Chapter XVI: The Rules of Court
A. The Rules of Civil Procedure
1. The Pleading Stage

This is going to be a crash course on what we who went to law school call Civil Procedure. Civil Procedure is basically the rules of the game. In fact, my Civ Pro teacher from law school, Professor Bradley Smith, reveled in bringing in the children’s board game “
Chutes and Ladders” on the first day of class. With great fanfare he would open the game up and show how the game’s instructions were printed on the inside of the box top. He was showing us by analogy that The Rules of Civil Procedure were just like the rules to the game in the box top. The man went on to head the Federal Elections Commission, an even greater honor than being my favorite law school professor.

There are two systems of justice, one is the criminal system, which does not concern us ( even though you doubtless feel that what your landlord is doing to people is a crime) and there is the civil system which is the system in which we will be playing our game. There are different types of civil courts, and the main important difference for our purposes is the amount in controversy limit.

All landlord tenant law suits are started by the filing of a Complaint by the Plaintiff(s) against the Defendant(s). The Complaint is a short plain statement of the facts that gives the other side enough information to know that they are being sued and why. If the Complaint does not have enough specificity in it for the Defendant to formulate an answer, the Defendant should file a Motion for a More Definite Statement. If the Court grants this Motion, it will instruct the Plaintiff to redraft its Complaint to be more specific as to the facts and the claim(s) for relief of the Plaintiff. The failure of the Plaintiff to so amend his Complaint may lead to its eventual dismissal.

If the Complaint has enough facts, but the Defendant feels that even if all of those facts were true, the Complaint does not state a cause of action, the Defendant can make a Motion to Dismiss Pursuant to Civil Rule 12(B)(6). An example might be that your landlord sues you for $2,000.00 because you had guests at your apartment on several occasions. Your rental agreement says nothing about limitations on guests. In this situation, you would probably move for the Court to dismiss the case against you pursuant to Civil Rule 12(B)(6) for the landlord’s failure to state an actionable claim for relief against you. In other words, even if
everything in the Plaintiff’s Complaint is true, the Plaintiff still loses because the actions or inactions described in the Complaint don’t amount to a hill of beans.

If the Judge overrules your 12(B)(6) Motion, then you will have to file an Answer to the Complaint. The answer is simply a matter of going through the Complaint, line by line, and denying or admitting the accusations. Defendants often wish to simply enter a general denial stating that they deny all of the allegations in the Complaint of the Plaintiff. But this is improper. There are almost always some things in every Complaint that both the Plaintiff the Defendant agree on. In the landlord tenant context, they would probably both agree about the address of the apartment, and how much the rent was, and how much the security deposit
was for.

There are three answers to any allegation in a Complaint when you are drafting your Answer. You can admit the allegation, deny the allegation, or deny the allegation for lack of knowledge. If a single sentence contains several allegations, some of which are true, some of which are false, then your answer can be in the same form, just inform the other side what you deny, what you admit, and what you deny for lack of knowledge.

If the Defendant fails to file an Answer within 28 days of getting served, then the Plaintiff can move for a default judgment against the Defendant for failure to answer. The Court will hold a hearing on whether or not to grant the default judgment. If the Defendant still does not show up, then a default judgment will be granted and the Plaintiff wins. But such wins are usually a very hollow victory. In my experience, Judges are way too willing to overturn a default judgment if the Defendant makes a Motion Pursuant to Civil Rule 60(B) wherein he argues some sob story of justification for his failure to respond. So don’t think that having a
default judgment ends your case. Your landlord still has a fighting chance at getting it overturned and getting his case heard and decided on the merits. On the other hand, do not count on such special treatment yourself. If all you have is a 60(B) motion and a sob story, you are in the hurt locker.

2. The Discovery Period

Once the Complaints and Answers have been filed, you will start into what is called the Discovery Period. A long time ago, the Court system decided that it did not like to have its cases decided upon surprises and ambushes. For example, after a car accident, the Plaintiff was complaining that he could not walk. But the Defendant hired a private investigator to tail him around and the investigator took videos of the Plaintiff water skiing and carrying pianos without assistance. Defendants used to keep these videos a secret from the Plaintiff and ambush the Plaintiff with them at trial in front of the jury.

But long experience has informed the Courts that if each of the parties knew what the other party had on each other (evidence wise), a lot of cases would get resolved earlier in the process through settlement. Courts always favor settlement over trial. Nine out of ten cases are settled, and if they weren’t, if you think that wait for trial is long right now, try it when no one
is settling cases. Thus the Discovery Rules were adopted.

You can send your opponent Requests for Production of Documents, asking for copies of everything that they have in their possession that may be useful to your side at trial. You must ask for these documents in a fairly specific way however. For instance, if you don’t have a legible copy of the rental agreement, you can request that the other side provide it to you. If you don’t have a copy of the letter that the landlord sent to you informing you that it was okay to have pets even though your rental agreement has a not pets clause, then you can request it. You can ask for documents like repair records and bills for material and labor if the landlord is alleging that you caused damages to his apartment. You can ask the landlord for pictures or videos taken of the apartment that depict the damages he is claiming that you did.

If the landlord answers your request for production of documents by saying that he does not have any of these things, then he may have a hard time proving his case without them. If he tells you that he doesn’t have them and then tries to introduce them at trial, the Judge may not allow the landlord to use them, and if he does exclude them, he will ignore them when it
comes to making his decision.

If the landlord has the documents you want, but ignores your requests, you can file a
Motion to Compel Production of Documents. You must first have made several informal attempts to convince the landlord to turn over the documents without involving the Court. I usually send out letters (retaining copies) and make phone calls (logging each). If the Court finds your motion well taken and grants it, the Judge will issue an entry of decision commanding the landlord to produce the documents by a certain date. The landlord’s failure to so produce them at that point will land him in deep kimchee with the Judge. The Judge may sanction him by finding him in contempt of court (with the possibility of jail time), exclude the documents at trial, and/or may even dismiss the landlord’s case and grant you a victory right there and then.

After you have seen all the documents that you want to see, you may wish to send Interrogatories to the other side. You can send each Defendant up to 40 Interrogatories. Interrogatories are questions that the other side must answer, and must swear to the answer’s truth via an attached affidavit (a statement signed in front of a notary that all of the responses are true). You can ask when the carpet was last replaced at the apartment before you moved in. You can ask when the landlord purchased the building. You can ask if the landlord is incorporated or operating as a sole proprietor. You can ask if there are any other owners of the
building besides the landlord. You can ask who the landlord intends to call at trial and what they are likely to say. You can ask just about anything that you are curious about that is either relevant to your case or reasonably calculated to lead you to information that is relevant to your case. If your landlord ignores your interrogatories, you can file a motion to compel here
too.

You can also file a Request for Admissions. In this, you will ask that your landlord admit or deny certain things. You may want the landlord to admit that the document attached to the Requests for Admissions as Exhibit A is a true and accurate copy of the rental agreement. You may want him to admit that you paid a security deposit to him in the amount of $1000.00. You may want him to admit that he received written notice of your forwarding address. If the landlord ignores the requests for admissions, any request for admission that is not denied in writing within 28 days of receipt will be deemed admitted. Some requests can blow huge holes in a landlord’s case like: “Admit that you wrongfully withheld all of Tom Tenant’s security deposit.” If that one gets deemed admitted because the landlord failed to answer it, then the landlord is sunk, and will not be able to bring on evidence at trial the
contradicts that admission. Of course this can work in reverse too, and if you miss a Request for Admissions Deadline, you will be sorry you did.

You can also ask for an inspection of the premises so that you can observe the quality of the repairs that were done. You might want to bring a video camera along with you to this inspection. If your landlord is claiming that he had to put a new floor in the kitchen, and your inspection reveals that the floor is still 30 years old, then a video tape of that is just the tonic
for your ailing case.

You can also take the deposition of your landlord or any witness that he wishes to call. At the deposition, your landlord or his witness will be sworn in by a court reporter and you can ask questions directly to the landlord and/or witness. The deponent must answer the questions under oath. He may lie, but now is not the time for brilliant cross-examination which makes the landlord cry out in shame his apologies for attempting to cheat you. The good thing about getting the landlord to tell his story however he wants to is that you have now pinned him down to one version of the story. If he tries to change his story at trial when the previous lies
are no longer convenient, that is when you spring the trap upon him and read back parts of his own deposition answers which he swore to under oath.

3. Dispositive Motions Stage

Eventually, you will get all of the information that you need in discovery. If this information reveals that you should win your case on the law, then you might want to move on to the next stage of your case, the Dispositive Motions Stage. In this stage, you will file a Motion for Summary Judgment.

A motion for summary judgment is a time saving device for the Court. What happens is that one side alleges a set of facts, usually supporting those facts by evidence gleaned from the discovery process. If the landlord has admitted that you were on a month to month tenancy, provided you with a letter which you sent to him that informed him you were terminating the month to month tenancy with 30 days notice, and has also admitted that you paid your last month’s rent, then the issue of whether you have to pay rent at the apartment until the landlord finds a new tenant is ripe for being decided upon summary judgment. You are basically saying that given these facts your honor, the law says I win.

To defeat a motion for summary judgment, your opponent must argue and present some evidence that there is a material question of fact concerning the things that you alleged in your motion for summary judgment. The court will not get into weighing the credibility of your landlord’s evidence. It can be the hokiest, flimsiest, non-believable crap, but if it raises a genuine question of material fact, then your motion for summary judgment will be overruled. At this point, the judge will set a trial date, and you will present your case at that time.

If you lose your case at the trial court level, you can always appeal, but be warned. An appeal is not what most people think it is. Most people think that the appeals court tries the case again just like the lower court did. This is incorrect. The appeals court will not be interested in hearing any evidence. It will not decide the case upon the merits. It will rather examine the lower court’s proceedings and make sure that the trial court did not make any errors of law. If the trial court ruled that the landlord had 40 days to fix the plumbing at the apartment, and that the landlord did in fact get it fixed in 33 days, then the Appeals Court would rule that the trial court erred in its 40 days to repair ruling. The Appeals Court would then reverse the lower court, send the case back down to the lower court, with instructions to the lower court to reconsider the issue in accordance with the correct rule of law, that the
landlord has only 30 days to repair the plumbing.

But the Appeals Court will not overturn the trial court’s ruling that the landlord got the plumbing fixed in 33 days. This is because this is a finding of fact. Findings of fact will not be overturned by the Court of Appeals unless they are against “the manifest weight of the evidence.” This is a very high standard to meet, and is almost never met by any case. The reason for this of course is that the trial court was in the position to actually see the demeanor of the witnesses as they testified. All the appeals court can do is read the cold transcript of what was said. The Appeals Court cannot hear sarcasm through a transcript, nor can it hear the wavering voice of a liar, or see his giveaway gestures. So once the trial court makes certain findings of fact, they are pretty much set in stone.

If the Appeals Court gets the law wrong as well, then you have a right to petition the Ohio Supreme Court for relief. You will need to write a brief to the High Court, and the Justices of the Ohio Supreme Court will read this to see if it raises an important enough issue to warrant their time. If they decide that it does, then they will grant certiorari, meaning that they will
hear arguments upon the case.

If all of this sounds like a rather complex web to be spinning, that’s because it is. To complicate matters further (or in some ways to simplify them) the Rules of Civil Procedure do not apply in Small Claims Court, nor do the apply to Eviction Hearings. I didn’t really provide you with this information to enable you to side step attorney participation in the legal process. I gave you this information so that when your attorney tells you where you are in the court process, you will understand it a little better.
I also gave you this information so that you will see the necessity of hiring competent counsel. You are best off getting competent legal counsel if at all possible. Lawyers have spent three years in law school learning about all of this stuff and much much more, and many lawyers still aren’t really up to speed on Civil Procedure even now, especially if they are not trial lawyers. It isn’t that difficult to find a lawyer who will work on your case if you throw some money at him up front. There are lots of attorneys out there who are one or two years out of law school and are looking for a way to make the rent on their office this month. So take my advice and hire one. This book will tell you almost everything you need to know about your rights, but if you want to win in Court, it is really helpful to have a lawyer.

There is an old saying in Court that a man who represents himself has a fool for a client.
This is true for several reasons, but one of the most important is detached objectivity. When you are the person who was wronged, you carry with you the emotional scars of the wrong to Court. You may get emotional in front of the Judge (usually via anger) and this will not serve your case. An attorney is valuable as a dispassionate observer of what happened to you and can advocate with an objective distance that Courts usually find helpful. For this same reasons, many attorneys refuse to represent close friends or family members because they find themselves getting too subjectively involved and thereby lose their effectiveness.