COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71422 : ACCELERATED DOCKET ARTHUR R. SWANEY, II : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION SYNDICATE MANAGEMENT, INC., ET AL. : : : PER CURIAM Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 24, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. CV-304681 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: ARTHUR R. SWANEY, II, pro se GARY L. LIEBERMAN, ESQ. 16015 Euclid Avenue, Suite 415 50 Public Square, Suite 400 East Cleveland, Ohio 44112 400 Terminal Tower Cleveland, Ohio 44113-2203 - 2 - PER CURIAM: Plaintiff-appellant Arthur R. Swaney, II appeals pro se from the dismissal of his counterclaims arising out of a landlord tenant dispute. The common pleas court held the counterclaims were not timely filed. We reverse. This case was commenced as an action for forcible entry and detainer in the East Cleveland Municipal Court. Crystal Tower Apartments c/o Syndicate Management, Inc. filed its complaint in the municipal court against Swaney on January 25, 1996. The complaint alleged that Swaney breached his lease and failed to pay rent due and owing. Swaney pro se filed an answer and separate "counter-claim complaint" in the municipal court against Crystal Tower, Syndicate Management, and Larry Fisher, Syndicate Management's president. Swaney's answer denied the substantive allegations of the complaint, raised various affirmative defenses, and provided support by way of copies of monthly rent invoices. Swaney's counterclaim alleged that he was enrolled in a county rent assistance program for mentally disabled persons which paid a portion of his monthly rent directly to the landlord. Swaney alleged that he paid his portion of rent every month until defendants sent him invoices indicating they owed him money. Swaney alleged that defendants did not send notice of eviction to the rent assistance program, committed fraud, and discriminated against him on account of his race and mental illness. - 3 - The record shows that on February 22, 1996, the municipal court ordered the case certified to the Cuyahoga County Common Pleas Court because Swaney's counterclaim exceeded the municipal 1 court's jurisdiction. However, the record certified by the clerk of the municipal court to the common pleas court inexplicably did not contain a copy of Swaney's pleadings. Shortly after certification, Swaney again filed, in the common pleas court, his answer and counterclaim. The counterclaim filed in the common pleas court bore the time-stamp made at the time the document had first been filed in the municipal court. Fisher filed a motion to dismiss the claims against him, whereas Crystal Tower and Syndicate 2 Management filed a joint answer to the counterclaim. The matter proceeded to a hearing before the common pleas court. The common pleas court specifically found that it had jurisdiction over the matter because Swaney's counterclaims exceeded the jurisdiction of the municipal court. The common pleas court found in favor of Crystal Tower on its complaint and issued a writ of restitution for the premises in orders journalized June 7 and 10, 1996. 1 The municipal court's order specifically recites that Swaney's counterclaim was filed on February 15, 1996. This is the same date that was time-stamped on the document when it was filed in the municipal court. 2 The common pleas court dismissed the claim against Larry Fisher individually. Fisher filed an affidavit stating that he was president of Syndicate Management, which managed the premises for Crystal Tower, and did not act in his individual capacity. Although Swaney opposed the dismissal of Fisher in the common pleas court, Swaney raises no argument on appeal concerning this dismissal. - 4 - On June 10, 1996, the trial court thereafter issued two 3 conflicting orders concerning Swaney's counterclaims. The first order purported to "strike" Swaney's counterclaims on the ground that they had been filed without leave of court. The second order, filed the same day, granted Swaney sixty days to file an "expert medical/psychological report of an expert or face dismissal" of his counterclaims. Swaney duly filed an expert report approximately one month later. Subsequently, on September 18, 1996, the trial court issued the following order: Deft's [Swaney's] counterclaim was stricken from docket due to his failure to obtain leave to file same. No leave has been sought to place any claims in deft's behalf before the court despite the court's order of 6/10/96. Accordingly this action has no further claims for resolution. Judgment as previously announced. Swaney appeals, in this accelerated appeal, raising three 4 assignments of error. Crystal Tower and Syndicate Management have filed no appellee's brief. I Prior to considering the merits of Swaney's arguments, this court must determine whether it has jurisdiction in this appeal. The record shows the common pleas court granted a writ of restitution, Swaney had notice of this order, and the landlord evicted him from the leased premises in June of 1996. Swaney did 3 It is not clear how or when Swaney received notice of any of the common pleas court's orders following its eviction entry, because notice was mailed to the apartment from which he was being and/or had been evicted. 4 Swaney's assignments of error are set forth in the Appendix. - 5 - not file a notice of appeal from the eviction order. It is well established that orders in forcible entry and detainer actions adjudicating the right to possession of the premises constitute final appealable orders. Skillman v. Browne (1990), 68 Ohio App.3d 615 (citing Cuyahoga Metropolitan Housing Authority v. Jackson (1981), 67 Ohio St.2d 129); accord Smith v. Wright (1979), 65 Ohio App.2d 101, 104 n.2. Swaney's failure to appeal from the eviction order precludes review of any claim of error concerning his right to possession of the premises. However, this court has jurisdiction to review the judgment entered on September 18, 1996, by the common pleas court against Swaney on his counterclaims. As noted above, the common pleas court issued a series of inconsistent orders concerning these counterclaims after the case had been certified to it by the municipal court because Swaney's counterclaims exceeded the municipal court's jurisdiction. The common pleas court acknowledged its awareness of the pending counterclaims when it cited them as the basis for finding it had jurisdiction over Crystal Tower's forcible entry and detainer claim. Crystal Tower and Syndicate Management, moreover, filed a joint answer (that is, reply) to the counterclaims without arguing they had been untimely filed. Nevertheless, in an order journalized June 10, 1996, the court thereafter purported to sua sponte "strike" the counterclaims because they had been filed without leave of the common pleas court. On the same day, however, the court retained jurisdiction - 6 - when it ordered to permit Swaney to file an expert report in support of his counterclaims "or face dismissal." In this order, the court provided notice to Swaney of its possible future dismissal of his counterclaims in compliance with Civ.R. 41. The court did not designate either of its June 10, 1996, orders as "final." The court subsequently found that Swaney did not seek "leave" to file his counterclaims according to its order and entered judgment against him. Because of the conflicting orders on June 10, the court's entry on September 18, 1996, constitutes a final judgment for the first time against Swaney on his counterclaims, and, therefore, is a final appealable order properly under review by this court. II Swaney's first and third assignments of error challenge the dismissal of his counterclaims against Crystal Tower and Syndicate Management. Based on our review of the record, we find the first assignment to be well taken. Because of our disposition of Swaney's first assignment we decline to address his third assignment, which seeks identical relief based on various constitutional arguments. App.R. 12(A)(1)(c); see also Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20 (courts should not decide constitutional claims when there is another basis for decision and there is no need to address the claim on the record). As noted above, the record shows Swaney timely filed an answer and counterclaims within twenty-eight days of Crystal Tower's - 7 - forcible entry and detainer complaint in the municipal court. The municipal court certified the entire case to the common pleas court on precisely this basis. For some unknown reason Swaney's pleadings were not transmitted with the record by the clerk of the municipal court to the common pleas court. However, within approximately three weeks of receiving notice from the clerk of the municipal court, Swaney refiled time-stamped copies of his pleadings in the common pleas court. Crystal Tower and Syndicate Management replied to the counterclaims and the common pleas court specifically found that it had jurisdiction over the matter "due to" the pending counterclaims. It is well established that counterclaims may be filed in forcible entry and detainer actions as provided in Civ.R. 13. Jemo Associates, Inc. v. Garman (1982), 70 Ohio St.2d 267, syllabus paragraph one. R.C. 1923.061 permits filing certain counterclaims arising out of the landlord tenant relationship as late as the day of trial. See Shaffer v. Mease (1991), 66 Ohio App.3d 400, 410; Smith v. Wright, supra; Laster v. Bowman (1977), 52 Ohio App.2d 379. Because Swaney's counterclaims were timely filed in the municipal court, he did not need leave of the common pleas court to file them following certification of the case to the common pleas court. The common pleas court improperly ordered the counterclaims stricken and improperly entered judgment against Swaney after he had complied with the court's order to file an expert report. - 8 - Accordingly, Swaney's first assignment of error is well taken. Swaney's third assignment raising related constitutional claims is overruled as moot. III Swaney's second assignment of error purports to challenge the order of the common pleas court in the forcible entry and detainer action evicting him from the leased premises. However, as noted above, orders relating to the right to possession of premises in forcible entry and detainer actions constitute final appealable orders. The failure to timely appeal such orders and to obtain a stay of execution of such orders pending appeal precludes appellate review. As a result, we lack jurisdiction to review the merits of the eviction order in this case. The order of the common pleas court entering judgment against Swaney on his counterclaims is reversed and remanded for further proceedings. Judgment accordingly. - 9 - This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said 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. PATRICIA BLACKMON, PRESIDING JUDGE DIANE KARPINSKI, JUDGE CHARLES D. ABOOD*, JUDGE *Judge Charles D. Abood, of the Sixth District Court of Appeals, sitting by assignment. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). - 10 - APPENDIX I. The Trial Judge erred and abused her discretion in striking Defendant-Appellee's Counter-Claim from the docket due to his failure to obtain leave to file same. No leave has been sought to place any claims in Defendant-Appellee's behalf before the Court despite this Court's order of June 10, 1996. Accordingly, this action has no further claims for resolution. Judgment as previously announced. II. The Trial Judge erred in granting Plaintiff- Appellant's Eviction of Defendant-Appellee of June 18, 1996. III. The Trial Judge unconstitutionally denied Defendant-Appellee his First Amendment right "to petition [the Trial Court] for a redress of grievances." To have Defendant-Appellee heard .