433 N.E.2d 932 | Ohio Ct. App. | 1980
Gerald Sherwin, the appellee in the instant case, was a tenant under a month-to-month lease with appellant Cabana Club Apartments. A security deposit in the amount of $170 was given to appellant at the time appellee took possession of the premises. During appellee's tenancy, appellant brought a forcible entry and detainer action in the Bedford Municipal Court pursuant to R. C. Chapter 1923. In June 1977, a writ of restitution was issued. Appellee, however, did not vacate the premises at this time. Later in the year, appellee notified appellant that he would be vacating the premises by December 31, 1977, and left a forwarding address, pursuant to R. C.
On February 14, 1978, appellee initiated this action under the security deposit provision (R. C.
In its answer filed on March 8, 1978, appellant alleged as an affirmative defense that appellee had failed to pay rent increases from August 1975 through December 1977, amounting to $406 for past-due rent, and that retention of the security deposit was necessary in order to correct damage to the premises. Appellant sought a dismissal of appellee's complaint and judgment in the amount of $236. Although not styled as such, appellant's answer was treated as a counterclaim by the trial court.
A jury trial commenced on December 14, 1978. At the conclusion of appellee's case, during which evidence of appellee's compliance and appellant's noncompliance with R. C.
Immediately subsequent to the court's granting of the directed verdict, appellant attempted to present to the jury evidence of actual damage to the premises formerly occupied by appellee. When the trial court refused to allow appellant to present such evidence, a proffer of this evidence was made. The court then permitted appellant to present evidence only as to its alleged damages in the amount of $406 for nonpayment of rent, but did not permit the introduction of evidence as to physical damage to the apartment.
At the conclusion of all the evidence, the trial court granted appellee's motion for a directed verdict in the amount of $340. The jury returned a verdict in favor of appellee in the amount of $1,000 for reasonable attorney's fees, and in favor of appellee *14 on appellant's counterclaim for nonpayment of rent. The court then rendered judgment in favor of appellee and against appellant in the sum of $1,340 on appellee's complaint, and in favor of appellee on appellant's counterclaim.
Appellants filed a timely notice of appeal, and appellant Cabana Club Apartments presents these assignments of error for our review:
"I. The trial court erred in directing a verdict for plaintiff at the close of plaintiff's testimony.
"II. The trial court erred in finding as a matter of law that plaintiff was a `tenant' as that term is defined in O.R.C.
"III. The court erred in finding as a matter of law that plaintiff was entitled to statutory damages for two times the entire amount of the security deposit, plus a mandatory award of attorney's fees.
"IV. The court erred in allowing testimony of plaintiff's attorney as to the reasonable value of his services over defendant's objections and in overruling defendant's motion for a mistrial on these grounds.
"V. The court erred in overruling defendant's motion for a directed verdict, which motion was based on the fact that the relative rights of the parties were res judicata in the trial court. The court erred further in refusing the admission of evidence of the relevant prior judgments either to the court or for the benefit of the jury."
In its first assignment of error, appellant contends that the direction of a verdict for appellee at the close of appellee's evidence was premature. This first assignment of error raises the issue of the appropriate time for filing a motion for a directed verdict.
The pertinent provision of Civ. R. 50(A) states that:
"(1) A motion for a directed verdict may be made on the opening statement of the opponent, at the close of the opponent's evidence or at the close of all the evidence.
"* * *
"(4) When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the *15 court shall sustain the motion and direct a verdict for the moving party as to that issue."
A construction of subdivisions (1) and (4) of Civ. R. 50(A)in pari materia leads to the conclusion that the reference in subdivision (4) to a motion "properly made" must meet the prescriptions in subdivision (1). See Quayle v. Varga (1975),
Appellant's first assignment of error is well taken.
Appellant's second assignment of error asserts that the trial court erred in finding that appellee was a "tenant," as defined in R. C.
In order to avail himself of the security deposit procedures set forth in R. C.
Appellant contends that once the writ of restitution of the premises issued in June of 1977, appellee could no longer be characterized as a "tenant," and therefore could not institute an action under R. C.
Appellant's third and fourth assignments of error will be considered together. One of the issues raised by these assignments of error involves the propriety of the trial court's imposition of liability for double damages and attorney's fees, without affording appellant the opportunity to demonstrate that its retention of appellee's security deposit was in good faith. It is appellant's contention that if a tenant has damaged a landlord's property while in possession thereof, the landlord is neither required to return the security deposit nor to comply with the notice provision of R. C.
It is appellee's position that when a tenant vacates the premises and provides the landlord with a forwarding address, pursuant to R. C.
In order to more fully comprehend appellant's argument, it is necessary to review the applicable provisions of R. C.
R. C.
"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
R. 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 attorneys fees."
The foregoing provisions of the Landlords and Tenants Act were designed to ensure the return of a security deposit at no cost to the tenant in cases where the security deposit has been wrongfully withheld.
At the outset, it should be noted that the security deposit is not a substitute for the last month's rent. A tenant is responsible for payment of rent for the last month of the rental agreement. If, after the tenant complies with R. C.
Where the landlord fails to comply with R. C.
Thus, based on our interpretation of the statute, the landlord's obligation to either return the security deposit or provide notice and an itemization of deductions from the security deposit is not relieved merely because he has a damage action. If the landlord wishes to bring an action for damages, he must maintain it in a separate action or as a counterclaim in the tenant's action to recover his security deposit.
The Landlords and Tenants Act provides for certain rights and responsibilities for tenants and landlords. See R. C. Chapter 5321. The Act attempts to balance the rights of tenants and landlords. As we have noted, the tenant's compliance with R. C.
In the present case the trial court directed a verdict for the tenant at the conclusion of the tenant's case and refused to allow the landlord to present evidence of damage to its property, stating that the landlord's failure to comply with the notice requirements of the statute precluded it from maintaining its damage action against the tenant. The trial court committed error in this regard. The landlord's noncompliance with R. C.
The next issue before this court involves the subject of attorney's fees. As stated earlier, where a landlord fails to return the security deposit of a tenant who has left a forwarding address and ignores the statutory requirements of notice and itemization of damages, an award for reasonable attorney's *19 fees is mandatory. See Mentor Lagoons, Inc., v. Bartel (Cuyahoga Co. Ct. of Appeals No. 36391, July 21, 1977), unreported.
In the instant case, the trial court ruled that the appellee was entitled to reasonable attorney's fees, but left the determination of the amount of attorney's fees to the jury.
This court recently held that the determination of the amount to be awarded for reasonable attorney's fees lies within the sound discretion of the trial judge.3 Drake v. Menczer
(1980),
Based on the foregoing discussion, appellant's third and fourth assignments of error are well taken in part.
In its fifth assignment of error, appellant argues that the trial court erred in refusing to admit into evidence prior judgment entries from the Bedford Municipal Court, in cases involving these very same parties, since these final judgments were res judicata of the issues in the instant case. Although the journal entries were not admitted into evidence, they were proffered during appellant's presentation of its evidence with regard to its claim of past-due rent. Although the parties were the same in the previous action in the Bedford Municipal Court, the matter litigated in the previous action was of a different nature than the one at issue in the instant case. The previous action involved a complaint in forcible entry and detainer, instituted by the appellant-landlord pursuant to R. C. Chapter 1923. The issue in that case was whether appellant was entitled to possession of its premises due to appellee's breach of one of the statutorily imposed tenant duties. In the instant action instituted by appellee, the central issue involves the alleged wrongful deprivation of appellee's security deposit. Thus, it is clear that the doctrine of res judicata is not applicable to the issues that have been raised in the instant case. Appellant's fifth assignment of error is overruled.
Based on our disposition of appellant's first, third and fourth assignments of error, the judgment of the trial court is *20 reversed and this cause is remanded to the trial court for a trial on appellant's counterclaim for damage to the premises as well as a court determination on the amount to be awarded to appellee as reasonable attorney's fees.
Judgment reversedand cause remanded.
STILLMAN and PARRINO, JJ., concur.