Alcoroso v. Correll

• Decision Date: 01 October 2020
• Docket Number: No. 109166,109166
• Citation: Alcoroso v. Correll, 159 N.E.3d 924 (Ohio App. 2020)
• Parties: Stacy ALCOROSO, Plaintiff-Appellant, v. Jason B. CORRELL, Defendant-Appellee.
• Court: Ohio Court of Appeals

159 N.E.3d 924

Stacy ALCOROSO, Plaintiff-Appellant,

v.Jason B. CORRELL, Defendant-Appellee.

No. 109166

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: October 1, 2020

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR., J.:

{¶1} Plaintiff-appellant Stacy Alcorso¹ ("Alcorso") brings the instant appeal challenging the trial court's denial of her motion for attorney fees and motion to tax costs, arguing that the verdict in this matter was against the manifest weight of the evidence. After a thorough review of the record and law, this court affirms in part and reverses in part the decision of the trial court.

I. Factual and Procedural History

{¶2} Alcorso entered into a written lease agreement to rent a home located at 4117 W. 217th Street, Fairview Park, Ohio ("premises") from defendant-appellee Jason Correll ("Correll"). Pursuant to the terms of the lease, Alcorso paid Correll a security deposit in the amount of $1,200. At the end of the lease agreement, Alcorso vacated the premises; Correll subsequently sent her a letter with an itemization of the alleged damage and repairs made to the premises. Alcorso objected to the claimed damage and repairs and demanded the return of her full security deposit, which Correll refused.

{¶3} On December 26, 2017, Alcorso filed a complaint in the Rocky River Municipal Court seeking the return of her security deposit, double damages, and attorney fees pursuant to R.C. 5321.16. Correll answered the complaint on February 16, 2018, and later amended his answer to assert a counterclaim for damage to the premises. A jury trial commenced on July 15, 2019. The jury ultimately found in favor of Alcorso on her complaint and awarded her $446.19. The jury also found in Alcorso's favor on Correll's counterclaim.

{¶4} On August 6, 2019, Alcorso filed (1) a motion to tax costs seeking $1,143.06 for the costs of Correll's deposition and Alcorso's expert witness; and (2) a motion for attorney fees seeking $11,150. Correll did not file a brief in opposition to either motion. The court held a hearing on the motions, at the conclusion of which, it denied both motions. In its judgment entry, the court stated that the motion for attorney fees was denied because the matter had been submitted to the jury. The court further denied the motion to tax costs but noted that Alcorso had previously been awarded court costs in the sum of $525 in the court's July 23, 2019 judgment entry journalizing the jury verdict.

{¶5} On October 14, 2019, Alcorso filed the instant appeal and raises the following assignments of error for our review:

I. The trial court erred when it determined that attorney fees pursuant to R.C. 5321.16(C) was a question for the jury and refused to tax attorney fees as costs.

II. The trial court abused its discretion when it failed to order any attorney fees to be taxed as costs and denied the tenant's litigation expenses to be awarded as costs when a portion of the security deposit was improperly withheld by the landlord in violation of R.C. 5321.16.

III. The trial court erred when it failed to make an award of statutory damages in accordance with R.C. 5321.16(C).

IV. The judgment was against the manifest weight of the evidence.

II. Law and Analysis

{¶6} For ease of analysis, we will address the assignments of error out of order.

A. Manifest Weight of the Evidence

{¶7} In her fourth assignment of error, Alcorso argues that the judgment was against the manifest weight of the evidence.

{¶8} To set aside a damage award as inadequate and against the manifest weight of the evidence, a reviewing court must determine that the verdict is so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiff's claim. Morelli v. Walker , 8th Dist. Cuyahoga No. 88706, 2007-Ohio-4832, 2007 WL 2729811, ¶ 40, citing Whiteside v. Bennett , 1st Dist. Hamilton No. C-050605, 2006-Ohio-3600, 2006 WL 1933738.

{¶9} "A verdict supported by some competent, credible evidence going to all the essential elements of the case must not be reversed as being against the manifest weight of the evidence." Swoope v. Osagie, 2016-Ohio-8046, 76 N.E.3d 686, ¶ 25-26 (8th Dist.), citing Domaradzki v. Sliwinski , 8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, 2011 WL 1797260, ¶ 6 ; C.E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. "Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.’ " Swoope at ¶ 26, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed. 1990).

{¶10} R.C. 5321.16 provides security deposit procedures for landlords and tenants. Relevant to this matter, R.C. 5321.16(B) sets forth procedures with respect to deductions made from the security deposit by the landlord upon the termination of the rental agreement and requires that "[a]ny 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." Also, pursuant to R.C. 5321.16(B), the tenant is required to "provide the landlord in writing with a forwarding address or new address to which the written notice and amount due from the landlord may be sent"; otherwise, "the tenant shall not be entitled to damages or attorney fees provided under division (C) of this section." R.C. 5321.16(C) provides that "[i]f the landlord fails to comply with division (B) of this section, the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorney fees."

{¶11} The Supreme Court of Ohio has recognized that in enacting R.C. 5321.16(B) and (C), part of the General Assembly's intent was "to provide a penalty by way of damages and reasonable attorney fees against a noncomplying landlord for the wrongful withholding of any or all of the security deposit." Vardeman v. Llewellyn , 17 Ohio St.3d 24, 28, 476 N.E.2d 1038 (1985). The Supreme Court has stated that the "amount wrongfully withheld" means "the amount found owing from the landlord to the tenant over and above any deduction that the landlord may lawfully make." Id. at 29, 476 N.E.2d 1038.

{¶12} Additionally, R.C. 5321.16(B) and (C) do not require bad faith on the part of the landlord.

Lloyd v. Roosevelt Properties, 8th Dist. Cuyahoga No. 105721, 2018-Ohio-3163, 2018 WL 3814972, ¶ 43, citing Smith v. Padgett, 32 Ohio St.3d 344, 349, 513 N.E.2d 737 (1987). As held by the Supreme Court, "under R.C. 5321.16(B) and (C), a landlord who wrongfully withholds a portion of a tenant's security deposit is liable for damages equal to twice the amount wrongfully withheld and for reasonable attorney fees. Such liability is mandatory * * *." Smith, paragraph two of the syllabus.

{¶13} With respect to the recovery of double damages under R.C. 5321.16(C), the Supreme Court of Ohio has stated as follows:

There is no requirement that a conscious, deliberate, or intentional attempt to cause harm be proved in order to recover statutory double damages pursuant to R.C. 5321.16(C). * * * Thus, to recover double damages under R.C. 5321.16(C) the tenant need prove only that the security deposit, or some portion thereof, has been wrongfully withheld. * * *

The double damages recoverable under R.C. 5321.16(C) are simply a measure of the damages allowable and are akin to liquidated damages rather than punitive damages. These additional damages serve to compensate injured tenants for the temporary loss of the use of that money given to the landlord as a security deposit and for the time and inconvenience of having to sue for the recovery of money wrongfully withheld. In addition, the possibility of double damages creates an incentive for landlords to comply with the law.

Klemas v. Flynn , 66 Ohio St.3d 249, 251-252, 611 N.E.2d 810 (1993).

{¶14} This matter proceeded as a jury trial. The jury instructions utilized in this case were submitted by Correll and drawn from OJI. They stated in pertinent part:

If you find by the greater weight of the evidence that the defendant wrongfully withheld all or any part of the security deposit, then your verdict must be for the plaintiff and you will proceed to determine what amount of money should be awarded to the plaintiff. The amount wrongfully withheld is the amount of the security deposit plus any offset or deduction for excessive wear and tear.

On the other hand, if you find by the greater weight of the evidence that the defendant did not wrongfully withhold any part of the security deposit, then your verdict must be for the defendant.

If you find that the defendant wrongfully withheld all or any part of the security deposit, and if you find that the plaintiff provided to the defendant in writing her new or forwarding address, then you shall award to the plaintiff the money due to the plaintiff together with additional damages in the amount equal to the amount wrongfully withheld and reasonable attorney fees.

You shall not, however, permit this award of additional damages to affect your determination of the amount wrongfully withheld.

If you find that the defendant wrongfully withheld all or any part of the security deposit, but you find that the plaintiff did not provide in writing a new or forwarding address, then you should award to the plaintiff only the money wrongfully withheld.

{¶15} We note that the transcripts that have been filed in this case reflect only the hearing on Alcorso's post-judgment motions for attorney fees and costs and excerpts of the second day of trial, which included closing arguments, the jury charge, and the verdict. The transcript from...