MKJAS Properties, L.L.C. v. Blissful Blooms Floral, L.L.C.

[Cite as MKJAS Properties, L.L.C. v. Blissful Blooms Floral, L.L.C., 2026-Ohio-3490.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY MKJAS PROPERTIES, LLC, : CASE NO. CA2026-02-016 Appellant, : OPINION AND vs. : JUDGMENT ENTRY 9/8/2026 BLISSFUL BLOOMS FLORAL, LLC, : Appellee. : : CIVIL APPEAL FROM BUTLER COUNTY AREA II COURT Case No. CVG2501275 Scott G. Oxley Co., LPA, and Scott G. Oxley, for appellee. Kaup Mulligan Law Group LLC, and Joseph H. Mulligan, for appellant. ____________ OPINION HENDRICKSON, J. {¶ 1} Appellant, MKJAS Properties, LLC, a commercial landlord, appeals from the decision issued by the Butler County Area II Court denying the forcible entry and  Butler CA2026-02-016 detainer action it filed against appellee-tenant, Blissful Blooms Floral, LLC.1 For the reasons discussed below, we reverse the decision of the trial court and remand the matter for the trial court to order restitution of the leased premises to MKJAS Property and to continue proceedings on MKJAS Properties' remaining cause of action for unpaid rent. I. CONTEXT OF THE APPEAL {¶ 2} The present appeal involves a forcible entry and detainer (FED) action brought in the context of a commercial lease. An FED action, "as authorized by R.C. Chapter 1923, is a summary proceeding in which certain courts may 'inquire' into disputes between landlords who claim tenants or other persons are unlawfully on the landlord's premises and, where appropriate, order restitution of the premises to the landlord." Suburban Realty, L.P. v. MD Vape & Tobacco, L.L.C., 2023-Ohio-3198, ¶ 2 (12th Dist.), citing R.C. 1923.01(A) and Miele v. Ribovich, 2000-Ohio-193, ¶ 10. II. FACTS & PROCEDURAL HISTORY A. The Lease Agreement {¶ 3} MKJAS Properties, as lessor, entered into a commercial lease agreement ("Lease Agreement") to rent property located at 17 East Avenue, Monroe, Butler County, Ohio to lessee, Blissful Blooms. The lease took effect on January 1, 2017. Pursuant to the terms of the Lease Agreement, rent was due on the first day of each month. The Lease Agreement provided as follows regarding MKJAS Properties' remedy upon default: 14. Lessor's Remedies on Default. If Lessee defaults in the payment of rent, or any additional rent, or defaults in the performance of any of the other covenants or conditions hereof, Lessor may give Lessee notice of such default and if Lessee does not cure any such default within TEN days, after the giving of such notice (or if such other default is of such nature that it cannot be completely cured within such period, if Lessee does not commence such curing within such TEN 1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar for purposes of issuing this Opinion. -2-  Butler CA2026-02-016 days and thereafter proceed with reasonable diligence and in good faith to cure such default), then Lessor may terminate this lease on not less than THREE days' notice to Lessee. On the date specified in such notice the term of this lease shall terminate, and Lessee shall then quit and surrender the premises to Lessor, but Lessee shall remain liable as hereinafter provided. If this lease shall have been so terminated by Lessor, Lessor may at any time thereafter resume possession of the premises by any lawful means and remove Lessee or other occupants and their effects. No failure to enforce any term shall be deemed a waiver. ... 16. Attorney's Fees. In case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorney's fee. 17. Notices. Any notice which either party may, or is required to give, shall be given by mailing the same, postage prepaid, to Lessee at the premises, or Lessor at the address first written, or at such other places as may be designated by the parties from time to time. {¶ 4} Section 3 of the Lease Agreement provided the following regarding the "Care and Maintenance of [the] Premises." It stated, "Lessee shall maintain the premises in good and safe condition." Section 4 of the Lease Agreement addressed "Alterations" to the leased premises and provided that "Lessee shall not make any alterations, additions, or improvements, in, to or about the premises." Another provision, Section 13, set forth the terms that applied when there was a "Destruction of Premises." It provided as follows: Section 13. Destruction of Premises. In the event of a partial destruction of the premises during the term hereof, from any cause, Lessor shall forthwith repair the same, provided that such repairs can be made within sixty (60) days under existing governmental laws and regulations, but such partial destruction shall not terminate this lease, except that Lessee shall be entitled to a proportionate reduction of rent while such repairs are being made, based upon the extent to which the -3-  Butler CA2026-02-016 making of such repairs shall interfere with the business of Lessee on the premises. If such repairs can not be made within said sixty (60) days, Lessor, at his option, may make the same within a reasonable time, this lease continuing in effect with the rent proportionately abated as aforesaid, and in the event that Lessor shall not elect to make such repairs which cannot be made within sixty (60) days, this lease may be terminated at the option of either party. In the event that the building in which the demised premises may be situated is destroyed to an extent of not less than one-third of the replacement costs thereof, Lessor may elect to terminate this lease whether the demised premises be injured or not. A total destruction of the building in which the premises may be situated shall terminate this lease. B. Problems Arise: Rent Escrow {¶ 5} Blissful Blooms continued to rent the leased premises from MKJAS Properties for a number of years. Late summer/early fall 2025, problems arose between the parties. On August 27, 2025, purporting to utilize the provisions of Revised Code Chapter 5321 which apply to residential leases, Bianca Hooks, the owner of Blissful Blooms, filed a rent escrow application with the Butler County Area II Clerk of Courts. See Case No. RE2500004 (hereafter, the "Rent Escrow Matter"). Hooks filed the application under her individual name and escrowed $1,600 as Blissful Blooms' September 2025 rent payment. She later escrowed another $1,600 as Blissful Blooms' October 2025 rent payment. MKJAS Properties moved to terminate the rent escrow application and to have the funds released back to Hooks. C. The FED Action {¶ 6} On September 24, 2025, MKJAS Properties filed suit against Blissful Blooms for forcible entry and detainer of the leased premises, claiming Blissful Blooms had defaulted on the terms of the Lease Agreement by failing to pay rent for the month of September 2025. MKJAS Properties also set forth a claim for the unpaid rent it was owed for the month of September 2025. Blissful Blooms did not file an answer or counterclaim. -4-  Butler CA2026-02-016 D. Consolidated Proceedings on Both Matters {¶ 7} On October 24, 2025, following delays in the FED action to allow Blissful Blooms to obtain representation and a subsequent delay caused by the trial court's malfunctioning audio-recording equipment, both the Rent Escrow Matter and the FED cause of action came before a magistrate. {¶ 8} The magistrate addressed the Rent Escrow Matter first, allowing counsel for MKJAS Properties to argue the merits of its motion to terminate Hooks' rent escrow application. Counsel contended that Hooks had improperly, without indicating she was acting as an agent of a limited liability company, deposited rent in a rent escrow account with the clerk of courts. Counsel for MKJAS Properties argued that such actions were improper, as Hooks had relied on R.C. 5321.07 and 5321.08, which applied only to residential tenants and residential leases. Blissful Blooms' counsel, in contrast, argued that Hooks had acted within the "common practice" of depositing money into escrow until the landlord fixed outstanding maintenance issues, and indicated such issues included a leaking roof, floor tiles that were coming up, issues with a lighting ballast, and doors that did not function properly as they were damaged when a motor vehicle struck the back of the leased building. {¶ 9} After hearing arguments, the magistrate concluded that "the use of a rent escrow application [was] improper in this situation." The magistrate explained, "there is a distinction that is made between residential leases and commercial leases. And the law is quite clear . . . that the provisions under Chapter 5321 don't apply to commercial leases. They only apply to residential and so those are the protections that allow for an escrow of rent." The magistrate, therefore, indicated it was granting the application to terminate the rent escrow and releasing the funds back to Hooks. {¶ 10} The magistrate proceeded to hear testimony and evidence relating to -5-  Butler CA2026-02-016 MKJAS Properties' cause of action for forcible entry and detainer. Andrew Ross, the property manager for MKJAS Properties, testified that Blissful Blooms had a commercial lease agreement with MKJAS for the rental of 17 East Avenue in Monroe, Ohio. Ross testified that Blissful Blooms defaulted under the terms of the agreement by failing to pay the September 2025 rent on time. MKJAS Properties served a notice of default for the failure to timely pay rent to Blissful Blooms on September 3, 2025 by means of email and mail. Copies of the notice of default were admitted into evidence. Blissful Blooms failed to cure its default within the 10-day period provided for in Section 14 of the Lease Agreement. As a result, on September 16, 2025, MKJAS Properties served Blissful Blooms with a Notice to Vacate the Premises. The notice was posted on the door of the leased premises. However, as of the date of the hearing, Blissful Blooms remained in possession of the premises. MKJAS Properties was, therefore, seeking restitution of the premises. {¶ 11} Upon questioning from the magistrate, Ross indicated that MKJAS Properties had not received any response from Blissful Blooms in the ten days that elapsed after the notice of default was sent out. In the months prior to Blissful Blooms defaulting on the September 2025 rent, Ross recalled that MKJAS Properties had received maintenance requests from Blissful Blooms. However, Ross could not recall what specific repairs had been requested. After the notice to vacate the premises had been posted, but prior to MKJAS Properties filing its FED complaint, Hooks sent an email advising MKJAS Properties that rent was in escrow. Ross indicated he personally responded to that email, advising Hooks that "it's not appropriate for a commercial lease, and [he] advised her to contact an attorney." {¶ 12} Hooks testified on behalf of Blissful Blooms. She claimed that in June, July, August, and September 2025, she had registered various maintenance issues with -6-  Butler CA2026-02-016 MKJAS Properties. Among the things that Hooks had reported needed repaired were a leaking roof, loose flooring, mold on the premises, lighting ballasts that needed replaced, and an adjustment to one of the building's doors. Hooks also complained about Blissful Blooms' increased electricity costs as a result of the lack of repairs to the building following an incident wherein a motor vehicle crashed into the back of the leased premises, causing damage to two rooms. According to Hooks, in the past, MKJAS Properties had completed all repairs to the property. She recalled previous instances where MKJAS Properties had repaired the roof, attempted floor repairs, replaced lighting ballasts, painted the building, added insulation, and adjusted a door so that it would not scrape on the floor when opened. {¶ 13} Hooks testified that Blissful Blooms had paid rent through August 2025. Before the September 2025 rent became due, she deposited the rent into an escrow account with the clerk of courts. She later deposited the October 2025 rent in this escrow account. Hooks acknowledged that she originally had the rent escrow account put in her individual name. However, she later had the account name amended to "Bianca Hooks dba Blissful Blooms." {¶ 14} On cross-examination, Hooks admitted that the maintenance issues that she had complained about had not prevented Blissful Booms from operating its business. She further admitted that the damage caused to the premises from the car accident had not prevented the business from operating or prevented Blissful Blooms from using the two rooms that had been damaged by the accident. Hooks testified that the two damaged rooms were being used for storage. Finally, Hooks admitted that Blissful Blooms had not filed a counterclaim against MKJAS Properties. E. The Magistrate's Decision and Trial Court's Adoption of the Decision {¶ 15} On November 13, 2025, the magistrate issued a decision in which she -7-  Butler CA2026-02-016 noted, with respect to the Rent Escrow Matter, that "[t]he Court agreeing that rent escrow is not available to a commercial tenant under the Landlord/Tenant Act, ordered the escrow to be terminated. At [MKJAS Properties] request, all monies were returned to Defendant, as Plaintiff declined to accept the money for payment of rent." {¶ 16} As for the FED Action, the magistrate recommended that MKJAS Properties' FED claim seeking restitution of the premises be denied and that the case be dismissed. The magistrate concluded that MKJAS Properties "did not fulfill its burden of proving that [Blissful Blooms] defaulted on the Lease willfully and in bad faith." In reaching this determination, the magistrate noted that there were uncertainties created by the language of the parties' Lease Agreement as to who was responsible for repairs to the premises, especially after the premises sustained damages from a car crashing into it. The magistrate noted: [t]he Lease states that Defendant is not to make "any alterations, additions, or improvements, in, to or about the premises." . . . If Defendant cannot make alterations, additions or improvements, then this means that the Plaintiff makes repairs that alter, add onto or improve the premises, including repairs when the Premises is damaged by a car in the parking lot controlled by Plaintiff. The Lease states that when repairs are necessary for destruction of the Premises, Defendant is permitted to proportionately reduce [its] rent based on the extent that the repairs needed interfere with [its] business. [See Section 13.] When Plaintiff failed to make alterations or improvements to address Defendant's concerns, Defendant began depositing [its] rent with the Court prior to the September 2025 rent payment coming due. The question is whether this withholding of the rent created a default situation wherein Plaintiff is entitled to an eviction order. ... Certainly, Defendant has an obligation to pay monthly rent, but the amount is subject to modification based upon circumstances wherein there may be a partial destruction of the Premises. -8-  Butler CA2026-02-016 ... Plaintiff failed to provide any evidence regarding the proportionality of the withheld rent to the items in need of repair. It merely denied all responsibility to repair any item on the premises. It is Plaintiff's burden to prove by a preponderance of the evidence that withholding rent equal to the amount owed monthly was not proportionate to the complaints. Certainly, Defendant was entitled to deduct some portion of [its] rent until repairs were completed, at least repairs due to the accident damage to the building; however, that amount of deduction is unknown as no evidence was presented on the issue. {¶ 17} The magistrate further found that Hooks, on behalf of Blissful Blooms, had "deposited . . . rent with the Court in good faith to mediate the concerns that [it] had with the conditions of the Premises. Hooks made a good faith effort to pay her rent into the Court." The magistrate took issue with MKJAS Properties' decision to file for eviction, stating, "[Hooks] was unaware that rent escrow applications did not apply to [Blissful Blooms] as a commercial tenant, and [MKJAS Properties] did not make her aware of this fact prior to seeking an order to evict. . . . Plaintiff failed to give Defendant pertinent information that would have allowed [it] time to cure the rent default in a timely manner as provided in the Lease." The magistrate indicated that Blissful Bloms had "21 days from the date that [Hooks] escrowed rent was returned . . . under RE2500004 in which to become current with [its] rent." {¶ 18} On January 8, 2026, the trial court adopted the magistrate's decision. 2 MKJAS Properties timely appealed the trial court's decision, raising five assignments of 2. MKJAS Properties filed objections to the magistrate's decision. However, the court declined to consider the objections, stating, "[t]he Court being fully advised in the premises of the Decision of Magistrate and no objection thereto being allowed in an action for forcible entry and detainer, it is Ordered that the Decision of the Magistrate upon the whole issue shall stand as the decision of the Court[.]" (Emphasis added.) As this court recently explained, "the objection provisions of Civ.R. 53(D)(3)(b) are, by their nature, 'clearly inapplicable' to FED proceedings due to their summary nature." Suburban Realty, L.P. v. MD Vape & Tobacco, L.L.C., 2023-Ohio-3198, ¶ 30 (12th Dist.), quoting Civ.R. 1(C). -9-  Butler CA2026-02-016 error for review. Because they are related, we address MKJAS Properties' first four assignments of error together. III. ANALYSIS {¶ 19} Assignment of Error No. 1: {¶ 20} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DISREGARDED THE ESSENTIAL PURPOSE OF FORCIBLE ENTRY AND DETAINER ACTION'S FIRST CAUSE OF ACTION: TO DETERMINE WHETHER OR NOT RENT HAS BEEN PAID. {¶ 21} Assignment of Error No. 2: {¶ 22} THE TRIAL COURT ERRED IN PERMITTING APPELLEE TO USE R.C. 5321.0[7]—A STATUTE LIMITED TO USE BY RESIDENTIAL TENANTS—TO FULLY EXCUSE APPELLEE'S [UN]TIMELY PAYMENT OF RENT. {¶ 23} Assignment of Error No. 3: {¶ 24} THE TRIAL COURT ERRED BECAUSE RENT ABATEMENT OR SIMILAR CLAIMS MUST BE ASSERTED AS A COUNTERCLAIM OR AN INDEPENDENT CLAIM, NOT MERELY AS A DEFENSE, BECAUSE SUCH CLAIMS ARE BASED ON AN ALLEGED BREACH OF DUTY, WHICH IS AN INDEPENDENT ISSUE. {¶ 25} Assignment of Error No. 4: {¶ 26} THE TRIAL COURT ERRED BECAUSE ITS DECISION IGNORES THE EVIDENCE PRESENTED; ANY ALLEGED BREACH BY MKJAS [PROPERTIES] WAS NOT MATERIAL, WHEREAS BLISSFUL' S BREACH WAS MATERIAL. {¶ 27} MKJAS Properties challenges the trial court's decision to deny its cause of action for forcible entry and detainer, contending that the court's decision was against the manifest weight of the evidence. MKJAS Properties argues the evidence demonstrated Blissful Blooms materially breached the Lease Agreement by defaulting in payment of its - 10 -  Butler CA2026-02-016 rent obligation. It further argues that the trial court erred by excusing Blissful Blooms nonpayment of the September 2025 rent based on Hooks' erroneous belief that R.C. 5321.07 applied to commercial leases. MKJAS Properties contends that the trial court erred in denying its cause of action for forcible entry because the "trial court's decision excused Blissful's nonpayment of rent, based on a breach of contract that was never pleaded as part of a separate complaint or counterclaim." We agree with MKJAS Properties' arguments and find that the trial court erred by denying the FED action. A. Proceedings Under R.C. Chapter 1923 {¶ 28} R.C. Chapter 1923 governs actions in forcible entry and detainer. "A forcible entry and detainer action is a summary proceeding 'provided by statute and intended to affect only the question of the present right to possess real property.'" Hamilton Brownfields Redevelopment, LLC v. Duro Tire & Wheel, 2004-Ohio-1365, ¶ 14 (12th Dist.), quoting Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 130-131 (1981), superseded on other grounds by statute as stated in Miele v. Ribovich, 2000- Ohio-193. An FED action "is intended to serve as an expedited mechanism by which an aggrieved landlord may recover possession of real property." Miele at ¶ 10. Such an action "determines the right to immediate possession of the property and nothing else." Seventh Urban, Inc. v. Univ. Circle Property Dev., Inc., 67 Ohio St.2d 19, 25, fn. 11 (1981). {¶ 29} Pursuant to R.C. 1923.01(A), any judge of a county or municipal court or a court of common pleas, within the judge's proper area of jurisdiction, may inquire about persons who make unlawful and forcible entry into lands or tenements and detain them, and about persons who make a lawful and peaceable entry into lands or tenements and hold them unlawfully and by force. If, upon the inquiry, it is found that an unlawful and forcible entry has been made and the lands or tenements are detained, or that, after a lawful entry, lands or tenements are held unlawfully and by - 11 -  Butler CA2026-02-016 force, a judge shall cause the plaintiff in an action under this chapter to have restitution of the lands or tenements. An FED action may be pursued "[a]gainst tenants who have breached an obligation imposed upon them by a written rental agreement." R.C. 1923.02(A)(9). To prevail in a FED action, the plaintiff must prove that (1) it met the procedural requirements and properly served the tenant with notice of the eviction; (2) it has the right to possess the premises; and (3) the tenant does not have the right to possession. Garb-Ko, Inc. v. Benderson, 2013-Ohio-1249, ¶ 54 (10th Dist.); Northwest Ctr. Holdings, L.L.C. v. Simon, 2024-Ohio-1705, ¶ 9 (2d Dist.). Furthermore, as a "lease is a contract . . . the laws and remedies concerning breach of contract govern leases." Hartley v. Brown Publishing Co., 2006-Ohio-999, ¶ 15 (12th Dist.). {¶ 30} An appellate court reviews a trial court's decision to grant or deny an order of eviction under a manifest-weight-of-the-evidence standard of review. Cuyahoga Metro. Hous. Auth. v. Davis, 2011-Ohio-6162, ¶ 13 (8th Dist.); Suburban Realty, 2023-Ohio-3198 at ¶ 37 (12th Dist.). "When considering a challenge to the manifest weight of the evidence, this court weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created a manifest miscarriage of justice warranting reversal and a new trial ordered." Id. at ¶ 38, citing Hacker v. House, 2015-Ohio-4741, ¶ 21 (12th Dist.). See also Eastly v. Volkman, 2012-Ohio-2179, ¶ 20. "A judgment will not be reversed as being against the manifest weight of the evidence where the 'judgment is supported by some competent, credible evidence going to all essential elements of the case.'" Suburban Realty at ¶ 38, quoting Ashburn v. Roth, 2007-Ohio-2995, ¶ 26 (12th Dist.). An appellate court generally defers to the trier of fact on issues of credibility. Frisby v. Solberg, 2016-Ohio-7644, ¶ 8 (12th Dist.). - 12 -  Butler CA2026-02-016 {¶ 31} In the present case, MKJAS Properties presented a written agreement between itself and Blissful Blooms that, by its express terms, called for rent to be paid on the first of each month. Both Ross's and Hooks' testimony established that MKJAS Properties was not paid the September 2025 rent. Once rent was past due, on September 3, 2025, MKJAS Properties served a notice of default for the failure to pay the September rent on Blissful Blooms, by both mail and email. In accordance with Section 14 of the Lease Agreement, after more than 10 days passed without Blissful Blooms curing its default, MKJAS Properties served Blissful Blooms with a notice to vacate the premises. The notice to vacate was posted on the door of the leased premises on September 16, 2025. MKJAS Properties established, through its exhibits and Ross's testimony, that it had met the procedural requirements and properly served Blissful Blooms with notice of the eviction, that it had the right to possess the premises, and that Blissful Blooms did not have the right to possess the premises. The manifest weight of the evidence supported an order of restitution of the premises to MKJAS Properties. B. R.C. Chapter 5321 Inapplicable to Commercial Leases {¶ 32} As the trial court correctly noted, R.C. Chapter 5321 does not apply to commercial leases. See Maggiore v. Kovach, 2004-Ohio-722, ¶ 15-20; Watts v. Fledderman, 2018-Ohio-2732, ¶ 31 (1st Dist.). As such, R.C. 5321.07(B)(1), which permits a residential tenant to deposit, or escrow, rent with the clerk of courts if a residential landlord does not remedy various conditions imposed by R.C. 5321.04, was not an available remedy for Blissful Blooms. "In limiting the definitions of 'tenant' and 'landlord' in R.C. Chapter 5321 to encompass only tenants and landlords of residential property, the General Assembly excluded from such definitions tenants and landlords of commercial property." (Emphasis in original.) Kovach at ¶ 18. Because Blissful Blooms was a commercial tenant/lessee, it could not invoke R.C. 5321.07 to escrow rent based - 13 -  Butler CA2026-02-016 on MKJAS Properties' alleged failure to remedy previously reported conditions. As discussed more fully below, Hooks' mistaken attempt to utilize R.C. 5321.07 to escrow rent does not excuse Blissful Blooms' failure to pay rent in accordance with the terms of the Lease Agreement. Rather, Blissful Blooms' failure to pay rent in accordance with the terms of the Lease Agreement amounted to a material breach of the parties' contract. See, e.g., Below Clearance, L.L.C. v. Refugee Road, Ltd., 2006-Ohio-6562, ¶ 57-58 (5th Dist.) (court did not err in finding commercial tenant's obligation to pay rent was an essential purpose of the lease and tenant's failure to pay rent constituted material breach); Paeonian Enterprises, L.L.C. v. Fitworks Holding, L.L.C., 2026-Ohio-379, ¶ 21 (1st Dist.). C. Unpled Counterclaim Does Not Defeat an FED Action {¶ 33} The trial court, in adopting the magistrate's decision, excused Blissful Blooms' nonpayment of rent on the basis that MKJAS Properties "failed to make alterations or improvements" to the leased property to address Blissful Blooms' reports of damage to the building or other maintenance issues. The court stated, in pertinent part, It is [MKJAS Properties'] burden to prove by a preponderance of the evidence that withholding rent equal to the amount owed monthly was not proportionate to the complaints. Certainly, [Blissful Blooms] was entitled to deduct some portion of [its] rent until repairs were completed, at least repairs due to the accident damage to the building; however that amount of deduction is unknown as no evidence was presented on the issue. However, Blissful Blooms had not filed a counterclaim for breach of contract or rent abatement and did not set forth a claim for declaratory judgment to determine the parties' rights and obligations under the Lease Agreement. {¶ 34} As this court recently explained, when a party's complaint asserts not only an FED claim but also a claim for rent owed, a responding tenant must assert compulsory counterclaims within 28 days of service of the summons and complaint. Suburban Realty, - 14 -  Butler CA2026-02-016 2023-Ohio-3198, at ¶ 61-65 (12th Dist.). See also Adams v. Romine, 2019-Ohio-482, ¶ 26 (5th Dist.) (recognizing that "when a landlord sues for back rent or money damages, the tenant has a Civil Rule 13[A] duty to assert any compulsory counterclaim in the action"). A counterclaim cannot be raised for the first time at trial. Suburban Realty at ¶ 72-76, discussing R.C. 1923.061(A). {¶ 35} Blissful Blooms contends that at the hearing, it "assert[ed] affirmative defenses and present[ed] evidence that not only did [it] not breach the lease, but rather, it was [MKJAS Properties] that violated the very terms and conditions set forth in the lease." Though Blissful Blooms contends it asserted "affirmative defenses" which allowed it to prevail below, the record reflects that Blissful Blooms was actually attempting to assert a claim for rent abatement and/or breach of contract—both of which needed to be pled as compulsory counterclaims. {¶ 36} "The difference between a defense and a counterclaim is that 'the latter is affirmative in nature, and asserts a separate cause of action, while the former serves to preclude recovery by asserting facts that defeat the plaintiff's right to recovery.'" BAC Home Loans Servicing, L.P. v. Hall, 2010-Ohio-3472, ¶ 18 (12th Dist.), quoting Riley v. Montgomery, 1983 WL 4419, *2 (12th Dist. June 30, 1983). "An affirmative defense generally refers to that which is offered to defeat an action by 'denying, justifying, or confessing and avoiding the plaintiff's cause of action. It goes to the plaintiff's right and generally would not be considered an independent claim existing against the plaintiff.'" Id., quoting Riley at *2. "[R]ent abatement must be asserted as a tenant's claim or counterclaim, not as a defense to a landlord's action seeking unpaid rent, because its basis—the landlord's breach of its duty to maintain the property—is an independent claim that may exist even if the landlord never files an action." NW Ohio Servs. III, L.L.C. v. Thames, 2024-Ohio-5307, ¶ 18 (6th Dist.). - 15 -  Butler CA2026-02-016 {¶ 37} If Blissful Blooms believed it was entitled to a reduction of rent under Section 13 of the Lease Agreement's "Destruction of Premises" clause for the damage sustained to the premises' two back rooms, it was required to plead a counterclaim alleging such. Similarly, if Blissful Blooms believed MKJAS Properties was in violation of the lease for not maintaining or repairing the property or if questions existed about the parties' respective responsibilities to make repairs to the property, Blissful Blooms needed to file a counterclaim or action in declaratory judgment. Such claims, if timely and properly pled, could be heard at the same time the court heard evidence on MKJAS Properties' second cause of action seeking damages for unpaid rent.3 See R.C. 1923.081. The trial court could not, however, allow an unpled counterclaim for breach of contract or rent abatement to be inserted into the proceedings for forcible entry and detainer. D. Equitable Principles – Mistake vs. Negligence {¶ 38} Blissful Blooms argues that equitable principles disfavor evictions and that it "acted in good faith in attempting to address the repair issues through rent escrow mechanisms, believing it was an equitable remedy available to [its] business." "It is well established that equity abhors a forfeiture." Showe Mgt. v. Hazelbaker, 2006-Ohio-3619, ¶ 26 (12th Dist.). Furthermore, it has long been recognized that "equitable remedies may be used in contractual disputes to relieve a party from the consequences of mistake or wrongful conduct such as fraud or duress." Ashland Global Holdings, Inc. v. SuperAsh Remainderman, Ltd. Partnership, 2025-Ohio-2835, ¶ 16, citing Lucarell v. Nationwide 3. As previously discussed, when a party's complaint asserts not only an FED claim but also a claim for rent owed, a responding tenant must assert compulsory counterclaims within 28 days of service of the summons and complaint. Suburban Realty, 2023-Ohio-3198, at ¶ 61-65 (12th Dist.). Blissful Blooms was served with the summons and complaint on October 3, 2025. The hearing on MKJAS Properties' FED claim was held on October 24, 2025—only 21 days after service of the summons and complaint. As the 28 days allotted by Civ.R. 12(A)(1) for answering a complaint had not yet run, the trial court could not have determined the merits of MKJAS Properties' second cause of action seeking unpaid rent and property damages. See Smith v. Wright, 65 Ohio App.2d 101, 103 (8th Dist. 1979). - 16 -  Butler CA2026-02-016 Mut. Ins. Co., 2018-Ohio-15, ¶ 48 (a release may be avoided when "fraud, duress, or other wrongful conduct" is present) and Witherow v. Witherow, 16 Ohio 238, 242-243 (1847) (recognizing fraud, accident, and mistake as grounds for equitable relief in a contract dispute). Though "equitable defenses are sometimes applicable in contractual disputes," such defenses cannot be used "to alleviate the consequences of negligence." SuperAsh Remainderman at ¶ 19. That is to say that "while equity may sometimes excuse a mistake of fact, it will not excuse negligence." Id. at ¶ 2.4 {¶ 39} "[N]ot all mistakes are the type that justify equitable relief. In the context of equity, 'mistake' refers to a misapprehension of something (typically a fact) underpinning a contract." Id. at ¶ 21, citing Sloan v. Std. Oil Co., 177 Ohio St. 149, 151-152 (1964). "[A] mistake is a misunderstanding 'regarding a basic assumption on which the contract was made that frustrates the intent of the parties.'" Id., quoting Marchbanks v. Ice House Ventures, L.L.C., 2023-Ohio-1866, ¶ 15. "[A] 'mistake' means a misapprehension of the terms of the contract at the time of contract formation, not negligence or other mistaken beliefs that arise after the parties have entered into the contract." (Emphasis added.) Id. at ¶ 26. {¶ 40} A "mistake" should not be conflated with negligence. "Unlike mistake, negligence is 'the failure to exercise ordinary care.'" Id. at ¶ 23, quoting Concrete Pipe Co. v. Bassett, 130 Ohio St. 567 (1936). As the Supreme Court recently explained, "[i]f the means to correct a misunderstanding are at a person's disposal, then failing to investigate is a failure to exercise ordinary care that constitutes negligence—not mistake." Id. "[I]t is well-settled that a party's own negligence is not a basis for equitable relief." Id., 4. We recognize that the Supreme Court considered the equitable defense of "mistake" as it related to a commercial lessee's failure to timely exercise a renewal option in Ashland Global Holdings, Inc. v. SuperAsh Remainderman, Ltd. Partnership, 2025-Ohio-2835. Nonetheless, we find the principles of law discussed by the Supreme Court in SuperAsh Remainderman to be applicable in this context of this case, where the commercial tenant has claimed "mistake" in an effort to excuse their default in the timely payment of rent. - 17 -  Butler CA2026-02-016 citing Stevens v. Natl. City Bank, 45 Ohio St.3d 276, 285 (1989). "'Courts of equity give relief to the vigilant, not to the negligent.'" Crist v. Dice, 18 Ohio St. 536, 542, quoting 1 Story, Commentaries on Equity Jurisprudence, § 146 and notes. "[F