Rosalind Holmes v. Cobblestone Grove

[Cite as Rosalind Holmes v. Cobblestone Grove, 2017-Ohio-55.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
ROSALIND HOLMES, :
CASE NO. CA2016-04-075
Appellant, :
OPINION
: 1/9/2017
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:
COBBLESTONE GROVE, et al. :
Appellees. :
CIVIL APPEAL FROM FAIRFIELD MUNICIPAL COURT
Case No. 2015SCI00087
Rosalind Holmes, 1013 Springwater Court, Cincinnati, Ohio 45215, appellant, pro se
David D. Donnett, 1212 Sycamore Street, Suite 36, Cincinnati, Ohio 45202, for appellee
M. POWELL, P.J.
{¶ 1} Plaintiff-appellant, Rosalind Holmes, appeals a decision of the Fairfield
Municipal Court granting a $659 judgment in favor of her former landlord, defendant-
appellee, Cobblestone Grove Apartments, LLC ("Cobblestone").
{¶ 2} In July 2015, Holmes entered into a written, one-year lease agreement with
Cobblestone to rent an apartment. The rent was $800 per month. Prior to this lease, she
had lived in the apartment for five years. In the late evening hours of August 4, 2015, or the
early morning hours of August 5, 2015, Holmes discovered a "massive" water leak and
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flooding in her kitchen and living areas. Holmes notified Cobblestone's maintenance person
of the problem around 1:00 a.m. The maintenance person arrived at the apartment at
approximately 3:00 a.m. and directed Holmes to vacate the apartment due to the flooding.
Holmes stayed with a friend. Holmes returned to her apartment on August 5, 2015, and
discovered that her furnishings had been pushed to one side of the apartment. The leak had
been repaired.
{¶ 3} Subsequently, Cobblestone arranged for extraction of the water from the
apartment, testing for mold and mildew, and completion of the plumbing repairs. With the
exception of dry wall repair and additional testing for mold and mildew, the repair work was
completed by August 12, 2015. Cobblestone contracted with a second contractor because of
mold concerns. By letter dated August 14, 2015, Cobblestone notified Holmes that fans
would be set up in the apartment for the weekend for the purpose of fully drying the
apartment and that they would be removed on August 17, 2015. The letter further stated that
Cobblestone would be responsible for any extra electric charges Holmes may incur due to
the usage of the fans. The second contractor made two small holes into the walls to put air
down into them and used a dehumidifier and two carpet fans.
{¶ 4} On August 9, 2015, Holmes sent an email to the property manager, stating the
apartment was not suitable to live in as she could not cook, watch television, or relax, and
requesting a suitable place to live until all repairs were done.
{¶ 5} By letter dated August 21, 2015, Holmes through her attorney notified
Cobblestone she was terminating her lease due to unsuitable living conditions, and gave her
30-day notice of intent to vacate. The letter explained that there were holes in the bedroom
and kitchen walls, the carpets had not been cleaned, several fans and humidifiers had been
running constantly causing an increase in her electric bill, and her dining room furniture was
still "shoved into her living room." Holmes turned in her apartment keys to Cobblestone's
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office on September 30, 2015. Cobblestone re-leased the apartment effective October 31,
2015. Holmes submitted a claim for her personal property damage upon her renter's
insurance and was reimbursed except for depreciation and a $250 deductible.
{¶ 6} On September 11, 2015, Holmes filed a small claims complaint in the municipal
court against Cobblestone, seeking $2,500 in damages. The matter proceeded to a hearing
before a magistrate on November 4, 2015. On the day of the hearing, Cobblestone filed its
answer and amended counterclaim, seeking $1,700 in damages. Holmes objected to the
amended counterclaim, arguing it was untimely filed. The magistrate offered to continue the
hearing, which Holmes refused, and the magistrate proceeded with the hearing. Holmes and
two of her friends testified on Holmes' behalf. Todd Hignite, a regional manager for
Cobblestone, testified on behalf of the company. Holmes stated she was seeking $2,932.32
in damages; Hignite stated Cobblestone was seeking $1,764.66 in damages.
{¶ 7} At the hearing, Hignite testified that while some dry wall repairs remained, the
apartment was fully habitable by August 14, 2015. Certainly, the apartment was fully
habitable on September 30, 2015, when Holmes turned in her apartment keys. Hignite
admitted he did not walk through the apartment after the repairs were done. Hignite
personally offered to move Holmes to another apartment on August 14, 2015. Holmes
declined the offer because Cobblestone could not guarantee the alternate apartment would
be free of plumbing issues.
{¶ 8} Holmes denied the apartment was fully habitable by August 14, 2015, or
September 30, 2015. While the leak had been fixed, there was mold and mildew, there was
"drywall everywhere, sanded down all over the kitchen area," she could not cook in the
kitchen, and the carpets had not been cleaned. One of Holmes' witnesses testified that on
the day he helped her move out, "the living conditions were pretty bad," there was a bad
smell "like really bad mold," and the drywall repairs were poorly done. Holmes also denied
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she was offered an alternate apartment to live in. Rather, Cobblestone gave her "the
runaround about another suitable place" and told her she did not need an alternative
apartment as the leak had been fixed.
{¶ 9} On January 6, 2016, the magistrate found that Cobblestone had fulfilled its
obligations as a landlord under R.C. 5321.04 and 5321.07, and that it was entitled to the
October rent in the amount of $800. The magistrate further found that Holmes failed to meet
her burden of proof and that she was only entitled to be reimbursed for the additional electric
charges related to the repairs in the amount of $141.36. Consequently, the magistrate
recommended that a rounded $659 judgment be granted in favor of Cobblestone. Holmes
filed objections to the magistrate's decision, which were overruled by the municipal court.
{¶ 10} Holmes now appeals, raising two assignments of error.
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING
APPELLEES FILING OF AN UNTIMELY COUNTERCLAIM WITHOUT LEAVE AND
GRANTING JUDGMENT IN FAVOR OF THE APPELLEES WHICH VIOLATED R.C.
1925.02(C) AND CIV.R. 13(F) AND 7(B)(1).
{¶ 13} Holmes argues the municipal court abused its discretion when it allowed
Cobblestone to file its untimely counterclaim on the day of the hearing. Holmes asserts the
counterclaim was filed in violation of Civ.R. 7(B)(1), Civ.R. 13(F), and R.C. 1925.02(C).
{¶ 14} Pursuant to R.C.1925.02(A), a small claims division of a municipal court has
jurisdiction in civil actions for the recovery of amounts not exceeding $3,000, exclusive of
interest and costs. R.C.1925.02(C) provides that any person who files a counterclaim "shall
file it with the small claims division and serve it on all other parties at least seven days prior to
the date of the trial of the plaintiff's claim in the original action." The record shows that the
summons advised Cobblestone, in compliance with R.C. 1925.05, that "If you believe you
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have a claim against the plaintiff, you must file a counterclaim with the court and must serve
the plaintiff and all other parties with a copy of the counterclaim at least seven days prior to
the date of the trial of the plaintiff's claim."
{¶ 15} Civ.R. 7(B)(1) provides that "[a]n application to the court for an order shall be
by motion which, unless made during a hearing or a trial, shall be made in writing. A motion,
whether written or oral, shall state with particularity the grounds therefore, and shall set forth
the relief or order sought." Civ.R. 13(F) provides that "[w]hen a pleader fails to set up a
counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires,
he may by leave of court set up the counterclaim by amendment."
{¶ 16} It is within a trial court's discretion whether a party may, under appropriate
circumstances, amend a responsive pleading to include a counterclaim, and the court's
decision will not be disturbed absent a showing of an abuse of that discretion. Chase
Manhattan Mtge. Corp. v. Urquhart, 12th Dist. Butler Nos. CA2004-04-098 and CA2004-10-
271, 2005-Ohio-4627, ¶ 17. The Civil Rules favor a liberal amendment policy. See Amend v.
Morgan, 5th Dist. Ashland No. 14-COA-041, 2015-Ohio-3185.
{¶ 17} We find no abuse of discretion by the municipal court in allowing Cobblestone
to file its untimely counterclaim on the day of the hearing. In his decision, the magistrate
stated that
Counsel for Defendant Cobblestone Grove Apartments, LLC
moved the Court to accept its Answer and Amended
Counterclaim for $1,700.00 filed on November 4, 2015. Plaintiff
Rosalind Holmes moved to strike (objected to) the counterclaim
as untimely filed. As stated at the hearing, the Court permitted
Defendant to present its amended counterclaim. The Court
permitted Plaintiff to continue the hearing to a later date to
provide her an opportunity to review and prepare for the
counterclaim. Plaintiff wanted her complaint heard that evening
on November 4 and did not want the hearing continued to a later
date. Plaintiff made a continuing objection to the Court
permitting Defendant to present its amended counterclaim and
the Court made clear her option was to continue the case to
another date to allow her time to prepare to respond or go
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forward on both her complaint and her defenses to the amended
counterclaim. (The discussion on these motions may have been
earlier in the evening or immediately preceding the Court
commencing the hearing. The Court makes this note for
purposes of facilitating the clerk reviewing the recorded record, if
necessary.)
Applicable procedural rules permit a court discretion whether to
allow parties to a civil action to add any related claims or
counterclaims to the subject small claims civil action. The
applicable rules are Rules of Practice and Procedure for the
Fairfield Municipal Court, Rules 21 and 28[.] Ohio Civil Rule 15
has some applicability to small claims court but with limitations
due to the format of small claims court. See Civil Rule 1(C)(4)[.]
{¶ 18} Subsequently, following Holmes' objections to his decision, the magistrate
issued an entry clarifying his decision:
Plaintiff Rosalind Holmes filed an objection and the judge will
decide the objection. The magistrate had no ex parte
communications with any person in this case. The magistrate
was not sure if the discussion on the record with all parties
occurred earlier in the evening docket or immediately before
hearing this case, is what the magistrate was trying to explain in
the 1/16/16 decision.
{¶ 19} As the magistrate's decision and subsequent entry indicate, Cobblestone orally
requested leave of court to file its untimely counterclaim on November 4, 2015, before the
hearing on Holmes' claims began. The magistrate offered to continue the hearing so that
Holmes could prepare a defense to the counterclaim. Holmes refused a continuance and the
magistrate granted Cobblestone's motion for leave to file its untimely counterclaim. Thus,
there was discussion on the record of the propriety of Cobblestone's counterclaim.
{¶ 20} As the appellant, Holmes bears the burden to show error by reference to
matters in the record, and the responsibility to provide this court with a record of the facts,
testimony, and evidence in support of her assignment of error. Pedra Properties, L.L.C. v.
Justmann, 8th Dist. Cuyahoga No. 102909, 2015-Ohio-5427, ¶15. While Holmes provided a
transcript of the hearing itself, she did not provide a transcript of the discussion related to the
counterclaim or an appropriate substitute for the transcript under App.R. 9(C) or (D), and the
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transcript of the hearing does not support her argument. When the record is incomplete as
to assigned errors, "the reviewing court has nothing to pass upon and thus, as to those
assigned errors, the court has no choice but to presume the validity of the lower court's
proceedings, and affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).
{¶ 21} We are mindful that throughout this process, Holmes has represented herself.
However, pro se litigants are held to the same standard as litigants who are represented by
counsel. Sparks v. Sparks, 12th Dist. Warren No. CA2015-10-095, 2016-Ohio-2896, ¶ 6,
citing State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124,
2009-Ohio-4688, ¶ 1. As a result, pro se litigants are presumed to have knowledge of the
law and correct legal procedures so that they remain subject to the same rules and
procedures to which represented litigants are bound. Sparks at ¶ 6. In other words, "[p]ro 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.
{¶ 22} The municipal court did not abuse its discretion in allowing Cobblestone to file
its untimely counterclaim on the day of the hearing. Holmes' first assignment of error is
accordingly overruled.
{¶ 23} Assignment of Error No. 2:
{¶ 24} THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST
WEIGHT OF EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 25} Holmes argues that the $659 judgment in favor of Cobblestone is not
supported by sufficient evidence and is against the manifest weight of the evidence because
Cobblestone failed to prove that: the repair work was completed, there was no mold as a
result of the leak, and she was offered another apartment. Holmes ostensibly challenges the
municipal court's finding that Cobblestone fulfilled its obligations as a landlord under R.C.
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5321.04 and 5321.07, and that her apartment was habitable by August 12, 2015.
{¶ 26} The municipal court granted judgment in favor of Cobblestone, finding that
Holmes was not constructively evicted and was not entitled to terminate her lease because
Cobblestone had stopped the water leak within a few hours of being notified by Holmes, had
repaired the damage caused by the water leak in the days following, and thus had timely
made repairs. The court further found credible Hignite's testimony that the apartment was
habitable within ten days of the water leak.
{¶ 27} An appellate court's function in reviewing the sufficiency of the evidence
supporting a judgment in a civil case is to examine all of the evidence admitted at trial and to
then determine whether there is "some competent and credible evidence going to all
essential elements of the case." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80
(1984); Schnecker v. Schindler, 12th Dist. Warren No. CA96-10-100, 1997 WL 292353, *1
(June 2, 1997).
{¶ 28} A manifest weight challenge in a civil case concerns the inclination of the
greater amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. In a
manifest weight analysis, the reviewing 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 such a manifest
miscarriage of justice that the judgment must be reversed. Id at ¶ 20. In reviewing a bench
trial, an appellate court will uphold the trial court's determination unless it appears that the
record is such that no reasonable person could have concluded as the trial court did.
Garringer v. Gen. Motors Acceptance Corp., 12th Dist. Fayette No. CA92-06-011, 1992 WL
368717, *2 (Dec. 14, 1992); Schroeder v. Roger Foos Ins. Agency, 6th Dist. Lucas No. L-06-
1379, 2007-Ohio-5990.
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{¶ 29} Ohio's landlord-tenant statute, R.C. Chapter 5321, imposes duties on landlords
and provides tenants with leverage to redress breaches of those duties. Miller v. Ritchie, 45
Ohio St.3d 222, 224 (1989). R.C. 5321.04(A)(2) requires that a landlord "[m]ake all repairs
and do whatever is reasonably necessary to put and keep the premises in a fit and habitable
condition." R.C. 5321.07(A) provides that if a landlord fails to fulfill any obligation imposed
under R.C. 5321.04, or if the conditions of the residential premises are such that the tenant
reasonably believes that a landlord has failed to fulfill those obligations, the tenant may give
notice in writing to the landlord, specifying the acts, omissions, or code violations that
constitute noncompliance. If the landlord fails to maintain the rental property in accordance
with statutory or contractual obligations, and the tenant is current in rent payments and
notified the landlord in writing of the violations, R.C. 5321.07(B)(3) allows the tenant to
terminate the rental agreement. Miller at 224.
{¶ 30} "It is not a landlord's failure to fix any problem or to remedy any condition
'within a reasonable time * * * or within thirty days, whichever is sooner' that gives a tenant a
right to terminate his lease under R.C. 5321.07(B)." Pedra, 2015-Ohio-5427 at ¶ 19. Rather,
the remedies available under R.C. 5321.07(B) require a tenant to show that the landlord
violated (1) the lease agreement, (2) a building code that could materially affect health and
safety, or, as applicable here, (3) an obligation imposed by R.C. 5321.04. Id. A tenant must
show that a condition exists that renders the premises unfit or uninhabitable in order to
terminate a lease based on R.C. 5321.04(A)(2). Id. at ¶ 20.
{¶ 31} Upon a thorough review of the record, we conclude that the municipal court's
finding the apartment was habitable by August 14, 2015, and thus, that Cobblestone had
made the premises habitable and safe for Holmes as required under R.C. 5321.04 and
5321.07, is against the manifest weight of the evidence.
{¶ 32} The record indicates that on the night of the leak, Holmes was forced from her
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home because of water flooding her kitchen and living areas. Thereafter, Homes endured
repeated and continuing intrusions, which spanned several weeks, arising from a chain of
events put in motion by the original leak.
{¶ 33} While the leak itself was repaired within a day, Holmes testified how difficult it
was to live in her home once the repairs were ongoing. Describing Holmes' living conditions
on the day he helped Holmes move out, one of Holmes' witnesses testified that the drywall
debris was "all over the furniture, the tables, the counter," and that the drywall "sand" was "all
over the house, on the couch, all over the place on the floors." Holmes' witness further
testified that Holmes' apartment was "literally like an unfinished job and the smell was like so
bad, like really mold like really bad mold because of the water damage * * * so I told her that
she shouldn't be staying in there because of the mold, and it was pretty bad." Similarly,
Holmes testified "there was mold and mildew grown" in her apartment after the leak was
repaired.
{¶ 34} Holmes further testified that in addition to the mold, her life was disrupted by
the ongoing repairs as
all of my furnishings, were all shoved into my living room and left
there. They did not clean the carpets, they did not do anything
else, they had drywall everywhere, sanded down all over the
kitchen area, they put all the stuff, all everywhere, where I can't
even cook in my kitchen * * * I can't even cook in my kitchen, it's
not a suitable place to live.
{¶ 35} Photographs admitted during the hearing show that large dryers and
dehumidifiers were in Holmes' apartment in areas where she should have been able to rest,
relax, and enjoy her home, and that there were large holes in the drywall of her apartment.
Holmes testified that the fans and dehumidifiers ran in her home for "almost three weeks."
Machinery was also crowded on Holmes' kitchen counters and items were moved from the
cabinets and crowded on the counters as well. Holmes explained her reason for leaving her
apartment, and stated "it was mold, mildew, I'm not going to sit in there and live and get sick."
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{¶ 36} While the magistrate was "persuaded by Landlord's testimony that the
apartment was habitable on August 12," and thus, that the carpets were cleaned and repairs
were completed in a reasonable time, we note that Hignite did not submit any evidence in
support of his testimony, and in fact admitted he never observed the condition of the
apartment before Holmes moved out. During his testimony, Hignite referenced invoices
Cobblestone received and paid for work done in Holmes' apartment as evidence carpets had
been cleaned and repairs had been completed. However, Hignite clearly admitted that the
repairs were only done "to the best of my knowledge," and that he "did not walk the
apartment and personally see it." The only evidence Hignite offered was his statement that
there were paid invoices. Yet, he had no personal knowledge to establish that the work was
actually completed or whether the repairs returned the apartment to a fit and habitable
condition as required under R.C. 5321.04(A)(2).
{¶ 37} In light of the foregoing, we find that the record is such that no reasonable
person could conclude, as the municipal court did, that Holmes' apartment was fit and
habitable by August 14, 2015, or September 30, 2015. We therefore conclude that the
municipal court's finding that Holmes failed to prove her apartment was uninhabitable is
against the manifest weight of the evidence. Accordingly, we sustain Holmes' second
assignment of error and pursuant to App.R. 12(C), reverse the judgment of the municipal
court and remand the case to the municipal court for further proceedings.
{¶ 38} Judgment affirmed in part, reversed in part, and cause remanded.
S. POWELL and PIPER, JJ., concur.
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