Preview
Filed on 12/02/2015 at 11:25 AM in Wayne County, Ohio
IN THE WAYNE COUNTY MUNICIPAL COURT
JAMES CARTER
Plaintiff
vs CASE NO.: 2014 CV-F 001171
KAYE JOHNSON
Defendant
JOURNAL ENTRY
This matter comes before the Court upon objections to the Magistrate’s proposed
decision.
Plaintiff objects to the proposed decision on several bases. First, Plaintiff claims he erred
in not realizing that the hearing held on June 4, 2015 was scheduled in the Wooster branch of the
Court, as opposed to the Orrville branch of the Court. Second, Plaintiff objects to the sufficiency
of the evidence. Third, Plaintiff claims Defendant failed to comply with various discovery
requests. Finally, Plaintiff asserts that historically he has never been awarded attorney fees nor
has a tenant ever been awarded damages for a landlord’s failure to return a security deposit!
Notice of Proceedings
Plaintiff has not produced any such evidence to suggest he did not receive actual notice of
the hearing location. The notice sent by the Court on May 14, 2015 clearly stated the location of
the hearing to be in Wooster. The Court finds the decision of the Magistrate to dismiss
1 It is unclear if Plaintiff means he has never had a tenant receive double damages in one of his cases for failure to
return a security deposit or if Plaintiff is alleging the Court has never issued such a judgment in any case.Filed on 12/02/2015 at 11:25 AM in Wayne County, Ohio
Plaintiff's claim for failure to appear to be justified and not an abuse of discretion of the
Magistrate.
Sufficiency of the Evidence
The Magistrate’s proposed decision sets forth findings of fact which substantiate the
proposed decision. Although Plaintiff attempts to argue facts that are not in evidence, the facts
that were determined by the Magistrate were based upon testimony produced at the hearing.
Plaintiff has not set forth any reason to suggest the Magistrate was unreasonable in determining
the facts or any other reasons for the Court not to accept the facts as found by the Magistrate.
Plaintiff's allegation Defendant Failed to Comply with Discovery Proceedings
Plaintiff's objection that he was prejudiced by Defendant’s failure to comply with
discovery proceedings is waived due to the fact that Plaintiff never filed a motion to compel
compliance.
Plaintiffs Claim that he has never had to pay Damages or Attorney Fees for a Wrongfully
Withheld Security Deposit
Plaintiffs claims that he has never had to pay damages for a wrongfully withheld security
deposit or attorney fees is not well-taken. Each case is adjudicated independently of all other
cases and there is no right to rely upon any type of historical pattern2. Otherwise, a landlord who
always returned security deposits when required would have a defense to paying damages for a
subsequently wrongfully withheld security deposit, including attorney fees, by citing his priorFiled on 12/02/2015 at 11:25 AM in Wayne County, Ohio
lack of any such conduct.
Therefore, based upon the foregoing, the Court hereby overrules the objections of
Plaintiff and adopts the Findings of Fact and Conclusions of law, as attached hereto and
incorporated herein by reference. Judgment is hereby rendered against the Plaintiff on her
counter-claim in the amount of $1,175.00, plus interest at the rate of 3% per annum from the date
of judgment, plus Court costs. Plaintiff's complaint is dismissed with prejudice.
Ee Pye
HONORABLE TIMOTHY R. VANSICKLE
Ce:
Plaintiff
Atty. D. Todaro
2 The Court has, indeed, entered judgment for damages for failure to return security deposits, including attorney
fees, in other cases involving other landlords.Filed on 12/02/2015 at 11:26 AM in Wayne County, Ohio
Filed on 02/24/2015 at 04:19 PM in Wayne County, Ohio
WAYNE COUNTY MUNICIPAL COURT
JAMES P. CARTER
Plaintiff : Case No. 2014 CV-F 001171
vs. 3
KAYE J. JOHNSON : MAGISTRATE’S PROPOSED
Defendant : DECISION
This matter came on for hearing before the Court Magistrate on February 23, 2015.
Defendant, Kaye J. Johnson, appeared, together with her attorney, David M. Todaro. Plaintiff,
James P. Carter, failed to appear. Plaintiff's claims against Defendant were set for a bench
trial, while Defendant’s counter-claim against Plaintiff was set for a damages hearing, the
Court having previously granted a default judgment against Plaintiff on said counter-claim on
September 16, 2014. Based on the evidence presented, including testimony and exhibits, the
Magistrate makes the following Findings of Fact, Conclusions of Law and Proposed Decision.
Findings of Fact
As the Plaintiff failed to appear for trial, his complaint against the Defendant was
dismissed by the Court.
Defendant testified that she had rented the subject premises from Plaintiff, at the rate
of $425.00 per month. At the outset of the tenancy in November, 2013, Defendant paid to
Plaintiff the first month’s rent of $425.00, the last month’s rent of $425.00, and a security
deposit of $250.00 (total, $1,100.00). Subsequently, in March, 2014, Defendant properly
notified Plaintiff in writing by certified mail, that she would be vacating the subject premises,
and effectively terminated the rental agreement. She testified that her daughter had received
notice that her request for Metro Housing had been approved, which necessitated the move.
She testified that she coordinated her move with Roy Ebie, an employee of Plaintiff, and that
he had inspected the subject premises upon her departure and delivery of possession, and
approved its condition. He also advised the Defendant that a replacement tenant had been
obtained,
Defendant further testified that Plaintiff had been notified of her forwarding address,
which was included on all of the correspondence she sent to Plaintiff. Further, she stated that
Plaintiff failed to return any of her security deposit of $250.00 to her, and that he further
failed at any time to provide her with an itemized list of any deductions he had made from the
security deposit.
Plaintiff claims as damages herein the following: 1) $500.00, representing her $250.00
security deposit, and $250.00 in damages representing ‘“...an amount equal to the amount
wrongfully withheld...” pursuant to Revised Code Section 5321.16(C), and 2) $675.00,
representing attommeys fees in the within matter (3.86 hours at $175.00 per hour): Total
amount of damages claimed, $1,175.00.Filed on 12/02/2015 at 11:26 AM in Wayne County, Ohio
Filed on 02/24/2015 at 04:19 PM in Wayne County, Ohio
Conelusions of Law
Ohio Revised Code Section 5321.16(B) reads as follows:
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 address
or new address to which the written notice and amount due from the landiord may be
sent, If the tenant fails to provide the landlord with the forwarding or new address as
tequired, the tenant shall not be entitled to damages or attorneys fees under division
(C) of this section.
Defendant has met her burden of proof herein. According to the uncontroverted
evidence presented, Defendant complied with the requirements of Revised Code Section
5321.16(B). The evidence is also uncontroverted that Plaintiff failed to comply with the
dictates of Revised Code Section 5321.16(B), and Defendant is accordingly entitled to the
damages as set forth in Revised Code Section $321.16(C). Defendant is entitled to a return of
her security deposit of $250.00, together with damages of an equal amount of $250.00.
Additionally, Defendant is entitled to reasonable attorneys fees. The Court finds that the
amount requested, a total of $675.00 representing 3.86 hours of work at $175.00 per hour, is
reasonable with regard to the issues presented and the work required to be performed in the
within matter.
ROP! DECISION
Plaintiff James P. Carter's complaint against Defendant Kaye J. Johnson is hereby
DISMISSED. Judgment is granted to Defendant, Kaye J. Johnson on her counter-claim
against Plaintiff, James P. Carter, in the amount of $1,175.00, plus interest at the rate of 3%
per annum from the date of judgment, plus court costs.
Pursuant to Civil Rule 53, a party may within 14 days of the filing of this Proposed Decision, serve and file a
written objection. If an objection is timely filed, any ‘other party may serve and file an objection within ten (10)
days from the date of filing of the first objection. Any objection to a factual finding by a magistrate must be
accompanied by a transcript of the evidence or a supporting affidavit. The transcript or supporting affidavit must.
be filed within 30 days after the objections arc filed.Filed on 12/02/2015 at 11:26 AM in Wayne County, Ohio
Filed on 02/24/2015 at 04:19 PM in Wayne County, Ohio
*WAIVER OF RIGHT TO ASSIGN ADOPTION BY COURT AS ERROR ON APPEAL*
A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'S ADOPTION OF ANY
: FINDING OF FACT OR CONCLUSION OF LAW UNLESS THE PARTY HAS OBJECTED TO THAT
! FINDING OR CONCLUSION UNDER CIVIL RULE 53.
CERTIFIC. F SERVICE
‘The undersigned Deputy Clerk hereby certifies that copies of the within Proposed
Decision were mailed by U.S. Mail to the parties this ‘day of February, 2015.
Deputy Clefk
Preview
Filed on 12/02/2015 at 11:25 AM in Wayne County, Ohio IN THE WAYNE COUNTY MUNICIPAL COURT JAMES CARTER Plaintiff vs CASE NO.: 2014 CV-F 001171 KAYE JOHNSON Defendant JOURNAL ENTRY This matter comes before the Court upon objections to the Magistrate’s proposed decision. Plaintiff objects to the proposed decision on several bases. First, Plaintiff claims he erred in not realizing that the hearing held on June 4, 2015 was scheduled in the Wooster branch of the Court, as opposed to the Orrville branch of the Court. Second, Plaintiff objects to the sufficiency of the evidence. Third, Plaintiff claims Defendant failed to comply with various discovery requests. Finally, Plaintiff asserts that historically he has never been awarded attorney fees nor has a tenant ever been awarded damages for a landlord’s failure to return a security deposit! Notice of Proceedings Plaintiff has not produced any such evidence to suggest he did not receive actual notice of the hearing location. The notice sent by the Court on May 14, 2015 clearly stated the location of the hearing to be in Wooster. The Court finds the decision of the Magistrate to dismiss 1 It is unclear if Plaintiff means he has never had a tenant receive double damages in one of his cases for failure to return a security deposit or if Plaintiff is alleging the Court has never issued such a judgment in any case.Filed on 12/02/2015 at 11:25 AM in Wayne County, Ohio Plaintiff's claim for failure to appear to be justified and not an abuse of discretion of the Magistrate. Sufficiency of the Evidence The Magistrate’s proposed decision sets forth findings of fact which substantiate the proposed decision. Although Plaintiff attempts to argue facts that are not in evidence, the facts that were determined by the Magistrate were based upon testimony produced at the hearing. Plaintiff has not set forth any reason to suggest the Magistrate was unreasonable in determining the facts or any other reasons for the Court not to accept the facts as found by the Magistrate. Plaintiff's allegation Defendant Failed to Comply with Discovery Proceedings Plaintiff's objection that he was prejudiced by Defendant’s failure to comply with discovery proceedings is waived due to the fact that Plaintiff never filed a motion to compel compliance. Plaintiffs Claim that he has never had to pay Damages or Attorney Fees for a Wrongfully Withheld Security Deposit Plaintiffs claims that he has never had to pay damages for a wrongfully withheld security deposit or attorney fees is not well-taken. Each case is adjudicated independently of all other cases and there is no right to rely upon any type of historical pattern2. Otherwise, a landlord who always returned security deposits when required would have a defense to paying damages for a subsequently wrongfully withheld security deposit, including attorney fees, by citing his priorFiled on 12/02/2015 at 11:25 AM in Wayne County, Ohio lack of any such conduct. Therefore, based upon the foregoing, the Court hereby overrules the objections of Plaintiff and adopts the Findings of Fact and Conclusions of law, as attached hereto and incorporated herein by reference. Judgment is hereby rendered against the Plaintiff on her counter-claim in the amount of $1,175.00, plus interest at the rate of 3% per annum from the date of judgment, plus Court costs. Plaintiff's complaint is dismissed with prejudice. Ee Pye HONORABLE TIMOTHY R. VANSICKLE Ce: Plaintiff Atty. D. Todaro 2 The Court has, indeed, entered judgment for damages for failure to return security deposits, including attorney fees, in other cases involving other landlords.Filed on 12/02/2015 at 11:26 AM in Wayne County, Ohio Filed on 02/24/2015 at 04:19 PM in Wayne County, Ohio WAYNE COUNTY MUNICIPAL COURT JAMES P. CARTER Plaintiff : Case No. 2014 CV-F 001171 vs. 3 KAYE J. JOHNSON : MAGISTRATE’S PROPOSED Defendant : DECISION This matter came on for hearing before the Court Magistrate on February 23, 2015. Defendant, Kaye J. Johnson, appeared, together with her attorney, David M. Todaro. Plaintiff, James P. Carter, failed to appear. Plaintiff's claims against Defendant were set for a bench trial, while Defendant’s counter-claim against Plaintiff was set for a damages hearing, the Court having previously granted a default judgment against Plaintiff on said counter-claim on September 16, 2014. Based on the evidence presented, including testimony and exhibits, the Magistrate makes the following Findings of Fact, Conclusions of Law and Proposed Decision. Findings of Fact As the Plaintiff failed to appear for trial, his complaint against the Defendant was dismissed by the Court. Defendant testified that she had rented the subject premises from Plaintiff, at the rate of $425.00 per month. At the outset of the tenancy in November, 2013, Defendant paid to Plaintiff the first month’s rent of $425.00, the last month’s rent of $425.00, and a security deposit of $250.00 (total, $1,100.00). Subsequently, in March, 2014, Defendant properly notified Plaintiff in writing by certified mail, that she would be vacating the subject premises, and effectively terminated the rental agreement. She testified that her daughter had received notice that her request for Metro Housing had been approved, which necessitated the move. She testified that she coordinated her move with Roy Ebie, an employee of Plaintiff, and that he had inspected the subject premises upon her departure and delivery of possession, and approved its condition. He also advised the Defendant that a replacement tenant had been obtained, Defendant further testified that Plaintiff had been notified of her forwarding address, which was included on all of the correspondence she sent to Plaintiff. Further, she stated that Plaintiff failed to return any of her security deposit of $250.00 to her, and that he further failed at any time to provide her with an itemized list of any deductions he had made from the security deposit. Plaintiff claims as damages herein the following: 1) $500.00, representing her $250.00 security deposit, and $250.00 in damages representing ‘“...an amount equal to the amount wrongfully withheld...” pursuant to Revised Code Section 5321.16(C), and 2) $675.00, representing attommeys fees in the within matter (3.86 hours at $175.00 per hour): Total amount of damages claimed, $1,175.00.Filed on 12/02/2015 at 11:26 AM in Wayne County, Ohio Filed on 02/24/2015 at 04:19 PM in Wayne County, Ohio Conelusions of Law Ohio Revised Code Section 5321.16(B) reads as follows: 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 address or new address to which the written notice and amount due from the landiord may be sent, If the tenant fails to provide the landlord with the forwarding or new address as tequired, the tenant shall not be entitled to damages or attorneys fees under division (C) of this section. Defendant has met her burden of proof herein. According to the uncontroverted evidence presented, Defendant complied with the requirements of Revised Code Section 5321.16(B). The evidence is also uncontroverted that Plaintiff failed to comply with the dictates of Revised Code Section 5321.16(B), and Defendant is accordingly entitled to the damages as set forth in Revised Code Section $321.16(C). Defendant is entitled to a return of her security deposit of $250.00, together with damages of an equal amount of $250.00. Additionally, Defendant is entitled to reasonable attorneys fees. The Court finds that the amount requested, a total of $675.00 representing 3.86 hours of work at $175.00 per hour, is reasonable with regard to the issues presented and the work required to be performed in the within matter. ROP! DECISION Plaintiff James P. Carter's complaint against Defendant Kaye J. Johnson is hereby DISMISSED. Judgment is granted to Defendant, Kaye J. Johnson on her counter-claim against Plaintiff, James P. Carter, in the amount of $1,175.00, plus interest at the rate of 3% per annum from the date of judgment, plus court costs. Pursuant to Civil Rule 53, a party may within 14 days of the filing of this Proposed Decision, serve and file a written objection. If an objection is timely filed, any ‘other party may serve and file an objection within ten (10) days from the date of filing of the first objection. Any objection to a factual finding by a magistrate must be accompanied by a transcript of the evidence or a supporting affidavit. The transcript or supporting affidavit must. be filed within 30 days after the objections arc filed.Filed on 12/02/2015 at 11:26 AM in Wayne County, Ohio Filed on 02/24/2015 at 04:19 PM in Wayne County, Ohio *WAIVER OF RIGHT TO ASSIGN ADOPTION BY COURT AS ERROR ON APPEAL* A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'S ADOPTION OF ANY : FINDING OF FACT OR CONCLUSION OF LAW UNLESS THE PARTY HAS OBJECTED TO THAT ! FINDING OR CONCLUSION UNDER CIVIL RULE 53. CERTIFIC. F SERVICE ‘The undersigned Deputy Clerk hereby certifies that copies of the within Proposed Decision were mailed by U.S. Mail to the parties this ‘day of February, 2015. Deputy Clefk