Holmes v. Lakefront at W. Chester , 2022 Ohio 99 ( 2022 )

[Cite as Holmes v. Lakefront at W. Chester, 2022-Ohio-99.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
ROSALIND HOLMES, :
Appellant, : CASE NO. CA2021-05-046
: OPINION
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:
LAKEFRONT AT WEST CHESTER, :
Appellee. :
CIVIL APPEAL FROM BUTLER COUNTY COURT AREA III
Case No. CVF2001041
Rosalind Holmes, pro se.
Greenberger & Brewer LLP, and Amy L. Higgins, for appellee.
BYRNE, J.
{¶1} Rosalind Holmes appeals a decision of the Butler County Area III Court that
dismissed her claims against her landlord, Lakefront at West Chester, LLC. For the reasons
described below, we affirm the area court's decision.
I. Facts and Procedural History
{¶2} In November 2020, Holmes filed a pro se complaint in the area court against
Lakefront at West Chester, LLC ("Lakefront"). In December 2020, she filed a first amended
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complaint. Holmes alleged that she rented an apartment from Lakefront and found a roach
infestation upon moving in. She further alleged that she requested that Lakefront
investigate her mailbox lock "suddenly being changed." Finally, she alleged that there was
an "ongoing conspiracy" and "warrantless surveillance" being conducted against her by "the
Federal Bureau of Investigation and others," including warrantless surveillance under the
Foreign Intelligence Surveillance Act and Executive Order 12333. She claimed to have
informed a Lakefront employee about this conspiracy. However, the Lakefront employee
dismissed Holmes' concerns and failed to investigate. Holmes alleged that Lakefront was
allowing people to enter her apartment "while [she] is sleeping, taking a shower etc. and
while she is gone." The complaint also described several specific instances during which
Holmes believed someone entered her apartment, including to spit in her bread and to steal
her food.
{¶3} Holmes alleged the following causes of action: (1) failure to keep the premises
in a fit and habitable condition (in violation of R.C. 5321.04[A][2]), (2) common law trespass,
(3) breach of the implied warranty of habitability, and (4) landlord retaliation (in violation of
R.C. 5321.02).
{¶4} Holmes had been depositing her rent with the area court in lieu of paying rent
to Lakefront due to the roach infestation issue. Prior to trial, the area court held a hearing
on the issue of the infestation and found that Lakefront had appropriately addressed the
issue. Accordingly, the area court ordered all rent deposits to be released to Lakefront.
Holmes did not object to the magistrate’s decision.
{¶5} The case proceeded to a trial in March 2021. Initially, the magistrate noted
that due to the prior hearing, Holmes' claims for failure to keep the premises in a fit and
habitable condition and breach of the implied warranty of habitability were previously
resolved and the court would hear no evidence on those claims. Holmes agreed and stated
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that trespass and landlord retaliation were the only claims for which she intended to present
evidence.
II. Trial Testimony
A. Rosalind Holmes’ Testimony
{¶6} Holmes testified that in October 2020, as she was leaving her apartment, she
found that her door key did not work, and she could not lock her door. She contacted
Lakefront and the assistant property manager gave her a new key. Because her door key
did not work upon her exiting the apartment, Holmes believed that a Lakefront employee
had changed her lock while she was sleeping.
{¶7} Holmes testified that items were stolen from her apartment. This occurred
either while she was sleeping or while she was gone from the apartment. She claimed that
someone entered her apartment in October and November 2020, and dumped her makeup
out of her makeup box. Holmes also testified that someone had taken her "bathroom
cleaners" and that her vacuum cleaner disappeared from her apartment and later
reappeared. Holmes testified that she took her vacuum cleaner to a repair shop, and the
repair shop discovered debris in the vacuum that she believed was not hers, because her
home was very clean.
{¶8} Holmes introduced three photographs into evidence. One depicted the
makeup box, one depicted the vacuum cleaner with dust and debris emerging from the
roller, and one was a picture of dust and debris. Presumably this was the same dust and
debris from the vacuum cleaner. Holmes also introduced several emails that consisted of
her communications with Lakefront employees concerning these issues.
B. Jacqueline Keller’s Testimony
{¶9} Holmes next called Jacqueline Keller. Keller was the regional manager of
PLK Communities ("PLK"), which is the property management company that manages
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Lakefront. Keller recalled talking with Holmes about Holmes' belief that PLK was colluding
with the FBI or a government entity. Keller stated that she had never received a warrant
concerning searching Holmes' apartment from any government agency. Keller testified that
she had never been approached by anyone working for the government asking questions
about Holmes.
{¶10} Keller testified that the only persons with access to the key to Holmes'
apartment were the members of the property management team, and that the keys were
held in a lockbox in an office protected by a security alarm. Keller denied giving anyone
access to Holmes' key and stated that the only time a PLK/Lakefront employee ever entered
Holmes' apartment was pursuant to a work order submitted by Holmes.
C. Jessica Banks’ Testimony
{¶11} Holmes next called Jessica Banks, the Lakefront property manager. Banks
testified that she had never received a search warrant from any government entity regarding
Holmes' apartment. Furthermore, no Lakefront employee had ever asked her to provide
them with access to Holmes' apartment. She denied receiving any information about
Holmes from any outside party.
{¶12} Banks testified that Holmes provided Lakefront with notice that she was
vacating her apartment by September 4, 2020. Banks then put Holmes on the notice-to-
vacate list and rented her apartment to another future tenant. When Holmes failed to vacate
the apartment on September 4, Banks vaguely recalled calling Holmes and telling her she
needed to leave the apartment. However, after Banks consulted with her regional manager,
the decision was made to allow Holmes to stay in the apartment.
{¶13} Banks testified that she recalled there being an issue with Holmes' door key.
She received an email from Holmes about her door lock. She was not in the office that day
but asked her staff to take care of it. Her staff put in a work order and maintenance workers
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found that a pin was out of position. Banks assumed that the maintenance workers rekeyed
the lock. Holmes' new key was then left with the assistant property manager in the leasing
office. Banks also testified that there was an issue with Holmes' mailbox lock, but that this
had to do with a screw coming loose and maintenance was able to fix the issue just by
tightening the screw. Thus, the mailbox lock was not rekeyed.
{¶14} Concerning what happened with Holmes' door lock, Banks testified that on a
quickset bolt, occasionally the locking pins would slip. She stated that this could be due to
changes in the weather. She testified this kind of occurrence was not unusual. Lakefront
had 296 units and Banks had been a property manager at other apartment complexes over
the prior five years. She estimated that she had seen locking pins slip in this manner 25 to
30 times.
{¶15} Banks testified that no one from Lakefront went into Holmes' unit or gave a
key to anyone else to enter Holmes' unit. Furthermore, she testified that no one from
Lakefront used Holmes' vacuum cleaner or cleaning supplies, and that Lakefront had its
own vacuum cleaner and cleaning supplies.
III. Magistrate’s and Area Judge’s Decisions
{¶16} Following the hearing, the magistrate issued a decision recommending that
Holmes' amended complaint be dismissed. Regarding the trespass claim, the magistrate
found that Holmes failed to meet her burden to prove a common law trespass or that a
violation of R.C. 5321.04(A)(8) occurred. The magistrate noted that Holmes had admitted
that she never saw anyone from Lakefront in her apartment at any times when they were
not invited, and that she could only assume that they entered the premises without her
permission. The magistrate concluded that Holmes offered only conjecture that someone
entered her apartment. The magistrate noted Banks' testimony that no one at Lakefront
would have given anyone else access to Holmes' apartment. The magistrate also noted
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Keller's and Bank's denials of having been involved in or assisted in any efforts to gain
access to Holmes' apartment by the FBI.
{¶17} Regarding Holmes' claim for retaliation, the magistrate found that the only
putative evidence of "retaliation" that was presented at the trial was testimony that Banks
informed Holmes that she needed to leave the apartment. But Banks made this statement
in the context of Holmes having told Lakefront she was vacating the premises by September
4 and Lakefront having re-rented the unit in reliance upon that notice. Other than this single
conversation, Holmes presented no evidence of retaliation or any other improper attempt
to evict Holmes. The magistrate noted that Lakefront in fact decided to allow Holmes to
stay in the apartment even though Holmes had previously indicated she would move out,
and that she was still living in the apartment at the time of trial. The magistrate found that
Holmes had not met her burden to prove retaliation.
{¶18} The magistrate also briefly addressed those claims that it had already
resolved and that Holmes agreed were not before the court at the trial. The magistrate
reiterated that those claims were without merit.
{¶19} Finally, the magistrate noted that Holmes failed to present any evidence of
damages resulting from any of Lakefront's actions.
{¶20} Holmes timely filed objections to the magistrate's decision. In April 2021, the
area court judge overruled Holmes' objections and adopted the magistrate's decision as its
own, thereby dismissing Holmes’ amended complaint, including all her claims.
{¶21} Holmes appeals, raising two assignments of error.
IV. Law and Analysis
{¶22} Assignment of Error No. 1:
{¶23} THE TRIAL COURT ABUSED ITS DISCRETION IN VIOLATION OF OHIO
RULE OF EVIDENCE 602.
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{¶24} Holmes contends that the area court abused its discretion by considering
portions of Banks' testimony. She argues that this testimony was inadmissible pursuant to
Evid.R. 602 because it was not based on Banks' personal knowledge. Lakefront argues
that Holmes failed to object to the testimony, and, even if she had, the testimony was
admissible.
A. Standard of Review
{¶25} Decisions regarding the admission of evidence are within the sound discretion
of the trial court and may not be reversed absent an abuse of discretion. Proctor v. NJR
Properties, L.L.C., 175 Ohio App.3d 378, 2008-Ohio-745, ¶ 14 (12th Dist.), citing O'Brien v.
Angley, 63 Ohio St.2d 159, 163 (1980). An abuse of discretion implies that the court's
attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
B. Analysis
{¶26} Holmes challenges Banks' testimony concerning Holmes' apartment door
being rekeyed and the issues with the mailbox lock. Holmes argues that this testimony was
not based on Banks' first-hand knowledge and that it was merely an assumption. However,
Holmes did not object to this testimony at the time of trial. "The failure to object to evidence
at the trial constitutes a waiver of any challenge* * *." Wilhoite v. Kast, 12th Dist. Warren
No. CA2001-01-001, 2002 WL 4524, *9 (Dec. 31, 2001).
{¶27} Not only did Holmes not object to Banks’ testimony at trial, she also did not
challenge the testimony in her objections to the magistrate's decision. The first time that
Holmes ever mentioned Evid.R. 602 was in her reply memorandum in support of her
objections to the magistrate’s decision. Moreover, Banks was Holmes' witness, and it was
Holmes who first elicited the testimony she now challenges when she asked Banks whether
she recalled there being an issue with the door key. We find that Holmes waived her Evid.R.
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602 argument for purposes of appellate review, with the exception for a review for plain
error. Wilhoite at *9; In re Swader, 12th Dist. Warren No. CA2000-04-036, 2001 WL
121084, *6-7 (Feb. 5, 2001), citing Evid.R. 103(A)(1); State v. Crawford, 60 Ohio App.3d
61, 62 (6th Dist.1989). Plain error in the civil context is "extremely rare" and this court must
find that the error involves "exceptional circumstances" where the error "rises to the level of
challenging the legitimacy of the underlying judicial process itself." Goldfuss v. Davidson,
79 Ohio St.3d 116, 122 (1997).
{¶28} Nothing about the admission of Bank's testimony indicates the "exceptional
circumstances" where this court would find an error challenging the legitimacy of the judicial
process. This is because even if the challenged testimony was in fact inadmissible and
even if Holmes had not waived her argument challenging that testimony, the admission of
that testimony did not change the outcome in this case.1
{¶29} The primary basis for the court's decision on the trespass claim was that
Holmes failed to meet her burden of proof to demonstrate a trespass occurred. Indeed, the
only evidence offered by Holmes with respect to trespass was her entirely speculative
testimony about Lakefront entering her apartment or assisting an unknown governmental
agency in entering her apartment. The only other "evidence" of trespass submitted by
Holmes were three emails in which Holmes communicated with Lakefront concerning the
lock or infestation issues, and three photographs depicting an empty makeup box, a vacuum
cleaner clogged with some dust or debris, and a picture of some dust or debris. None of
this evidence proved Holmes' trespass claim.
{¶30} The court did not need to rely on, much less consider, Banks' testimony
1. Any putative error here would also qualify as harmless error. An error is harmless in the civil context if it
"does not affect [the] substantial rights of the complaining party, or the court's action is not inconsistent with
substantial justice." O'Brien, 63 Ohio St.2d at 164, citing Civ.R. 61. Accord In re P.R.P., 12th Dist. Butler No.
CA2017-02-026, 2018-Ohio-216, ¶ 39-41.
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concerning what happened with the locks to find that Holmes failed to meet her burden of
proof. Accordingly, Holmes has not demonstrated the "exceptional circumstances"
necessary to demonstrate an error that challenges the legitimacy of the judicial process.
Therefore, she has not shown plain error and we overrule Holmes' first assignment of error.
{¶31} Assignment of Error No. 2:
{¶32} THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶33} Holmes argues that the trial court's judgment in favor of Lakefront was not
supported by the weight of the evidence.
C. Standard of Review
{¶34} "The standard of review for a manifest weight challenge in a civil case is the
same as that applied to a criminal case." Skyward Learning Servs., Inc. v. Gray, 12th Dist.
Butler No. CA2019-08-140, 2020-Ohio-1182, ¶ 10; Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 17. When considering a challenge to the manifest weight of the
evidence, this court weighs the evidence and all reasonable inferences, considers the
credibility of witnesses, and determines whether in resolving conflicts in the evidence, the
finder of fact clearly lost its way and created a manifest miscarriage of justice warranting
reversal and a new trial ordered. Hacker v. House, 12th Dist. Butler No. CA2014-11-230,
2015-Ohio-4741, ¶ 21, citing Eastley at ¶ 20; Carson v. Duff, 12th Dist. Fayette Nos.
CA2017-03-005 and CA2017-03-007, 2017-Ohio-8199, ¶ 11.
D. Analysis
{¶35} Holmes' argument in support of this assignment of error is difficult to
understand. What can be discerned is that she is arguing that Lakefront failed to present
credible evidence that it did not trespass on her property and that Lakefront did not prove
that it did not retaliate against her based on telling her she needed to leave the apartment.
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These arguments fundamentally misunderstand the applicable burden of proof. 2 At trial
the burden was on Holmes to prove a trespass and retaliation, not on Lakefront to disprove
a trespass and retaliation. As described in response to the first assignment of error, Holmes
failed to submit any evidence of a trespass other than her own unfounded and
uncorroborated speculation. Holmes also offered no evidence to establish that any
retaliation occurred. To the contrary, the evidence indicated that Lakefront allowed her to
remain in the apartment despite her notice to vacate.
{¶36} To the extent Holmes vaguely references issues directed toward habitability
in her appellate brief, those issues are not properly before us because Holmes did not object
to the magistrate's decision finding that Holmes failed to prove her habitability claims.
Holmes specifically agreed with the magistrate that those claims had already been ruled
upon and she registered no objection to the contrary.
{¶37} The area court did not lose its way in finding for Lakefront and dismissing
Holmes’ amended complaint. We overrule Holmes' second assignment of error.
{¶38} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.
2. Holmes' arguments in both the first and second assignment of error suggest that she believes that Lakefront
had the burden of proof in this case. Holmes is mistaken. But while Holmes is mistaken, litigants who proceed
pro se are held to the same standard as those who are represented by counsel. Stiles v. Hayes, 12th Dist.
Madison No. CA2015-01-007, 2015-Ohio-4141, ¶ 18. As a result, a pro se litigant is presumed to have
knowledge of the law and correct legal procedures so that she remains subject to the same rules and
procedures to which represented litigants are bound. Id. "Pro se litigants are not to be accorded greater
rights and must accept the results of their own mistakes and errors, including those related to correct legal
procedure." Cox v. Zimmerman, 12th Dist. Clermont No. CA2011-03-022, 2012-Ohio-226, ¶ 21.
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