STACY ALCOROSO v. JASON B. CORRELL
No. 109166
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
October 1, 2020
[Cite as Alcoroso v. Correll, 2020-Ohio-4752.]
FRANK D. CELEBREZZE, JR., J.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
RELEASED AND JOURNALIZED: October 1, 2020
Civil Appeal from the Rocky River Municipal Court Case No. 17CVF2706
Appearances:
Ali Mustafa, for appellant.
Law Offices of Brent L. English, and Brent L. English, for appellee.
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Plaintiff-appellant Stacy Alcorso1 (“Alcorso”) brings the instant appeal challenging the trial court’s denial of her motion for attorney fees and motion to tax
I. Factual and Procedural History
{¶ 2} Alcorso entered into a written lease agreement to rent a home located at 4117 W. 217th Street, Fairview Park, Ohio (“premises”) from defendant-appellee Jason Correll (“Correll”). Pursuant to the terms of the lease, Alcorso paid Correll a security deposit in the amount of $1,200. At the end of the lease agreement, Alcorso vacated the premises; Correll subsequently sent hеr a letter with an itemization of the alleged damage and repairs made to the premises. Alcorso objected to the claimed damage and repairs and demanded the return of her full security deposit, which Correll refused.
{¶ 3} On December 26, 2017, Alcorso filed a complaint in the Rocky River Municipal Court seeking the return of her security deposit, double damages, and attorney fees pursuant to
{¶ 4} On August 6, 2019, Alcorso filed (1) a motion to tax costs seeking $1,143.06 for the costs of Correll’s deposition and Alcorso’s expert witness; and (2) a motion for attorney fees seeking $11,150. Correll did not file a brief in opposition to
{¶ 5} On October 14, 2019, Alcorso filed the instant appeal and raises the following assignments of error for our review:
I. The trial court erred when it determined that attorney fees pursuant to
R.C. 5321.16(C) was a question for the jury and refused to tax attorney fees as costs.II. The trial court abused its discretion when it failed to order any attorney fees to be taxed as costs and denied the tenant’s litigation expenses to be awarded as costs when a portion of the security deposit was improperly withheld by the landlord in violation of
R.C. 5321.16 .III. The trial court erred when it failed to make an award of statutory damages in accordance with
R.C. 5321.16(C) .IV. The judgment was against the manifest weight of the evidence.
II. Law and Analysis
{¶ 6} For ease of analysis, we will address the assignments of error out оf order.
A. Manifest Weight of the Evidence
{¶ 7} In her fourth assignment of error, Alcorso argues that the judgment was against the manifest weight of the evidence.
{¶ 9} “A verdict supported by some competent, credible evidence going to all the essential elements of the case must not be reversed as being against the manifest weight of the evidence.” Swoope v. Osagie, 2016-Ohio-8046, 76 N.E.3d 686, ¶ 25-26 (8th Dist.), citing Domaradzki v. Sliwinski, 8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, ¶ 6; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. “Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offеred in a trial, to support one side of the issue rather than the other.”’ Swoope at ¶ 26, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990).
{¶ 10}
{¶ 11} The Supreme Court of Ohio has recognized that in enacting
{¶ 12} Additionally,
{¶ 13} With respect to the recovery of double damages under
There is no requirement that a conscious, deliberate, or intentional attempt to cause harm be proved in order to recover statutory double damages pursuant to
R.C. 5321.16(C) . * * * Thus, to recover double damages underR.C. 5321.16(C) the tenant need prove only that the security deposit, or some portion thereof, has been wrongfully withheld. * * *The double damages recoverable under
R.C. 5321.16(C) are simply a measure of the damages allowable and are akin to liquidated damages rаther than punitive damages. These additional damages serve to compensate injured tenants for the temporary loss of the use of that money given to the landlord as a security deposit and for the time and inconvenience of having to sue for the recovery of money wrongfully withheld. In addition, the possibility of double damages creates an incentive for landlords to comply with the law.
Klemas v. Flynn, 66 Ohio St.3d 249, 251-252, 611 N.E.2d 810 (1993).
{¶ 14} This matter proceeded as a jury trial. The jury instructions utilized in this case were submitted by Correll and drawn from OJI. They stated in pertinent part:
If you find by the greater weight of the evidence that the defendant wrongfully withheld all or any part of the security deposit, then your verdict must be for the plaintiff and you will proceed to determine what amount of money should be awarded to the plaintiff. The amount wrongfully withheld is the amount of the security deposit plus any offset or deduction for excessive wear and tear.
On the other hand, if you find by the greater weight of the evidence that the defendant did not wrongfully withhold any part of the security deposit, then your verdict must be for the defendant.
If you find that the defendant wrongfully withheld all or any part of the security deposit, and if you find that the plaintiff provided to the defendant in writing her new or forwarding address, then you shall award to the plaintiff the money due to the plaintiff together with additional damages in the amount equal to the amount wrongfully withheld and reasonable attorney fees.
You shall not, however, permit this award of additional damages to affect your determination of the amount wrongfully withheld.
If you find that the defendant wrongfully withheld all or any part of the security deposit, but you find that the plaintiff did not provide in writing a new or forwarding address, then you shоuld award to the plaintiff only the money wrongfully withheld.
{¶ 15} We note that the transcripts that have been filed in this case reflect only the hearing on Alcorso’s post-judgment motions for attorney fees and costs and excerpts of the second day of trial, which included closing arguments, the jury charge, and the verdict. The transcript from all other parts of the trial was not filed in this case.
{¶ 16} However, the record in this matter contains all of the exhibits submitted at trial. Defendant’s Exhibit K was an email from Correll to Alcorso requesting her forwarding mailing address. Defendant’s Exhibit L was Alcorso’s email response to Correll wherein she provided her forwarding address. Thus, the jury had before it undisputed evidence that Alcorso had complied with the requirements of
{¶ 17} Consequently, once the jury found that Correll had wrongfully withheld part of the security deposit, it should have also determined that the undisputed evidence demonstrated that Alcorso provided her forwarding address, thus requiring the jury to award double damages2 and reasonable attorney fees.
{¶ 18} Because the jury failed to award the proper damages to Alcorso, we find that the verdict cannot be reconciled with the undisputed evidence in this matter and consequently, thе verdict was against the manifest weight of the evidence. Alcorso’s fourth assignment of error is sustained. The case is remanded for the trial court to impose double damages and award reasonable attorney fees, which will be discussed below.
{¶ 19} In her first assignment of error, Alcorso argues that the trial court erred when it determined that attorney fees pursuant to
{¶ 20} During the hearing on Alcorso’s motions, counsel for Alcorso and the trial court engaged in an extensive discussion regarding whether an award of attorney fees was appropriate. The trial court did not believe it had jurisdiction to rule upon the motion for attorney fees because the issue had been presented to the jury, which had not awarded any attorney fees. The trial court noted that the instructions provided to the jury stated that the jury had the option to award attorney fees and maintained that the decision of whether to award attorney fees and the amount thereof was solely in the province of the jury. The trial court further noted that Alcorso had not presented evidence of attorney fees for the jury to award.
{¶ 21} Alcorso argued that, pursuant to Ohio case law, the amount of attorney fees to award may be determined solely by the court and not by a jury. We agree. See Christe v. GMS Mgt. Co., 88 Ohio St.3d 376, 726 N.E.2d 497 (2000); Oldendick v. Crocker, 2016-Ohio-5621, 70 N.E.3d 1033, ¶ 29 (8th Dist.).
{¶ 22} With respect to the recovery of attorney fees under
{¶ 23} The Christe court observed that the legislature did not include express language in
{¶ 24} Pursuant to our analysis of Alcorso’s fourth assignment of error, the jury was presented with undisputed evidence that Alcorso provided Correll with her forwarding address in writing, thus requiring an award of additional damages and reasonable attorney fees under
C. Costs under Civ.R. 54(D)
{¶ 25} In her second assignment of error, Alcorso argues that the trial court abused its discretion in failing to award attorney fees and litigation expenses as costs. We have addressed the attorney fees award in the previous assignment of error and thus will only аnalyze the litigation expenses.
{¶ 26} In her motion to tax costs pursuant to
{¶ 27}
{¶ 29} Alcorso argues that the trial court abused its discretion by refusing to award the costs for her expert witness and expenses related to Correll’s deposition. First, Alcorso’s argument regarding the costs related to hеr expert witness is without merit. The Supreme Court of Ohio has held that, absent statutory directive, a trial court should not tax an expert witness’s fees as costs. Naples v. Kinczel, 8th Dist. Cuyahoga No. 89138, 2007-Ohio-4851, ¶ 11, citing Moore v. Gen. Motors Corp., Terex Div., 18 Ohio St.3d 259, 260, 480 N.E.2d 1101 (1985); Bates v. Ricco, 8th Dist. Cuyahoga No. 74982, 1999 Ohio App. LEXIS 5452 (Nov. 18, 1999).
{¶ 30} With regard to the deposition expenses, Alcorso contends that
{¶ 31} We therefore find no abuse of discretion in the court’s denial of Alcorso’s motion to tax costs. Alcorso’s second assignment of error is ovеrruled.
{¶ 32} Finally, our resolution of Alcorso’s fourth assignment of error renders her third assignment of error moot.
III. Conclusion
{¶ 33} The jury’s verdict was against the manifest weight of the evidence insofar as the jury failed to award statutory double damages and reasonable attorney fees in this matter. In addition, the trial court erred in denying Alcorso’s motion for attorney fees. Finally, the trial court did not err in denying Alcorso’s motion to tax costs.
{¶ 34} Judgment affirmеd in part and reversed in part. This matter is hereby remanded to the trial court to impose an award of double damages and reasonable attorney fees.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
FRANK D. CELEBREZZE, JR., JUDGE
SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE CONCURRING OPINION;
RAYMOND C. HEADEN, J., CONCURS WITH LEAD OPINION AND CONCURS WITH SEPARATE CONCURRING OPINION
SEAN C. GALLAGHER, P.J., CONCURRING:
{¶ 35} I concur with the lead opinion in this matter. I write to further address a few points.
{¶ 36} The jury found in favor of Alcorso on her complaint against Correll for the wrongful withholding of her security deposit, awarded her $446.19 as the amount wrongfully withheld, and found against Correll on the counterclaim. Alcorso claims that the trial court erroneously beliеved it could not award double damages and attorney fees pursuant to
{¶ 37} I concur with the majority’s determination that Alcorso’s damages award should have been doubled and that Alcorso should have been awarded attorney fees.
{¶ 38} As found by the majority, the undisputed evidence demonstrated that Alcorso provided her forwarding evidence, and therefore she was entitled to the additional damages. I further recognize that insofar as
{¶ 39} Furthermore, attorney fees under
{¶ 40} I also concur with the majority’s determination that the trial court did not err by denying Alcorso’s motion to tax litigation expenses as costs. Alcorso claims that the trial court abused its discretion in refusing to award litigation costs for the court reporter deposition fee, the cost of the deposition transcript of Correll, which was never filed, and the cost of the expert report/witness fee in this matter. I agree with the majority’s determination that the trial court did not abuse its discretion in denying the motion to tax these litigation costs because they are not expressly, statutorily permitted. See Vossman v. Airnet Sys., Inc., Slip Opinion No. 2020-Ohio-872, ¶ 6; Benda v. Fana, 10 Ohio St.2d 259, 227 N.E.2d 197 (1967), paragraph one of the syllabus; Centennial Ins. Co. v. Liberty Mut. Ins. Co., 69 Ohio St.2d 50, 50-51, 430 N.E.2d 925 (1982).
{¶ 41} As this court has previously recognized “in the absence of statutory authorization, deposition costs and other litigation expenses may not be properly taxed as costs.” Beal v. State Farm Ins. Co., 132 Ohio App.3d 203, 210, 724 N.E.2d
{¶ 42} Accordingly, I concur with the lead opinion.
Notes
It should be noted that a trial court has the authority under