Christen v. Cont'l Enters., Ltd.

154 N.E.3d 1192

2020 Ohio 3665

John CHRISTEN, Plaintiff-Appellee,

v.CONTINENTAL ENTERPRISES, LTD., et al., Defendants-Appellants.

No. 108736

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: July 9, 2020

The Law Office of Michael Dylan Brennan L.L.C., and Michael Dylan Brennan, Cleveland, for appellee.

Ted S. Friedman, Solon, for appellants.

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, J.:

{¶ 1} Defendants-appellants, Continental Enterprises Ltd. ("Continental"), appeals from the order of the trial court that awarded attorney fees to plaintiff-appellee, John Christen ("Christen").

{¶ 2} For the reasons that follow, we affirm the trial court and remand for a final determination of the final amount of fees owed.

I. FACTUAL BACKGROUND

{¶ 3} Alan Pearlman ("Pearlman") is the managing member of Continental, which owns two 66-unit apartment buildings at 3341 and 3351 Warrensville Center Road, Shaker Heights, Ohio 44122.¹ Christen is a resident of Virginia and an employee of General Electric. His work sometimes required him to stay in the Cleveland area for extended periods of time, which led him to rent an apartment in the area.

{¶ 4} Christen and Continental entered into a written lease for Christen's rental of apartment 406 located at 3351 Warrensville Center Road, Shaker Heights, Ohio. Christen was the tenant and Continental the landlord. Pursuant to the lease, rent was $1,050 per month. Christen tendered a security deposit to Continental in the amount of $925. The security amount included a $75 deposit for a garage door opener. Apartment 406 is on the top floor of the flat-roofed apartment building.

{¶ 5} The lease term began on November 5, 2014. It ran for thirteen months and automatically renewed for another year on December 31, 2015, unless Christen provided written notice of termination by October 31, 2015. Christen did not seek to terminate the lease in October 2015, so the lease automatically renewed for a one-year term that automatically terminated on December 31, 2016. It is undisputed that Christen paid all rent due under the lease.

{¶ 6} Around March 30, 2016, Christen noticed some water damage that originated in the ceiling of the bathroom and leaked down the wall. Christen reported this damage to Pearlman by email. Christen also informed Pearlman that his garage door opener was not working and that he expected to be in Cleveland for work less often and asked when he could call Pearlman to discuss possibly terminating the lease early. Pearlman responded by email the next day, writing "You can call me when you have the garage door opener with you and I will tell you how to reprogram it. We will investigate the roof leak."

{¶ 7} On April 4, 2016, Christen emailed Pearlman to ask whether anyone had looked at the damage in his apartment and checked the roof. The same day, Pearlman replied that he was waiting for the water on the roof to dry up in order to find the "small opening that is causing the leak into your apartment." Pearlman did not repair the interior water damage in Christen's apartment. Pearlman testified that he intended to wait to repair the damage until Christen moved out at the end of the year.

{¶ 8} In the summer of 2016, Christen's work took him to Cleveland less often. During one of his infrequent stays at his apartment, he noticed that the interior water damage had not been repaired. Other tenants also emailed Pearlman to complain about water damage in their apartments, but the emails themselves were inadvertently permanently deleted before this litigation began. Christen also noticed that his air conditioner was out of service and testified that it blew hot air into his apartment. He often did not stay at the apartment that summer due to the broken air conditioning.

{¶ 9} On June 29, 2016, Christen emailed Pearlman for an update on the leaky ceiling, although he did not notice any new damage at that time. Christen again informed Pearlman that the air conditioning was still not working. Neither Pearlman nor Continental responded to this email. Christen believed someone eventually repaired the air conditioning and it worked periodically thereafter. However, he testified that the water damage to the wall remained in the same condition throughout his tenancy as when he first noticed the damage in March 2016.

{¶ 10} On December 22, 2016, Christen notified Pearlman by email that he was moving out and asked where he should leave the keys. Pearlman responded that he should leave the keys in the rental deposit box in an envelope with his name on it. Christen hired cleaners to clean the apartment before he moved out. He vacated the premises on the 22 or 23 of December 2016 and left the keys in the box as instructed. Christen testified that he included a note with the keys that provided his forwarding address for the return of his security deposit. Before leaving the apartment, Christen took a photograph of the still-unrepaired water damaged wall that had been in that condition since March 2016.

{¶ 11} On January 31, 2017, Pearlman emailed Christen to inform him that his security deposit of $925 would not be returned.

Pearlman claimed $75 for the unreturned garage door opener; $700 to repair and replace the water-damaged wall; and $150 to refinish the stained bathtub. Pearlman claimed the water damage was due to Christen's failure to notify Pearlman of the damage when it first occurred. Christen was willing to pay the $75 for the garage door opener, but disputed the deductions for the water-damaged wall and bathtub repairs. He claimed that his emails in March, April, and June notified Pearlman of the water damage and that the bathtub was not stained when he vacated the apartment. Pearlman refused to return the security deposit.

II. PROCEDURAL BACKGROUND

{¶ 12} Christen believed he was entitled to the security deposit and engaged counsel at a rate of $250 per hour on April 21, 2017, to recover his deposit. Around April 25, 2017, Christen's counsel sent a letter to Pearlman that requested payment of the $925 security deposit, $925 in statutory damages, and $500 in legal fees to that date. It is not clear based on the record whether Pearlman or Continental (collectively "Landlords") responded, but they did not return the security deposit at that time.

{¶ 13} On May 2, 2017, Christen filed a complaint against Continental and Pearlman. Christen brought one count against Continental and a second against Pearlman personally. Both counts sought to recover the $925 security deposit, damages, and reasonable attorney fees under R.C. 5321.16.

{¶ 14} On July 6, 2017, Landlords filed an answer and counterclaim on July 6, 2017. They denied Christen's allegations and sought damages in the amount of $5,000.00 for Christen's alleged violations of R.C. 5321.05(A)(1) and (5). They also sought reasonable attorney fees pursuant to R.C. 5321.05(C)(1). Landlords claimed they were entitled to damages for the cost of the bathtub and water damage repairs and also to several months' rent payments during which the apartment allegedly could not be rented due to the condition in which Christen left the apartment. Both parties filed motions to dismiss. The trial court denied both motions.

{¶ 15} By telephone conference on July 24, 2017, the trial court ordered that discovery be completed by October 24, 2017, and set trial for April 4, 2018. At a pretrial hearing on October 24, 2017, the court extended the discovery deadline to December 15, 2017. The parties failed to settle at the final pretrial hearing on February 22, 2018. At Landlords' unopposed request for continuance, the trial was postponed and reset for June 20, 2018.

{¶ 16} On May 25, 2018, Christen moved for a protective order and to compel written discovery responses from Landlords. Christen attached correspondence between the parties' counsel that detailed the deficiencies. He sought a protective order preventing Landlords from taking the deposition of Christen before they had answered his written discovery, which he served on September 14, 2017.

{¶ 17} The motion to compel sought separate discovery responses from Continental and Pearlman. Christen claimed that Continental provided incomplete responses and that Pearlman had not responded at all to Christen's document requests, requests for admission, and interrogatories. In particular, Christen sought from Continental documents related to the history and maintenance of the apartment building roof, documents relating to alleged repairs, and documents related to the counterclaim. Christen claimed that Continental had failed to produce any documents except for a few photos. Christen further claimed he had to postpone depositions of Continental and Pearlman due to their delinquent written discovery responses.

{¶ 18} The court held another telephone conference on June 6, 2018. Afterwards, the court extended the written discovery deadline to June 22, 2018, and ordered that depositions be completed by August 3, 2018. The court postponed the trial date to September 24, 2018.

{¶ 19} Pearlman moved for summary judgment on May 30, 2018. The court denied summary judgment on September 19, 2018, stating that "defendant filed the motion out of rule."

{¶ 20} The court held a pretrial on July 12, 2018, at which the court ordered Pearlman's deposition to take place on July 27, 2018, at the courthouse. The court also noted that it would hold Christen's motion to compel in abeyance until after Pearlman's deposition.

{¶ 21} On September 19, 2018, the trial was cancelled and the case was referred to arbitration to occur on October 23, 2018. The arbitration panel found for Christen on the complaint and counterclaim, but did not award attorney fees. Afterwards, Christen's counsel sent correspondence to Landlords' counsel dated November 16, 2018. The letter was a post-arbitration settlement demand that requested the security deposit, statutory amount, and attorney fees incurred to date. Christen's November 2018 demand sought...