Rаchel Timoneri, Plaintiff-Appellee, v. NorthSteppe Realty, Inc., Defendant-Appellant.
No. 15AP-618 (M.C. No. 2014 CVF 30979)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on September 20, 2016
2016-Ohio-5901
KLATT, J.
(REGULAR CALENDAR)
DECISION
On brief: Campinha Bacote LLC, and Avonte D. Campinha-Bacote, for appellee. Argued: Avonte D. Campinha-Bacote.
On brief: Graff & McGovern, LPA, Douglas E. Graff and Levi J. Tkach, for appellant. Argued: Levi J. Tkach.
APPEAL from the Franklin County Municipal
KLATT, J.
{1} Defendant-appellant, NorthSteppe Realty, Inc. (“NorthSteppe“), appeals a judgment of the Franklin County Municipal Court in favor of plaintiff-appellee, Rachel
{2} On or about March 2, 2012, Timoneri and Jessica Steible executed a lease agreement to rent an apartment near the Ohio State University from NorthSteppe. The lease required a $695 security deposit, which Timoneri and Steible paid to NorthSteppe.
{3} Pursuant to the terms of the lease agreement, the lease term began on August 15, 2012 and ended July 31, 2013. Timoneri and Steible moved into the apartment on or about August 15, 2012.
{4} On or about January 8, 2013, Timoneri and Steible executed a lease renewal agreement with NorthSteppe. Under that agreement, the lease term began on August 1, 2013 and ended July 15, 2014.
{5} On the same day Timoneri and Steible executed the lease renewal agreement, they also signed a notice-of-tenant-replacement form. By completing that form, Timoneri and Steible gave permissiоn for a new tenant, Colleen Frank, to replace Timoneri on the lease renewal agreement. The pre-printed section of the form stated:
This change shall take place beginning ____ (date) for the remainder of the lease term. Prior to any changes taking place, both current and future tenant(s) understand that the new tenant(s) must fill out new applications and execute any necessary agreements with the Landlord. The landlord has full permission to execute a new lease contract with the new tenant(s). Landlord reserves the right to deny any of these changes from taking place.
Please list any notes to Landlord regarding last month‘s rent and/or seсurity deposit information:
(Def.‘s Ex. 1.)
{6} In the blank provided for the date on which Frank would replace Timoneri, “8/1/13,” the first day of the renewed lease term, is handwritten. Id. In the space to provide notes to NorthSteppe regarding the last month‘s rent and/or the security deposit, the following text is handwritten:
Rachel‘s security deposit can be sent to:
1336 Indian Pointe
Willoughby, OH 44094Colleen [Frank] will pay Rachel [Timoneri] for deposit
Id.
{7} NorthSteppe approved Frank as a new tenant, and Frank replaced Timoneri on the lease renewal agreement. Timoneri moved out of the apartment on July 28, 2013, and Frank then moved into the apartment.
{8} Shortly after Timoneri vacated the apartment, Frank told Timoneri that she planned to pay her half of the security deposit to NorthSteppe, not Timoneri. Frank then sent a $350 check dated September 13, 2013 to NorthSteppe. In the memo section of the check, Frank wrote, “SECURITY DEPOSIT.” (Pl.‘s Ex. C.)
{9} Upon learning that Frank intended to pay NorthSteppe her half of the security deposit, Timoneri turned to NorthSteppe for relief. Timoneri asked NorthSteppe to return to her the portion of the security deposit she had paid, i.e., $347.50. NorthSteppe requested that she complete a form with her forwarding address. Timoneri complied and hand delivered the form to NorthSteppe‘s office. When Timoneri did not receive reimbursement from NorthSteppe, she contacted NorthSteppe again. A NorthSteppe emрloyee told Timoneri that she could not help her.
{11} On September 19, 2014, Timoneri filed suit against NorthSteppе asserting claims for breach of contract, unjust enrichment, and conversion. By all of these claims, Timoneri sought a refund of her portion of the security deposit. Timoneri also requested damages under
{12} Both parties attended mediation. Although the parties failed to reach a settlement, they agreed to joint stipulations of fact. In the joint stipulations, the parties delineated the majority of the facts set forth above.
{13} NorthSteppe moved for summary judgment, and Timoneri responded with a memorandum in opposition. The trial court denied NorthStеppe‘s motion.
{14} The parties tried their case in a bench trial. At the conclusion of trial, the trial court orally granted judgment for Timoneri. The parties then presented evidence regarding the reasonableness of the attorney fees that Timoneri had incurred in pursuing her action.
{15} In a judgment entry dated June 1, 2015, the trial court rendered judgment in favor of Timoneri and awarded her the $347.50 wrongfully withheld from her, $347.50 in damages, and $10,505 in attorney fees. NorthSteppe now appeals that judgment, and it assigns the following errors:
- [1.] The lower [c]ourt erred when it denied NorthSteppe[‘s] Motion for Summary Judgment and found NorthSteppe failed to comply with the statutory requirements for landlords under
R.C. 5321.16 . - [2.] The lower [court] abused its discretion when it accepted Ms. Timoneri‘s impeached testimony.
- [3.] The low[er] court erred [in] failing to apply the lo[de]star method when calculating reasonable attorney‘s fees and failing to provide adequate reasoning for its award of fees.
{16} By its first assignment of error, NorthSteppe first argues that the trial court erred in denying its motion for summary judgment. Second, NorthSteppe argues that the trial court erred in entering final judgment for Timoneri based on its finding that NorthSteppe violated
{17} This appeal turns on the meaning and application of
(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. The tenant shall provide the landlord in writing with a forwarding or new address to which the written notice and amount due from the landlord may be sent. If the tenant fails to provide the landlord with the forwarding or new address as required, the tenant shall not be entitled to damages or attorneys fees under division (C) of this section. (C) If the landlord fails to comply with division (B) of this section, the tenant may recover the property and money due to him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorneys fees.
{18}
{19}
{20} In its motion for summary judgment, NorthSteppe asserted two arguments in support of its contention that it was not liable for a violation of
{21} Second, NorthSteppe argued that the evidence did not estаblish that it violated
NorthSteppe Realty, Inc., has no obligation to return security deposits to any current or former tenants until “termination of the rental agreement.”
R.C. 5321.16(B) . Here, Ms. Timoneri, [sic] signed a Lease Renewal Agreement. * * * The term of Ms. Timoneri‘s lease ran until July 15, 2014. The fact that Ms. Timoneri vacated the unit prior to the expiration of the lease agreement did not accelerate NorthSteppe Realty, Inc.‘s obligation to reconcile the security deposit, as the Lease remained active through thе other tenants. Because Ms. Timoneri‘s roommate and co-signer on the lease retained the unit, the Lease Agreement continued in effect for purposes ofR.C. 5321.16(B) .
{22} Timoneri filed a memorandum in opposition to NorthSteppe‘s motion for summary judgment. Timoneri did not directly refute NorthSteppe‘s first argument. Timoneri instead concentrated her response on NorthSteppe‘s second argument. In relevant part, Timoneri pointed out that NorthSteppe had conceded that the lease renewal agreement terminated on July 15, 2014. Timoneri argued that
{23} The trial court rejected both of NorthSteppe‘s arguments, and it denied NorthSteppe‘s motion for summary judgment. With regard to NorthSteppe‘s first argument, the trial court concluded that the agreement between Frank and Timoneri did not obviate NorthSteppe‘s obligations under
{24} Before considering whether the trial court erred in denying NorthSteppe‘s motion for summary judgment, we must address whether that error is now moot or harmless. Ordinarily, “the denial of a motion for summary judgment is not a point of consideration in an appeal from a final judgment entered following a trial on the merits.” Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 156 (1994). If a trial court denies summary judgment due to the existence of a genuine issue of material fact and the non-moving party then prevails at trial, any error in denying the motion for summary judgment is moot or harmless. Id. at 155-56. Any error in the trial court‘s evaluation of the evidence at the summary judgmеnt stage becomes moot or harmless when a full and complete development of the facts at trial—as opposed to the limited factual record elicited through discovery—entitles the non-moving party to judgment. Id. To allow a summary judgment decision based on less evidence to prevail over a verdict reached on more evidence would defeat the fundamental purpose of judicial inquiry. Id. at 157.
{25} However, if a trial court denies a motion for summary judgment on legal grounds, the alleged error in that ruling is not rendered moot or harmless by a subsequent trial on the merits. Id. at 158. An appellate court, therefore, may review a denial of a motion seeking summary judgment on a pure question of law regardless of the non-moving party‘s success at trial. Cappella III LLC v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 14 (10th Dist.)
{26} Here, NorthSteppe first argued on summary judgment that Frank and Timoneri‘s agreement excused NorthSteppe from complying with
{27} NorthSteppe‘s second argument is factual rather than legal. Thus, at first glance, the nature of the second argument would render it moot under Whittington. We, however, must engage in a deeper analysis because the trial court‘s resolution of NorthSteppe‘s second argument differs from the Whittington trial court‘s reasoning for its ruling. Rather than find that a genuine issue of material fact precluded summary judgment, as in Whittington, the trial court here denied NorthSteppe summary judgment because the evidence unequivocally established NorthSteppe‘s liability.1 We find that this is a distinction without a difference. The rationale behind the Whittington holding applies equally to the case at bar. Regardless of how a trial court evaluates the evidence on summary judgment, we cannot reverse a verdict based on more evidence due to an alleged error in a summary judgment denial based on less evidence. We, therefore, will not review on appeal NorthSteppe‘s second argument. The subsequent verdict in Timoneri‘s favor rendered the error alleged in that argument moot or harmless.
{28} A trial court will grant summary judgment under
{29} As we stated above,
{30} Here, NorthSteppe contends that the agreement between Frank and Timoneri relieved it of its duties under
{31}
{32} Moreover, nо agreement can relieve a landlord of the mandatory duties imposed by
{33} In arguing to the contrary, NorthSteppe asserts that
{34} Given the circumstances in the case at bar, we find NorthSteppe‘s attempt to escape the mandate of
{35} In sum, we find that the trial court did not err in rejecting NorthSteppe‘s argument that the agreement between Frank and Timoneri excused it from its responsibilities under
{36} We next turn to NorthSteppe‘s argument that the trial court erred in entering a verdict in favor of Timoneri based on its finding that NorthSteppe violated
{37} In adjudging the sufficiency of evidence, a court must determine ” ‘whether the case may go to [a finder of fact] or whether the evidence is legally sufficient to support the [judgment] as a matter of law.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11, quoting Thompkins at 386; accord Lubanovich v. McGlocklin, 9th Dist. No. 12CA0090-M, 2014-Ohio-2459, ¶ 8 (“When a defendant argues that the judgment in a civil case is supported by insufficient evidence, [a court of appeals] must determine whether, viewing the evidence in the light most favorable to the plaintiff, a reasonable trier of fact could find in favor of the plaintiff.“); Brown v. Dept. of Rehab. & Corr., 10th Dist. No. 13AP-804, 2014-Ohio-1810, ¶ 18 (“In reviewing the sufficiency of the evidence in a civil case, a court of appeals must determine whether the judgment could reasonably be reached from the evidence.“). In essence, a court‘s review of the sufficiency of the evidence tests the evidence‘s adequacy. Eastley at ¶ 11.
{38} The first question we must address is whether sufficient evidence established that NorthSteppe failed to “deliver” to Timoneri her portion of the security deposit “within thirty days after termination of the rental agreement and delivery of possession.”
{39} Next, we must review NorthSteppe‘s assertion that the record lacks any evidence that Timoneri provided NorthSteppe “in writing with a forwarding address or new address to which the * * * amount due from the landlord may be sent.”
{40} NorthSteppe argues that it did not have to refund Timoneri‘s portion of the security deposit within the 30-day period because: (1) it did not know whether the address provided in the notice-of-tenant-replacement form was valid and (2) Timoneri did not fill out the appropriate “moveout” form. We are not persuaded by either of these arguments.
{42} By NorthSteppe‘s second assignment of error, it argues that we should reverse the judgment in Timoneri‘s favor because the trial court erred in finding Timoneri‘s testimony credible. We disagree.
{43} Appellate courts review challenges to the credibility of the evidence under the manifest-weight-of-the-evidence standard. Under that standard, an appellate court engages in evidentiary weighing to determine whether the evidence underlying the judgment is competent and credible. Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, at ¶ 15. ” ‘Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.’ ” Id. at ¶ 14, quoting C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280 (1978). In considering whether a judgment is against the manifest weight of the evidence, appellate courts must give deference to the trial court‘s factual findings beсause “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. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
{44} As we have explained above, to establish a violation of
{45} Here, the trial court found that the stipulated facts (along with the content of the documents referred to in the stipulation) proved NorthSteppe‘s liability under
{46} We disagree with NorthSteppe‘s contention that Timoneri‘s testimony is misleading. Timoneri testified only that she did not receive a refund of her portion of the security deposit; she did not state or imply that NorthSteppe never attempted to return the deposit to her. Timoneri testified that, initially, NorthSteppe indicated
{47} Additionally, we disagree with how NorthSteppe interprets the trial court‘s finding that NorthSteppe ignored Timoneri‘s August 4, 2014 demand.
{48} Next, NorthSteppe argues that the trial court should have disbelieved Timoneri‘s testimony because she previously worked for her attorney‘s law firm, she did not have a written retainer agreement with her attorney, and she did not pay any retainer fee. As we stated above, the trial court found NorthSteppe liable based on stipulated facts and documentary evidence, not Timoneri‘s testimony. Consequently, even if we discounted Timoneri‘s testimony, the remaining evidence would still justify a judgment in Timoneri‘s favor. More problematically, NorthSteppe does not explain why the facts it recites cast doubt on Timoneri‘s testimony, and we see no reason why those facts would render Timoneri‘s testimony suspect.
{49} In sum, we conclude that the manifest weight of the evidence supports the judgment in Timoneri‘s favor. Accordingly, we overrule NorthSteppe‘s second assignment of error.
{50} By NorthSteppe‘s third assignment of error, it asserts two arguments. First, NorthSteppe argues that the trial court erred in failing to apply the lodestar method of calculating reasonable attorney‘s fees. Second, NorthSteppe argues that the trial court erred in failing to provide adequate reasoning for its award of attorney fees. We disagree with both arguments.
{51} The amount of an attorney fee award is a matter within the trial court‘s sound discretion. Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146 (1991). An appellate court will not reverse a determination of attorney fees unless the appellant demonstrates an abuse of discretion and that ” ‘the amount of fees determined is so high or so low as to shock the conscience.’ ” Id., quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc., 23 Ohio App.3d 85, 91 (12th Dist.1985).
{52} Under the lodestar method of determining reasonable attorney fees, the trial court first multiplies the number of hours reasonably expended on the litigation by a reasonable hourly rate. Bittner at 145. The trial court may then modify that amount by application of the reasonableness factors listed in Prof.Cond.R. 1.5(a). Id. (applying the predecessor to Prof.Cond.R. 1.5(a)); Miller v. Grimsley, 197 Ohio App.3d 167, 2011-Ohio-6049, ¶ 13 (10th Dist.). These factors include:
-
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; - (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
- (3) the fee customarily charged in the locality for similar legal services;
- (4) the amount involved and results obtained;
- (5) the time limitations imposed by the client or by the cirсumstances;
- (6) the nature and length of the professional relationship with the client;
- (7) the experience, reputation, and ability of the lawyer performing the services; [and]
- (8) whether the fee is fixed or contingent.
Prof.Cond.R. 1.5(a)(1) through (8). The trial court has the discretion to determine which factors to apply and in what manner the factors will affect the amount of fees awarded. Bittner at 146.
{53} Here, NorthSteppe first contends that the trial court did not use the lodestar method to calculate Timoneri‘s reasonable attorney fees. NorthSteppe is mistaken. The trial court found that the amount of hours Timoneri‘s attorney expended on the case was reasonable, and it determined that $220 per hour wаs a reasonable hourly rate. Multiplying the hours expended by the hourly rate, the trial court arrived at $10,505. The trial court then found that the factors set forth in Prof.Cond.R. 1.5(a) did not provide a reason to vary the amount calculated under the first step. Consequently, the trial court did not err as alleged.
{54} Next, NorthSteppe argues that the trial court failed to provide adequate reasoning for its award of attorney fees. We disagree.
{55} A trial court must state the basis for the fee determination. Bittner at 146. An explanation of the trial court‘s reasoning is particularly important where the amount recovered is small compared to the attorney fees assessed. Schultz v. Wardlow, 10th Dist. No. 11AP-62, 2012-Ohio-3163, ¶ 25; Whitestone Co. v. Stittsworth, 10th Dist. No. 06AP-371, 2007-Ohio-233, ¶ 61.
{56} Contrary to NorthSteppe‘s assertion, the trial court elucidated why it did not lower the amount of attorney fees in light of the disproportionality between Timoneri‘s damages ($695) and the lodestar amount ($10,505). The trial court stated:
This case presents a classic example of why the [L]andlord[-][T]enant [A]ct included a provision for attorney fees. The amount of the initial claim is relatively small, though not insignificant. Through her attorney, Plaintiff demanded return of her wrongfully withheld security deposit and nothing more, although it was noted in that demand letter that failure to timely refund her money would result in litigation, with the risk of double damages and attorney fees. Defendant chose to ignore the letter and force litigation, although the actual facts of the case, as presented in the stipulations[,] have not been in issue for some time.
(June 1, 2015 Jgmt. Entry at 2.)
{57} We find the trial court‘s explanation sufficient to justify its award of attorney fees. NorthSteppe failed to timely return Timoneri‘s security deposit to her even though she demanded the deposit within the 30-day window provided by
{58}
{59} Beyond the two arguments addressed above, NorthSteppe challenges the trial court‘s conclusion that Timoneri‘s attorney expended a rеasonable amount of time completing litigation tasks. NorthSteppe also contends that the trial court should have docked time the attorney spent pursuing the tort claims asserted in Timoneri‘s complaint. Both of these arguments exceed the parameters of NorthSteppe‘s third assignment of error.
{60} Pursuant to
{61} In sum, we find that the trial court applied the appropriate method for determining reasonable attorney fees, and that the trial court provided adequate reasoning for its attorney fee award. Accordingly, we overrule NorthSteppe‘s third assignment of error.
{62} For the foregoing reasons, we overrule each of NorthSteppe‘s assignments of error, and we affirm the judgment of the Franklin County Municipal Court.
Judgment affirmed.
SADLER and LUPER SCHUSTER, JJ., concur.