Amon v. KeagyAmon v. Keagy
Judgment: Reversed and remanded.
Harry J. DePietro, 920 Washington Avenue, Girard, OH 44420 (For Plaintiff-Appellant).
Dick Keagy, pro se, 233 East Point Drive, S.E., Warren, OH 44484 (Defendant-Appellee).
COLLEEN MARY O‘TOOLE, J.
{¶1} Claudia Amon appeals from the judgment entry of the Girard Municipal Court, modifying the judgment of the magistrate in her small claims action against her former landlord, Dick Keagy, for failure to return her security and water deposits. We reverse and remand.
{¶2} Ms. Amon commenced this action by filing her complaint January 8, 2008, praying for seven hundred ninety dollars, interest at the statutory rate from November 30, 2007, and costs. The next day, she filed an amended complaint praying for fourteen hundred eighty dollars, evidently pursuant to
{¶3} The matter came on for trial February 5, 2008, before the trial court‘s magistrate. According to Ms. Amon‘s counsel, he was retained by her upon a chance meeting in the court‘s parking lot minutes before the commencement of trial. He never filed a notice of appearance.
{¶4} February 20, 2008, the magistrate filed his decision. He determined that Ms. Amon had failed to notify Mr. Keagy in writing of her new address, as required by
{¶5} The magistrate‘s decision was served upon the parties, but not upon Ms. Amon‘s attorney, evidently because the trial court‘s clerk was unaware of his representation, due to his failure to notice appearance. March 4, 2008, Mr. Keagy timely filed objections to the magistrate‘s decision, fundamentally challenging her right to damages, since she failed to give him written notice of her new address. Pursuant to
{¶6} March 5, 2008, the trial court filed its judgment entry, in which it determined that, since Ms. Amon never gave Mr. Keagy written notice of her new address, she was not entitled to damages under
{¶7} March 7, 2008, Ms. Amon, through counsel, moved the trial court for a transcript of the proceedings before the magistrate. The trial court denied this motion by a judgment entry filed March 11, 2008. March 14, 2008, Ms. Amon, through counsel, moved for a new trial, on the bases that Mr. Keagy had failed to serve her counsel with his objections to the magistrate‘s decision, and that her counsel was never served with that decision. Mr. Keagy opposed the motion for a new trial March 27, 2008.
{¶8} By a judgment entry filed March 28, 2008, the trial court denied Ms. Amon‘s motion for a new trial. First, it cited to its own local rule 14, for the proposition that a party must request, in writing, that any proceeding be recorded, and that Ms. Amon had failed to do so. It further noted that her counsel did not request that the trial court‘s reporter transcribe the February 5 trial before the magistrate, and did not request that the magistrate turn on the recording device in the courtroom. It further held that the failure by Ms. Amon‘s counsel to file a notice of appearance was the reason he had not received a copy of the magistrate‘s decision; and, that his failure to serve such notice upon Mr. Keagy absolved the latter from any duty to serve his objections upon counsel.
{¶10} Ms. Amon assigns the following errors on appeal:
{¶11} “[1.] The trial court erred as a matter of law and abused its discretion when it failed to recognize a landlord‘s actual knowledge of a former tenant‘s new residence location overrides the statutory requirement that a tenant provide her new address to her former landlord in order for the provisions of
{¶12} “[2.] The trial court denied Appellant due process and/or abused its discretion when it failed to record the trial held before Magistrate Mark S. Finamore on February 5, 2008.
{¶13} “[3.] The trial court Judge abused his discretion when he made findings and conclusions which were not only unsupported by evidence, but which were contrary to the uncontroverted evidence adduced at trial; as well as commenting on what he imagines did not take place at the proceeding at which he was not present, and of which, there is no record.
{¶15} Initially, we must determine whether jurisdiction exists for us to consider the errors assigned.
{¶16} “However, ‘(a) magistrate‘s decision shall indicate conspicuously that a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion (***), unless the party timely and specifically objects to that factual finding or legal conclusion as required by
{¶17} In this case, the magistrate‘s decision did not contain the language required by
{¶19} By her first assignment of error, Ms. Amon alleges the trial court abused its discretion in determining that she was not entitled to statutory damages under
{¶20}
{¶21} “(B) Upon termination of the rental agreement any property or money held by the landlord as a security deposit may be applied to the payment of past due rent and to the payment of the amount of damages that the landlord has suffered by reason of the tenant‘s noncompliance with section
{¶22} “(C) If the landlord fails to comply with division (B) of this section, the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorney fees.” (Emphasis added.)
{¶23} In this case, the magistrate found that Ms. Amon failed to give Mr. Keagy written notice of her new address, but that he had actual notice that she had moved across the street, and awarded her treble damages. The trial court rejected the magistrate‘s decision that Ms. Amon was entitled to any damages, relying on the last two sentences of
{¶24} “In fact, ‘the award of damages provided in
{¶25} Consequently, it was error for the trial court to reject the magistrate‘s conclusion that Ms. Amon was entitled to damages. She was. However, the magistrate erred in concluding she was entitled to treble damages. Rather, her damages are double, the amount of her deposits wrongfully withheld, less Mr. Keagy‘s damages.
{¶26} The first assignment of error has merit, to the extent indicated.
{¶27} Given our disposition of the first assignment of error, we decline to reach
{¶28} The judgment of the Girard Municipal Court is reversed, and this matter is remanded for further proceedings consistent with this opinion.
{¶29} It is the further order of this court that appellee is assessed costs herein taxed.
{¶30} The court finds there were reasonable grounds for this appeal.
MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.