Price v. Brooks , 2022 Ohio 2800 ( 2022 )

[Cite as Price v. Brooks, 2022-Ohio-2800.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
DIONTE PRICE, : APPEAL NO. C-210668
TRIAL NO. 20CV-15761
Plaintiff-Appellant, :
vs. : O P I N I O N.
CHRISTINA BROOKS, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 12, 2022
Richard D. Feil III, for Plaintiff-Appellant,
Stuart L. Richards, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} On September 20, 2021, plaintiff-appellant Dionte Price (“Dionte”) filed
a complaint alleging that his landlord, defendant-appellee Christina Brooks, had
illegally resorted to self-help in disposing of his belongings in violation of R.C. 5321.15.
A magistrate found that Dionte had not proven his claims by a preponderance 0f the
evidence and recommended that the trial court grant judgment in favor of Brooks, at
Dionte’s cost. Dionte objected to the magistrate’s decision. The trial court overruled
the objections, adopted the magistrate’s decision, and entered judgment in favor of
Brooks. This appeal followed.
Factual Background
{¶2} The record shows that Brooks was the owner of property located at 1284
Shepard Lane. Dionte and Brooks entered a written lease agreement for rental of the
property. Demetrius Price (“Demetrius”), Dionte’s brother, and Orlando Crawford,
his cousin, were also listed as tenants. The agreement expired on June 10, 2020, and
became a month-to-month tenancy.
{¶3} Before the written lease expired, Dionte was incarcerated. Demetrius
died on June 27, 2020. Crawford subsequently moved out of the premises.
Consequently, the rent was not paid for July 2020. Nevertheless, Brooks never filed a
forcible-entry-and-detainer action.
{¶4} Shanae Price (“Shanae”), Dionte’s sister, testified at the hearing before
the magistrate. On September 1, 2020, Dionte executed a durable power of attorney
naming Shanae as his attorney-in-fact, and she testified on his behalf. She stated that
on July 11, 2020, she went to retrieve her brother’s property, and she found that the
locks were changed, and his property was on the front porch. Brooks told her that she
could not enter the premises and that Brooks was going to change the locks. They got
2
OHIO FIRST DISTRICT COURT OF APPEALS
into an “altercation,” which caused Shanae to call the police. A police officer arrived,
and Shanae and Brooks agreed that Shanae would come back, and no one was arrested.
When she returned, Dionte’s belongings were gone. She estimated that they had a
value of between $3000 and $10,000.
{¶5} Brooks testified that on July 10, 2020, she had talked to Dionte and his
girlfriend, Thelma Faulk, on a three-way call. Dionte asked Brooks to allow Faulk to
go in and “get some stuff out of the house,” and Brooks said, “Fine.” Shortly after that,
Brooks saw Faulk, Crawford, and Shanae in the house taking out belongings. She
added, “I go over there to change the locks because I have permission to change the
locks. Other parties who was [sic] in the house said they had got everything out of the
house that they wanted out of the house.” Subsequently, Crawford gave Brooks
permission to go into the house and to remove everything that was left.
{¶6} Brooks said that when she arrived on July 11, Shanae was at the house.
She told Brooks that she had come to retrieve Dionte’s belongings. Brooks told Shanae
that she was tired as she had just gotten off work and asked her to come back. Then,
Shanae started cussing, calling her names, and threatening to burn down the house.
She said that Shanae called the police and lied that Brooks had told her to pick up
Dionte’s belongings. Subsequently, Shanae came and removed all the items on the
porch. Brooks denied that she had disposed of any of the property.
{¶7} The magistrate, “[a]fter considering all of the evidence presented,
including the testimony, demeanor and credibility of the witnesses,” found that Dionte
had not proven his case by a preponderance of the evidence. She stated, “This
Magistrate finds that the Plaintiff gave the Defendant permission to dispose of the
items that were left, either by allowing his girlfriend and family to retrieve what they
wanted, or by throwing it out.” She added, “Additionally, the Plaintiff provided no
evidence itemizing the specific property that was allegedly thrown out, and there was
3
OHIO FIRST DISTRICT COURT OF APPEALS
no evidence provided supporting the value of the property. There was simply an
estimate of the value of the estimated property.”
{¶8} In his sole assignment of error, Dionte contends that the trial court
erred in by entering judgment in favor of Brooks. He argues that the court relied on
hearsay to find that he had given permission to dispose of his belongings, and that
Brooks committed self-help in violation of R.C. 5321.15. We need not reach Dionte’s
hearsay argument, because we hold that even if the hearsay testimony is considered,
the evidence shows that Brooks violated the statute. Nevertheless, we hold that the
trial court did not err in finding that Dionte failed to prove damages. Thus, though
we find merit in some of Dionte’s arguments, we ultimately conclude that his
assignment of error is not well taken.
Standard of Review
{¶9} The standard of review following a civil bench trial is whether the trial
court’s judgment is against the weight of the evidence. Downtime Rebuild, LLC v.
Trinity Logistics, Inc., 2019-Ohio-1869, 135 N.E.3d 1253, ¶ 12 (1st Dist.). Under a
manifest-weight-of-the-evidence standard, we determine whether the evidence on
each element satisfies the burden of persuasion. Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, 927 N.E.2d 517, ¶ 19; State v. Jones, 1st Dist. Hamilton No. C-
160735, 2017-Ohio-5517, ¶ 21.
{¶10} In conducting this review, an appellate court weighs the evidence and
all reasonable inferences, considers the credibility of the witnesses, and determines
whether in resolving the conflicts in the evidence, the finder of fact clearly lost its way
and created such a manifest miscarriage of justice that the judgment must be reversed,
and a new trial ordered. Eastley at ¶ 20; Hensel v. Childeress, 2019-Ohio-3934, 145
N.E.3d 1159, ¶ 13 (1st Dist.). “[E]very reasonable intendment and every reasonable
4
OHIO FIRST DISTRICT COURT OF APPEALS
presumption must be made in favor of the judgment and the findings of fact.” Eastley
at ¶ 21; Downtime Rebuild at ¶ 12.
Landlord Self-Help
{¶11} R.C. 5321.15(A) provides, “No landlord of residential premises shall
initiate any act, including termination of utilities or services, exclusion from the
premises, or threat of any unlawful act, against a tenant, or a tenant whose right to
possession has terminated, for the purpose of recovering possession of residential
premises, other than as provided in Chapters 1923., 5303., and 5321. of the Revised
Code.” This prohibition applies even when only a tenant’s personal property remains
on the premises. Staley v. Phillips, 1st Dist. Hamilton No. C-210438, 2022-Ohio-2112,
¶ 13. R.C. 5231.15(B) further provides, “No landlord of residential premises shall seize
the furnishings or possessions of a tenant, or of a tenant whose right to possession has
terminated, for the purpose of recovering rent payments, other than in accordance
with an order issued by a court of competent jurisdiction.”
{¶12} To terminate a month-to-month tenancy, R.C. 5321.17(B) requires a
landlord to provide the tenant notice of termination at least 30 days “prior to the
periodic rental date.” If the tenant remains in possession of the premises after the
expiration of the 30-day period, the landlord must serve the tenant with a three-day
notice under R.C. 1925.04(A) before initiating an eviction action. Risch v. Samuel, 1st
Dist. Hamilton No. C-190159, 2020-Ohio-1094, ¶ 16.
{¶13} Brooks’s actions were not authorized under any of the statutory
provisions cited in the self-help statute, and she never provided the required notices.
The trial court determined that Dionte had given her permission to remove his
belongings, but that finding does not justify Brooks’s conduct. First, R.C. 5321.13(A)
provides, “No provision of this Chapter may be modified or waived by any oral or
5
OHIO FIRST DISTRICT COURT OF APPEALS
written agreement” except as provided in division (F) of that section, which does not
apply here. Miller v. Ritchie, 45 Ohio St.3d 222, 225, 543 N.E.2d 1265 (1989);
Hodgson v. Hodgson, 11th Dist. Lake No. 89-L-14-074, 1990 Ohio App. LEXIS 3912,
*6 (Sept. 7, 1990); Thomas v. Papadelis, 16 Ohio App.3d 359, 359-360, 476 N.Ed.2d
726 (9th Dist.1984).
{¶14} Brooks testified that Dionte told her to let his girlfriend in and let her
get “some of his stuff.” She did not state that Dionte had said that she could get rid of
anything that was left. Brooks also testified that Crawford gave her permission to
change the locks and get rid of anything left. But Crawford could not give Brooks
permission to remove Dionte’s belongings.
{¶15} Further, there was no evidence that Dionte had abandoned his
belongings. Abandoned property has been defined as “property over which the owner
has relinquished all right, title, claim, and possession with the intent of not reclaiming
it or resuming its ownership, possession, or enjoyment.” Staley, 1st Dist. Hamilton
No. C-210438, 2022-Ohio-2112, at ¶ 14, quoting McCain v. Brewer, 2d Dist. Darke No.
2014-CA-8, 2015-Ohio-198, ¶ 17. Abandonment requires affirmative proof of the
intent to abandon the property and acts or omissions implementing that intent.
Occasional, infrequent, or even non-use does not constitute abandonment without
other evidence showing intent. Staley at ¶ 14; State v. Reeves, 12th Dist. Clermont No.
CA-2020-01-001, 2020-Ohio-5565, ¶ 15. The record contains no evidence that Dionte
intended to abandon his property. It showed that he was incarcerated and could not
physically retrieve his property, which is not enough to establish abandonment.
{¶16} Even if Brooks’s testimony is believed in its entirely, the record shows
that Dionte met his burden to show self-help. See Staley at ¶ 12. The greater amount
of credible evidence proved, by a preponderance of the evidence, that Brooks violated
the prohibition on self-help evictions in R.C. 5321.15(A). Consequently, the trial court
erred in finding that Dionte did not establish self-help. See id. at ¶ 25-27.
6
OHIO FIRST DISTRICT COURT OF APPEALS
Proof of Damages
{¶17} Nevertheless, the court also found that Dionte had failed to establish
damages. R.C. 5321.15(C) provides, “A landlord who violates this section is liable in a
civil action for all damages caused to a tenant, or to a tenant whose right to possession
has terminated, together with reasonable attorneys fees.” Generally, a person must be
an expert to testify as to the value of property, but an exception exists for the owner of
the property. Bishop v. East Ohio Gas Co., 143 Ohio St. 541, 546-547, 56 N.E.2d 164(1944); Thompson v. Allen, 2d Montgomery No. 23292, 2010-Ohio-1133, ¶ 19.
{¶18} When asked about the value of the property, Shanae, standing in her
brother’s place, stated, “It was a king size barrel set and the value of that was about
$3,000. This is stuff that I [sic] given to my brother. Also in his room, it was Cartier
glasses. It was multiple things. [I]t was still shoes, clothes.” She added, “My brother
Dionte works for Priceless Renovation. He has his work utensils that were downstairs
and my brother Dwight Price can get an estimate on that. But when she was pressed
to give an estimate, she stated, “I say $10,000 or more. I don’t too much know.”
{¶19} Even if Shenae’s testimony is believed in its entirety, it was too
speculative to meet Dionte’s burden to prove damages. “An award of damages must
be shown with a reasonable degree of certainty and in some manner other than mere
speculation, conjecture, or surmise.” Danopolos v. Am. Trading II, LLC, 1st Dist.
Hamilton Nos. C-200350 and C-200354, 2021-Ohio-2196, ¶ 19, quoting Capital Plus,
Inc. v. Parker Ents. Imperial Dist., Inc., 1st Dist. Hamilton No. C-030046, 2004-Ohio-
3896, ¶ 53. Dionte failed to present competent, credible evidence to show damages.
Id.{¶20} Dionte argues that even if he failed to prove damages, he was still
entitled to attorney fees under the express language of R.C. 5321.15(C) because an
award of fees is mandatory when there is a violation of the statute. See Risch, 1st Dist.
7
OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-190159, 2020-Ohio-1094, at ¶ 17. But this court recently held that if
a tenant is not awarded damages for a violation of the statute, an award of attorney
fees is not warranted. See Staley, 1st Dist. Hamilton No. C-210438, 2022-Ohio-2112,
at ¶ 29-20.
{¶21} Even though Dionte proved that Brooks improperly used self-help, the
trial court’s alternative finding that he failed to prove damages was sufficient to
support the trial court’s judgment. Consequently, we overrule his assignment of error
and affirm the trial court’s judgment.
Judgment affirmed.
MYERS, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
8