Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Shaker Heights Municipal Court Case No. 17
AFFIRMED IN PART, REVERSED AND VACATED IN PART
L. Ferrara, for appellant.
Melissa M. McMillian, pro se.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, PRESIDING JUDGE
1} Anthony Williams appeals the judgment entered in
his favor in the amount of $1, 728.09 and the offsetting
judgment entered upon Melissa McMillian's counterclaim in
the amount of $1, 911.00, both of which stemmed from a
landlord-tenant dispute leading to a bench trial in Shaker
Heights Municipal Court. For the following reasons, we
reverse the decision of the trial court and vacate the
judgment entered in favor of McMillian, but affirm the
judgment entered in favor of Williams.
2} McMillian rented a property from Williams for
over seven years. In December 2016, Williams took steps to
increase the monthly rental fee, which had remained the same
since McMillian moved in. McMillian rented the property
through a government subsidy program, but she personally paid
the $707 monthly rent toward the end of her tenancy. Williams
sought an increase to $832 a month and an additional $40 per
month for pets. In order for Williams to increase the rental
price, McMillian had to sign paperwork and return it to the
appropriate authority. McMillian and Williams disagreed with
the process and the amount of the increase, including the
additional pet fee. By April 2017, their relationship was
irreconcilable. Williams provided McMillian with her 30-day
notice of terminating the rental agreement as of the end of
April and requesting that McMillian vacate the premises.
McMillian held over in May and June without paying any rent,
although McMillian provided her own 30-day notice of intent
to leave in the first week of May, which would have been
ineffective to terminate the lease agreement at the end of
May and was the same week that Williams initiated the
forcible entry and detainer action based on Williams's
30-day notice sent in March. Williams claims McMillian owed
$2, 644 for unpaid rent and pet and late fees, which is in
part based on the increased rental price.
3} McMillian left the property in mid-June. In other
words, McMillian held over even from her own notice of
termination. Williams claims the property was damaged by
McMillian and in support of his damages presented a repair
estimate for the front handrail, door, and weatherproofing,
totaling $1, 895. Williams also offered the testimony of a
contractor who stated that the cost to fix the front door,
handrail, and tile in the hallway would be at least $1, 200.
Williams also sought the $475 cost to repair drywall in a
bedroom, the replacement cost of damaged fixtures, carpet,
and other items, the cost to repair landscaping, and the
costs to clean the property.
4} McMillian conceded that she damaged the drywall,
but she claimed the repair cost was under $300 and she
already paid $100 of that cost to the contractor directly.
McMillian introduced approximately 90 photographs of the
property, claiming that the defects highlighted by Williams
were limited to normal wear and tear. McMillian also
cross-claimed for her own money damages. In that cross-claim,
McMillian claimed Williams was liable for $1, 600 because he
violated R.C. 5321.16(C) by failing to return her $800
security deposit within 30 days, owed her $111 for the cost
of a post office box she used for a forwarding address, and
owed her $200 for the cost of food that was destroyed when
the refrigerator broke two years before the eviction. She
also sought $1, 500 in additional damages for emotional
After the bench trial, the trial court awarded Williams $1,
728.09. Nothing in the record establishes how that award was
calculated. The trial court also awarded McMillian $1,
911.00, which was based on all counterclaims except the
emotional distress claim. Before trial, the parties were
ordered to produce trial briefs that contained the
anticipated evidence to be presented at trial and notified
that exclusion of any unproduced evidence "may"
result in its exclusion. Williams complied, but McMillian did
not. At trial, McMillian was permitted to introduce the
photographs of the property and several other pieces of
evidence that were from her cellphone, notwithstanding the
pretrial order and Williams's objection. Williams
unsuccessfully objected to the evidence as constituting
"trial by ambush."
6} In the first assignment of error, Williams claims
that McMillian is not legally entitled to the damages she was
awarded. Our review over purely legal questions is de novo.
Crutchfield Corp. v. Testa, 151 Ohio St.3d 278,
2016-Ohio-7760, 88 N.E.3d 900, ¶ 16, citing Akron
Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128
Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10.
7} R.C. 5321.16(B) provides that the money held as a
security deposit may be applied to the payment of unpaid rent
or for damages that were caused by the tenant's failure
to comply with R.C. 5321.05, but that any deduction must be
itemized and identified in a written notice provided to the
tenant within 30 days of the termination of the rental
agreement if the tenant must provide a forwarding address. A
tenant may recover the amount wrongfully withheld, including
reasonable attorney fees based on the landlord's
noncompliance with the statutory section. R.C. 5321.16(C).
However, a tenant may recover under that statutory section
only if the landlord wrongfully withheld the deposit.
Vardeman v. Llewellyn, 17 Ohio St.3d 24, 29, 476
N.E.2d 1038 (1985). If the security deposit is not wrongfully
withheld, a tenant cannot recover damages despite the
landlord's noncompliance with R.C. 5321.16(C).
8} In this case, the trial court awarded Williams
damages totaling $1, 728.09. Although it is unclear from the
record whether that award was based on the unpaid rent or the
damage to the property or a little bit of both, a landlord
may lawfully apply the security deposit to both categories of
damages. As a matter of law, therefore, Williams was entitled
to withhold the security deposit. The security deposit was
not wrongfully withheld for the purposes of the statute.
Vardeman; McGreevy v. Bassler, 10th Dist. Franklin
No. 09AP-381, 2010-Ohio-126, ¶ 14; Adaranijo v.
Morris Invest. Co., 1st Dist. Hamilton No. C-070453,
2008-Ohio-2705. The trial court erred as a matter of law by
awarding McMillian the $1, 600 in damages based on
Williams's failure to timely provide McMillian an
itemized breakdown of the withheld security deposit.
9} In addition, as it pertains to the counterclaim,
McMillian was not legally entitled to recover the costs of
her post office box she used as her forwarding address, nor
did she provide a reasonable method of calculating the
damages based on the cost to ...