Background
Jasmer S. Bath purchased Fairfield County real property and farm equipment from Steven Rudisill in 2018. Rudisill initially retained a four-year right to occupy the property and use the equipment. After that term expired, the parties entered a short-term occupancy agreement permitting Rudisill to remain through November 30, 2023, provided that he cleaned up the property, remedied zoning violations, paid the property taxes, and paid a monthly equipment-use fee.
Rudisill did not vacate, return the equipment, or complete the required cleanup. After serving default and three-day notices, Bath sued for forcible entry and detainer, breach of contract, and replevin. The trial court awarded Bath restitution of the real property and issued a preliminary order giving him possession of the equipment. Rudisill appealed, arguing that Bath had to post a replevin bond and that Bath waived the notice to vacate by accepting payments after serving it.
The Court’s Holding
The Fifth District dismissed the challenge to the equipment-possession order because it was not a final appealable order. The order was an interim allocation of possession under Ohio’s replevin statutes, and the trial court had not entered final judgment on either the replevin or breach-of-contract claim. The order also did not qualify as an appealable provisional remedy because it did not decide permanent possession or prevent Rudisill from obtaining relief after final judgment.
The court affirmed the restitution judgment. Payments accepted after the three-day notice related to obligations that had already accrued, not future occupancy, and therefore did not waive the notice. The trial court also could reasonably find that the disputed $600 equipment payment covered accrued charges through May 2024. A later tax check was never cashed and thus was not accepted.
The court further held that the eviction rested independently on Rudisill’s failure to satisfy the agreement’s cleanup requirements, not on unpaid rent. Bath’s acceptance of payments for closed periods was therefore not inconsistent with a notice based on expired occupancy, cleanup failures, and zoning violations.
Key Takeaways
- A preliminary order of possession in a replevin action generally is not immediately appealable when permanent possession and damages remain unresolved.
- Accepting payment after a notice to vacate does not waive the notice when the payment covers obligations already incurred rather than a future occupancy period.
- Retaining an uncashed check for evidentiary purposes does not constitute acceptance of payment.
- An eviction may remain valid when it is based on non-rent breaches that are consistent with the landlord’s acceptance of accrued payments.
Why It Matters
The decision distinguishes immediately appealable restitution judgments in summary eviction proceedings from interlocutory possession orders in replevin actions. Litigants challenging temporary possession of personal property may need to await a final judgment before obtaining appellate review.
It also underscores that waiver turns on what period a payment covers and whether accepting it conflicts with the stated grounds for eviction. A payment tendered after notice does not automatically invalidate the notice.