Williams v. McMillian , 2019 Ohio 3275 ( 2019 )

[Cite as Williams v. McMillian, 2019-Ohio-3275.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ANTHONY WILLIAMS, :
Plaintiff-Appellant, :
No. 107570
v. :
MELISSA MCMILLIAN, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED AND
VACATED IN PART
RELEASED AND JOURNALIZED: August 15, 2019
Civil Appeal from the Shaker Heights Municipal Court
Case No. 17 CVG 00703
Appearances:
Rick L. Ferrara, for appellant.
Melissa M. McMillian, pro se.
SEAN C. GALLAGHER, P.J.:
Anthony Williams appeals the judgment entered in his favor in the
amount of $1,728.09 and the offsetting judgment entered upon Melissa McMillian’s
counterclaim in the amount of $1,911.00, both of which stemmed from a landlord-
tenant dispute leading to a bench trial in Shaker Heights Municipal Court. For the
following reasons, we reverse the decision of the trial court and vacate the judgment
entered in favor of McMillian, but affirm the judgment entered in favor of Williams.1
McMillian rented a property from Williams for over seven years. In
December 2016, Williams took steps to increase the monthly rental fee, which had
remained the same since McMillian moved in. McMillian rented the property
through a government subsidy program, but she personally paid the $707 monthly
rent toward the end of her tenancy. Williams sought an increase to $832 a month
and an additional $40 per month for pets. In order for Williams to increase the
rental price, McMillian had to sign paperwork and return it to the appropriate
authority. McMillian and Williams disagreed with the process and the amount of
the increase, including the additional pet fee. By April 2017, their relationship was
irreconcilable. Williams provided McMillian with her 30-day notice of terminating
the rental agreement as of the end of April and requesting that McMillian vacate the
premises. McMillian held over in May and June without paying any rent, although
McMillian provided her own 30-day notice of intent to leave in the first week of May,
which would have been ineffective to terminate the lease agreement at the end of
May and was the same week that Williams initiated the forcible entry and detainer
action based on Williams’s 30-day notice sent in March. Williams claims McMillian
1 McMillian filed a belated appellee brief. On July 3, 2019, this court granted her
motion for leave to file the brief instanter, and that brief was considered for the purposes
of this opinion. McMillian was also permitted to appear for oral argument, although in
light of the rules of appellate procedure she attended as an appellee and was not permitted
to reserve time for a rebuttal argument following the conclusion of appellant’s argument.
owed $2,644 for unpaid rent and pet and late fees, which is in part based on the
increased rental price.
McMillian left the property in mid-June. In other words, McMillian
held over even from her own notice of termination. Williams claims the property
was damaged by McMillian and in support of his damages presented a repair
estimate for the front handrail, door, and weatherproofing, totaling $1,895.
Williams also offered the testimony of a contractor who stated that the cost to fix the
front door, handrail, and tile in the hallway would be at least $1,200. Williams also
sought the $475 cost to repair drywall in a bedroom, the replacement cost of
damaged fixtures, carpet, and other items, the cost to repair landscaping, and the
costs to clean the property.
McMillian conceded that she damaged the drywall, but she claimed
the repair cost was under $300 and she already paid $100 of that cost to the
contractor directly. McMillian introduced approximately 90 photographs of the
property, claiming that the defects highlighted by Williams were limited to normal
wear and tear. McMillian also cross-claimed for her own money damages. In that
cross-claim, McMillian claimed Williams was liable for $1,600 because he violated
R.C. 5321.16(C) by failing to return her $800 security deposit within 30 days, owed
her $111 for the cost of a post office box she used for a forwarding address, and owed
her $200 for the cost of food that was destroyed when the refrigerator broke two
years before the eviction. She also sought $1,500 in additional damages for
emotional distress.
After the bench trial, the trial court awarded Williams $1,728.09.
Nothing in the record establishes how that award was calculated. The trial court
also awarded McMillian $1,911.00, which was based on all counterclaims except the
emotional distress claim. Before trial, the parties were ordered to produce trial
briefs that contained the anticipated evidence to be presented at trial and notified
that exclusion of any unproduced evidence “may” result in its exclusion. Williams
complied, but McMillian did not. At trial, McMillian was permitted to introduce the
photographs of the property and several other pieces of evidence that were from her
cellphone, notwithstanding the pretrial order and Williams’s objection. Williams
unsuccessfully objected to the evidence as constituting “trial by ambush.”
In the first assignment of error, Williams claims that McMillian is not
legally entitled to the damages she was awarded. Our review over purely legal
questions is de novo. Crutchfield Corp. v. Testa, 151 Ohio St. 3d 278, 2016-Ohio-
7760, 88 N.E.3d 900, ¶ 16, citing Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of
Revision, 128 Ohio St. 3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10.
R.C. 5321.16(B) provides that the money held as a security deposit
may be applied to the payment of unpaid rent or for damages that were caused by
the tenant’s failure to comply with R.C. 5321.05, but that any deduction must be
itemized and identified in a written notice provided to the tenant within 30 days of
the termination of the rental agreement if the tenant must provide a forwarding
address. A tenant may recover the amount wrongfully withheld, including
reasonable attorney fees based on the landlord’s noncompliance with the statutory
section. R.C. 5321.16(C). However, a tenant may recover under that statutory
section only if the landlord wrongfully withheld the deposit. Vardeman v.
Llewellyn, 17 Ohio St. 3d 24, 29, 476 N.E.2d 1038 (1985). If the security deposit is
not wrongfully withheld, a tenant cannot recover damages despite the landlord’s
noncompliance with R.C. 5321.16(C).
In this case, the trial court awarded Williams damages totaling
$1,728.09. Although it is unclear from the record whether that award was based on
the unpaid rent or the damage to the property or a little bit of both, a landlord may
lawfully apply the security deposit to both categories of damages. As a matter of law,
therefore, Williams was entitled to withhold the security deposit. The security
deposit was not wrongfully withheld for the purposes of the statute. Vardeman;
McGreevy v. Bassler, 10th Dist. Franklin No. 09AP-381, 2010-Ohio-126, ¶ 14;
Adaranijo v. Morris Invest. Co., 1st Dist. Hamilton No. C-070453, 2008-Ohio-2705.
The trial court erred as a matter of law by awarding McMillian the $1,600 in
damages based on Williams’s failure to timely provide McMillian an itemized
breakdown of the withheld security deposit.
In addition, as it pertains to the counterclaim, McMillian was not
legally entitled to recover the costs of her post office box she used as her forwarding
address, nor did she provide a reasonable method of calculating the damages based
on the cost to replace the food that was damaged as a result of the refrigerator
malfunction.
Nothing in the record demonstrates the legal theory upon which
McMillian’s claim for the cost of the post office box is based. At trial, McMillian
conceded that she obtained the post office box under the anticipation that a court
action would ensue following the 30-day letter Williams issued and her decision to
hold over the tenancy despite Williams’s contractual right to terminate the tenancy.
Thus, it was a personal decision based on McMillian holding over her tenancy, which
forced Williams to file the eviction action. There was no legal basis presented
supporting McMillian’s claim to recover the costs of the post office box from
Williams.
With respect to the cost of the food, expressly based on a “week’s”
worth of school lunches and an $87 grocery bill dated two and one-half weeks before
the refrigerator malfunction, the record is devoid of any legal basis for the award of
damages. From the record, it appears that the refrigerator was owned and
maintained by Williams such that any failures with the appliance were the
responsibility of Williams. The question unanswered by the record is whether
McMillian advanced the counterclaim under contract principles (which would exist
if the lease contemplated that Williams would provide a refrigerator) or under R.C.
5321.04(A)(2), which requires landlords to make all repairs as necessary to keep the
property in a fit and habitable condition (the failure to do so demonstrates
negligence). Whatever the theory, Williams is not liable for the damages sought.
The damages awarded were entirely speculative. MADFAN, Inc. v. Makris, 2017-
Ohio-979, 86 N.E.3d 707, ¶ 8 (8th Dist.) (damages cannot be speculative); Quest
Workforce Solutions v. Job1USA, Inc., 2018-Ohio-3304, 119 N.E.3d 817, ¶ 16 (6th
Dist.) (evidence of damages in civil actions is only sufficient if plaintiff provides a
reasonable basis for estimating damages).
According to McMillian, the refrigerator malfunctioned on
Wednesday, November 11, 2015, and five days later Williams provided McMillian
with a “campus” refrigerator as a temporary solution until a new appliance could be
delivered. It was determined after two days that the refrigerator could not be
repaired. A permanent replacement was delivered on November 18. In support of
her damages, McMillian presented a copy of the grocery receipt for the food she
purchased two and a half weeks before the refrigerator malfunctioned. The receipt,
even assuming none of the food was consumed during that two-and-a-half-week
interval, included nonrefrigerated items, such as breakfast cereals and vegetable oil.
As a result, the full amount of the receipt was not recoverable as damages because
of the malfunctioning refrigerator, even if it were assumed that McMillian was
entitled to the replacement cost of the food as a measure of damages. In addition,
there was no evidence presented at trial of the actual amount paid to replace the
school lunches. See, e.g., Kavalec v. Ohio Express, Inc., 2016-Ohio-5925, 71 N.E.3d
660, ¶ 37 (8th Dist.) (damages are against the weight of the evidence when the party
guesses the amount of damages without presenting evidence supporting the claimed
damages). McMillian sought $112.04 (the difference from the $200 sought and the
$87.96 grocery receipt) for the school lunches purchased while the refrigerator was
broken. Between the 11th and the 16th when Williams provided a temporary
solution, there were only three school days. McMillian needed to purchase only
three school lunches because of the lack of a refrigerator or, giving her the benefit of
the doubt, five lunches if the temporary solution is disregarded and the date of the
final replacement is considered. Thus, the trial court awarded McMillian $22.41—
$37.35 as the cost of each school lunch purchased for her daughter ($112.04 / 5 and
the same divided by 3). McMillian presented no evidence supporting that award of
damages. Even if McMillian were entitled to recover her food costs following the
refrigerator malfunction, and whether the claim is based on contract theory or R.C.
5321.04(A)(2), McMillian bore the burden of presenting evidence demonstrating
her actual damages or a reasonable method of calculating those damages. In light
of the limited evidence she presented, McMillian did not demonstrate that she was
entitled to $200 for the cost of school lunches and the food purchased two and one-
half weeks before the refrigerator malfunctioned. The award of damages in her favor
cannot be affirmed.
As a result of the foregoing, the entire amount of damages awarded
upon McMillian’s counterclaim is reversed and hereby vacated. As a matter of law,
McMillian was not entitled to the damages awarded.
In the final two assigned errors, Williams claims that a new trial on
the complaint is warranted because either the judgment entered in his favor is
against the weight of the evidence or the trial court erred in permitting McMillian to
introduce the evidence she presented at trial, which had not been disclosed to
Williams before trial. We note that Williams’s trial exhibits were not included in the
appellate record. Although a copy of Williams’s pretrial brief contains photocopies
of the trial exhibits, those reproductions are largely indecipherable. Regardless,
relying on the arguments presented, we affirm the judgment entered in Williams’s
favor. Under App.R. 12(C)(1), if a majority of the appellate panel finds the final
judgment to be against the weight of the evidence and has not found any other
prejudicial error in any of the particulars assigned in the appellant’s brief or has not
found that the appellee is entitled to judgment as a matter of law, the appellate court
shall reverse the judgment and either weigh the evidence in the record to render a
judgment that the trial court should have rendered or remand for further
proceedings. When reviewing a claim challenging the weight of the evidence, the
court, reviewing the entire record, must weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether, in
resolving conflicts in the evidence, the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed. State v.
Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541; Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17.
In this case, the trial court awarded Williams $1,728.09 based on the
evidence presented at trial. Williams claims that he presented evidence of additional
damages that were discounted by the trial court. The trial court, sitting as the trier
of fact, accepted Williams’s claims in part but rejected them in other respects.
Nothing in the record, however, establishes an itemized breakdown of the final
judgment entered in Williams’s favor. Williams did not request findings of fact or
conclusions of law under Civ.R. 52 in order to determine the method used in
calculating the final award. Further, and unlike the vacated award in McMillian’s
favor, we cannot determine the method used to calculate the final judgment in
Williams’s favor from the damages sought at trial.
“A party that fails to request findings of fact pursuant to Civ.R. 52
faces an uphill burden of demonstrating that a judgment is against the manifest
weight of the evidence.” O’Brien v. O’Brien, 12th Dist. Butler No. CA2009-11-289,
2010-Ohio-3258, ¶ 9. Upon reviewing the entire record, and on the basis of limited
arguments presented, we cannot conclude that the trial court clearly lost its way and
created a manifest miscarriage of justice by awarding Williams the $1,728.09 in
damages out of the approximately $6,000 in damages sought. McMillian presented
some evidence that the damages depicted in Williams’s pictures were not as severe
as claimed. Further, Williams did not demonstrate that he was entitled to the
increased rental fees in light of the uncontroverted evidence that the parties never
reached an agreement as to the amount of the increase. It was the parties’ inability
to agree that led to the terminated rental agreement. Williams has not
demonstrated that the trier of fact lost its way and created a manifest miscarriage of
justice.
Further, although the trial court permitted McMillian to present
documentary evidence at trial that had not been previously disclosed, Williams has
not demonstrated prejudice from such a decision. “‘The trial court has broad
discretion in the admission of evidence, and unless it has clearly abused its
discretion and the defendant has been materially prejudiced thereby, an appellate
court should not disturb the decision of the trial court.’” State v. Montgomery, 148
Ohio St. 3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 137, quoting State v. Issa, 93 Ohio
St.3d 49, 64, 2001-Ohio-1290, 752 N.E.2d 904.
The pretrial order requiring the parties to file trial briefs that included
their anticipated trial evidence also put the parties on notice that the failure to
comply could lead to exclusion of the evidence. Thus, Williams was aware that the
court would not exclude the evidence solely because of the failure to file a pretrial
brief and the court left open the possibility of admitting evidence despite the failure
to comply with the pretrial order.
For the most part, McMillian presented photos at trial that
represented the condition of the property when she moved out. Williams’s entire
argument on this topic is limited to the claim that the trial court abused its discretion
because “while some latitude might be warranted during the course of present
evidence, McMillian actually obtained an advantage by (1) not producing evidence
prior to trial; (2) not following the Rules of Evidence; and (3) not following the rules
of Civil Procedure.” (Emphasis deleted.) Williams has not demonstrated, let alone
provided an explanation for, how McMillian’s use of her own photographs of the
property prejudiced Williams’s right to a fair trial. App.R. 16(A)(7). Although it is a
better practice to require parties to exchange evidence ahead of a bench trial in
municipal court, even those parties choosing to represent themselves, we cannot say
that the trial court’s decision in this case warrants a new trial based on the limited
argument presented in this appeal. App.R. 16(A)(7). We find that the trial court did
not abuse its discretion in admitting McMillian’s trial exhibits such as to warrant the
granting of a new trial.
Judgment affirmed in part and reversed and vacated in part. We
remand for the sole purpose of vacating the judgment entered in favor of McMillian.
The judgment in favor of Williams stands as originally entered.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
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SEAN C. GALLAGHER, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR