Court of Appeals of Ohio, Fifth District, Tuscarawas
from the New Philadelphia Municipal Court, Case Nos. CVF
1600764 and CVF 1600735
Plaintiff-Appellee GREGORY J. MCCLEERY
Defendant-Appellant JOSEPH I. TRIOPDI
John W. Wise, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E.
Wise, Jr., J.
1} Defendant-Appellant Stocker Development, LLC (Stocker),
appeals the May 30, 2017 judgement of the New Philadelphia
Municipal Court's finding in favor of Plaintiff-Appellee
Robyn Filby (Filby), in an action to recover Filby's
security deposit on the apartment rental.
AND PROCEDURAL HISTORY
2} In May, 2015, Filby moved into an apartment on Blake
Avenue in New Philadelphia, Ohio, which is owned by Stocker.
She signed a lease agreement with Stocker in April 2015. The
lease provided for $650.00 monthly rent, payable on the first
day of each month, a $650.00 security deposit and a $25.00
late fee for any payment made after the 3rd day of the month.
When Filby looked at the apartment, it smelled bad. Stocker
advised it was because the previous tenant owned a cat, and
that the carpets would be scrubbed before she moved in.
3} Filby lived in the apartment for a year. During that time,
Filby noticed an increase in her daughter's pre-existing
asthma and allergies. In May 2016, Filby gave Stocker 30-day
notice that she would be moving.
4} On June 28, 2016, Filby texted Stocker her forwarding
address. She also advised she was leaving a washer and dryer,
but also offered to remove the appliances. The next day,
after Filby and a friend had cleaned the apartment and steam
cleaned the carpets, Stocker conducted a walk-through
inspection. The carpets were dry during the walk-through.
According to Filby, after the inspection, Stocker advised he
would return her security deposit minus the last month's
water bill, and did not ask her to remove the appliances.
5} After the July 4th holiday, Stocker's maintenance man,
Eugene Cox, cleaned the apartment, painted, and steam cleaned
the carpets again.
6} Sometime later, Stocker returned to the apartment and was
confronted with a foul odor. He had Cox scrub the carpet
again with a different solution. When the odor still was not
remedied, Cox pulled up the carpet. He found the carpet and
padding saturated with moisture, moldy, mildewed and foul
7} Stocker uses a "Condition and Inventory" sheet
to document the condition of an apartment before and after a
tenancy. There is no such sheet documenting the condition of
the apartment before Filby's tenancy. There is, however,
a completed Condition and Inventory sheet after Filby's
tenancy, but dated seven days after the joint walk-thorough
inspection. Stocker's signature is on the form, but
Filby's is not. The sheet indicates a foul odor in both
bedrooms, the living room, and kitchen. It further notes the
fact that the washer and dryer were left behind, the furnace
filter was missing, and that the laundry room floor was dirty
because the dryer was improperly vented.
8} On August 2, 2016, Filby texted Stocker asking when she
could expect to receive the return of her security deposit.
On August 4, 2016, Stocker replied, advised he had to replace
all of the flooring due to moisture, mold and odor, and
suggesting it was due to Filby's improper cleaning of the
carpet before she moved out. Stoker further advised he would
send Filby an accounting of the damages. This accounting,
however, was never sent.
9} On September 12, 2016, Filby filed a complaint against
John Stocker in the New Philadelphia Municipal Court for
unlawful withholding of her security deposit and statutory
damages pursuant to R.C. 5321.16. On September 19, Stocker
filed a claim against Filby for damages to the rental
property under a new case number - CVF1600764. The summons
and complaint was served on Filby on September 24, 2016.
Included was an accounting for damages to the apartment. On
October 12, 2016, Filby filed an answer and counterclaim
denying responsibility for the damages. Also on October 12,
Filby filed an amended complaint in the original case, adding
Stocker Development, LLC as defendant. On October 14, 2016,
Stocker moved to strike the amended complaint. Filby filed a
memorandum in opposition on October 26. Stocker filed an
answer and counterclaim in the original case on October 19,
10} On January 9, 2017, the magistrate found Filby was
entitled to amend the named defendant, and denied
Stoker's motion to strike. The magistrate further
consolidated the two cases. Thereafter, on January 31, 2017,