Evictions by affidavit halted in central Ohio

Firm News

The Tenth District Court of Appeals, which handles appeals of all lawsuits filed in Franklin County courts, ended a decades-old practice of permitting evictions by affidavit on September 1, 2020.

Unfortunately, Franklin County Municipal Court handles a large volume of eviction lawsuits – approximately 16,000 a year from 2016 through 2019, the year the Wimberly appeal was filed. Based on data from The Eviction Lab at Princeton University, Columbus has an astoundingly high number of evictions per day (roughly 25), much higher than Cleveland (11.4) and Cincinnati (12.25).

In 2019, Franklin County was the only metropolitan area in Ohio that permitted affidavits as the sole evidence to evict a tenant. This affidavit practice was based on the Blout case decided more than 30 years ago. Wimberly argued that Blout is no longer controlling because the Ohio Civil Rules were changed in 2015 to require that witness testimony be taken in open court. The landlord argued that Civ.R. 43 does not apply to eviction actions based on the express limitation in Civ.R. 1(C) (3) which states that the Civil Rules do not apply to actions for forcible entry and detainer actions “to the extent they would by their nature be clearly inapplicable.” After a lengthy analysis, the Court concluded that Civ.R. 43(A)’s requirement that witness testimony be taken in open court is not clearly inapplicable in an eviction action.

But, before getting to that important holding, the Tenth District had to address the landlord’s motion to dismiss the appeal on the basis of mootness because the tenant moved out of the property while the appeal was pending. Since eviction actions are to restore possession of the property to the landlord, usually when a tenant vacates the property at issue there is no longer a dispute for a court to resolve, and the case is deemed moot. But, there are exceptions to the mootness doctrine and the Court found that two exceptions applied to this case. So the Court did not dismiss the appeal as moot.

Bricker lawyers had the privilege of filing an amicus curiae brief to highlight the often dehumanizing and negative ramifications of this “eviction by affidavit” practice on behalf of a number of organizations whose missions include serving vulnerable and underserved populations, including: Affordable Housing AllianceAlvis, Inc.B.R.E.A.D.Coalition on Homelessness and Housing in Ohio, Community Mediation ServicesCommunity Shelter BoardHuman Services ChamberStudent Legal Services at the Ohio State University and YWCA Columbus.

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