Jemo Associates, Inc. v. Garman, 81-1444
| Citation | 24 O.O.3d 358,70 Ohio St.2d 267,436 N.E.2d 1353 |
| Decision Date | 30 June 1982 |
| Docket Number | No. 81-1444,81-1444 |
| Parties | , 24 O.O.3d 358 JEMO ASSOCIATES, INC., Appellee, v. GARMAN, Appellant. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court
1. A counterclaim may be interposed in any action in forcible entry and detainer, as authorized by Civ.R. 13.
2. In a forcible entry and detainer action, a counterclaim brought by the defendant-tenant under R.C. 5321.02(B) which seeks attorney's fees without alleging actual damages is insufficient as a matter of law.
Plaintiff-landlord, Jemo Associates, Inc., initiated an action in forcible entry and detainer under R.C. Chapter 1923 in the Municipal Court of Celina on October 7, 1980, alleging violations of the lease agreement by defendant-tenant, Tina M. Garman. Counsel for defendant, an attorney with Allen County Blackhoof Area Legal Services, moved to dismiss the complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. The court permitted plaintiff to amend its complaint, and defendant thereafter filed an answer generally denying plaintiff's amended allegations, claiming as an affirmative defense that the eviction constituted retaliatory action on the part of the landlord. 1 Defendant then made the following counterclaim "Defendant's First Affirmative Defense as alleged above is here incorporated as if fully restated.
"WHEREFORE Defendant demands judgement (sic) against the Plaintiff on its action for forcible entry and detainer, and for attorney's fees as provided in (R.C.) 5321.02(B)(3)."
Plaintiff moved to dismiss the counterclaim, and the trial court granted the motion following a hearing on November 10, 1981. It concluded that R.C. 1923.061 2 only provides a tenant the right to file a counterclaim in an action for possession based on non-payment of rent or in an action for rent, and that Civ.R. 13, governing counterclaims and cross-claims, is inapplicable to actions in forcible entry and detainer by virtue of Civ.R. 1(C)(3). 3
Defendant thereupon brought an original action in the Court of Appeals, unsuccessfully seeking a writ of prohibition to prevent dismissal of the counterclaim. Upon entry of the trial court decision dismissing the counterclaim without trial, defendant appealed to the Court of Appeals. Subsequently, the trial court dismissed the underlying action for possession, defendant having vacated plaintiff's premises.
Although it disagreed with the trial court reasoning that no right to counterclaim existed apart from R.C. 1923.061, the Court of Appeals affirmed the dismissal of the counterclaim. Acknowledging the existence of a right to counterclaim in an eviction action at common law and under the Rules of Civil Procedure, the Court of Appeals nevertheless held that by failing to plead actual damages, defendant could not in any event recover on her counterclaim and was therefore not aggrieved by its dismissal.
The court finding its judgment to be in conflict with the judgment of the Court of Appeals for Cuyahoga County in Lewis v. Romans (July 31, 1980), No. 41503, unreported, 4 certified the record of the case to this court for review and final determination.
Meikle, Tesno, & Luth and James Tesno, Celina, for appellee.
Sherri L. Katz, Louise McKinney, Carolyn L. Carter and Richard Gurbst, Cleveland, for appellant.
The initial question raised here is whether a counterclaim can be interposed in this action for possession under R.C. Chapter 1923, relating to forcible entry and detainer. The ultimate issue to be decided in this appeal is whether defendant-tenant stated a valid counterclaim when she sought no actual damages, only attorney's fees. We hold that a right to counterclaim did exist, but having failed to plead actual damages in her counterclaim, defendant tenant did not state an actionable cause.
Plaintiff brought these proceedings in forcible entry and detainer alleging defendant-tenant was holding over her term, having breached several obligations imposed upon her by the written rental agreement. See R.C. 1923.02(A)(1) and (9). As stated in R.C. 1923.061(A), any defense to a forcible entry and detainer action may be asserted at trial, and a counterclaim may be interposed "(i)n an action for possession of residential premises based upon non-payment of the rent or in an action for rent when the tenant is in possession * * *." R.C. 1923.061(B).
In this action, not one based upon nonpayment of rent, or seeking back rent, defendant sought to raise a counterclaim. The trial court, considering R.C. 1923.061(B) alone, held her counterclaim inappropriate and dismissed it. In so doing, the trial court failed to consider Civ.R. 13, which grants the right to compulsory and permissive counterclaims against any opposing party. We do not consider that rule by its nature "clearly inapplicable" to procedure in forcible entry and detainer. Nor does R.C. 1923.061(B) by its language bar counterclaims in situations other than actions for rent or based upon nonpayment of rent. Rather, that section merely serves to establish by order of the court "from time to time," a means of payment into the court of all rent, past due and accruing during the pendency of the action, from which any eventual net judgment may be satisfied. The legislative intent underlying R.C. 1923.061 was not to bar counterclaims in actions outside the scope of that section, but to preserve the tenant's right to possession and guarantee the existence of a fund to settle the various claims.
Finally, R.C. 1923.081, 5 enacted in the same bill with R.C. 1923.061, appears to contemplate the possibility of counterclaims in any action in forcible entry and detainer for residential premises. It permits joinder of causes of action for possession, past rent due, damages, and counterclaims raised by defendant, in one trial.
The Court of Appeals correctly concluded that a counterclaim may be raised in any action in forcible entry and detainer, as authorized in Civ.R. 13. 6 Nevertheless, the appellate court affirmed the decision of the trial court in dismissing the counterclaim, holding that defendant's "so-called 'counterclaim' " was not one on which defendant could recover.
The counterclaim held insufficient by the Court of Appeals consisted of a restatement of the affirmative defense of retaliation authorized in R.C. 5321.02. The statement, which substantially paraphrases R.C. 5321.02(A)(1) through (3), included no allegations of health and safety violations, or other breach of the landlord's obligations which could conceivably cause defendant to suffer damages. The defense merely alleged that she had complained of such conditions. Significantly, in response to plaintiff's interrogatories, defendant stated that she would not be presenting evidence on health, safety, or other violations by the landlord at trial. Defendant's affirmative defense therefore reduces to the allegation that the eviction action was instituted after defendant met with other tenants to discuss complaints about conditions and maintenance. The counterclaim alleged no actual damages resulting from the alleged retaliatory action, merely seeking "attorney's fees as provided in (R.C.) 5321.02(B)(3)."
R.C. 5321.02(B) provides:
The language of R.C. 5321.02(B) expressly conditions the award of attorney's fees on a finding that the tenant suffered actual damages. By seeking attorney's fees in her counterclaim without claiming that any actual damages were incurred as the result of the landlord's alleged retaliatory conduct, defendant's pleading failed to satisfy the requirements of Civ.R. 8(A) governing claims for relief. That rule provides:
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