Dyche Real Estate Fund v. Graves

• Decision Date: 19 January 1978
• Citation: 9 O.O.3d 321,55 Ohio App.2d 153,380 N.E.2d 767
• Parties: , 9 O.O.3d 321 DYCHE REAL ESTATE FUND, Appellant, v. GRAVES, Appellee.
• Court: Ohio Court of Appeals

Page 153

55 Ohio App.2d 153

380 N.E.2d 767, 9 O.O.3d 321

DYCHE REAL ESTATE FUND, Appellant, v. GRAVES, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

Jan. 19, 1978.

Syllabus by the Court

1. In a landlord-tenant action, brought under R.C. Chapter 5321, the issue of attorney fees is to be submitted to the jury, and the determination of such fees is not a matter for the trial court's consideration.

2. A tenant, in an action brought under R.C. Chapter 5321, may not be awarded attorney fees unless there has been a finding by the jury that actual damages have been suffered.

3. It is improper for the trial court to Sua sponte submit an interrogatory to the jury regarding its verdict.

Richard L. Innis, Columbus, for appellant.

James D. McNamara, Columbus, for appellee.

HOLMES, Presiding Justice.

This matter involves the appeal of a judgment of the Franklin County Municipal Court which awarded counsel for the defendant third-party plaintiff the sum of $2,240 as attorney fees, purportedly in accordance with R.C. 5321.04(B) of the landlord-tenant laws of the state of Ohio.

This action began by the filing of a forcible entry and detainer action by the landlord, Dyche Real Estate Fund, against the defendant third-party plaintiff tenant with a claim of unpaid back rent. The defendant filed an answer and third-party complaint against Dyche Real Estate Fund, alleging a violation of the landlord-tenant act, specifically R.C. 5321.04(B).

The trial court by an interim entry prior to trial ordered the tenant to deposit monthly rentals into the court or be evicted forthwith pursuant to the order.

The case was tried to a jury which returned a verdict in favor of the landlord for the stipulated amount of rentals due and found for the tenant on the third-party complaint in the amount of zero dollars.

The trial court entered its judgment on such jury verdict and ordered restitution pursuant to its prior order due to the failure of the tenant to pay the required rent.

Subsequent to the aforestated judgment, the tenant's legal counsel filed a "Motion for Award of Reasonable Attorney Fees" with memorandum in support thereof. As stated, the trial court thereafter awarded attorney fees for the tenant in the sum of $2,240.

Dyche Real Estate Fund appeals, setting forth the following assignments of error:

1. "The trial court lacked jurisdiction to award attorney fees because the case had previously been terminated."

2. "The trial court lacked jurisdiction to award attorneys fees because the issue was one for jury determination."

3. "The trial court lacked jurisdiction to award attorneys fees since the order provided that the Plaintiff was ordered to pay James D. McNamara, a person not a party to the original lawsuit."

4. "The trial court erred in awarding attorneys fees on the basis of an Interrogatory submitted to the jury over the objection of counsel and in violation of Rule 49 of the Ohio Rules of Civil Procedure."

5. "The trial court erred in awarding attorney fees in this case pursuant to Section 5321.04B."

6. "The trial court erred in awarding the sum of $2,240.00 as attorneys fees as the same is excessive, not provided for by law, and contrary to the provisions of 5321.04 of the Revised Code."

The first, second and fifth assignments of error being interrelated, we shall discuss them together.

The motion by the tenant's counsel for the award of attorney fees was made pursuant to R.C. 5321.04(B), which states as follows:

"If the landlord makes an entry in violation of division (A)(8) of this section, or makes a lawful entry in an unreasonable manner, or makes repeated demands for entry otherwise lawful which have the effect of harassing the tenant, the tenant may recover actual damages resulting therefrom and obtain injunctive relief to prevent the recurrence of the conduct, and if he obtains a judgment reasonable attorneys fees, or terminate the rental agreement."

It is the statutory scheme of this section of law to award attorney fees to a tenant where there has been a determination, based upon the facts presented, that the tenant has suffered actual damages resulting from the entry of a landlord in violation of (A)(8) of the section, or for a lawful entry in an unreasonable manner, or for a landlord who makes repeated demands for entry otherwise lawful, which have the...