Mandzuch v. Affordable Reasonable Rentals, LLC

Decision Date28 May 2019
Docket NumberCASE NO. 2018-G-0179
Citation2019 Ohio 2092
PartiesSHANNON MANDZUCH, Plaintiff-Appellee, v. AFFORDABLE REASONABLE RENTALS, LLC, Defendant-Appellant.
CourtOhio Court of Appeals
OPINION

Civil Appeal from the Chardon Municipal Court, Case No. 2018 CVI 00287.

Judgment: Affirmed.

Mitchell L. Alperin, 29325 Chagrin Blvd., Suite 305, Pepper Pike, OH 44122 (For Plaintiff-Appellee).

Donald Gallick, 190 North Union Street, Suite 102, Akron, OH 44304 (For Defendant-Appellant).

TIMOTHY P. CANNON, J.

{¶1} Appellant, Affordable Reasonable Rentals, LLC ("ARR"), appeals a judgment in the Chardon Municipal Court, Geauga County, in favor of appellee, Shannon Mandzuch, ("Mandzuch") for an unreturned security deposit, statutory damages, and attorney fees. We affirm the trial court's judgment.

{¶2} The facts leading up to the dispute between the parties are simple and straightforward. In August 2016, Mandzuch entered into a one-year lease with ARR for the property located at 201 Hilltop Drive, Chardon, Ohio. Pursuant to the lease, Mandzuch provided a security deposit in the amount of $950.00. At the conclusion of the lease, ARR kept the security deposit without explanation. After multiple attempts to contact ARR's owner, Joseph Ernst ("Ernst"), Mandzuch retained counsel and filed suit in small claims court for the recovery of her security deposit, as well as for statutory damages under the "Landlord Tenant Act," codified in R.C. 5321 et seq., and reasonable attorney fees as provided under the statute.

{¶3} The complaint was filed on April 18, 2018, and a trial on the matter was set for May 24, 2018. On May 18, 2018, ARR, through Ernst, filed a motion to continue the trial, which was granted. The trial was reset for June 7, 2018.

{¶4} On May 31, 2018, ARR filed a counterclaim and raised a litany of damages allegedly caused by Mandzuch. The counterclaim sought $2,000.00 for the damages.

{¶5} On June 6, 2018, Ernst filed a second motion to continue the trial set for the next day and presented the court with a doctor's note indicating that he was ill. The trial court granted the continuance, and the trial was held on June 14, 2018. Present at the trial were Mandzuch, Ernst, and a witness for Mandzuch who was sworn in and identified as Christopher Bray ("Bray").

{¶6} Mandzuch testified that she was a tenant of ARR and had not received her security deposit—or any explanation whatsoever regarding it—after her lease ended in August 2017. She also claimed that the allegations contained in the counterclaim were false and that many of the damages alleged in the counterclaim existed prior to the time she took over occupancy. Further, Mandzuch testified that a walkthrough of the residence occurred on August 31, 2017, at which Ernst indicated that "everything looked great" andshe would receive her full security deposit within 30 days. Bray claimed that he was present during the walkthrough and also corroborated some of Mandzuch's testimony about the preexistence of damages and the condition of the residence during the walkthrough.

{¶7} Mandzuch also testified regarding her attempts to contact Ernst. In addition to providing a forwarding address at the time of the walkthrough, Mandzuch claimed that she called, texted, and visited Ernst's business on multiple occasions, but she was unable to get in contact with him. Thereafter, she sent him a certified letter dated November 23, 2017, which was signed for at Ernst's business in Chardon. Additionally, Mandzuch's counsel sent a demand letter to the same address dated March 2, 2018. Ernst did not respond to any of these attempts to contact him.

{¶8} Ernst testified there were various plumbing issues, landscaping issues, and other damages that were included in the counterclaim throughout the term of the lease. He also stated that he never received a forwarding address in August 2017 and that he had no forwarding address until at least November 2017.

{¶9} Ernst further testified that he had never provided Mandzuch with an itemized list of damages as required by statute and that he was unaware he had to provide a written itemization within 30 days detailing the expenses that were being sought from the security deposit funds. He stated that he spoke to Mandzuch on the phone regarding damages to the carpeting but that no written notice was given. He also submitted to the court a move-out checklist for damages, but it was not completed by Mandzuch at the time of the walkthrough or thereafter. The following exchange occurred when the court questioned Ernst regarding the checklist:

The Court: All right. So you produced this [checklist] after or -
Mr. Ernst: That was left for her and it was never filled out. It was just never done.
The Court: Is this to move in or check out? Check out, the checklist. So you left this for her and she never filled it out?
Mr. Ernst: It was never filled out.
The Court: And did you bring it up when you went through the walk-through?
Mr. Ernst: No, because if they had time to walk through - it was there. It was [sic] basically said it wasn't needed. And -
The Court: Did you accept that?
Mr. Ernst: - I always try to do this - I'm sorry?
The Court: Did you accept that when she said, "Hey, I don't need to fill this out?"
Mr. Ernst: It's - it's their right. I mean, I'm - I'm not there to challenge them. I'm not there to create an issue. When somebody comes through a walk-through, you know, and they have a friend that's - that's with them, I'm not going to be confronted. I mean, it was - it was pretty plain and simple, it was just going to be a - an issue of this is what it is and that's it.

{¶10} Mandzuch presented the lease to the court, as well as over 100 pages of text messages between herself and Ernst dating back to the start of the lease. These text messages related in part to damages to the house that predated the tenancy and suggest that Ernst was notified of the damages throughout the term of the lease. Further, the text messages confirmed that a walkthrough occurred on August 31, 2017, and that the same forwarding address contained in the November certified letter was texted to Ernst that same day. In addition, Mandzuch presented a bill for attorney fees and an affidavit from her attorney attesting to the reasonableness of the fees.

{¶11} Ernst presented an itemized list of damages dated November 23, 2017—nearly three months after the end of the lease—as well as an affidavit from the current tenants regarding the condition of the residence at the time they took over occupancy in September 2017. As noted above, however, Ernst acknowledged the itemized list of damages was not given to Mandzuch. The checklist discussed above was also presented, as well as a citation from the City of Chardon regarding a landscaping violation for the property dated June 8, 2017.

{¶12} After hearing the testimony and reviewing the evidence submitted by the parties, the magistrate issued a decision on July 5, 2018, in which he stated that Mandzuch was the more credible party. The magistrate recommended an award of damages in the amount of two times the security deposit and attorney fees, for a total amount of $4,212.50, minus the $95.00 filing fee, along with court costs. He also recommended judgment in favor of Mandzuch on ARR's counterclaim. On September 10, 2018, the trial court adopted the magistrate's decision without modification and denied ARR's request for findings of fact and conclusions of law.

{¶13} ARR filed a timely notice of appeal and raises five assignments of error.

{¶14} ARR's first assignment of error states:

{¶15} "The instant case should be remanded for a new trial as the magistrate did not invite either side to conduct cross-examination of any testimony, allowed repeated interruption of witnesses, and violated the right to due process under the Ohio and U.S. Constitutions."

{¶16} An appellate court cannot consider issues or claims that were not raised in the lower court. Ray v. Petersen, 11th Dist. Geauga No. 2001-G-2387, 2002-Ohio-6575,¶9 ("[i]t is axiomatic that a party cannot raise issues for the first time on appeal that were not raised below"); State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 (1997) (citations omitted) ("[o]rdinarily, reviewing courts do not consider questions not presented to the court whose judgment is sought to be reversed").

{¶17} Further, we note that no constitutional issues were raised at trial, and they are asserted for the first time in this appeal. Pursuant to State v. Awan, 22 Ohio St.3d 120 (1986), syllabus, the "[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue * * * and therefore need not be heard for the first time on appeal." See also State v. Gordon, 28 Ohio St.2d 45 (1971), paragraph two of the syllabus.

{¶18} The waiver doctrine stated in Awan is discretionary. In re M.D., 38 Ohio St.3d 149 (1988), syllabus. Even though this court has the jurisdiction to review the alleged denial of constitutional rights that were not raised at the trial level, this discretion will not ordinarily be exercised to examine a claim that existed prior to or at the time of trial. State v. Schlee, 11th Dist. Lake No. 98-L-187, 1999 WL 1313651, *10 (Dec. 17, 1999). When a party fails to assert a constitutional issue to the trial court and we do exercise jurisdiction, however, we review for plain error. Osborne v. Leroy Twp., 11th Dist. Lake No. 2015-L-118, 2017-Ohio-1506, ¶29, citing In re: J.F., 11th Dist. Trumbull No. 2011-T-0078, 2011-Ohio-6695, ¶34.

{¶19} Finally, ARR acknowledges that the Ohio Rules of Evidence do not apply in the small claims division. Cunningham v. Miller, 11th Dist. Trumbull No. 2009-T-0092, 2010-Ohio-2526, ¶27, citing Evid.R. 101(c)(8). "'[B]y design, proceedings in small claimscourts are informal and geared to allowing individuals to resolve uncomplicated...

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