470 N.E.2d 164 | Ohio Ct. App. | 1983
Lead Opinion
This cause came on to be heard upon the appeal, transcript of the docket, journal entries and original papers from the County Court, Civil Division, Clermont County.
Two separate actions in forcible entry and detainer were brought by the plaintiff, Fay Gardens Mobile Home Park, in the Clermont County Court. One of the actions was against Richard and Peggy Hunt who, after denying the allegations contained in the complaint, claimed the defense of retaliation and the defense of failure of the plaintiff to offer the opportunity to sign a rental agreement for a minimum period of one year. The defendants, Richard and Peggy Hunt ("Hunts") also included in their answer a counterclaim for retaliation, a counterclaim for breach of an implied promise or warranty that the premises would be maintained in a habitable condition, a counterclaim for failure to keep the premises in a sanitary condition, and a counterclaim for failure to offer the opportunity to sign a rental *145 agreement for a minimum of one year. The total amount demanded in the counterclaim as damages was $8,100 plus reasonable attorney fees.
The other action in forcible entry and detainer was against one Edwin A. Newman who, in his answer, denied the allegations of plaintiff's amended complaint and set forth as defenses the claim that the complaint failed to state a cause of action upon which relief can be granted, that plaintiff, by accepting late payments of rent in the past had waived the right to evict him for late payment, and that the filing of the action was in retaliation for his joining and organizing with other tenants in order to deal collectively with plaintiff with regard to the condition of the premises. The answer of Newman also contained a counterclaim for retaliation, a counterclaim for breach of an implied warranty of habitability of the premises, a counterclaim for failure to maintain all septic systems, sanitary and storm sewers in working order, and a counterclaim for failure to permit the defendant to enter into a rental agreement for a minimum of one year. Newman demanded the sum of $1,765 as damages plus reasonable attorney fees.
The two cases were scheduled to be tried jointly and, prior to trial, the trial judge called the attention of counsel to the monetary jurisdiction of the county court, which was $3,000.
The attorney for Richard and Peggy Hunt said that, based on the information obtained by discovery, the counterclaim would be reduced to $4,398. He then pointed out that since there were two parties to the counterclaim, for purposes of jurisdiction, each party would claim one-half of the amount set forth in the counterclaim, and, on that basis, the court could award a total of $6,000 to the Hunts.
After objection by plaintiff's counsel, the trial judge informed the attorney for the Hunts that such a division of the claim was not possible, after which the attorney for the Hunts agreed to proceed on the premise that they would "agree to be legally limited to the three thousand" dollars if the jury came back with a verdict for more than $3,000.
During the pretrial discussion, the attorney for Newman consented to an order granting the plaintiff possession of the premises, but demanded the right to proceed on the counterclaim for retaliation. The case was tried before a jury which returned a verdict in favor of Newman in the sum of $1,500 plus attorney fees in the sum of $3,600.
The jury also returned a verdict in favor of the Hunts in the sum of $1,125 plus attorney fees in the sum of $3,600. The trial judge then ordered each verdict reduced to the sum of $3,000.
It is from the verdict of the jury as reduced by the trial judge that plaintiff appeals. The assignments of error are as follows:
"I. The trial court erred to the prejudice of plaintiff in overruling its motion for a directed verdict on the issue of retaliation against defendant Newman.
"II. The trial court erred to the prejudice of plaintiff in overruling its motion for judgment notwithstanding the verdict on the issue of retaliation against both defendants.
"III. The trial court erred to the prejudice of plaintiff in overruling its motion for a new trial.
"IV. The trial court erred to the prejudice of plaintiff in allowing, over its objection, the use of affidavits as to time spent on the case by the defendants' attorneys and the hourly rate of one of them."
Before responding to the plaintiff's assignments of error, we raise sua sponte the question of the jurisdiction of the trial court over the counterclaim of the Hunts. R.C.
"Under the restrictions and limitations of sections
Thus, the trial court was without jurisdiction to rule on plaintiff's motion for a directed verdict or to hear the counterclaim of the Hunts, as the entire action should have been certified to the court of common pleas. Richwood Homes, Inc. v.Brown (1981),
We will now turn our attention to the plaintiff's assignments of error as they apply to Newman, whose counterclaim appears on its face to have been within the monetary jurisdiction of the trial court.
In response to the plaintiff's fourth assignment of error, which we perceive to be an objection to the allowance of unreasonable attorney fees as well as an objection to the type of evidence which was presented to the jury in support of the claim of these fees, we find that the attempt of the attorney for Newman to charge the plaintiff the sum of $3,600 in fees raises serious legal and ethical questions. It is disturbing to see the practice of law evolve into a business that penalizes its adversaries. Certainly, no lawyer would expect to do so much work for his client in the defense of an action to evict the client from a mobile home park as to justify a fee of $3,600 for his services. Why, then, should he expect to charge so much when it is the adversary who pays? Is this to be in the form of a penalty? If so, we cannot condone such charges. R.C.
Also, the Code of Professional Responsibility does not permit fees that are in the form of a penalty for one's adversary. Instead, the code provides that fees must be reasonable and should be governed in part by the result obtained. If a fee charged a client must meet these requirements, the fee assessed against the adversary must likewise meet the same test. It has been held that if the recovery is zero, no attorney fees can be awarded even though the statute which gives rise to the action provides for the recovery of reasonable attorney fees. Dyche RealEstate Fund v. Graves (1978),
We now direct our attention to the question of whether the affidavit of Sherri Slovin, the attorney for Newman, was admissible into evidence for the purpose of establishing the time spent on Newman's case.1 *147
We observe that the affiant was available in the courtroom, but chose not to testify. Consequently, there was no cross-examination of counsel as to the number of hours expended, as to the need for the amount of time alleged to have been devoted to the case, or as to the need for the services of a professional for all of those hours. Thus, the affidavit was clearly hearsay as defined in Evid. R. 801(C), which reads as follows:
"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Therefore, the affidavit was not admissible into evidence. Evid. R. 802. Thus, the plaintiff's fourth assignment of error is well-taken and we sustain the same.
In the first assignment of error, plaintiff argues that a tenant, who is in default for nonpayment of rent cannot, after having consented to judgment against him in the forcible entry and detainer action, maintain an action based on a counterclaim for retaliation. However, Newman maintains that although retaliation may not be a defense to a forcible entry and detainer action, it nonetheless constitutes a valid counterclaim even though the claimant is in default in the payment of rent.
R.C.
"* * * In an action for possession of residential premises based upon nonpayment of the rent or in an action for rent when the tenant is in possession, the tenant may counterclaim for any amount he may recover under the rental agreement or under Chapter 3733. or 5321. of the Revised Code. * * *"
Consequently, since a house trailer, or mobile home, is the subject of the action, we must examine the provision of R.C. Chapter 3733 in order to determine whether a counterclaim for retaliation can be maintained against the plaintiff under these circumstances. If the claim for retaliation is permitted under R.C. Chapter 3733, a counterclaim for retaliation is proper in an action for forcible entry and detainer under R.C. Chapter 1923.
R.C.
R.C.
We find that the General Assembly has failed to make specific provisions for the tenant to maintain an action for damages for retaliation in response to an action for possession based on non-payment of rent. This failure, coupled with the statutory language which provides that the prohibitions against retaliation are subject to the operator's right to evict for the tenant's default in the payment of rent, indicates to us a legislative intent to preclude the tenant's recovery of damages for retaliation in the park operator's action for possession, if the tenant is in default in the payment of rent. Consequently, we hold that the trial court erred in failing to direct a verdict in favor of the plaintiff. Therefore, plaintiff's first assignment of error is sustained.
In view of our response to the first assignment of error, we find the second and third assignments of error moot.
Since we have determined that the trial court did not have jurisdiction over the action against the Hunts, our response to the cross-appeal is limited to the cross-appeal of Newman.
In his first assignment of error on cross-appeal, Newman argues that the trial court erred in reducing the verdict of the jury to the court's jurisdictional limit of $3,000. Newman contends that attorney fees are in the nature of costs and, therefore, should not be included in determining the jurisdictional limit of the court. We disagree.
We concur with the Franklin County Court of Appeals which held in Dyche Real Estate Fund v. Graves, supra, that the award of attorney fees under R.C.
In Newman's second assignment of error on cross-appeal, he asserts that the trial court erred in denying his motion for additional attorney fees. Newman argues that attorney fees accrued for time expended on post-trial motions are also recoverable under R.C.
Without addressing the specific issue raised, we hold that the assignment of error is not well-taken for the reasons stated in our holding relative to the plaintiff's fourth assignment of error. Again, Newman has submitted evidence of attorney fees by way of affidavit. This is not permissible. Accordingly, Newman's second assignment of error on cross-appeal is not well-taken and is overruled. Further, for the reasons given in our response to the first assignment of error, this assignment of error is moot.
The assignments of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment herein appealed from be, and the same hereby is, reversed as to Newman, and that final *149 judgment be entered for the plaintiff; and that the judgment appealed from as to the Hunts be reversed and that the cause be remanded to the trial court for certification to the court of common pleas.
Judgment reversed and cause remanded.
HENDRICKSON, P.J., and JONES, J., concur.
WHITESIDE, J., dissents.
WHITESIDE, J., of the Tenth Appellate District, sitting by assignment in the Twelfth Appellate District.
Dissenting Opinion
Being unable to concur in the conclusions reached by the majority, I must respectfully dissent from portions of the judgment, although I concur in some of the conclusions reached by the majority but write separately thereon.
Case No. 1088 involves an eviction action brought by plaintiff Fay Gardens Mobile Home Park against defendant Newman, the original ground for eviction being solely nonpayment of rent by defendant. An answer was filed by Newman essentially admitting nonpayment of rent but alleging tender of rent, as well as raising the defense of retaliation. Newman filed a counterclaim seeking damages in the amount of $1,765 from plaintiff, as well as alleging a claim for retaliation.
Subsequently, plaintiff filed an amended complaint repeating the allegations of the original complaint, together with a new claim for possession predicated upon termination of Newman's month-to-month tenancy by appropriate notice. Defendant filed essentially the same answer and counterclaim to the amended complaint, denying, in addition, effective termination of the tenancy.
Case No. 1089 involves a similar action commenced by plaintiff Fay Gardens Mobile Home Park against defendants Richard and Peggy Hunt. They filed a joint answer and counterclaim, raising as defenses a general denial, retaliation and violation by plaintiff of R.C.
These two actions, together with several others brought by plaintiff, were consolidated by order of the trial court. A lengthy jury trial ensued, resulting in a consent judgment for plaintiff upon its eviction claim against Newman, but a verdict in favor of Newman against plaintiff on his counterclaim for damages in the amount of $1,500, plus attorney fees in an amount of $3,600, and a judgment in favor of the Hunts and against plaintiff upon its complaint for possession of the premises upon their counterclaim against plaintiff, finding damages in the amount of $1,125 and attorney fees in the amount of $3,600. Subsequently, the trial court ordered the judgments reduced to the monetary jurisdiction of $3,000, including attorney fees, in each of the cases and assessed the costs equally against the parties.
From these judgments, plaintiff appeals and raises four assignments of error as follows: *150
"I. The trial court erred to the prejudice of plaintiff in overruling its motion for a directed verdict on the issue of retaliation against defendant Newman.
"II. The trial court erred to the prejudice of plaintiff in overruling its motion for judgment notwithstanding the verdict on the issue of retaliation against both defendants.
"III. The trial court erred to the prejudice of plaintiff in overruling its motion for a new trial.
"IV. The trial court erred to the prejudice of plaintiff in allowing, over its objection, the use of affidavits as to time spent on the case by the defendants' attorneys and the hourly rate of one of them."
Defendants Newman and the Hunts have also appealed and raise two assignments of error as follows:
"I. The trial court erred in ordering a reduction of the judgment to Three Thousand Dollars ($3,000) for each defendant.
"II. The trial court erred in denying the defendants' motion for additional attorneys' fees and in ordering that costs be divided equally among the parties."
The determinative issue decided by the majority with respect to the appeal of plaintiff as to defendants Richard and Peggy Hunt was not raised by the assignments of error of the parties. The majority finds that all action by the trial court is void since the counterclaim of the Hunts exceeded the monetary jurisdiction of the trial court. I respectfully disagree.
R.C.
R.C.
"When the amount due either party exceeds the sum for which a county court is authorized to enter judgment, such party may in writing remit the excess and judgment be entered for the residue. Any party defendant may, at his option, withhold setting up any statement of counterclaim and make the same the subject of a separate action."
This is similar to Civ. R. 13(J), which provides that: "In the event that a counterclaim, cross-claim, or third-party claim exceeds the jurisdiction of the court, the court shall certify the proceedings in the case to the court of common pleas."
Apparently, the jurisdictional problem was overlooked by the parties and the trial court until the time of trial. The *151
trial court noted this jurisdictional problem to the parties, and counsel for the Hunts indicated that the counterclaim would be reduced to $4,398 but asserted that one-half of that amount would be claimed each by Richard Hunt and Peggy Hunt so that it would be within the monetary jurisdiction. The trial court quickly, and properly, indicated that, under the circumstances, the Hunts presented a single joint claim so that the total monetary jurisdiction could not exceed $3,000. Thereupon, counsel for plaintiff moved to dismiss the counterclaim as being in excess of the monetary jurisdiction. Defendants Richard and Peggy Hunt at that point agreed that the verdict would not exceed $3,000, even if evidence should be adduced for more. While counsel for plaintiff objected, still asking for dismissal of the counterclaim, the trial court allowed the case to proceed apparently upon authority of R.C.
Clearly, the Hunts agreed to remit the excess of any amount due them over the monetary jurisdiction of the trial court, and that judgment would be entered only for the residue, namely, $3,000, the monetary jurisdiction, in the event that the amount due would be found to exceed that amount. While this was not done in writing, it was in open court on the record. See Civ. R. 7(B) and 54(C). Unfortunately, R.C.
R.C.
While there may be a mandatory duty upon the county court to certify the proceedings to the court of common pleas, a failure to do so is not jurisdictional but, instead, error. In rejecting the claim that certification and loss of jurisdiction is automatic upon the filing of the counterclaim, the Eighth District Court of Appeals noted that a contrary rule would allow any defendant wishing to avoid jurisdiction of a particular court to deprive that court of jurisdiction by filing a pleading asserting a counterclaim for an amount in excess of the monetary jurisdiction of the court, whether or not the counterclaim in fact stated a claim for relief. Thus, the transfer of jurisdiction is not automatic but must be accomplished by an affirmative act of the county court. Until that court acts, there is no loss of jurisdiction by the county court, instead it retains jurisdiction. While the determination of the case on its merits would constitute error, if certification be required, it would not be for want of jurisdiction so long as the judgment did not exceed the monetary jurisdiction of the court.
Here, pursuant to the statutory provision, the Hunts remitted the excess of the claim above the jurisdictional limitations of the trial court when the question of necessity of the certification to the court of common pleas was raised. That the requirement of certification is procedural, rather than jurisdictional, is *152
evinced by Civ. R. 13(J), inasmuch as the Civil Rules are procedural in nature only and do not affect or limit jurisdiction as is expressly stated in Civ. R. 82. Jurisdiction of the county court over the action vested upon the filing of plaintiff's complaint. The court is not divested of that jurisdiction by virtue of the filing of a counterclaim by a defendant seeking damages in excess of the monetary jurisdiction of the county court. At this point, there is a procedural dilemma in that the county court has jurisdiction over plaintiff's claim but does not have monetary jurisdiction over that of the defendants asserted in a cross-claim. Procedurally, a remedy could be provided merely by dismissing the counterclaim as exceeding the court's jurisdiction. However, Civ. R. 13(J), as does R.C.
R.C.
Turning to the assignments of error raised by the parties, I concur in the sustaining of plaintiff's first assignment of error, essentially for the reasons set forth in the majority opinion. R.C.
The sustaining of the first assignment of error, however, does not render moot the second and third assignments of error as to Newman, nor does it apply to the action for retaliatory conduct under R.C.
While as a practical matter, as to Newman, the issue raised was disposed of by sustaining the first assignment of error, a slightly different issue and reason for sustaining the third assignment of error as to Newman is more appropriate. Plaintiff correctly points out that the verdict of the jury for Newman was essentially equivalent to the amount of rent he paid during his tenancy. Plaintiff in effect concedes that there was a *153
cause of action asserted and found by the jury to have been proved by Newman for reduction in rental value of the premises, predicated upon the premises' condition being in violation of R.C.
As to the Hunts, however, the third assignment of error is not well-taken. The judgment as to the Hunts is supported by competent credible evidence both as to retaliation pursuant to R.C.
Plaintiff's fourth assignment of error raises the issue of attorney fees as does the defendants' joint first assignment of error. Plaintiff contends that there was improper and insufficient evidence with respect to attorney fees which were determined by the jury; defendants contend that the matter of attorney fees is to be considered and determined by the court because they are in the nature of costs, rather than damages. Both contentions are well-taken.
In finding the determination of attorney fees to be damages which are submitted to the jury for determination, the majority relies upon the Tenth Appellate District case of Dyche RealEstate Fund v. Graves (1978),
"Traditionally, when a statute authorizes the award of attorneys' fees, it does so by allowing the fees to be taxed as costs. See, e.g., R.C.
"We find a similar approach to be appropriate here. The statutory language regarding damages and fees provides for an award of `actual damages together with reasonable attorneys' fees' (emphasis added), R.C.
R.C.
Although affidavits are appropriate under some circumstances, here plaintiff objected and asserted the lack of opportunity to cross-examine the witnesses. Thus, the affidavits were insufficient under the circumstances, especially in light of the amount of the fees involved, which exceeded the monetary jurisdiction of the trial court, which is questionable even if the amount of costs, including fees, be excluded in determining whether the action falls within that monetary jurisdiction. As to Newman, some of the time may well have been spent in preparing to defend or ascertaining the disposition of the eviction action itself. Thus, plaintiff's fourth and defendants' first assignments of error are well-taken.
Defendants' second assignment of error is not well-taken with respect to additional attorney fees as to subsequent matters. However, there appears to be no basis for dividing the costs between the parties, especially in the case of the Hunts, who prevailed on all issues. The original judgment did not provide for splitting the costs but assessed them against plaintiff. No explanation is given by the trial court for dividing the costs in the subsequent entry overruling the motion for new trial. Defendants' second assignment of error is well-taken with respect to the modification of the original judgment so as to divide the court costs among all parties.
For the foregoing reasons, plaintiff's first and fourth assignments of error should be sustained, and its second and third assignments of error should be sustained as to Newman in case No. 1088 but overruled as to the Hunts in case No. 1089; and defendants' first assignment of error should be sustained, and their second assignment of error sustained in part and overruled in part. The judgment of the Clermont County Court in case No. 1088 should be reversed as to the issues of damages and attorney fees and affirmed in all other respects, and the cause remanded to that court for a new trial upon the issue of damages and for a new determination of attorney fees. The judgment of the Clermont County Court in case No. 1089 should be affirmed except as to the *155 determination of attorney fees, and that part of the judgment relating to attorney fees should be reversed, and the cause should be remanded to that court for a redetermination of the amount of attorney fees to be awarded as part of the costs of the action.