COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68673 CUYAHOGA RIVER ASSOCIATES : LIMITED PARTNERSHIP : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MJK CORPORATION : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JANUARY 18, 1996 CHARACTER OF PROCEEDING Civil appeal from Cleveland Municipal Court Case No. 95-CV-00055 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS I. MICHALS, ESQ. MARVIN R. PLASCO, ESQ. MAURA L. HUGHES, ESQ. 8500 Station Street Calfee, Halter & Griswold Mentor, Ohio 44060-4973 1400 McDonald Investment Ctr. 800 Superior Avenue GLENN F. FORBES, ESQ. Cleveland, Ohio 44114-2688 166 Main Street Painesville, Ohio 44077 - 2 - JAMES M. PORTER, P.J., Defendant-appellant MJK Corporation, lessee, appeals from a restitution order entered in a forcible entry and detainer action by the Housing Division of the Cleveland Municipal Court in favor of plaintiff-appellee Cuyahoga River Associates Limited Partnership, lessor. Defendant contends that the trial court erred in not granting a continuance of the trial, in ordering eviction despite defendant's offer to pay rent, in failing to recognize plaintiff's breach of the lease, in admitting certain evidence and denying defendant's motion for a jury trial. We find no error and affirm the judgment below. Plaintiff, Cuyahoga River Associates ("CRA"), owner of property at 1087-1089 Old River Road in Cleveland, Ohio, on March 1, 1994 leased the premises to defendant MJK pursuant to a written lease for a period of five years for use as a restaurant/night club. The monthly fixed rent obligation was $10,100. Pursuant to the lease, MJK paid CRA a security deposit in the amount of $15,000. Section 27 of the Lease provided in part: "Tenant agrees that no portion of the [security deposit] shall be used for rent." Defendant MJK failed to pay August 1994 rent. CRA brought a forcible entry and detainer action in Cleveland Municipal Court against MJK in August 1994 alleging the default in rent payments. MJK filed various counterclaims against CRA. - 3 - The parties settled the case by entering into a settlement agreement on or about December 13, 1994 and the first forcible entry and detainer action was dismissed. The settlement agreement expressly required MJK to become current on its rental arrearages through December 1994 by making rental payments to CRA of $5,000 on December 20, 1994 and $5,100 on December 22, 1994. MJK failed to make these payments. On December 28, 1994, CRA personally delivered to Christopher Kanieski, MJK's president, at the premises, a Notice to Leave Premises Before Suit, which contained the required three-day notice language under R.C. 1923.04(A), and cited MJK's failure to make the two rent payments totalling $10,100 for December 1994. On January 3, 1995, CRA filed the instant complaint in forcible entry and detainer. CRA unsuccessfully attempted both certified mail service of the summons and complaint on MJK at the premises, and bailiff service on Mr. Kanieski at the premises. On January 20, a hearing date of February 9, 1995 was set. CRA then obtained a court order authorizing a special process server who made service on Mary J. Kanieski, MJK's statutory agent, on January 31, 1995. MJK filed a jury demand the afternoon of February 8, 1995. On the morning of the February 9 hearing, MJK filed a motion to continue the hearing, which the referee denied. MJK was represented at the hearing by the same counsel who had represented MJK in the first forcible entry and detainer action, which had been - 4 - settled and dismissed. Both parties presented evidence at the hearing, including exhibits and testimony. The trial referee found that MJK had not complied with its rent obligations under the settlement agreement and lease. The referee's report was approved and confirmed by the Housing Court Judge on February 15, 1995, and a writ of restitution was issued in favor of CRA against MJK. MJK filed a Notice of Appeal on March 8, 1995. Upon MJK posting bond, the trial court stayed execution of the writ of restitution pending this appeal. MJK has continued to occupy the premises pending this appeal. On December 27, 1995, this Court entered a stay of execution pending appeal upon condition of rental payment. We will address defendant's assignments of error in the order asserted. I. THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF-APPELLEE'S REASONABLE REQUEST FOR CONTINUANCE. II. THE COURT ERRED AND DENIED DEFENDANT-APPELLANT ITS CONSTITUTIONAL RIGHT TO DUE PROCESS BY FAILING TO GRANT DEFENDANT-APPELLANT'S REQUESTED CONTINUANCE. We will treat these two assignments of error together as they both relate to whether the court erred in failing to grant defendant's motion for a continuance of the hearing. "The underlying purpose behind the forcible entry and detainer action is to provide a summary, extraordinary, and speedy method for the recovery of [the] possession of real estate ***." State ex - 5 - rel. GMS Management Co., Inc. v. Callahan (1989), 45 Ohio St.3d 51, 55 (citing Housing Authority v. Jackson [1981], 67 Ohio St.2d 129, 131). The purpose of the forcible entry and detainer statute "is to provide immediate possession of real property." Housing Authority v. Jackson (1981), 67 Ohio St.2d 129, 131. The drafters of the statute "were careful to avoid encrusting this special remedy with time consuming procedure tending to destroy its efficacy." Id. The grant or denial of a continuance is a matter within the sound discretion of the trial judge and will not be reversed absent an abuse of discretion. Hartt v. Munobe (1993), 67 Ohio St.3d 3, 9; Griffin v. Lumberjack (1994), 96 Ohio App.3d 257, 264. An abuse of discretion is more than an error of law or judgment, it implies the court's attitude in rendering the ruling was unreasonable, arbitrary, or unconscionable. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 223; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In considering a request for a continuance, the court is not required to apply any mechanical test, but rather must consider the "unique facts of each case." State v. Unger (1981), 67 Ohio St.2d 65, 68. One important consideration is whether the party seeking the continuance contributed to the circumstance which gives rise to the request for a continuance. Id.; Sayre v. Hoelzle-Sayre (1994), 100 Ohio App.3d 203, 208. - 6 - R.C. 1923.06(A) provides that service in forcible entry and detainer actions shall be had as in the Rules of Civil Procedure, and "shall be at least five days before the day set for trial" to be effective. Ohio Rule of Civil Procedure 4.2(6) expressly provides that service upon a corporation may be had "by serving the agent authorized by appointment or by law to receive service of process ***." A corporation may revoke an agent's authority to receive service of process only by notifing the Secretary of State of the appointment of a new statutory agent. R.C. 1701.07(G). The evidence at trial showed that plaintiff had made personal service on MJK's statutory agent, Mary J. Kanieski, on January 31, 1995, by a special process server appointed by the court. This service was effective nine days before the February 9, 1995 hearing and met the requirements of R.C. Chapter 1923 and the applicable Civil Rules. MJK argued below that their statutory agent was estranged from the corporation and failed to notify the company of the service until February 8, 1995. In an affidavit filed with the motion for continuance, Christopher Kinieski stated that the statutory agent withdrew as an "interested party in the defendant corporation" and brought criminal charges against the company and its officers in December 1994. MJK, however, made no attempt to remove the statutory agent or appoint a new one prior to the litigation. MJK cannot claim they did not receive proper notice where their own - 7 - statutory agent was properly served pursuant to the civil rules. See Inland Seas Boat Co. v. Brown (1979), 61 Ohio App.2d 120, 123. Under the circumstance, we find the trial court's denial of MJK's last minute motion for continuance was not unreasonable and took account of the nature of an eviction proceeding and the unique circumstances of the case. MJK was properly served nine days before the eviction hearing, yet made its request for a continuance the morning of the hearing. The trial court expressly recognized the summary nature of forcible entry and detainer proceedings and determined that MJK's position was not compromised by going forward with the hearing. MJK requested a continuance of 30 days. In forcible entry and detainer actions the grant or denial of a continuance is governed by R.C. 1923.08 which provides: No continuance in an action under this chapter shall be granted for a period longer than eight days unless the plaintiff applies for the continuance and the defendant consents to it, or unless the defendant applies for the continuance and gives a bond to the plaintiff, with good and sufficient surety, that is approved by the court and conditioned for the payment of rent that may accrue, if judgment is rendered against the defendant. By requesting a continuance in excess of eight days, MJK was required to post a bond with the court. The posting of the bond is a prerequisite to the granting of such a continuance. Seventh Urban, Inc. v. University Circle (1981), 67 Ohio St.2d 19, 30; State, ex rel. GMS Mgt. Co. v. Callahan (1989), 65 Ohio App.3d 335, 339. MJK did not post a bond nor was there evidence that they - 8 - applied for a bond. Without the bond the court could not grant the continuance. GMS Mgt. Co., supra. Under the circumstances, we find no abuse of discretion on the part of the trial court in denying the motion for a continuance. Defendant's argument that it was forced to trial without benefit of due process is also without merit. Service of process comports with due process if it is reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford the parties an opportunity to appear. Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314; Mitchell v. Mitchell (1980), 64 Ohio St.2d 49, 51. Moreover, whether a denial of a continuance violates due process "must be found in the circumstances present in every case ***." Ungar v. Sarafite (1964), 376 U.S. 575, 590. The reviewing court "must look at the facts of each case and the defendant must show how he was prejudiced by the denial of the continuance before there can be a finding of prejudicial error." State v. Broom (1988), 40 Ohio St.3d 277, 288, cert. denied, 490 U.S. 1075 (1989). As previously discussed, MJK was properly served on January 31, 1995, nine days before the hearing. CRA attempted service of the complaint at the premises by both certified mail and bailiff service to Christopher Kanieski. MJK admitted it knew of the existence of the suit following the notice to quit the premises. Through counsel, it was admittedly "checking" with the Clerk of Courts regarding whether the hearing was going forward. MJK could - 9 - not deny that it had actual notice of the proceedings. The alleged lack of an opportunity for discovery and "to prepare for trial" is similarly unavailing. Extensive discovery is contrary to the very purpose of the forcible entry and detainer statute. MJK knew since service of the three-day notice on December 28, 1994, that CRA intended to seek eviction for its failure to pay December rent. Their breach of the settlement agreement further served to put MJK on notice of CRA's intent to regain posseson of the property. MJK presented evidence through its principals. There was no denial of due process below. MJK had reasonable time to respond to the complaint. See Conway v. Nissley (Dec. 7, 1995), Cuyahoga App. No. 68536, unreported. Assignments of Error I and II are overruled. III. THE TRIAL COURT ERRED IN GRANTING THE WITHIN EVICTION IN THE FACE OF AN OFFER TO PAY RENT. Judgments by the trial court "supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280. A reviewing court "may not substitute its judgment for that of the trial court simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court." Security Pacific Nat'l Bank v. Roulette (1986), 24 Ohio St.3d 17, 19. MJK claims that the judgment for restitution was in error because MJK made an offer to pay rent to CRA which CRA rejected. - 10 - Timely tender of rent is a defense to an eviction for non-payment of rent. See, e.g., Seventh Urban, Inc. v. University Circle Prop. Dev., Inc. (1981), 67 Ohio St.2d 19. MJK supports its claim that MJK made "an offer to tender rent" and cites Mr. Kanieski's testimony that "We offered a payment." (Tr. 63). However, Kanieski admitted, "I'm saying that I told them that when -- that I had the money and that when the parking issue was accounted for, that it would be issued to them." (Tr. 64). He admitted the alleged "offer" was "contingent" on CRA's performance. MJK's withholding of the rent while presenting other unrelated demands did not constitute a "timely tender" refused by CRA under the law. A contingent tender which includes only a part of the amount of rent owed constitutes no tender at all. In re Appropriation for Hwy. Purposes (1968), 14 Ohio App.2d 165, 168. See, also, Allen v. R.G. Indus. Supply (1993), 66 Ohio St.3d 229, 233. MJK further claims that Sandra Stana's testimony established a $6,200 overpayment as of December 13, 1994, relieving MJK of the obligation to make the December payments. (Aplnt's. Brf. at 10; Tr. 81-90). However, Ms. Stana's testimony indicated MJK was taking credit or offset for items to which she was not entitled to apply to rent obligations: (a) under the December 13th settlement agreement both parties agreed that as of that date MJK had arrearages of $40,400 in fixed rent; (b) Ms. Stana's calculations included "crediting" MJK's $15,000 security deposit toward rental - 11 - obligations contrary to the Lease provisions, 27; and (c) Ms. Stana also "credited" toward the fixed rent obligation $16,603.94 for expenses incurred by MJK toward a separate obligation, under Section 5 of the Lease, for the "annual Fixed Rent Adjustment." Finally, Joshua Gottleib, the general partner of CRA, testified that MJK had not made the December 20 and 22 fixed rent payments listed in the settlement agreement. The failure of MJK to meet any of the obligations in the agreement by the date specified constituted a default of the Lease. MJK does not contest that they failed to pay the full amount of the rent due. MJK argues that they attempted to offer a reduced payment reflecting offsets for alleged breaches in the Lease. MJK's offer to tender partial payment of the amount owed was not a proper defense to the eviction proceeding. Palomba v. Hayes (April 13, 1995), Cuyahoga App. No. 65781, unreported. In any event, the trial court resolved the conflicting evidence regarding the "$6,200 overpayment" issue in favor of CRA and we cannot second-guess its judgment in the face of competent and credible evidence. This assignment of error is overruled. IV. THE COURT ERRED IN GRANTING THE EVICTION HEREIN AND FAILING TO TAKE INTO ACCOUNT THE BREACH OF AGREEMENT BY PLAINTIFF-APPELLEE. MJK attempted to show at trial that it refused to pay December 1994 rent because CRA did not perform its Lease obligations. However, breach by the landlord regarding the condition of the - 12 - premises is not a defense to a forcible entry and detainer action unless the tenant is current in rent payments or has attempted to deposit rent into the court. R.C. 1923.061; Smith v. Wright (1979), 65 Ohio App.2d 101, 109. Where an eviction action is based on non-payment of rent and the tenant has not paid rent or escrowed the funds with the court, any evidence of breaches by the landlord is irrelevant and can be excluded. Martins Ferry Jaycee Housing, Inc. v. Pawlaczyk (1982), 4 Ohio App.3d 302, 303-04; Conway v. Nissley, supra at 6. Thus, the alleged "breaches" by CRA cannot be raised as a defense to CRA's action for eviction. The trial court did not err in refusing to consider alleged breaches by CRA as to the condition of the property. Assignment of Error IV is overruled. V. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT IN ADMITTING BANKRUPTCY EVIDENCE OVER OBJECTION. Determining the admissibility of evidence is a matter within the sound discretion of the trial court. Columbus v. Taylor (1982), 39 Ohio St.3d 162, 164. The improper admission of evidence is considered harmless error unless the appellant can show "material prejudice." See, Id., State v. Maurer (1984), 15 Ohio St.3d 239, 265 (error in admission of evidence does not justify setting aside judgment unless it affects "substantial rights" of parties). MJK has failed to demonstrate that the trial court abused its discretion by admitting evidence regarding Ms. Stana's - 13 - prior bankruptcies, or that it suffered material prejudice as a result of the evidence. Assignment of Error V is overruled. VI. THE COURT ERRED BY DENYING THE DEFENDANT- APPELLANT ITS CONSTITUTIONAL RIGHT TO A JURY TRIAL BY REJECTING ITS JURY DEMAND, OR IN THE ALTERNATIVE, FAILING TO ORDER A JURY TRIAL PURSUANT TO CIVIL RULE 39(B). The failure to make a jury demand in accordance with procedures imposed by the legislature waives the constitutional right to a jury trial. Cincinnati v. Bossert Machine Co. (1968), 16 Ohio St.2d 76, 79; Frashuer v. Travelers Indemnity Co. (1974), 49 Ohio App.2d 1, 2. A jury demand is also subject to moderate and reasonable regulation by local rules of court. See Walter v. Griffith (1974), 38 Ohio St.2d 132, 133; R.C. 1901.14(C) (municipal court housing divisions authorized to promulgate rules for practice and procedure). A forcible entry and detainer defendant accordingly waives a jury trial when it fails to comply with the municipal court's time limit for jury demands. Admr. of Veterans Affairs v. Jackson (1987), 41 Ohio App.3d 274, 277. Rule 2.31 of the Rules of the Housing Division of the Cleveland Municipal Court provides in part: Jury Demand Filing; Deposit. *** The demand for jury shall be in accordance with the Ohio Rules of Civil Procedure except in Forcible Entry and Detainer Actions, wherein the demand must be made as to allow two (2) full business days, excluding weekends and legal holidays, to elapse before the time fixed for the original hearing or the time to which - 14 - the hearing is continued, unless otherwise ordered by the court. MJK was served the summons and complaint on January 31, 1995, nine days before the February 9 hearing. MJK's jury demand was untimely under Loc. R. 2.31 in that it was not filed until the afternoon of February 8, 1995, less than one day before the hearing. MJK's explanation for its untimely demand was that it "checked the docket" daily and incorrectly thought the corporation had not been served. The mere allegation of "no prejudice" to CRA does not mandate that the trial court accept an untimely demand for a jury. Frashuer, supra at 2. A demand for a jury trial in a forcible entry and detainer action, like a continuance, requires the posting of a bond. Martin v. Rodgers (1987), 42 Ohio App.3d 110, 111; See, also, GMS Mgt., supra; Cleveland v. Sundorph Aeronautical Corp. (March 14, 1991), Cuyahoga App. No. 59739, unreported. MJK's failure to post the required bond served as a waiver of their jury demand. Martin, supra. A court may take judicial notice of the usual delay associated with a jury demand. Id. The bond requirement is in keeping with the legislative intent of R.C. Chapter 1923. GMS Mgt. Co., supra. Given the summary nature of an eviction proceeding, MJK's own dilatory conduct, and MJK's actual notice of the action from the date of the three day notice (December 28, 1994) and the hearing date, the trial court did not err in refusing to give effect to the untimely jury demand. - 15 - Assignment of Error VI is overruled. Judgment affirmed. This Court's order of December 27, 1995 staying execution is vacated. - 16 - It is ordered that appellee recover of appellant its 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. NAHRA, J., and O'DONNELL, J., CONCUR. JAMES M. PORTER PRESIDING 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 .