes sought to introduce was whether Palombo, as a practice, evicted tenants at the end of a lease term, but the referee sustained Palombo's objection to this line of questioning. According to Hayes, she was thus effectively prevented from - 10 - introducing evidence that Palombo chose not to renew the lease of the sole black tenant, herself. The determination as to the admissibility of the evidence is a matter within the discretion of the trial court. See Columbus v. Taylor (1988), 39 Ohio St.3d 162; Calderon v. Sharkey (1982), 70 Ohio St.2d 218. A reviewing court is not obliged to reverse an evidentiary ruling unless it finds an abuse of discretion which prejudiced the complaining party. Taylor, 165. An abuse of discretion implies that the trial court's attitude in rendering the ruling was unreasonable, arbitrary, or unconscionable. Id. Palombo presented evidence at the hearing in support of her position that Hayes violated the lease by providing a key to the building to a non-tenant. This evidence was in the form of both testimony and letters written by other tenants. She also presented evidence that notices to vacate were forwarded to Hayes prior to the expiration of the lease term. Provision 17 which allows for renewal of the lease only applies to tenants who remain on the premises beyond the expiration of the lease term with the consent of the lessor. This provision held no relevance to the action since Hayes was not holding over her tenancy with Palombo's consent. There was thus no abuse of discretion in disallowing Hayes to inquire if Palombo made a practice of evicting tenants after the expiration of a lease. Taylor; Evid.R. 402. Moreover, the trial court was well aware of Hayes' allegation that she was treated unfairly as a result of her race. She - 11 - presented this claim as a defense and testified that her actions were no different than the white tenants. The referee heard all of the evidence and concluded there was no evidence of racial discrimination. Under these circumstances, we may not substitute our judgment for the trial court absent an abuse of discretion, Berk v. Matthews (1990), 53 Ohio St.3d 161, and we find none here. Hayes' second assignment of error is overruled. Hayes, in her third assignment of error, asserts that the trial court erred by proceeding with the first cause hearing rather than joining her counterclaims to the complaint under R.C. 1923.061(B) and 1923.081, and continuing the matter. Hayes' fourth assignment of error is similar in nature insofar as she submits that her counterclaims were compulsory. This court will thus simultaneously review these claims. R.C. 1923.061(B) is a means by which payment is made into court of all rent, either past due or accruing during the pendency of an action, from which an eventual judgment may be satisfied. Jemo Associates v. Garman (1982), 70 Ohio St.2d 267, 270. Though the statute appears to apply only to actions for rent or based upon nonpayment of rent, the legislature intended to "preserve the tenant's right to possession and guarantee the existence of a fund to settle the various claims," so such an application is too narrow. Id. However, a trial court's use of R.C. 1923.061(B) is clearly discretionary. See, Smith v. Wright (1979), 65 Ohio App.2d 101, 107. - 12 - R.C. 1923.081 also allows joinder of causes of action for possession, past due rent, damages, and counterclaims presented by a defendant. The statute contains no mandatory language which requires a trial court to join a counterclaim once presented by an opposing party. Applying the foregoing to the present case, Hayes must demonstrate that the trial court abused its discretion in not ordering a continuance and granting her motion for joinder. We must find that the trial court acted arbitrarily, unconscionably, or unreasonably in denying said joinder. See, Taylor. The referee did not rule on Hayes' request, but took it under advisement as he proceeded with the first cause hearing. Following the parties' testimony and the introduction of exhibits, the referee found no reason to grant a continuance as he determined that Palombo was entitled to possession, the sole determination in a forcible entry and detainer action. Hayes was then permitted to pursue her counterclaims. Under these circumstances and considering the summary nature of eviction proceedings, our review of the record fails to disclose an abuse of discretion. Hayes cites our opinion in Maduka v. Parries (1984), 14 Ohio App.3d 191 for the proposition that all counterclaims asserted by a tenant must be joined to a forcible entry and detainer action under Civ.R. 13(A). Civ.R. 13, however, only provides the guideline to determine whether a counterclaim may be raised in a forcible entry and detainer action. See, Jemo, 271, paragraph one of the - 13 - syllabus. Palombo does not dispute that Hayes had a right to present counterclaims under Civ.R. 13 and Maduka. She only disputes that the counterclaims had to be joined to the first cause hearing. In Maduka, we affirmed the dismissal of a tenant's lawsuit against her landlord because the tenant failed to raise her claims as counterclaims to the landlord's forcible entry and detainer action. We viewed the counterclaims as compulsory under Civ.R. 13(A). See, also, GMS, Management Co., Inc. v. Seminaro (July 22, 1993), Cuyahoga App. No. 63007, unreported (trial court erred in dismissing compulsory counterclaim in forcible entry and detainer action). The case now before us is factually distinguishable from Maduka and GMS. First, Hayes presented her counterclaims in response to Palombo's complaint; she did not file a separate lawsuit against Palombo unlike the tenant in Maduka. Second, the trial court herein did not dismiss Hayes' counterclaims as was done in GMS. Finally, we did not address in either Maduka or GMS the issue of whether a housing court erred by not conducting a hearing as to possession and the tenant's counterclaims at the same time as argued by Hayes. Hayes also suggests that the trial court somehow erred in not ordering her to pay her rent into court so as to preserve her right to possession. This same claim was rejected by this court in Smith because we recognized that a tenant could voluntarily deposit rent - 14 - pursuant to R.C. 5321.07. Id. Otherwise, the summary nature of eviction proceedings would be destroyed if a trial court had to order every tenant to pay his or her rent into court in order to preserve a right to possession. Id. After all, the purpose of the forcible and detainer statutes is to provide the immediate possession of real property. See, Cuyahoga Metropolitan Authority v. Jackson (1981), 67 Ohio St.2d 129, 131. Hayes additionally argues that the trial court denied her right to due process by not granting the continuance and motion for joinder. Hayes was not prevented from pursuing her counterclaims after the first cause hearing. She was also not denied the right to be heard at the first cause hearing on her affirmative defenses nor the right to introduce evidence at this hearing either through other witness' testimony or exhibits. Since this court earlier concluded that the trial court did not abuse its discretion regarding Hayes' motion for joinder, and joinder is not guaranteed under the facts of this case, we fail to recognize that Hayes was denied her right to due process. See Grannis v. Ordean (1914), 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363, 1369 ("[d]ue process clearly entails an 'opportunity to be heard'"); see, also, State ex rel Owens-Illinois, Inc. v. Indus. Comm. (1991), 61 Ohio St.3d 456. Hayes furthermore submits that the trial court erred when it separated the forcible entry and detainer issue from her fair housing counterclaims since the separation effectively prevented - 15 - the equitable relief of retention under Section 3613(c)(1), Title 42, U.S. Code. Said section reads as follows: "(c) Relief which may be granted. (1) In a civil action under subsection (a), if the court finds that a discriminatory housing practice has occurred or is about to occur, the court may award to the plaintiff actual and punitive damages, and subject to subsection (d), may grant as relief, as the court deems appropriate, any temporary or permanent injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate). ***" Hayes cites two federal cases in support of this portion of her argument, Parkview Heights Corp. v. City of Black Jack (C.A. 8, 1979), 605 F.2d 1033, certiorari denied, 445 U.S. 905, 100 S.Ct. 1081 and Otero v. New York City Housing Authority (C.A. 2, 1973), 484 F.2d 1122. Neither of these cases supports an outright grant of retention of a tenancy during the pendency of a forcible entry and detainer action under Section 3613(c)(1). They illustrate instead a court's broad discretion in granting equitable relief in cases involving discriminatory housing practices. In the instant case, Hayes fails to submit how the trial court abused its discretion in not ordering retention of tenancy during the pendency of the action. She merely asserts that the order should have been made pursuant to Parkview Heights and Otero, but she offers no argument as to how these cases apply to the facts herein. In conclusion, Hayes fails to demonstrate that the trial court abused its discretion when it denied the joinder of her counterclaims to the forcible entry and detainer claims under - 16 - Civ.R. 13 and R.C. 1923.061(B). Hayes' third and fourth assignments of error are overruled. The record clearly establishes that Hayes' counterclaims were pending after the trial court adopted the referee's recommendation that Palombo was entitled to possession of the premises. Palombo argued in her motion for summary judgment that the doctrines of res judicata and collateral estoppel precluded relitigation of Hayes' racial discrimination counterclaims. Hayes' final assignment of error focuses on the trial court's grant of summary judgment in favor of Palombo on Hayes' counterclaims. The Supreme Court of Ohio examined the doctrine of collateral estoppel in Goodson v. McDonough Power Equip., Inc. (1983), 20 Ohio St.3d 193. Generally, once an action resolves a particular issue, a party, or a person in privity with him, is precluded from subsequently relitigating the identical issue. Id., paragraph one of the syllabus. "The essential test in determining whether the doctrine of collateral estoppel is to be applied is whether the party against whom the prior judgment is being asserted had full representation and a 'full and fair opportunity to litigate that issue in the first action.'" Cashelmara Villas Ltd. Partnership v. DiBenedetto (1993), 87 Ohio App.3d 809, 813, quoting Goodson, 201. See, also, Hicks v. De La Cruz (1977), 52 Ohio St.2d 71. In the instant case, two of the defenses asserted by Hayes were that Palombo's decision to not renew Hayes' lease was racially motivated and Palombo imposed tenancy requirements on her, the - 17 - premises' sole black tenant, which were not imposed on any other tenant. The referee allowed Hayes the opportunity to present evidence regarding these defenses at the first cause hearing. He then recommended that Palombo was nonetheless entitled to possession of the premises, expressly finding no evidence in support of Hayes' claims for racial discrimination. Hayes repeated these same arguments in her objections to the referee's report, and they were rejected by the trial court. All of Hayes' counterclaims were grounded in Palombo's alleged unlawful discriminatory practices, specifically Palombo's nonrenewal of the lease because of Hayes' race. Since the trial court adopted the referee's conclusion that there was no evidence of racial discrimination after Hayes had an opportunity to present evidence in this regard, the doctrine of collateral estoppel prevented subsequent relitigation of the issue. Goodson. Summary judgment, therefore, was properly entered in favor of Palombo on the counterclaims as no issues remained for litigation. Civ.R. 56(C). Hayes' fifth assignment of error is overruled. Judgment affirmed. - 18 - It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY P.J. AND JOSEPH J., NAHRA, J., CONCUR. JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .