AMENDED MAGISTRATE'S DECISION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

This mattercame on for hearing before Magistrate David S. Jump. Attorney Philip B. Kaufman represented the plaintiff. Attorney Andrew J. Ruzicho represented the defendant. Based on the evidence and argument presented, after weighing the credibility of the witnesses, the magistrate issued a Magistrate's Decision, filed September 6, 2001, which contained a full statement of facts and legal conclusions. The defendant has now requested findings of fact and conclusions of law pursuant to Civil Rule 52. Those findings and conclusions are now listed numerically in this Amended Magistrate's Decision pursuant to Civil Rule 53(E)(2).

FINDINGS OF FACT

I . The plaintiff rented residential property front the defendant from January 2000 until she vacated the apartment and returned the on February 15, 2001. During her tenancy, the plaintiff routinely paid her rent to the defendant late. She included a late charger with her rent payment. Each time the plaintiff offered her rent and late fee to the defendant, the defendant accepted the plaintiff s payment. On at least two occasions (December, 2000 and January, 2001), the defendant served the plaintiff with a Notice to Leave Premises, pursuant to ORC §1923.04, and then accepted the plaintiffs late rent and late fee.

2. The plaintiff did not stay at her apartment regularly. She stayed at the apartment only occasionally and instead spent most of her time elsewhere. The plaintiff was not at her apartment at a] I from November 15, 2000 until January 16, 200 1. She moved some of her personal belongings with her, but she continued to keep much of her personal property in the defendant's apartment, including a full dining roorn set, a full bedroom suite, other furniture, clothes, shoes, kitchen supplies and bathroom supplies.

3. Although she was not spending much time at the apartment, the plaintiff continued to pay rent to the defendant and she maintained the utilities in the apartment. The plaintiff paid rent for November and December, 2000, and January, 2001. The defendant accepted the plaintiff's rent payments with late fees for each of those months. The plaintiff paid her January 2001 rent to the defendant on January 10,2001. The defendant's employees accepted the plaintiff's payment without any indication of a problem.

4. The plaintiff went to her apartment on January 16, 2001 for the first time since mid November, 2000. She was not able to get into her apartment because her key did not fit the door lock. The plaintiff went to the defendant's office but was not able to get any information as to why she could not get into her apartment. At that time, the defendant's office staff denied any knowledge of the plaintiff's lock being changed. The plaintiff had to take time off work and return to the defendant's office the next day, January 17, 2001, in order to further pursue the matter. The defendant's property manager, Barbara Chrappah, ultimately acknowledged that the plaintiff's lock had been changed based on the authorization of a previous manager and the defendant gave the plaintiff new keys to her apartment.

5. Neither party presented admissible evidence at trial as to the exact date the defendant changed the lock on the plaintiff's apartment. The parties now stipulate that the defendant changed the lock on the plaintiff's apartment sometime between November 15, 2000 and January 1, 2001. Although the defendant had served the plaintiff with a number of three day notices, the defendant never filed an eviction action against the plaintiff and the defendant never obtained judgment for restitution or any other court authorization to change the lock on the plaintiff s apartment.

6. When the plaintiff paid her January rent to the defendant on January 10, 2001, the plaintiff also gave the defendant notice of her intent to vacate the apartment on February 1, 2001 (Defendant's Exhibit 3). The defendant accepted that notice, but construed it to be a termination date of February 10, 2001, in order for the notice to be for a full thirty (30) days. The plaintiff began moving her personal belongings out of the apartment on January 17, 2001, after the defendant gave her new keys to the changed lock. The plaintiff made several trips to the apartment between January 17 and January 30, 2001, to remove her personal belongings.

7. On January 30, 2001, the plaintiff noticed for the first time damage in her bathroom. Water had leaked through the ceiling from the apartment above, causing damage to the plaintiffs bathroom ceiling and walls. Plaintiff's Exhibits A and B are pictures of the damage to the plaintiff's bathroom. The plaintiff had not noticed any damage in the bathroom on January 17, 200 1, the last time she was in the apartment's bathroom. The plaintiff notified the defendant of tile damage on January 30, 2001, after discovering it.

8. The plaintiff completed the removal of her personal property from the apartment. The plaintiff returned the keys to the defendant on February 15, 2001, instead of the scheduled termination date of February 10, 2001. The defendant could have charged the plaintiff rent for the entire month of February because the plaintiff's notice on January 10, 2001 was not for a full thirty days and because the plaintiff held over her tenancy beyond the scheduled termination date. The defendant chose not to do that. Instead, the defendant properly deducted only five (5) days of rent from the plaintiff's security deposit to cover the five days from the plaintiffs scheduled move-out date of February 10, 2001 to the actual date of her returning the keys.

9. The plaintiff has now filed this lawsuit against the defendant seeking damages for the defendant's improper changing of the lock on her apartment. The plaintiff contends that she is entitled to the return of all rent she paid for the apartment after November 15, 2000. She bases this argument in part on the fact that the defendant could have changed the lock as early as November 16,2000. In addition, the plaintiff bases her assertion on the fact that the bathroom damage occurred sometime between January 17 and January 30, 2001. The plaintiff argues that the bathroom damage rendered the apartment uninhabitable, entitling her to a complete abatement of rent through the remainder of the lease term.

10. The defendant raised an oral Counterclaim at trial alleging that the plaintiff is liable to the defendant for the bathroom damage. The defendant argues that had the plaintiff been living in the apartment between January 17 and January 30, 2001, she would have discovered the water leak sooner and the defendant could have made the repairs before the damage to her bathroom became so extensive.

11. The plaintiff's attorney, Mr. Kaufman, rcasonably provided 6.7 hours of legal services to the plaintiff at the reasonable rate of $185.00 per hour.

CONCLUSIONS OF LAW

It is a fundamental principle of law that the party alleging facts has the burden of proving those allegations. Ohio Fuel Supply Co. v. Shilling (1920), 101 Ohio St. 106. That proof must be by a preponderance of the evidence. Re Walker's Estate (1954), 161 Ohio St. 564.

Addressing first the defendant's Counterclaim, the defendant has failed to prove that the plaintiff is liable for the damage to the bathroom. It is not disputed that the damage occurred as a result of a plumbing leak from an upstairs apartment, causing water to leak through the plaintiff's bathroom ceiling. The defendant presented no evidence to support its assertion that the damage would have been any less extensive had the plaintiff discovered it any sooner than she did.

In essence, the defendant argues that the plaintiff had a duty to detect that leak and report it as soon as the leak started. The defendant argues that the plaintiff breached this duty by not being in the apartment during the two week period between January 17 and January 30, 2001. The defendant has failed to prove that the plaintiff had such a duty.

ORC 5321.05 lists the obligations of a tenant. That section does not impose a requirement that a tenant be present in an apartment 24 hours a day, 7 days a week during the entire tenancy. If the defendant were correct in its argument, then a tenant would be liable for everything that occurs while the tenant was on vacation or traveling on business for a two week period. There is no legal authority for the defendant's argument.

In the case at bar, the plaintiff did not stay at the apartment during the two week period from January 17 to January 30, 2001. When she returned to the apartment on January 30, she noticed the water damage and reported it to the defendant. She met her duty as a tenant. She is not liable for the damage caused by the water leak.

Addressing now the plaintiff's Complaint, the plaintiff has proved by the preponderance of the evidence that the defendant improperly changed the lock on her apartment. The defendant argues that it was entitled to change the lock because the plaintiff had abandoned the apartment. The defendant did not prove an abandonment.

The defendant's only witness was its current property manager, Ms. Chrappah. She was not involved at the time the lock was changed and she had no knowledge of the factors that led to the decision to change the lock. The defendant presented no evidence from any witness to establish facts which would allow for a finding of abandonment. This is in contrast to the plaintiff's credible evidence that she had furniture and other personal property in the apartment. The defendant presented no evidence that it ever gave or attempted to give notice to the plaintiff that it was going to change the lock.

Further, the defendant's assertion that the plaintiff abandoned the apartment is completely inconsistent with its continued acceptance of rent from the plaintiff. It is inconceivable that the plaintiff would continue to pay rent month after month to the defendant on an apartment that she had abandoned. The defendant presented no evidence that the plaintiff was obligated to spend more time at the apartment than she did. The defendant has not proved by the preponderance of the evidence that it was justified in believing that the plaintiff had abandoned the apartment.

The plaintiff has proved by the preponderance of the evidence that the defendant acted without justification in changing her lock. ORC §5321.15 provides in pertinent part:

(A) No landlord of residential premises shall initiate any act, including termination of utilities or services, exclusion from the premises, or threat of any unlawfLil 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. (Emphasis added)

(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.

The plaintiff has proved by the preponderance of the evidence that she was excluded from her apartment for parts of two (2) days, January 16 and 17, 2001. She is entitled to a complete abatement of rent for those two days at the daily rate of $12.50 per day for a total of $25.00. In addition, the plaintiff has proved that she had to take time off work on January 17, 2001 in order to convince the landlord that the lock had been changed and to get a new key to her apartment. She has proved that she lost wages in the amount of $16.50 because of the defendant's improper lock change.

The plaintiff also claims that she is entitled to the abatement of rent for the remainder of her lease term after November 15, 2000, the last time she stayed in the apartment. She argues that because the defendant could have changed the lock as early as November 16, 2000, she could not have gotten into her apartment even if she had tried. She argues she is entitled to an abatement of rent from November 16, 2000 to January 17, 2001, when the defendant gave her a new key. The plaintiff has failed to prove that she has been damaged in this amount.

The plaintiff did not want to enter her apartment during that time. She did not even go to her apartment between November 15, 2000 and January 16, 2001. The plaintiff has not proved that she has been damaged in any way by not being able to do what she neither wanted to do nor tried to do in the first place. Her only damage was the two days (January 16 and 17, 2001) when she wanted to enter the apartment and could not do so.

The plaintiff further claims she is entitled to an abatement of rent from January 17, 2001 to the end of her tenancy because of the damage from the water leak. The plaintiff argues that the apartment was uninhabitable. It is clear that the water leak caused the bathroom to be unsightly (Plaintiff's Exhibits A and B). However, the plaintiff has not proved that the apartment was uninhabitable.

The plaintiff did not even want to live in the apartment at that time. She testified she was only at her apartment between January 17 and January 30, 2001 to move her personal belongings out of the apartment. She had no intention of staying in the apartment. At that time, she was using the apartment only as a place to store her personal property until she could move it. The plaintiff has not proved that the water leak in the bathroom rendered her apartment unsuitable as a storage facility.

The plaintiff has not proved that she is entitled to an abatement of rent for any time other than the two (2) days when she wanted to enter her apartment and could not do so. She has proved that she has been damaged in the amount of $25.00 for those two days and $16.50 for lost wages. The plaintiff is also entitled to reasonable attorney fees pursuant to ORC §5321.15. The Ohio Supreme Court has held that similar statutory language in ORC §5321.16 is mandatory in providing for attorney fees. Smith v. Padgett (1987), 32 Ohio State 3d 344.

Subsequent to the trial and Interim Magistrate's Decision, the parties appeared in court for a hearing as to the award of attorney fees. Both parties presented the testimony of witnesses, including expert witnesses for both parties. The plaintiff presented Plaintiffs Exhibit 1, Mr. Kaufman's bill for legal services rendered prior to the attorney fee hearing. That bill reflects 5.2 hours of legal services at the hourly rate of $185.00 ($962.00). In addition, the plaintiff seeks compensation for 1.5 hours for the attorney fee hearing at the same hourly rate ($277.50). The plaintiff seeks a total of $1,239.50 in attorney fees.

The plaintiff presented the expert testimony of Attorney James Schottenstein who testified that, based on his 29 years of legal experience, the plaintiff s claimed legal expenses are reasonable. The defendant presented the testimony of Attorney Eric Willison, who drew on his 5 years of legal experience to opine that the plaintiffs claimed legal expenses are unreasonable. Both expert witnesses were very credible and served the important function of providing enlightening information concerning the reasonableness of legal fees.

In Smith v. Padgett, supra., the Ohio Supreme Court stated at paragraph 4 of the syllabus:

If the trial court finds that the landlord has wrongfully withheld a portion of the tenant's security deposit, it shall determine the amount of reasonable attorney fees to be awarded on the basis of the evidence presented. Although such determination shall not be reversed except upon abuse of discretion, the award must relate solely to the fees attributable to the tenant's security deposit claim under R.C.5321.16.

The Smith v. Padgett decision did not explain how to determine the amount of an attorney fee award. The parties agree that Bittner v. Tri-County Toyota (1991), 58 Ohio St.3d 143 provides the controlling authority on the issue of how to determine the amount of reasonable attorney fees. Although that case dealt with the award of attorney fees pursuant to the Ohio Consumer Sales Practices Act, the parties agree that the same analysis should apply to the case at bar. The Supreme Court held at page 145: When awarding reasonable attorney fees pursuant to R.C. 1345.09(F)(2), the trial court should first calculate the number of hours reasonably expended on the case times an hourly fee, and then may modify that calculation by application of the factors listed in DR 2-106(B). These factors are: the time and labor involved in maintaining the litigation; the novelty and difficulty of the questions involved; the professional skill required to perform the necessary legal services; the attorney's inability to accept other cases; the fee customarily charged; the amount involved and the results obtained; any necessary time limitations; the nature and length of the attomey/client relationship; the experience, reputation, and ability of the attorney; and whether the fee is fixed or contingent. All factors may not be applicable in all cases and the trial court has the discretion to determine which factors apply, and in what manner that application will affect the initial calculation.

After applying the factors enumerated by the Supreme Court, there is no question that the plaintiff's claimed attorney fees are entirely reasonable. Mr. Kaufman testified credibly that he actually spent the time he has listed on his bill (Plaintiffs Exhibit 1). Those hours are reasonable considering the issues involved in this case.

The facts of the case at bar are certainly novel. This magistrate has never seen facts quite like those presented by the plaintiff. It is also unusual for a case to include the fact of a landlord lock-out of the tenant. It is even more unusual for the landlord to argue vehemently that it was justified in locking out the tenant. It is clear that the plaintiff needed an attorney with Mr. Kaufman's experience and skill to handle the issues involved in this case. It is also clear from Mr. Kaufman's testimony and that of the expert witnesses, that Mr. Kaufman's fees are consistent with those customarily charged.

Further, the plaintiff s claimed attorney fees are reasonable considering the amount involved and the results obtained in this case. Although the defendant argues that the fees are excessive considering the relatively small compensatory award to the plaintiff, that argument is not persuasive. The Ohio Supreme Court has stated, "The consideration of 'results obtained', however, is not synonymous with the monetary amount of the recovery." Bittner, supra., at page 145.

The Supreme Court further stated:

At the outset, we reject the contention that the amount of attorney fees awarded pursuant to R.C. 1345.09(F) must bear a direct relationship to the dollar amount of the settlement, between the consumer and the supplier. *** "A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious *** claims but relatively small potential damages to obtain redress from the courts." Bittner, supra. at page 144, quoting Riverside v. Rivera (1986), 477 U.S. 561, 578.

In the case at bar, the plaintiff's central claim is that the defendant improperly locked her out of her apartment. The defendant denied that claim and argued at length that it was justified in locking the plaintiff out of the unit. The plaintiff prevailed on that claim. The fact that the plaintiff was not able to prove a great deal of monetary damages as a result of the defendant's illegal lockout does not lessen the significance of the result she obtained with the help of her attorney.

Mr. Kaufman's experience, reputation and ability all support the reasonableness of the claimed attorney fees. It is also significant that Mr. Kaufman did not represent the plaintiff on a contingent fee basis.

The defendant argues that the plaintiffs attorney fees should be discounted because she cannot recover attorney fees for time spent in defending the Counterclaim. Smith v. Padgett, supra. That argument, although an accurate statement of law, has no application to the case at bar.

The defendant did not file its Counterclaim prior to the trial as required by ORC 1925.02. Instead, the defendant raised its Counterclaim orally on the day of trial. As a result, none of the attorney fees incurred prior to trial related to the Counterclaim because Mr. Kaufman could have had no way of knowing that a Counterclaim would be presented. Because all of the issues involved in the case were tried together and involved many interrelated and overlapping facts, it is not possible to isolate which part of the trial time related solely to the Counterclaim. As a result, all of Mr. Kaufman's trial time is appropriately included in Plaintiffs Exhibit 1.

After considering all of the factors outlined above, it is clear that the plaintiff's claimed attorney fees are reasonable. The plaintiff has proved by the preponderance of the evidence that she is entitled to recover from the defendant her reasonable attorney fees in the amount of $1,239.50, pursuant to ORC §5321.15.

In complying with the defendant's request for findings of fact and conclusions of law, this magistrate noticed that the court file now contains a Post-Hearing Brief prepared by the defendant. It appears that the defendant taxed that brief to the Clerk of Court at approximately 7:29 p.m. on June 19, 2001, several hours after completing the hearing on attorney fees. The defendant did not deliver a copy of that brief to the magistrate and the Clerk did not send it to the magistrate before this magistrate wrote the Magistrate's Decision which was filed on September 6, 2001. This magistrate first saw the Post-Hearing Brief when reviewing the defendant's Motion for Findings of Fact and Conclusions of Law. Based on that Post-Hearing Brief, additional analysis is warranted.

The defendant has attached to its Post-Hearing Brief several letters sent between counsel. The defendant argues that those letters contradict the testimony presented at the hearing concerning the hours Mr. Kaufman spent on the plaintiffs case. Even if those letters are not barred by Evidence Rule 408 (Compromise and Offers to Compromise), the defendant was obligated to present them at the hearing. The defendant did not introduce them into evidence at the hearing. The defendant did not use those letters to cross-examine Mr. Kaufman or the plaintiffs expert witness, Mr. Schottenstein. The defendant cannot present new evidence that was not presented at the hearing simply by attaching it to a Post-Hearing Brief.

Further, the defendant argues that the plaintiff should not be awarded attorney fees for the time Mr. Kaufman spent attempting to negotiate a settlement of this dispute. The defendant points to three different entries on Mr. Kaufman's bill (Plaintiff's Exhibit 1) in which there is a charge to the plaintiff in reference to settlement negotiations. Those entries are listed on the bill beside the dates April 27, 2001 and May 3, 2001. Those entries total slightly more than one hour of time in attempting to settle the case without the need for further court hearings.

Settlement negotiations are just as much a part of legal representation as trial time. The defendant has cited no legal authority for its assertion that legal fees should not be awarded for time spent attempting to settle this case. There is nothing in ORC §5321.15 which would preclude awarding attorney fees for reasonable attempts to settle a dispute. There is nothing in Smith v. Padgett, supra., or Bittner v. Tri-County Toyota, supra., which would exclude attorney time in settlement attempts from the legal fee award.

It was reasonable for the plaintiff's attorney to spend a little more than one hour in efforts to settle this case. Had those attempts been successful, both parties' legal expenses would have been minimized. There Would have been no need for the attorney fee hearing or for ally of the legal Filings that have followed since and are likely yet to come. Had those settlement negotiations been successful, the burden on this Court's dockets would have been significantly reduced. Settlements should be encouraged, not discouraged. The plaintiff is entitled to an award of attorney fees for the reasonable time her attorney spent trying to settle this case.

The defendant's Post-Hearing Brief also contends at page 4 that the plaintiff's expert witness, Mr. Schottenstein, was unable to form an opinion as to the reasonableness of the plaintiff's requested attorney fees. To the contrary, Mr. Schottenstein testified clearly on both direct and crossexamination that Mr. Kaufman's bill is reasonable.

Mr. Schottenstein testified that he had reviewed Mr. Kaufman's bill and he found it to be completely reasonable. He testified that Mr. Kaufman's hourly rate is fair and reasonable. In fact, it is significantly less than Mr. Schottenstein's hourly rate of $225.00. Mr. Schottenstein testified that based on his experience in handling thousands of landlord tenant cases during the past 29 years, nothing in Mr. Kaufman's bill is objectionable.

The defendant's brief also states at page 4 that the defendant's expert, Mr. Willison, testified that Mr. Kaufman's hourly rate of $185.00 is unreasonable. However, Mr. Willison testified on cross examination that an hourly rate of $185.00 is not unreasonable in and of itself He further testified on both direct and cross that the damage award is only one of many factors to be considered in determining the amount of an attorney fee award and that he has seen cases in which the attorney fee award was far greater than the damage award. He also acknowledged that the trial court has discretion in setting the amount of an attorney fee award.

In making an award of attorney fees in this case, this magistrate has considered the testimony of both expert witnesses as well as that of Mr. Kaufman and the plaintiff. This magistrate has applied all of the factors outlined in Bittner, supra., to the facts presented in this case. Although both expert witnesses were credible and helpful in their testimony, this magistrate finds Mr. Schottenstein's testimony to be far more persuasive.

The plaintiffs attorney reasonably spent 6.7 hours working on the plaintiffs case. Mr. Kaufman's hourly rate of $185.00 is reasonable. Pursuant to Bittner, supra., the calculation of those hours times that hourly rate is $1,239.50. After applying all of the factors in DR 2-106(B), as outlined in Bittner, there is no reason to modify that calculation upwards or downwards. The plaintiff is entitled to the attorney fees requested.

DECISION

The plaintiff is entitled to judgment against the defendant in the amount of $41.50 in compensatory damages, plus attorney fees in the amount of $1,239.50, plus court costs and interest.

MAGISTRATE DAVID JUMP

DATED: September 25, 2001

Copies to:

Philip B. Kaufman 341 South Third St., Ste. 300 Columbus, OH 43215 ATTORNEY FOR PLAINTIFF

Andrew J. Ruzicho, 11 3040 Riverside Drive, Ste. 120 Columbus, OH 43221 ATTORNEY FOR DEFENDANT

View brief of Defendant

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