Amba Invests. v. Clark

[Cite as Amba Invests. v. Clark, 2022-Ohio-43.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
AMBA INVESTMENTS, LLC, :
Appellee, : CASE NO. CA2021-02-016
: OPINION
- vs - 1/10/2022
:
COTY CLARK, :
Appellant. :
CIVIL APPEAL FROM BUTLER COUNTY AREA III COURT
Case No. CVG2000151
Cornetet, Meyer, Rush & Stapleton, and Michael Spillane, for appellee.
Coty L. Clark, pro se.
BYRNE, J.
{¶1} Coty Clark appeals from the decision of the Butler County Area III Court, which
dismissed his counterclaims against his former landlord, Amba Investments, LLC. For the
reasons discussed below, we affirm.
I. Factual and Procedural History
{¶2} In June 2019, Clark and Amba Investments, LLC ("Amba") entered into a
lease agreement concerning residential property located in West Chester, Ohio ("the
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home"). In return for possession of the home, Clark agreed to pay Amba $1,650 monthly.
Clark also paid Amba a security deposit equaling one month's rent.
{¶3} Clark failed to pay rent in December 2019 and January 2020. On January 15,
2020, Amba, through its representative, Usha Aggarwal, told Clark that he needed to vacate
the home and that he had until January 20, 2020, to move out. However, on Friday, January
17, 2020, after further communications, Aggarwal informed Clark that he needed to leave
the home that day. Clark began moving that day and was able to move most of his
possessions out of the home, except for a bed and a television stand. On January 20, 2020,
Clark dropped off the home's keys at the Amba office and provided Amba with his
forwarding address. In an email sent that morning, Clark offered to perform further cleaning
of the home and discussed coming back later that week to obtain his remaining
possessions. In an email sent on January 22, 2020, Aggarwal asked Clark to remove his
remaining possessions and stated, "Let me know the time you will do this."
{¶4} On January 28, 2020, Amba filed, in Butler County Area III Court, a complaint
for forcible entry and detainer of the home and for damages stemming from Clark's failure
to pay rent. The trial court set a hearing on the forcible entry and detainer portion of Amba's
claim. Clark failed to appear or otherwise defend against the forcible entry and detainer
claim and the court granted Amba a writ of possession. The court continued the hearing
on Amba's cause of action for damages.
{¶5} Clark subsequently filed an answer and counterclaims against Amba alleging
two causes of action.1 First, Clark alleged that Amba violated his rights under Chapter 5321
of the Revised Code by failing to provide him with written notice of the disposition of his
security deposit. He sought monetary damages arising out of Amba's failure in the amount
1. The pleadings were untimely and Amba moved to strike the counterclaims. The court denied the motion
due to the Ohio Supreme Court's Covid-19 tolling order.
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of $3,300, which was the amount of his $1,650 security deposit multiplied by two. Second,
Clark claimed that his eviction was unlawful because Aggarwal told him that he needed to
leave the home earlier than he expected and because he felt threatened. He also sought
monetary damages in the amount of $10,000 for "pain, suffering, worry and emotional
anguish as a direct result of being forced to move out in less than 24 hours," plus "$600 for
having to eat out for 30 days for meals as opposed to being able to cook meals at home,"
and $1,000 to replace a bed and television stand "which were not able to be moved out on
such short notice."
{¶6} A magistrate conducted a hearing on the parties' competing claims. Aggarwal
testified on behalf of Amba and stated that Amba's claim for damages against Clark totaled
$6,203.70. This amount consisted of unpaid rent under the lease agreement, contractual
late fees, and NSF (non-sufficient funds) fees. She further testified that Amba's total
damage claim would be reduced by Clark's security deposit of $1,650 and by a payment of
$199 made by Clark in January 2020. Thus, Amba sought damages totaling $4,354.70.
{¶7} On cross-examination, Aggarwal agreed that on January 15, 2020, she told
Clark that he had until January 20 to move out of the home. She further admitted that on
January 17 she told Clark that he needed to move out by 5:00 p.m. that same day.
{¶8} Aggarwal also agreed that on January 20, 2020, Clark returned the home's
keys to the Amba office, and that Clark provided her with a forwarding address. Aggarwal
admitted that Amba had not sent Clark an itemized list regarding the disposition of his
security deposit.
{¶9} On redirect, Aggarwal stated that with respect to Clark's possessions left at
the home, she had asked him to retrieve his items, but he never responded. She testified
that Amba filed the eviction because Clark left his personal property at the home. Aggarwal
did not disconnect the utilities, did not change the locks, and only retook possession of the
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home after the court issued its February order.
{¶10} During his case-in-chief, Clark testified that when he went to Amba's office to
drop off the keys, Aggarwal and another person repeatedly asked him how he would pay
the past due rent. He said that the meeting was "intense" and that he was not comfortable
going back to the home to recover his remaining possessions after the office meeting.
{¶11} On cross-examination, Clark admitted that he owed at least $3,300 in back
rent. Clark also admitted that he was not expecting to get his security deposit back but was
expecting that his security deposit would be applied towards what he owed.
{¶12} At the conclusion of the hearing, the magistrate dismissed Clark's
counterclaims. With respect to the security deposit notice, the magistrate stated that Amba
"only [had] to give you an itemized list if there is any money that is due back to you from
your security deposit. Because there's no money due back because your rent was more
than your security deposit, they didn't do anything wrong regarding your security deposit."
With respect to the alleged unlawful eviction, the magistrate found that Amba took no
unlawful action to evict Clark and had only sought eviction through the court system.2 The
magistrate found for Amba on its claim for damages, but indicated it would deduct the NSF
charges, thus awarding judgment to Amba in the amount of $4,214.70.
{¶13} Clark objected to the magistrate's decision. Regarding the written security
deposit notice, Clark argued that the Revised Code did not exempt a landlord from providing
the written notice when the tenant owed rent. Concerning the unlawful eviction claim, Clark
attached an exhibit of text messages he had exchanged with Aggarwal, which included
texts by Aggarwal that he argued implied a threat of unlawful eviction. However, Clark did
not seek to or have the text messages admitted at the hearing before the magistrate.
2. The magistrate explained, "I know you believe maybe they strong-armed you and pressured you to moving
out, but they took no overt force you other than talking to you." [Sic.]
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{¶14} The court overruled Clark's objections and adopted the magistrate's decision,
agreeing with the magistrate's rationale as expressed at the hearing. There was no
indication in the decision that the court agreed to consider the text messages.
{¶15} Clark appeals, raising two assignments of error.
II. Law and Analysis
{¶16} Assignment of Error No. 1:
{¶17} THE MAGISTRATE ERRED IN REFUSING TO APPLY O.R.C. §5321.16.
{¶18} Clark contends that the area court's decision, which expressly adopted the
magistrate's reasoning for dismissing his first counterclaim based on R.C. 5321.16, was in
error because R.C. 5321.16 "does not grant any exceptions to the landlord's requirement
of furnishing me with the itemized list of deductions." Amba admits it did not provide Clark
with the written notice but argues that Clark was not entitled to any damages.
{¶19} R.C. 5321.16 provides, in relevant part:
(B) Upon termination of the rental agreement any property or
money held by the landlord as a security deposit may be applied
to the payment of past due rent and to the payment of the
amount of damages that the landlord has suffered by reason of
the tenant's noncompliance with section 5321.05 of the Revised
Code or the rental agreement. Any 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. The tenant 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.
(C) If the landlord fails to comply with division (B) of this section,
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.
(Emphasis added.)
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{¶20} Based on the plain language of the statute, we find that the magistrate was
incorrect when he stated that Amba "only [had] to give you an itemized list if there is any
money that is due back to you from your security deposit" and that "[b]ecause there's no
money due back because your rent was more than your security deposit, they didn't do
anything wrong regarding your security deposit." In fact, Amba was required to provide
Clark with a written notice itemizing the deductions from his security deposit. Clark is
correct that the statute does not include any language relieving the obligation to provide
such written notice when a tenant owes more than the security deposit in past due rent –
that is, when the landlord is permitted to retain the entire amount of the security deposit. A
landlord's lawful application of the entire security deposit to past due rent is a "deduction
from the security deposit" that "shall be itemized and identified by the landlord in a written
notice* * *." R.C. 5321.16(B).
{¶21} Before we proceed to the next step of our analysis we pause to address our
colleague's concurring opinion. Our colleague argues that Amba was not required to give
Clark the R.C. 5321.16(B) written, itemized statement because Clark's entire security
deposit was lawfully retained by Amba. Our colleague bases this conclusion on his view
that "in this matter * * * there were no deductions made from the security deposit." We
disagree. The entire amount of the security deposit – 100 percent – was deducted in order
that it could be applied to past due rent, as authorized by R.C. 5321.16(B).
{¶22} We also disagree with our colleague's conclusion that R.C. 5321.16(B)'s
phrase "together with the amount due" means that the written statement must only be
provided when "some part of the security deposit is owed the tenant" – that is, when the
amount due is greater than zero. We do not see support for this conclusion in the statute's
text. In a case like this one, where the entire security deposit is retained by the landlord to
be applied to past due rent, the entire amount of the security deposit is a "deduction from
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the security deposit" that "shall be itemized" in a written statement, which must indicate that
the "amount due" to the tenant is zero.3 R.C. 5321.16(B).
{¶23} Our view of the plain meaning of the statute's text is supported by the Ohio
Supreme Court's opinion in Vardeman v. Llewellyn, 17 Ohio St.3d 24 (1985). In Vardeman
the supreme court stated that the General Assembly in enacting R.C. 5321.16(B) intended,
among other things, "to require prompt refunds of all or part of the security deposit or, in the
alternative, to provide an explanation to the tenant why all or any part of the deposit was
not returned to him." (Emphasis added.) Id. at 28. The supreme court's use of the phrase
"all or any part" indicates that the R.C. 5321.16(B) written statement must be provided to a
tenant even when "all" of the security deposit is retained by the landlord, as is the case
here.4
{¶24} We agree with our colleague's statement that "appellate review should resist
the temptation to rewrite a statute to be more comprehensive or provide a more thorough
meaning," citing State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local
Schools, 163 Ohio St.3d 314, 2020-Ohio-5149, ¶ 11. Consistent with that admonition, we
have simply read the statute's text for what it says and applied the text as written.
{¶25} Now we return to Clark's argument. Though Clark did not make the point
explicitly in his appeal brief, Clark seems to argue that because the trial court was incorrect
in its characterization of a landlord's obligations under R.C. 5321.16, we should reverse and
order that Clark receive the monetary damages he alleges arise out of Amba's failure to
3. Our concurring colleague's interpretation of the statute would require that landlords provide the itemized,
written statement to tenants when 10, 50, or 99 percent of the security deposit is deducted in order to be
applied to past due rent, but would not require such notice when 100 percent of the security deposit is
deducted to be applied to past due rent. We find no support for such an interpretation in the text of R.C.
5321.16(B).
4. Even if, as our concurring colleague argues, the Vardeman language we have quoted in ¶ 23 is dicta, the
language is certainly persuasive because it is entirely consistent with the plain text of R.C. 5321.16(B).
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comply with R.C. 5321.16(B). The Ohio Supreme Court construed R.C. 5321.16(B) and
(C) in Vardeman. The supreme court held, "the failure to comply with R.C. 5321.16(B) and
to provide the tenant with a list of itemized deductions renders the landlord liable for double
damages only as to the amount wrongfully withheld and not as to the entire amount of the
security deposit." Vardeman at 29. The court defined "amount wrongfully withheld" to mean
the amount of the security deposit above any deduction that the landlord had the right to
lawfully deduct from the security deposit. Id. The court further held that attorney fees
should only be awarded where a tenant is entitled to damages because the landlord
wrongfully withheld some amount. Id.{¶26} In this case, the evidence introduced at the hearing showed that the entire
security deposit was lawfully withheld and could be lawfully applied to Clark's past due rent.
Accordingly, Amba is not liable to Clark for damages or attorney fees for its failure to provide
Clark with notice under R.C. 5321.16(B), because there was no amount wrongfully withheld.
Vardeman at 29.
{¶27} Accordingly, while the magistrate made incorrect statements about a
landlord's obligations under R.C. 5321.16 that were expressly adopted by the trial court, the
magistrate and the trial court still reached the correct result – that is, dismissal of Clark's
first counterclaim – because Clark was owed no damages under that counterclaim.5 We
therefore overrule Clark's first assignment of error and affirm the trial court's dismissal of
Clark's first counterclaim.
{¶28} Assignment of Error No. 2:
{¶29} THE MAGISTRATE ERRED IN RULING THE EVICTION WAS NOT
UNLAWFUL (O.R.C. §5321.15).
5. Clark did not request in his counterclaim's prayer for relief that the court require Amba to provide the
itemized statement to him. He only requested damages that he was not owed.
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{¶30} Clark argues that the court erred in finding that Amba did not unlawfully evict
him. He notes that Aggarwal told him that he had to move out by 5:00 p.m. on January 17,
2020, and he argues that he "felt threatened" by text messages sent to him by Aggarwal.
{¶31} Amba argues that Clark failed to present evidence at the hearing that Amba
took any unlawful action against him for purposes of recovering the home.
{¶32} Clark cites R.C. 5321.15, which states:
(A) 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.
(B) 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.
(C) 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.
{¶33} Upon review, we do not find that Clark demonstrated that Amba or its
representative engaged in any unlawful act or made any unlawful threat for purposes of
recovering the home in violation of R.C. 5321.15. While Aggarwal admits that she
requested that Clark move out of the home by 5:00 p.m. on January 17, 2020, after having
previously asked him to move out by January 20, 2020, Aggarwal did not combine this
request with any act or threat made unlawful under the statute. Clark contends that he "felt
threatened" by Aggarwal's request that he move out so quickly. He also contends that "I
was concerned for my safety and the safety of my belongings [,]" and he states that
"Because of those feelings, I left." But Clark's subjective feelings do not demonstrate a
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violation of the statute.6
{¶34} The evidence at the hearing indicated that Amba did not take any unlawful act
or make any unlawful threat. Amba did not disconnect Clark's utilities or services, change
his locks, or remove his possessions. Amba also did not threaten to do any of those acts
or similar unlawful acts. Aggarwal indicated that Amba filed the forcible entry and detainer
action after Clark returned his keys and moved out only because Clark left some of his
possessions at the home and did not remove those possessions when given the
opportunity. Additionally, even if Clark had established an unlawful act by Amba, he failed
to present any evidence to support his claim of damages.
{¶35} For the foregoing reasons, we overrule Clark's second assignment of error.
III. Conclusion
{¶36} Judgment affirmed.
M. POWELL, J., concurs.
PIPER, P.J.., concurs separately.
PIPER, P.J., concurring separately.
{¶37} I too affirm the trial court and overrule Clark's assignment of errors. I agree
with my colleagues "the entire security deposit was lawfully withheld and could be lawfully
applied to * * * past due rent." However, I do not agree the trial court was incorrect in
accepting the magistrate's rationale which correctly referenced the text of R.C. 5321.16(B).
The magistrate read the statute as written, rather than how it could have been written.
Therefore, I am not critical of the magistrate's comments.
{¶38} In applying the statute as written, R.C. 5321.16(B) preliminarily authorizes at
6. Notably, Clark admitted that he knew that "they technically couldn't force me out until the court granted an
eviction," and he moved out at Aggarwal's request anyway.
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the time the rental agreement is terminated, a landlord can apply the security deposit toward
payment of past due rent. The statute reads, "upon termination of the rental agreement * *
* a security deposit may be applied to the payment of past due rent * * *." R.C. 5321.16(B).
The record reveals that is what happened here. The right to apply the security deposit to
past due rent is not conditional upon, or qualified by, any other text. There are no words in
the statute creating an antecedent.
{¶39} Next R.C. 5321.16(B) establishes that a written notice must be forwarded
together with the amount due the tenant. The notice is to itemize and identify deductions
from the security deposit and return to the tenant whatever is left. R.C. 5321.16(B)
specifically directs "Any deduction from the security deposit shall be itemized and identified
* * * delivered to the tenant together with the amount due * * *." Contrary to our lead
opinion's interpretation of the statute's text, the statute significantly does not state "the
amount due, if any." The phrase "together with the amount due" clearly requires that after
the itemized deductions some part of the security deposit is to be returned to the tenant.
{¶40} Applying the whole security deposit toward payment for past due rent when
the rental agreement is terminated is not the same as subsequently identifying and listing
deductions from the security deposit.7 Taking portions of something is not the same as
taking the whole. The statute does not call for an accounting of the security deposit. It does
however call for an accounting of deductions from the security deposit. Granted it would
be better or more comprehensive if the statute required an accounting of all or any part of
the security deposit, but it does not.8
7. "From" is a functional word used to indicate a separation, subtraction, or removal; a synonym is "out of".
Merriam-Webster.com, definition of "from," https://www.merriam-webster.com/dictionary/from (accessed
January 3, 2022), and Merriam-Webster.com, synonym of "from," https://www.merriam-
webster.com/thesaurus/from (accessed January 3, 2022).
8. Should the tenant be due the entire security deposit or any part of the security deposit and it is not returned
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{¶41} My friends in the majority opinion interpret the text of the statute as requiring
that when the whole security deposit is retained and there no itemized deductions from the
security, the statute means the whole security deposit is to be deducted from the whole
security deposit. This construction then requires an additional interpretation that sending
along the amount due means in some circumstances the money due, yet in other
circumstances, it means sending zero. ¶ 22 above. The requirement that after individual
deductions are made the amount due be sent the tenant, clearly means the tenant is to get
the money he or she is owed.
{¶42} My colleagues write into the text of the statute an "obligation" to provide
written notice of the amount owed when more than the security deposit amount is owed.
However, the balance owed beyond the security deposit is a topic not addressed in the text
of the statute as written. A landlord can seek damages greater than the security deposit in
subsequent legal proceedings and a tenant will be served with notice of the amount of
damages claimed at that time. Additionally, in this matter, as the magistrate correctly noted,
there were no deductions made from the security deposit. The security deposit was
admittedly legally retained when applied to past due rent.9
{¶43} When summarizing the purpose of the statute other courts have expressed
verbiage that lends support for the majority's interpretation of the statute, yet I could find
none specific to our facts holding the statute requires a written notice advising the tenant
that the entire deposit was applied toward the past due rent; or that applying the entire
to the tenant, the landlord "wrongfully withholds" the money and is subject to the financial repercussions of
R.C. 5321.16(C).
9. Lending to his credibility, Clark acknowledged he was aware of what happened to his security deposit, he
knew it was applied to his considerable past due rent, and he had no expectation he was entitled to the
security deposit or any part of it. Therefore, the magistrate's comments criticized by the majority have no
relevance to our ultimate determination that no monies were wrongfully withheld. I would submit this criticism
is therefore unnecessary dicta.
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security deposit to past due rent is the same as taking deductions from the security deposit.
Similarly, not located was authority holding that a notice must be sent advising the tenant
of the amounts owed above the security deposit amount applied to past due rent.
{¶44} Our majority opinion uses Vardeman v. Llewellyn, 117 Ohio St.3d 24 (1985),
as support in interpreting how the statute was intended to operate. However, the meaning
of the words and phrases involved in today's discussion were not at issue or involved in
Vardeman's holding. The phrase in Vardeman currently isolated for support was involved
in a broad, general summary of the statute. The attempt at a "CliffsNotes" elucidation went
beyond the holding, was not involved in the holding, and was clearly dicta. "Dicta" being
expressions in an opinion which go beyond the facts necessary to determine the issues at
hand and therefore not binding in subsequent cases as legal precedent. We have
previously determined as a reviewing court, we are bound only by the text of a statute and
not the dicta, even from the supreme court. State v. Sallis, 12th Dist. Clermont No. CA2019-
12-092, 2020-Ohio-3924, ¶ 17 (where we followed Justice Kennedy's concurrence in State
v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761).
{¶45} Sometimes reading text for what it says rather than for what it should say, is
a difficult task. Admittedly, the statute was poorly drafted and could have created an
obligation addressing more than just the deductions from the security deposit. It could have
required an accounting of the security deposit regardless of whether it was returned or
withheld. The statute could have clearly stated a landlord must give written notice as to the
disposition of all or any part of the security deposit. However, the text of the statute is
limited in what it articulates.
{¶46} Since the magistrate applied the words of the statute as written, I do not find
the statements made to be incorrect. Nor do I find fault with the trial court in adopting the
magistrate's rationale. While taking a slightly different approach and finding no controversy
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with comments within the record, I concur with my colleagues' judgment as to both
assignments of error but disagree with the meaning that has been attributed to the text of
the statute and the resulting criticism of the magistrate in textually applying the statute.
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