Edna Langford v. Joseph Danolfo
| Decision Date | 01 April 1982 |
| Docket Number | 82-LW-2189,43917 |
| Parties | EDNA LANGFORD APPELLANT, v. JOSEPH DANOLFO, ET AL. APPELLEES. |
| Court | Ohio Court of Appeals |
For plaintiff-appellant: Paul Mancino, Jr.
For defendants-appellees: Theodore J. Stebbins Thomas, B Corrigan.
JOURNAL ENTRY AND OPINION
This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Cleveland Municipal Court, and was submitted on briefs; and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Cleveland Municipal Court is affirmed. Each assignment of error was reviewed and upon review the following disposition made:
Landlord appeals from a judgment entered in her favor and against the tenants' surety on a supersedeas appeal bond arguing that she is entitled to greater damages.®1¯ We affirm, finding no prejudicial error in the trial court's calculation of damages.
Footnote 1 Defendant has presented the following claimed errors:
Landlord was granted a summary judgment evicting two tenants in a forcible entry and detainer proceeding. One tenant occupied upstairs premises, the other was downstairs. No claim for rental arrearages was made in landlord's complaint, and no monetary judgment was entered. Tenants filed a notice of appeal and a motion to stay execution of the judgment. The motion for a stay was granted by the trial court and a "supersedeas bond [was] set for $5,000.00." The downstairs tenant obtained a $5,000 appeal bond, with the defendant insurer as surety on that bond. The appeal was thereafter voluntarily dismissed when that tenant died.
Landlord then sought damages from the surety for the rental value of the premises. After a hearing, the trial judge awarded landlord $1,125, based on its findings that the downstairs suite had a fair rental value of $225 per month,®2¯ and that it was occupied for five months after the appeal bond was obtained.
Footnote 2 Landlord had claimed the rent for the downstairs premises should be $225 per month in her original motion relating to the appeal bond. At the hearing on the claim against the surety, the parties stipulated that was a fair rental for those premises.
In her first and third assignments of error, landlord argues she is legally entitled to recover from the surety all rentals for the period rent was unpaid, beginning more than two months before the forcible entry and detainer action was filed. This argument lacks merit.
Landlord offers no authority to support her proposition, and we are unable to find any. On the contrary, case law in Ohio and elsewhere uniformly holds that a landlord may recover on such an appeal bond only those damages occasioned by the delay in enforcing the eviction order. Shafter v. Stein (1945), 78 Ohio App. 47, 49; Tuteur v. P. & F. Enterprises, Inc. (1970), 21 Ohio App. 2d 122, at 130-131; Moore v. Townsend (7th Cir. 1978), 577 F.2d 424, at 426-427; Kountze v. Omaha Hotel Co. (1882), 107 U.S. 378, 394, 2 S.Ct. 911, 925, 27, L.ed. 609; Weiner v. 222 East Chestnut Corp. (7th Cir. 1962), 303 F.2d 630, at 637.
Therefore, the trial court properly awarded landlord judgment against the surety for the rental value of the downstairs suite, for the five-month period extending from the date the downstairs tenant obtained the bond until the end of the month in which she died and the appeal was dismissed.
The first and third assignments of error are overruled.
In her second assignment of error, landlord argues the trial court should have awarded damages against the surety for rentals due from the upstairs tenant. Landlord presented evidence that the second tenant resided in the upstairs suite without paying rent from August 1, 1979 to October 17, 1980. The trial court declined to award landlord any damages against the surety for that claim. We find no error, since the upstairs tenant was not named in the bond, nor did he sign the bond.
Revised Code 1335.05 provides:
"No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default, or miscarriage of another person; * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized."
Since there is absolutely no indication on the bond that the surety agreed to answer for any obligation of the upstairs tenant, the statute of frauds prevents recovery against the surety for the upstairs tenant's defalcation.
A surety is not bound beyond the exact terms of its bond. VanWert Nat. Bank v. Roos (1938), 134 Ohio St. 359, 372-373; Black v. Albery (1914), 89 Ohio St. 240, 246. Sureties have a right to specify the obligations and the persons for which they accept responsibility. Yalowitz v. Cuyahoga Amusement Co. (1930), 8 Ohio L. Abs. 701.
Landlord argues that the appeal bond allowed the...
To continue reading
Request your trial