Schultz v. Wurdlow, No. 11AP-62

Decision Date12 July 2012
Docket NumberNo. 11AP-62
Citation2012 Ohio 3163
PartiesKelly J. Schultz et al., Plaintiffs-Appellees, v. Lawrence Earl Wurdlow, Defendant-Appellant.
CourtOhio Court of Appeals



Moritz College of Law, and Elizabeth I. Cooke, for appellees.

Lawrence Earl Wurdlow, pro se.

APPEAL from the Franklin County Municipal Court.


{¶ 1} Defendant-appellant, Lawrence Earl Wurdlow, appeals from a judgment of the Franklin County Municipal Court (1) concluding he violated R.C. 5321.16 when he failed to return to plaintiffs-appellees, Kelly J. Schultz and Daniel Duke, their security deposit on termination of their lease with defendant, (2) awarding them twice the amount of the security deposit, or $700, and (3) awarding them $14,782.50 in attorney fees. Because the trial court properly awarded plaintiffs twice their security deposit as a result of defendant's wrongfully withholding their security deposit, and did not abuse its discretion in awarding attorney fees in an amount that the evidence supports, we affirm.

I. Facts and Procedural History

{¶ 2} The procedural history of this case is pertinent to one or more of the issues in defendant's appeal, so we relate them in some detail.

{¶ 3} On July 11, 2008, plaintiffs filed a complaint seeking return of their $350 security deposited with defendant pursuant to their lease for the premises at 38 E. 17th Avenue, Apartment 42, near The Ohio State University campus. According to the complaint, plaintiffs vacated the apartment and returned the keys on April 30, 2008, leaving the apartment in good condition. Plaintiffs alleged defendant did not return the deposit, did not submit information about why he was withholding the deposit, did not respond to telephone or written messages, and did not appear for a third-party mediation on July 10, 2008. The complaint sought twice the amount of the security deposit plus fees and other court costs, as well as interest from the date of judgment.

{¶ 4} A trial was scheduled before a small claims magistrate on August 19, 2008. Defendant filed a motion to continue the trial date, specifically requesting trial on September 16, 2008; the court scheduled trial accordingly. At defendant's request, the court again rescheduled the matter, this time to October 8, 2008 at 1:30 p.m. Based on the October 8 proceedings, the magistrate issued a decision on October 10, 2008. The decision indicates the magistrate called the case at 1:45 p.m., but defendant failed to appear. The magistrate recommended judgment for plaintiffs in the amount $700, plus costs and interest at the rate of 8 percent from the date of judgment. On the same day, a judge of the municipal court entered judgment consistent with the magistrate's decision.

{¶ 5} Defendant filed a motion for reconsideration, contending he was present at the courtroom no later than 1:43 p.m. and thus was present if the magistrate called the case a second time at 1:45 p.m. When defendant's motion did not persuade the magistrate, defendant filed an objection to the magistrate's decision as well as a motion for a new trial. By entry filed November 13, 2008, the trial court ordered the matter to mediation scheduled for December 15, 2008. Mediation failed, and the court scheduled the matter for pretrial on February 5, 2009.

{¶ 6} Prior to pretrial, plaintiffs filed, on January 6, 2009, a motion for summary judgment regarding defendant's motion to reconsider and motion for a new trial; defendant did not respond. On February 24, 2009, the court granted plaintiffs' motion,entering judgment for plaintiffs in the amount of $2,263.50, plus statutory interest at the rate of 5 percent from the date of judgment. Defendant appealed.

{¶ 7} In a decision issued March 23, 2010, this court reversed the judgment of the trial court, concluding "the trial court modified its prior judgment without ever rendering a decision on landlord's pending objections, which runs contrary to the requirements of Civ.R. 53(D)(4)(e)(i)." Schultz v. Wurdlow, 10th Dist. No. 09AP-301, 2010-Ohio-1140, ¶ 13. We thus concluded "the trial court erred by issuing a judgment that modified and superseded its prior judgment without following the process that is required to issue such a modified judgment." Id.

{¶ 8} On remand, plaintiffs responded to defendant's objection and motion for new trial on May 13, 2010; on July 26, 2010, defendant filed a motion to dismiss. The trial court, on August 6, 2010, sustained defendant's objection to the magistrate's October 10, 2008 decision, mooting all the pending motions. Rather than refer the matter to the magistrate for trial, the court set it for trial before the court on October 28, 2010. The court's entry states that, on agreement of the parties, the parties were to complete all discovery by the end of September; defendant, however, failed to produce the requested documents until two days before trial. Although plaintiffs' attorneys sought an award of attorney fees to compensate them for their appellate work, the trial court specifically denied it.

{¶ 9} Trial commenced on October 28, 2010, albeit late due to defendant's tardy appearance. After hearing the evidence, the court permitted the parties a brief oral closing and allowed them written post-trial briefs. They reconvened on December 2, 2010, where the court advised of its decision on the merits of plaintiffs' complaint and, finding in their favor, took evidence regarding attorney fees. The court ultimately granted judgment to plaintiffs in the amount of double their security deposit plus attorney fees, interest, and costs.

II. Assignments of Error

{¶ 10} On appeal, defendant assigns the following errors:

[I.] The trial court erred in not following the guidelines of Chapter 5321 of the Ohio Revised Code as it prescribes rules for tenant and landlord relations. This chapter imposes duties and obligations upon both tenants and upon landlords. Thetrial court has ignored the obligations imposed upon the tenant. The trial court erred in not treating the written assertions of the tenant as binding statements of promise which could not later abandoned [sic] as inaccurate.
[II.] The trial court erred in not addressing the duties imposed by the Columbus City Code upon the tenant.
[III.] The trial court erred in not treating the contract in terms as valid requirements of both parties to this contract, both the tenant and the landlord.
[IV.] The trial court has erred in attributing no costs whatsoever to the tenant for gas charges of the tenant, for long distance telephone expenses of the tenant, nor equipment repairs and replacement for these tenants, costs which are clearly documented by evidence and receipts as responsibilities of the tenant.
[V.] The trial court erred in charging the appellant for attorney fees of the appellees which were incurred in maintaining a frivolous action of Summary Judgment which the Franklin County Appellate Court identified as an inappropriate legal action. These are charges for which the appellant should not be responsible.
[VI.] The trial court erred in suggesting that there are no limits which can be placed upon attorney fees accumulated within a Small Claims Court action. The existing precedent does not support this view.

We address defendant's assignments of error in two categories: his liability under R.C. 5321.16 and the court's award of attorney fees.

III. Defendant's Liability Under R.C. 5321.16

{¶ 11} R.C. 5321.16(B) requires that, once a rental agreement is terminated, any property or money the landlord held as a security deposit may be applied to pay past due rent and to pay the amount of damages the landlord suffered by reason of the tenant's failure to comply with R.C. 5321.06 or the rental agreement. The statute, however, mandates that "[a]ny deduction from the security deposit shall be itemized and identified by the landlord in a written notice delivered to the tenant together with the amount due,within thirty days after termination of the rental agreement and delivery of possession." R.C. 5321.16(B).

{¶ 12} The tenant is not without responsibility, but "shall provide the landlord in writing with a forwarding address or new address to which the written notice and amount due from the landlord may be sent." "If the tenant fails to provide the landlord with the forwarding or new address as required, the tenant shall not be entitled to damages or attorneys fees under division (C) of this section." R.C. 5321.16(B). By contrast, "[i]f the landlord fails to comply" with the section's requirements, "the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorneys fees." R.C. 5321.16(C).

{¶ 13} In response to plaintiffs' complaint, defendant, both in the trial court and on appeal, contends plaintiffs failed to notify him of problems with the rental premises that allegedly rendered the living conditions untenable. Defendant's argument, however, misses the gist of plaintiffs' complaint. R.C. 5321.04 outlines the obligations of a landlord under a rental agreement; R.C. 5321.05 delineates the obligations of a tenant. R.C. 5321.07, the section on which defendant apparently relies, provides that if a landlord fails to fulfill any obligation that the rental agreement or R.C. 5321.04 imposes on the landlord, other than those noted in R.C. 5321.04(A)(9), the tenant is to give notice in writing to the landlord, specifying the acts, omissions, or code violations that constitute non-compliance. Should the landlord fail to remedy the conditions in a reasonable time, the tenant may select one of several remedies set forth in R.C. 5321.07(B), including escrowing rent with the court.

{¶ 14} Plaintiffs did not attempt to escrow rent under R.C. 5321.07(B)(1). Nor does their complaint seek to terminate the rental agreement due to defendant's failure to remedy the conditions found in the rental...

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