JESSE RISCH, Plaintiff-Appellee/Counterclaim-Defendant, vs. TOYA SAMUEL, Defendant-Appellant/Counterclaim-Plaintiff.
APPEAL NO. C-190159; TRIAL NO. 17CV-29060
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 25, 2020
2020-Ohio-1094
Civil Appeal From: Hamilton County Municipal Court; Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded; Stuart L. Richards, for Plaintiff-Appellee/Counterclaim-Defendant; Charles H. Bartlett, Jr., for Defendant-Appellant/Counterclaim-Plaintiff.
{1} Toya Samuel1 appeals the judgment of the Hamilton County Municipal Court in this dispute with her former landlord, Jesse Risch. In two assignments of error, Samuel argues that the court erred by failing to award her attorney fees for Risch‘s improper attempt to recover possession of the premises and by failing to give her credit for a security deposit.
Background
{2} Beginning in 2011, Samuel‘s mother, Janie Samuel, rented the second and third floors of a building at 869 Hutchins Avenue to house disabled residents of a group home she operated. She paid $750 per month in rent.
{3} In April 2017, Risch purchased the building, and Janie Samuel continued to pay rent of $750 per month as a month-to-month tenant. Rent was due on the 15th of each month. The parties did not execute a written lease agreement.
{4} According to Risch, Janie Samuel agreed to pay $200 toward the property‘s quarterly water bill and she did so in June 2017. After Janie Samuel died in August 2017, Risch met Samuel for the first time and explained that her mother had been willing to pay $200 per quarter for the water bill.
{5} Samuel testified that she had been operating the group home with her mother for many years and her mother had never agreed to pay Risch any amount toward the property‘s water bills. But Samuel paid Risch $200 for the September 2017 quarterly water bill.
{6} In December, Risch approached Samuel with the most recent water bill in the amount of $427, and Samuel refused to pay any portion of it. On December 16, 2017, Samuel tendered the December rent payment of $750, but Risch refused to accept it because Samuel would not pay any portion of the water bill in addition to the rent. Risch advised Samuel that he was going to proceed with
{7} Less than a week later, on December 22, 2017, Risch filed for eviction and for monetary relief. On January 9, 2018, Samuel filed an answer and paid a rent bond of $750 to the clerk of courts.
{8} According to Samuel, all of her clients residing at Risch‘s property moved out by the end of January 2018. On February 10, 2018, Samuel rented a truck and paid three individuals $40 each to help her move. When she arrived at the property, she discovered that Risch had changed the locks and had left a note on the door asking that he be contacted for access. Samuel was unable to reach Risch so she went to the police department to report the situation. By the time Risch responded, Samuel had already released her helpers and had abandoned her effort to move out that day.
{9} After Risch changed the locks back, Samuel returned to the property on February 17 and began removing items from the second and third floors. After she moved a stove and refrigerator to her truck, Risch arrived and claimed that he owned the refrigerator. Although Samuel disputed Risch‘s ownership of the refrigerator, she returned it to the property. Samuel was unable to move her washer and dryer from the basement through the interior of the property because of the confines of the basement stairwell. And due to the placement of Risch‘s utility trailer on the driveway, the washer and dryer could not be moved from the exterior basement door to Samuel‘s truck. According to Samuel, she had no alternative other than to leave her washer and dryer behind.
{10} On February 27, 2018, Samuel filed a counterclaim against Risch for violations of
{11} After a bench trial, the trial court ruled in favor of Risch on his claim for unpaid rent for December 2017 and January 2018, awarding him $1,500. The court ruled in favor of Samuel on Risch‘s claims that Samuel owed him money for cleaning expenses, for damages that occurred to the property, and for water bills. The court denied both parties’ claims as to the refrigerator, finding that the evidence was insufficient to establish which party owned it.
{12} In addition, the court ruled in favor of Samuel on her counterclaim for conversion of the washer and dryer, awarding her $184 for the washer and dryer, and $120 for expenses related to her unsuccessful moving attempt on February 10, for a total of $304. The court found that even though Risch‘s conduct constituted the tort of conversion, it did not constitute a violation of
Attorney Fees
{13} In her first assignment of error, Samuel argues that the trial court erred by failing to award her attorney fees pursuant to
{14}
{15} Under
{16} To terminate a month-to-month tenancy,
{17} In this case, the trial court specifically found that Risch had improperly sought to evict Samuel without first affording her the 30-day notice of termination required by
Security Deposit
{18} In her second assignment of error, Samuel argues that the trial court erred by failing to give her credit for a security deposit when it awarded damages to Risch. She asserts that under
{19}
(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 5321.05 of the Revised Code or the rental agreement. Any deduction from the security deposit shall be itemized and identified by the landlord in a written notice delivered to the tenant together with the amount due, within thirty days after termination of the rental agreement and delivery of possession.
{20} Samuel does not contend that Risch violated
{21} When reviewing the manifest weight of the evidence in a civil case, we must determine whether the trial court‘s judgment was supported by the greater amount of credible evidence, and whether the plaintiff met its burden of persuasion, which is by a preponderance of the evidence. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. We are mindful that, in a bench trial, “the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{22} At trial, Samuel testified that her mother had paid a $750 security deposit to the former owner of Risch‘s property. She presented no documentation of her mother‘s lease with the former owner or of the security deposit paid to the former owner. Risch testified that when he bought the property, no deposit had been transferred to him and he had no record of a deposit having been paid.
{23} In its written decision, the trial court found that “[m]inimal evidence was introduced regarding Janie Samuel[‘]s rental history.” Although the decision made no specific mention of the security deposit, its silence on the issue is tantamount to a denial on that aspect of the claimed damages. See Burkhart v. Burkhart, 191 Ohio App.3d 169, 2010-Ohio-5363, 945 N.E.2d 557, ¶ 30 (10th Dist.). The only evidence that a security deposit had been paid was Samuel‘s testimony, which the trial court was entitled to disbelieve. See id.; State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The court could reasonably have concluded that the evidence did not support Samuel‘s claim that a deposit had been paid. Upon our review of the record, we cannot say that the trial
Conclusion
{24} We reverse the judgment of the trial court denying Samuel attorney fees under
Judgment accordingly.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.