COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68536 THOMAS D. CONWAY, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION JAMES AND DEBORAH NISSLEY, : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 7, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Bedford Municipal Court : Case No. 94-CVG-03574 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Craig W. Herrick 33 River Street Chagrin Falls, Ohio 44022 For defendants-appellants: Michael B. Majeski 75 Public Square Suite 650 Cleveland, Ohio 44113 -2- NAHRA, J.: Appellants, James and Deborah Nissley, appeal the Bedford Municipal Court's order granting a writ of restitution to appellee, Thomas D. Conway in the forcible entry and detainer action filed by appellee-landlord against appellants-tenants. The writ of restitution ordered the bailiff to remove appellants from the premises owned by appellee. For the following reasons, we affirm. Appellee filed a complaint for forcible entry and detainer against appellants on September 14, 1994, which was dismissed. On October 14, 1994, appellee filed a second complaint for forcible entry and detainer, which was dismissed on October 27, 1994. Later, on October 27, 1994, appellee again served appellant with a three day notice. Appellee filed a third complaint on November 14, 1994, which is the subject of this action. The complaint alleged that appellants failed to pay rent of $1,200.00/month for the months of July through November, 1994. Appellants made five counterclaims, as follows: (1) Appellee contracted with appellants that appellee would pay appellants for making repairs to the property. Appellee has not reimbursed appellants for the repairs. (2) Appellee failed to remove his personal belongings from the premises, denying appellants the unencumbered use and enjoyment of the whole property, as guaranteed in the lease. (3) The house had numerous housing, health and safety code violations, in violation of the lease. (4) Appellee's forcible entry and detainer actions against appellants were in retaliation for appellants' complaints about housing, health and -3- safety code violations. (5) Appellee stopped negotiating with appellants as to the amount of money owed on the lease, breaching the implied duty of good faith in the lease and the contract alleged in (1) above. The court granted appellee's motion that appellants be required to deposit rent with the court. Appellants were ordered to deposit the rent due before the action was filed ($6,000.00 for July through November, 1994) and the rent accrued during the pendency of the case ($2,400.00 for December, 1994 and January, 1995). Appellants deposited only $1,780.65 with the court. Later, upon motion by appellee, the court dismissed appellants' counterclaims for failure to deposit the rent as ordered. At trial, the parties stipulated that appellants owed $8,400.00 in rent and $1,145.37 in utilities. The counterclaims having been dismissed, the court ordered a writ of restitution to issue in favor of plaintiff-appellee. Trial was held on appellee's claim for money damages as a separate cause of action. Appellee was granted a directed verdict of $13,145.37 for rent and utilities owed. Appellants won a jury verdict of $2,940.00 for loss of use of the premises and $300.00 for repair costs. The judgment entry on this second action was not appealed herein. As a preliminary matter, we must address appellee's motion to dismiss this appeal. Appellee asserts that appellants' assignments of error are moot because appellant's counterclaims were heard in the second action that dealt with the issue of damages. Three of -4- appellants' assignments of error deal, essentially, with whether the trial court erred in dismissing or refusing to hear evidence on the counterclaims. Appellants only asserted their first, second and third counterclaims in the second action, so appellants' fourth and fifth counterclaims were never heard. Therefore, the assignments of error pertaining to the counterclaims are not moot. Additionally, appellant's first assignment of error does not deal with the counterclaims. Accordingly, we deny appellee's motion to dismiss. I. Appellants' first assignment of error states: THE PLAINTIFF'S ACTION IN FORCIBLE ENTRY AND DETAINER IS BARRED BECAUSE THE PLAINTIFF-LANDLORD DID NOT GIVE THE DEFENDANT-TENANT A REASONABLE OPPORTUNITY TO BRING HIS RENT CURRENT AFTER THE DISMISSAL OF A PRIOR ACTION IN FORCIBLE ENTRY AND DETAINER INSTITUTED BY THE PLAINTIFF- LANDLORD. Appellants assert that when appellee gave appellants another three day notice the same day appellee's forcible entry and detainer action was dismissed, appellee failed to give appellants a reasonable opportunity to pay the rent. There is no statute or case law requiring the landlord to give the tenants a "reasonable opportunity" to pay rent. If the tenant is in violation of the obligation in the written lease to pay rent, the landlord may commence proceedings under R.C. Chapter 1923. R.C. 1923.02(A)(9). Mazzarella v. McGimes (Dec. 30, 1991), Cleveland M.C. No. 91 CVF 30291, unreported, cited by appellants, is distinguishable on its facts. In Mazzarella, all the rent claimed by the landlord in -5- the eviction action arose during the pendency of a prior eviction action, which was resolved in favor of the tenant. The tenant could not pay the rent accruing during the prior eviction action while that action was going on. Acceptance of advance rent by the landlord waives the notice to vacate. See Associated Estates Corp. v. Bartell (1985), 24 Ohio App.3d 6, Presidential Park Apts. v. Colston (1980), 17 Ohio Ops.3d 220. As the second eviction action was filed even before judgment was entered in the first action, the tenant could not possibly have paid the rent accrued during the first action. In the second action, the court held the tenant did not fail to pay the rent, and was entitled to remain in possession. In the present case, the prior action was commenced October 14th and dismissed October 27th. Appellants were only prevented from paying October rent and could have tendered the rest of the rent claimed by appellee for July through September, 1994. The landlord may accept past due rent without waiving the notice to vacate. Presidential Parks, supra, Graham v. Pavarini (1983), 9 Ohio App.3d 89. The trial court could find appellants failed to pay rent for July through September, entitling appellee to restitution. Accordingly, this assignment of error is overruled. II. Appellants' second assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING PLAINTIFF'S MOTION TO DEPOSIT RENT AND REQUIRING THE DEFENDANTS TO DEPOSIT THE RENT THAT HAD ACCRUED PRIOR TO THE DATE THE COMPLAINT WAS FILED. -6- R.C. 293.061(B) specifically states that when a tenant makes a counterclaim for amounts due under the lease or under R.C. 3733 or R.C. 5321 in an action based on nonpayment of rent, the trial court can order the tenant to pay into the court past due rent and rent becoming due during the pendency of the action. The cases cited by appellants deal with bonds pursuant to R.C. 1923.08 and are not applicable. See Gem Management Co. v. Walker (Feb. 28, 1991), Cuyahoga App. No. 60139, unreported, Martin v. Roger (1987), 42 Ohio App.3d 110. The trial court did not err in requiring appellants to deposit past due rent. We now turn to the issue of whether the trial court erred in dismissing appellants' counterclaims for failure to pay rent as ordered. The only issue in the eviction action was whether appellee was entitled to possession of the premises. Appellants' counterclaims are not traditional defenses, such as timely payment of rent. See Smith v. Wright (1979), 65 Ohio App.2d 101, 106, Martins Ferry Jaycee Housing, Inc. v. Pawlaczyk (1982), 4 Ohio App.3d 302. There are three defenses created by statute. One defense is the eviction action is a retaliatory act by the landlord. R.C. 5321.02. Another defense is the landlord's failure to remedy violations of R.C. 5321.04. R.C. 5321.07. These two defenses only apply if the tenant is current in rent, either by paying the landlord or depositing rent with the court. R.C. 5321.02, R.C. 5321.07, Smith, Martins Ferry, supra. Appellants were not current in rent and cannot claim these defenses. -7- The third defense created by statute is set forth in R.C. 1923.061(B), as follows: In an action for possession of residential premises based upon nonpayment of the rent or in an action for rent when the tenant or manufactured home park resident is in possession, the tenant or resident may counterclaim for any amount he may recover under the rental agreement or under Chapter 3733. or 5321. of the Revised Code. In that event, the court from time to time may order the tenant or resident to pay into court all or part of the past due rent and rent becoming due during the pendency of the action. After trial and judgment, the party to whom a net judgment is owed shall be paid first from the money paid into court, and any balance shall be satisfied as any other judgment. If no rent remains due after application of this division, judgment shall be entered for the tenant or resident in the action for possession. If the tenant or resident has paid into a court an amount greater than that necessary to satisfy a judgment obtained by the landlord, the balance shall be returned by the court to the tenant or resident. (Emphasis added.) Thus, if the tenant is successful on the counterclaim and the net judgment in favor of the landlord does not exceed the amount on deposit with the court, the tenant may retain possession. R.C. 1923.061(B), Sandefur Mgmt. Co. v. Smith (1985), 21 Ohio App.3d 145. It is implied in R.C. 1923.061(B) that the tenant must obey the court's order to deposit rent in order to avail himself of the defense set out in R.C. 1923.061(B). Even if appellants were not required to obey the court order to pay rent in order to avail themselves of the defense created by R.C. 1923.061(B), any error in dismissing the counterclaims was harmless in this case. See Civ.R. 61. Considering the jury's verdict in the second cause of action for monetary damages, the net judgment in favor of the landlord would have exceeded the amount of rent on deposit with the court. The rulings on the counterclaims -8- in the second action would apply in a new trial on remand of this case by collateral estoppel. See Hicks v. De La Cruz (1977), 52 Ohio St.2d 71, 74. The parties stipulated that appellants owed $8,400.00 rent and $1,145.37 utilities at the time of the first trial. The recovery on the counterclaims would be $2,940.00, resulting in a net judgment for the landlord of $6,605.37. The net judgment for the landlord exceeds the $1,780.65 on deposit with the court. We arrive at the $2,940.00 recovery on the counterclaims as follows: Appellants' first counterclaim was on a contract, not the lease, and is not a counterclaim under R.C. 1923.061(B). Appellants recovered $2,940.00 on the second counterclaim, arguably a claim under the lease. Appellants' third counterclaim was dismissed for failure to state a claim. Also, appellants could not recover on their third and fourth counterclaim because they were not current in rent. R.C. 5321.03, R.C. 5321.07. Appellants cannot recover on their fifth counterclaim, a breach of the duty of good faith implied in the lease. A good faith duty to negotiate the amount of rent owed cannot be implied from the lease because no provision in the lease provides for offsets to rent for repairs. An implied covenant of good faith is a covenant that neither party will destroy the rights of the other to receive the fruits of the contract. See F&L Center Co. v. Cunningham Drug Stores (1984), 19 Ohio App.3d 72, 76 (Nahra, J., dissenting). The duty of good faith must arise from the language of the contract or be indispensable to effectuate the intentions of the parties. See Canton Joint Venture -9- v. Boardwalk Fries, Inc. (Nov. 29, 1993), Stark App. No. CA-9311, unreported. There was no implied covenant of good faith to negotiate the amount of rent in the parties' lease. The trial court did not err in dismissing the counterclaims. If any error occurred, the error was harmless. Accordingly, this assignment of error is overruled. III. Appellants' third assignment of error states: THE DEFENDANTS' DUE PROCESS RIGHTS AND THE RULES OF CIVIL PROCEDURE WERE VIOLATED BY THE TRIAL COURTS (SIC) GRANTING OF A MOTION FOR A PROTECTIVE ORDER AND MOTION IN LIMINE, WHICH WERE FILED SIX DAYS BEFORE THE TRIAL AND GRANTED THREE DAYS BEFORE THE TRIAL WITH OUT (SIC) THE DEFENDANTS' COUNSEL EVER HAVING AN OPPORTUNITY TO RESPOND. Seven days before the date set for trial, appellants filed a request for admissions to the plaintiff-appellee. Six days before the trial, on January 24, 1995, appellee filed a motion for protective order, stating that appellants' request for admissions were unduly burdensome when made so close to the trial date. Also, the request for admissions dealt with appellants' counterclaims, which had been dismissed. Along with the motion for protective order, appellee filed a motion in limine. This motion stated that appellants failed to answer two sets of interrogatories submitted by appellee on November 14, 1994 and December 16, 1994. The motion requested that, as a discovery sanction, the appellants be barred from introducing evidence concerning the matters in the interrogatories, -10- and/or that the court establish the matters in the interrogatories in favor of appellee. The second set of interrogatories inquired into the facts underlying appellants' counterclaims. The trial court granted appellee's motion in limine and motion for protective order, three days after these motions were filed. Civ.R. 6(D) provides that there must be seven days between the filing of a motion and a hearing on that motion, unless the court orders otherwise. Civ.R. 6(D) does not apply to motions in limine. Village of Roseville v. Thompson (9189), 58 Ohio App.3d 29. Moreover, the civil rules do not apply to forcible entry and detainer actions to the extent the rules are by their nature, clearly inapplicable. Civ.R. 1(C)(3). A civil rule is clearly inapplicable to an eviction action if it would hinder the summary nature of eviction proceedings. Larson v. Umoh (1986), 33 Ohio App.3d 14. Civ.R. 6(D) creates a time delay and would hinder the summary nature of eviction proceedings. Therefore, Civ.R. 6(D) is not applicable to this case. Appellants contend their due process rights were denied because they did not have a reasonable time to respond to the motion in limine and motion for protective order. Appellants had three days to respond to these motions. We find that, given the summary nature of eviction proceedings, appellants had a reasonable time to respond to these motions. The appellants' due process rights were not violated by the trial court's rulings on the motions in question. Civ.R. 6(D) did not apply to this action. Additionally, any error was harmless -11- because the parties stipulated as to the amount of rent owed and appellants' counterclaims were properly dismissed. Accordingly, this assignment of error is overruled. IV. Appellants' fourth assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING THE PLAINTIFF'S MOTION IN LIMINE BECAUSE IT PREVENTED THE DEFENDANTS' FROM RAISING LEGAL DEFENSES TO THE FORCIBLE ENTRY AND DETAINER ACTION. The trial court granted appellee's motion in limine as a discovery sanction for appellants' failure to respond to appellee's interrogatories. See Civ.R. 37(B), (D). This court may only overturn such a discovery sanction if the trial court abused its discretion. Toney v. Berkemer (1983), 6 Ohio St.3d 455. A discovery sanction establishing the matters in the interrogatories in favor of appellee was appropriate if appellants wilfully or in bad faith failed to answer the interrogatories. Toney, supra, Ward v. Hester (1973), 36 Ohio St.2d 38. Appellants had sufficient time to answer the interrogatories and failed to answer any of them. There is no evidence on the record that appellants had an excuse for not answering. The record shows appellants wilfully failed to answer and the discovery sanctions were appropriate. Additionally, any error in granting the motion in limine was harmless. The parties stipulated to the rent owed and the counterclaims were properly dismissed, as discussed above. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -12- It is ordered that appellee recover of appellants his 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 Bedford 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. MATIA, DAVID T., P.J., and PORTER, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .