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MEMORANDUM

To: Magistrate Colette Moorman

From: James A. Alp, UDSL Student Extern

Date: December 20, 2012

Subject: Persons who may bring an action for forcible entry and detainer

QUESTION PRESENTED

In processing its substantial eviction docket, this court is frequently confronted with the

question, whether the plaintiff bringing an action for forcible entry and detainer (FED) has

standing to do so under the FED statute, R.C. Chapter 1923. This Memorandum offers an

analysis of the relevant case law and concludes (1) that the real-party-in-interest rule applies to

FED actions, and (2) that an FED action can only be brought by an owner, lessor, or sublessor of

the premises, or by an agent of the aforementioned if the agent has a present right of possession

of the premises.

ANALYSIS

I. The real party in interest in an action for forcible entry and detainer is the person with a

present right of possession.

The starting point for any analysis of a party’s right to civil relief is the real-party-in-

interest rule. “Every action shall be prosecuted in the name of the real party in interest.” Civ.R.

17(A). The real party in interest is one who will be directly benefited or injured by the outcome

of the action. Shealy v. Campbell, 20 Ohio St.3d 23, 24, 485 N.E.2d 701 (1985). To determine

the real party in interest, a court must look to the substance of the cause of action. State ex rel.

Hofstetter v. Kronk, 20 Ohio St.2d 117, 254 N.E.2d 15 (1969), paragraph two of the syllabus.

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The court looks to the substantive law to determine if the party bringing the action actually has a

substantive right to relief. Shealy at 25. A real party in interest must have a real interest in the

subject matter of the litigation, not merely in the outcome of the case. Shealy at 24; Ebbing v.

Lawhorn, 12th Dist. No. CA2011-07-125, 2012-ohio-3200, ¶ 12.

The real party in interest in an FED case is fairly straightforward in light of the

substantive law. The FED remedy is “intended to affect only the question of the present right to

possess real property.” Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 130-131,

423 N.E.2d 177 (1981). The FED action “determines the right to immediate possession of the

property,” Seventh Urban, Inc. v. University Circle, 67 Ohio St.2d 19, 25 n.11, 423 N.E.2d 1070

(1981), which is the sole and ultimate issue in the litigation, Fenner v. Parkinson, 69 Ohio

App.3d 210, 213, 590 N.E.2d 339 (10th Dist.1990).

In an FED case the subject matter of the litigation is the real property alleged to be

unlawfully detained; and the person who has a real interest therein is one whose lawful present

right of possession has been ousted by the defendant. As such, the person ousted from possession

is the one person who has the substantive right to relief available in an FED action. In early case

law, in fact, it was held that a plaintiff’s “possession at the time of making tenancy and the

delivery of that possession to the defendant is sufficient” to sustain an action for FED. Petsch v.

Mowry, 13 Ohio Dec.Rep. 401, 403 (Cincinnati Super.1870). Therefore, because the immediate

right of possession is the essence of the FED action, the existence of a present possessory interest

belonging to the person filing the action is the touchstone for status as the real party in interest.

II. The real-party-in-interest rule is not “clearly inapplicable” to an FED action.

Rule 1 of the Ohio Rules of Civil Procedure creates an exception to the applicability of

certain rules in FED actions: “These rules, to the extent that they would by their nature be clearly

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inapplicable, shall not apply to procedure * * * in forcible entry and detainer.” Civ.R. 1(C)(3). It

is important to recognize that “[t]he language of Civ. R. 1(C)(3) does not impose a complete bar

to the application of the Rules of Civil Procedure to forcible entry and detainer proceedings.

Instead, it imposes a bar to the application of those rules which by their nature are ‘clearly

inapplicable.’” Larson v. Umoh, 33 Ohio App.3d 14, 16, 514 N.E.2d 145 (8th Dist.1986); Siegler

v. Batdorff, 63 Ohio App.2d 76, 80, 408 N.E.2d 1383 (8th Dist.1979). Hence, Civ.R. 1(C) sets

forth a rule of inclusion rather than one of exclusion. Price v. Westinghouse Elec. Corp., 70 Ohio

St.2d 131, 132, 435 N.E.2d 1114 (1982). “The Staff Notes to the July 1, 1971 amendment to Civ.

R. 1(C) state in pertinent part: ‘[T]he Civil Rules will be applicable to special statutory

proceedings adversary in nature unless there is a good and sufficient reason not to apply the

rules.’” Cleveland v. Ohio Civil Rights Comm., 43 Ohio App. 3d 153, 155, 540 N.E.2d 278 (8th

Dist.1988). This is a point which courts sometimes appear not to recognize. See, e.g., Dobbins v.

Kalson, 10th Dist. No. 07AP-831, 2008-Ohio-395, ¶ 10 (incorrectly stating that Rule 1(C)

“specifically exempts forcible entry and detainer actions from [the civil rules’] purview”).

A “good and sufficient reason” exists for non-application of a rule of civil procedure as

“clearly inapplicable” in two sorts of circumstances. The first is “when the proceeding is

established by a statute which also sets out specific procedures to be followed.” Siegler at 80.

This standard is met where a statute explicitly permits persons other than a real party in interest

to act. See, e.g., Alex-Bell Oxford Ltd. Partnership v. Woods, 2d Dist. No. 16038, 1998 WL

289028, *3 (June 5, 1998) (citing Rankin v. Evans, 4 Ohio App.3d 30, 32, 446 N.E.2d 178 (10th

Dist.1981)). Second, a rule of civil procedure would be “clearly inapplicable” when the

“application [of the rule] would frustrate the purpose of the proceeding.” Siegler at 80, citing

State ex rel. Civil Rights Comm. v. Gunn, 45 Ohio St.2d 262, 266-67, 344 N.E.2d 327 (1976).

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A. The FED statute contains no provision explicitly empowering a person to bring

the action without satisfying the real party in interest requirement.

1. Cases holding that the real-party-in-interest rule is clearly inapplicable are

incorrectly decided and should not be followed.

Several Ohio courts of appeals have held that the real-party-in-interest rule does not

apply to FED actions. In each of these cases the court’s ruling was based on a finding that a

specific statutory procedure existed which displaced the real-party-in-interest rule. Because each

of these courts erred in performing its analysis to determine of the rule was “clearly

inapplicable” under Civ.R. 1(C), the holding in each of these cases is unpersuasive.

The first case to hold the real-party-in-interest rule inapplicable in FED actions was

decided by the Tenth District two decades ago. Oakbrook Realty Corp. v. Harris, 10th Dist. No.

89AP-819, 1991 WL 70146 (Apr. 30, 1991). Oakbrook launches into its analysis of the real party

in interest question by overstating the holding of the Supreme Court of Ohio in Jackson, 67 Ohio

St.2d 129. According to the Oakbrook court, the conclusion in Jackson was that “that the civil

rules would clearly be inapplicable, by their nature, to actions in forcible entry and detainer.”

Oakbrook at *2. In fact, Jackson’s analysis was limited to two particular rules, Civ. R. 53(E)

(requiring 14-day delay between filing of referee’s [i.e., magistrate’s] report and final judgment

entry) and Civ.R. 54(B) (governing judgments upon multiple claims), both of which it found to

be incompatible with the summary nature of FED proceedings. Jackson at 131-132. Jackson did

not conclude, as Oakbrook implies, that the Rules of Civil Procedure in toto are inapplicable in

FED cases.

The Oakbrook court, however, also found the real-party-in-interest rule to be clearly

inapplicable on the separate grounds that the procedure set out in R.C. Chapter 1923 explicitly

permits persons other than a real party in interest to bring an FED action. Oakbrook at *2-3. The

court declares, without citation to any authority, that “the statutory definition of the word

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‘landlord’ controls who may bring a forcible entry and detainer action as a landlord.” Oakbrook

at *2. The definition in its entirety is as follows:

“Landlord” means the owner, lessor, or sublessor of premises, or the agent or

person the landlord authorizes to manage premises or to receive rent from a tenant

under a rental agreement, except, if required by the facts of the action to which

the term is applied, “landlord” means a park operator.

R.C. 1923.01(C)(2). Plainly, there is nothing in this definition that grants a right of action under

the statute to any person. The purpose of including definitions of terms in a statute is simply to

establish the meaning of such terms wherever those terms appear elsewhere in the same act. 2A

Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 47:7 (2007). The

legal significance of the definition depends entirely on the substantive provisions of the sections

of the statute in which the word is used. A definition of a term only “controls” who may bring an

action under the statute if the statutory language vesting a right of action in designated persons

employs the term so defined for that purpose. So, to answer the question, whether the definition

of “landlord” in R.C. 1923.01(C)(2) empowers any person who satisfies that definition to bring

an action for FED, it is to the substantive provisions of the statute that we must turn. It is only if

there is some language in the statute clearly indicating that being a “landlord” is sufficient by

itself to empower a person to bring an FED action, that the Oakbrook court would be justified in

reaching its conclusion that the definition of landlord “controls” who may file an FED action.

Apart from the definitions of terms in R.C. 1923.01, the word “landlord” is used eighteen

times in twelve separate subsections of Chapter 1923. Naturally, the first place to turn is R.C.

1923.02, the code section which establishes the FED cause of action. This section sets forth a

series of factual circumstances in which an FED action is authorized; most of these include

language indicating whom the action may be filed against, but only two subsections of R.C.

1923.02 appear to address the question, who is a proper party to initiate FED proceedings. These

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are R.C. 1923.02(A)(4) and R.C. 1923.02(A)(5)—both of which indicate that the proper plaintiff

is a person with a possessory interest in the premises, which provides additional support for the

identical conclusion reached in the first section of this Memorandum by applying the real-party-

in-interest rule. See pp. 1-2, supra. In at least one instance, the statutory definition of “landlord”

cannot be relevant in determining who may properly bring the action: R.C. 1923.02(A)(7) allows

an FED action (as opposed to a foreclosure) against an installment land contract vendee who has

made payments for less than five years and has paid less than twenty percent of the purchase

price. The party to bring such an action would be the vendee—i.e., the person harmed, hence the

real party in interest—not a “landlord.”

There are, on the other hand, nine occurrences of the word “landlord” in R.C. 1923.02.

None of these clearly indicates that one need only be a “landlord” as defined in R.C.

1923.01(C)(2) to be empowered to bring an FED action. See R.C. 1923.02(A)(6)(a)(i)-(ii) (in

FED action due to tenant’s possession of a controlled substance, triggering event is the

landlord’s “actual notice” or “reasonable cause to believe” that a violation has occurred); R.C.

1923.02(B) (landlord has power of termination of an oral tenancy for tenant’s default in payment

of rent, and may notify tenant to leave premises, “for the restitution of which an action may then

be brought under this chapter” [note the shift to passive voice]); R.C. 1923.02(C)(1)-(2)

(landlord has power of termination of rental agreement or tenancy upon discovery that tenant’s

occupation of premises is in violation of sex offender or child-victim offender residency

restrictions). Likewise, none of the other uses of the word “landlord” in Chapter 1923—

occurring in R.C. 1923.04(A), R.C. 1923.051(A) & (B), R.C. 1923.061(B), R.C. 1923.062(B) &

(C), and R.C. 1923.15—supersedes the real-party-in-interest rule by explicitly empowering a

landlord as such to bring an FED action.

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Thus the FED statute does not displace the real-party-in-interest rule by “set[ting] out

specific procedures to be followed” in determining who is entitled to bring the action. Siegler, 63

Ohio App.2d at 80. There is simply no basis in the statute for proclaiming, as in Oakbrook, that a

landlord is “empowered by statute to bring an action in forcible entry and detainer.” Oakbrook,

1991 WL 70146 at *3; see also, J & E Mgt., Inc. v. Wolf, 8th Dist. No. , 1977 WL 201207, *3

(Feb. 10, 1977) (asserting the same, also without citation to supporting authority). Because of

this, Oakbrook’s holding, that simply by being a “landlord” as that term is defined in R.C.

1923.01(C)(2), a party “in effect, bec[omes] the ‘real party in interest,’” collapses. Oakbrook is

therefore not a persuasive authority for the proposition that the real-party-in-interest rule is

clearly inapplicable to FED actions.

Oakbrook’s error is repeated in other FED cases. In KDI Mgt. Servs., Inc. v. Enerchem,

Inc., 1st Dist. No. C-960587, 1997 WL 119898 (Mar. 19, 1997), the First District Court of

Appeals, citing Oakbrook, declared the applicability of real-party-in-interest rule in FED cases to

be “questionable” even though it was not called upon to address the issue of real party in interest.

KDI *2.

A Second District case echoes Oakbrook in declaring that the definition of “landlord” in

R.C. 1923.01(C)(2) “controls who may file an action under Chapter 1923,” without any citation

to supporting authority. Alex-Bell Oxford Ltd. Partnership v. Woods, 1998 WL 289028 at *3.

Because the definition of “landlord” includes an “agent or person the landlord authorizes to

manage premises or to receive rent from a tenant,” the Second District also declared that “the

statute permits an agent to file the action.” Id. The court recognized that its reasoning clashed

with the real-party-in-interest rule, since “[a]n agent of the land owner, under most

circumstances, would not derive benefit or harm directly from the outcome of a case.” Id. Yet,

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citing Oakbrook, the Alex-Bell court concludes that “the statutory procedures”—meaning the

provision that purportedly allows any “landlord,” even a mere agent of the property owner, to

prosecute an FED action—“prevail[s]” over the real-party-in-interest rule, and that therefore “the

civil rule does not apply.” Id. Under Alex-Bell, all that is needed to empower an owner’s agent to

file an FED action is a lease agreement giving the agent a contractual right to collect rent

payments from tenants. Id.

In Knoppe v. Applegate, 5th Dist. No. 08 CAG 08 0051, 2009-Ohio-2007, the Fifth

District used the definition of “landlord” to conclude that an FED plaintiff need only be the party

named in the lease agreement which is the subject of the FED action to be deemed the real party

in interest. Knoppe ¶ 32.

In a decision handed down two years ago, the Court of Appeals for the Seventh District

followed the usual pattern, first declaring, without analysis or citation to authority, that the

definition in R.C. 1923.01(C)(2) “authorizes a ‘landlord’ to bring an action in forcible entry and

detainer.” Adlaka v. Quaranta, 7th Dist. No. 09 MA 134, 2010-Ohio-6509, ¶ 39. Following

Knoppe, the Adlaka court held that a plaintiff “who is a party to a lease agreement and listed as

the landlord therein” is entitled to bring an FED action. Id. at ¶ 44. The plaintiff in the case was

the proper party to bring the action because “[s]he was listed as the lessor in the body of the

agreement and her signature appeared at the end of the document.” Id. at ¶ 43.

The most recent in this line of cases was decided by the Twelfth District earlier this year.

Ebbing v. Lawhorn, 12th Dist. No. CA2011-07-125, 2012-ohio-3200. Though distinguishing the

facts of the preceding cases from the case before it, the Ebbing court approvingly cited Adlaka,

Knoppe, and J & E for their common finding that a “plaintiff (either an individual or a

management company), who was a party to the lease agreement but not the owner of the

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property, was a landlord under R.C. 1923.01 and thus the proper party to bring an FED action

against the tenant.” Ebbing v. Lawhorn, 12th Dist. No. CA2011-07-125, 2012-ohio-3200, ¶ 17.

Thus in the Twelfth District too, as in the Fifth and the Seventh, a plaintiff need only be named

in the lease to be entitled to bring an FED action.

These cases all suffer from the same defect in their interpretation of the definition of

“landlord” in the FED statute. And, for the reasons stated in the discussion of Oakbrook, see pp.

4-7, supra, the reasoning employed in all of these cases—KDI, Alex-Bell, Knoppe, Adlaka, and

Ebbing—is unsound, and they should not be relied upon as persuasive authority by any court that

is not bound to follow their holdings.

2. Cleveland Bar Association v. Picklo lends additional weight to the

conclusion that the real-party-in-interest rule is applicable to FED actions.

The Second District Court of Appeals is among the courts holding that the real-party-in-

interest rule does not apply to FED actions. Alex-Bell, 1998 WL 289028. The Second District’s

decisions are binding upon this Court. Toler v. Toler, 2d Dist. No. 10-CA-69, 2011-Ohio-3510, ¶

13. However, there exists a separate justification for this Court to apply the real-party-in-interest

rule rather than adhering to the holding in Alex-Bell.

The Supreme Court of Ohio has held that the prosecution of an FED action by a

landlord’s agent who was not a licensed attorney constitutes the unauthorized practice of law.

Cleveland Bar Assn. v. Picklo, 96 Ohio St.3d 195, 2002-Ohio-3995, 772 N.E.2d 1187, ¶ 3, 8.

The respondent in the case, Lynn Picklo, a non-attorney, had filed FED actions and made court

appearances on behalf of a property owner (not identified by name in the Court’s opinion). Id. at

¶ 1. While the Court noted that “the practice of law includes appearing in court on another’s

behalf and conducting another’s case in court,” id. at ¶ 5, Picklo’s defense of her actions invoked

the definition of “landlord” in R.C. 1923.01(C)(2) and the nearly identical definition of that term

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in Ohio’s landlord-tenant statute, R.C. 5321.01(B), id. at ¶ 3, from which it can be inferred that

Picklo was acting as an agent of the property owner. The decision in this case is thus inextricably

linked with the cases construing the statutory definition of “landlord” in R.C. 1923.01(C)(2). The

Picklo Court says nothing about that line of cases, but it does combine its conclusion of law with

a premise noticeably formulated tentative terms: “[T]o the extent that R.C. 1923.01(C)(2) and

5321.01(B) purport to enlarge the class of persons who may legitimately engage in conduct

defined as the practice of law, we must strike these statutes as unconstitutional.” Id. at ¶ 5.

(Emphasis added.) The Picklo Court appears not to be convinced that the definition of “landlord”

actually brings about any such “enlarge[ment] of the class of persons” who may bring an FED

action. But because some courts have construed it that way, it is obvious that, post-Picklo, such a

construction cannot be applied without giving due consideration to the rule prohibiting a non-

attorney “appearing in court on another’s behalf and conducting another’s case in court.” Id. at ¶

5 (citing Land Title Abstract & Trust v. Dworken, 129 Ohio St. 23, 193 N.E. 650 (1934),

paragraph one of the syllabus). Inherent in the Court’s reasoning is the understanding that a mere

agent of a property owner would be “conducting another’s case” by prosecuting an FED action,

even though such an agent comes within the definition of a “landlord” in the FED statute. The

party or parties entitled to prosecute an FED action must comprise a narrower class of persons

than all those who come within the expansive statutory definition of “landlord”—i.e., only a

person who is a real party in interest may prosecute an FED action. Picklo simply doesn’t make

sense unless the real-party-in-interest rule applies to FED actions.

In conclusion, Ebbing, Adlaka, Knoppe, Oakbrook, and J & E are not binding upon the

Dayton Municipal Court; and the Second District’s decision in Alex-Bell need not be followed in

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this Court because doing so would produce results inconsistent with the Ohio Supreme Court’s

decision in Picklo.

B. Application of the real-party-in-interest rule would not frustrate the purpose of

the FED statute.

None of the cases discussed above, including Oakbrook, actually stands for the

proposition that the real-party-in-interest rule would frustrate the purpose of an FED proceeding,

which would also render the rule inapplicable. See Siegler, 63 Ohio App.2d 76. Under this prong

of the Civ.R. 1(C) analysis, a rule of civil procedure is clearly inapplicable in a proceeding if its

use would “alter the basic statutory purpose” of the proceeding. Woodman v. Tubbs Jones, 103

Ohio App.3d 577, 583-584, 660 N.E.2d 520 (8th Dist.1995), citing Price, 70 Ohio St.2d at 133,

and State v. Reno Hotel, 95 Ohio App.3d 67, 641 N.E.2d 1155 (8th Dist.1994).

Application of the real-party-in-interest rule would not frustrate the purpose of the FED

statute. “An action of forcible entry and detainer * * * is not an action to determine ownership of

the title to the property.”* Behrle v. Beam, 6 Ohio St.3d 41, 44, 451 N.E.2d 237 (1983); Fenner,

69 Ohio App.3d at 213. Its purpose is to decide the immediate possession of real property.

Jackson, 67 Ohio St.2d at 131 (citing Haas v. Gerski, 175 Ohio St. 327, 330, 194 N.E.2d 765

(1963)). An FED action is a summary proceeding; “its purpose would be frustrated by strict

application of the civil rules.” Dobbins v. Kalson, 2008-Ohio-395 at ¶ 10, citing Miele v.

Ribovich, 90 Ohio St.3d 439, 441, 739 N.E.2d 333 (2000). In light of its nature as a summary

* Because title is not at issue in an FED action, a plaintiff/lessor who is the purchaser of the property under an

installment land contract, and not the titleholder of record, is entitled to bring an FED action against a tenant. This is

the case under the conventional “definition-of-‘landlord’” approach, because “a vendee who enters into possession

of real estate under a land contract becomes the equitable owner of the property as long as the land contract remains

uncanceled and in force.” State ex rel. Morgan v. Stevenson, 39 Ohio App. 335, 337, 177 N.E. 247 (2d Dist.1931).

The same result follows under the “real party in interest” approach, because the land contract vendee as equitable

owner is plainly one who has a possessory interest in the property. Blue Ash Bldg. & Loan Co. v. Hahn, 20 Ohio

App.3d 21, 24, 484 N.E.2d 186 (1st Dist.1984). Accordingly, courts have held that a purchaser under an installment

land contract is entitled to initiate an FED action. See, e.g., Craft v. Edwards, 11th Dist. No. 2007-A-0095, 2008-

Ohio-4971, ¶ 24.

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proceeding, it is clear that “time consuming procedure[s] tend[] to destroy its efficacy.” Jackson

at 131. This would be especially problematic if a defendant were permitted to “interpose

irrelevant defenses.” Alex-Bell, 1998 WL 289028 at *3.

Because possession of real property is “the only issue involved” in an FED action,

Howard v. Barner, 73 Ohio Law Abs. 231, 137 N.E.2d 422 (Franklin App.1952), paragraph four

of the syllabus, there is little danger that inquiry into the plaintiff’s right of possession would

alter the basic statutory purpose of the proceeding. Simply requiring the plaintiff to plead its

ownership or right of possession (i.e., not being satisfied with plaintiff’s assertion of mere

“landlord” status), and if challenged to provide the Court with, at a minimum, some evidence of

a possessory interest from which the plaintiff has been ousted, would not be such a “strict

application” of the real-party-in-interest rule as to frustrate the summary nature of an FED

proceeding. It would not be unduly time-consuming, because the statute’s purpose is not merely

to oust a person in unlawful possession of real property, but to restore possession to the person

who does lawfully have a present right to possession of the property: the real party in interest. A

defendant’s assertion that the plaintiff is not a person entitled to enforce such a right can hardly

be an “irrelevant defense,” given that the right of immediate possession is the essence of the FED

action.

Therefore, rather than frustrating the purpose of an FED proceeding, application of the

real-party-in-interest rule is entirely consistent with the summary, expedited nature of such

proceedings.

CONCLUSION

For the foregoing reasons, this Court should avoid applying the rule of the Oakbrook-

through-Ebbing line of cases, allowing an FED action to be brought by any person who satisfies

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the definition of “landlord” in R.C. 1923.01(C)(2)—including an agent of the property owner

who receives tenants’ rent payments, or anyone who is listed as “landlord” on the lease

agreement. Instead, the Court should apply the real-party-in-interest rule, pursuant to which an

FED action may only be brought by a party who has an immediate right to possession of the

premises. Some persons who satisfy the statutory definition of “landlord” have no such

possessory interest; nonetheless, the action may be brought by an owner, lessor, or sublessor of

the premises; and may also be brought by an agent of the aforementioned if and only if the agent

can prove it has a present right of possession of the premises.