McGinnis v. Donatelli, 52384

• Citation: 36 Ohio App.3d 120,521 N.E.2d 513
• Decision Date: 23 March 1987
• Docket Number: No. 52384,52384
• Parties: McGINNIS et al., Appellees, v. DONATELLI, Appellant.
• Court: Ohio Court of Appeals

Page 120

36 Ohio App.3d 120

521 N.E.2d 513

McGINNIS et al., Appellees, v. DONATELLI, Appellant.

No. 52384.

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

March 23, 1987.

Syllabus by the Court

1. Where a trial court enters final judgment for a tenant in an R.C. 5321.16(C) proceeding, but fails to include an amount for attorney fees, the court cannot subsequently make a post-judgment entry awarding attorney fees to the tenant after the time to perfect an appeal has expired since the first judgment is res judicata.

2. In the absence of a specific finding by the trial court that the landlord "wrongfully withheld" funds of the tenant, the court cannot award reasonable attorney fees to the tenant pursuant to R.C. 5321.16(C). Similarly, the court cannot award reasonable attorney fees without first taking evidence on this issue.

Wendy H. Stockfish, Cleveland, for appellees.

Denise Donatelli, pro se.

PER CURIAM.

Appellant, Denise Donatelli, has assigned two errors for this court's review:

"A. The trial court committed error in awarding attorney fees post-judgment, after failing to award attorney fees in its final judgment, which is contrary to statute and case law.

"B. The trial court awarded attorney fees where no wrongful withholding had been found."

Both assignments are meritorious.

On December 11, 1984, the previous tenants, plaintiffs-appellees, filed their complaint in the East Cleveland Municipal Court. Their prayer included a demand for the return of the security deposit, the amount wrongfully withheld under the provisions of R.C. 5321.16(C), and attorney fees. The court, on May 21, 1985, granted judgment for appellees as follows:

"Case called. Upon evidence judgment for plaintiffs against defendants [sic ] for $561.74 and costs."

No explanation was given by the court for this amount, nor did the court make a finding of wrongful withholding as required by Vardeman v. Llewellyn (1985), 17 Ohio St.3d 24, 29, 17 OBR 20, 24, 476 N.E.2d 1038, 1042, so that attorney fees could be assessed. In addition, at no time did the trial court request that the appellees file a motion for attorney fees.

The judgment of May 21, 1985 was never appealed. Therefore, the judgment remains intact, and the only issue presented in this appeal concerns attorney fees.

On June 27, 1985, thirty-seven days after the journal entry of May 21, 1985, the appellees' motion for attorney fees was presented to the trial court. Without holding a hearing, the trial court granted appellees' motion for attorney fees in the amount of $918 on June 29, 1986.

The journal entry of May 21, 1985 is dispositive of this case, and the issue of attorney fees which could have been determined at the original trial is res judicata. Res judicata attaches not only to questions actually presented to a court, but also to questions which might have been presented for adjudication. In Stromberg v. Bd. of Edn. of Bratenahl (1980), 64 Ohio St.2d 98, 100, 18 O.O.3d 343, 344, 413 N.E.2d 1184, 1186, the court stated as follows:

"This court has uniformly adhered to the doctrine of res judicata to prevent repeated attacks upon a final judgment. The doctrine applies not only to what was determined but also to every question which might properly have been litigated. * * * "

The reasoning for this rule was well stated in Anderson v. Richards (1962), 173 Ohio St. 50, 53, 18 O.O.2d 252, 254, 179 N.E.2d 918, 921:

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