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Filby v. Stocker Development, LLC

Court of Appeals of Ohio, Fifth District, Tuscarawas

December 11, 2017

ROBYN FILBY Plaintiff-Appellee
v.
STOCKER DEVELOPMENT, LLC Defendant-Appellant

         Appeal from the New Philadelphia Municipal Court, Case Nos. CVF 1600764 and CVF 1600735

          For Plaintiff-Appellee GREGORY J. MCCLEERY

          For Defendant-Appellant JOSEPH I. TRIOPDI

          Hon. John W. Wise, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, EARLE, 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.

         FACTS 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 smelling.

         {¶ 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, 2016.

         {¶ 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, ...


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