[Cite as RLM Properties, Ltd. v. Brammer, 2014-Ohio-3509.]




           IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

RLM PROPERTIES, LTD                                     :

        Plaintiff-Appellant                             :        C.A. CASE NO.         2014 CA 6

v.                                                      :        T.C. NO.     13CVG915

JAYNE BRAMMER                                           :         (Civil appeal from
                                                                   Municipal Court)
        Defendant-Appellee                              :

                                                        :

                                            ..........

                                           OPINION

                        Rendered on the          15th        day of         August        , 2014.

                                            ..........

DARRELL L. HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite 200,
Urbana, Ohio 43078
      Attorney for Plaintiff-Appellant

JAYNE BRAMMER, 304 E. Court Street, Urbana, Ohio 43078
     Defendant-Appellee

                                            ..........

FROELICH, P.J.

                {¶ 1} RLM Properties, Ltd. appeals from a judgment of the Champaign

County Municipal Court, which granted a default judgment in favor of RLM Properties and
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against its former tenant, Jayne Brammer, in the amount of $2,578.05 for unpaid rent, late

fees, damages, and other expenses. RLM Properties claims that the trial court’s calculation

of damages is against the manifest weight of the evidence and that the trial court should have

awarded it additional damages. For the following reasons, the trial court’s judgment will be

reversed and the matter will be remanded for recalculation of damages, consistent with this

Opinion.

       {¶ 2}    In May 2011, Brammer signed a lease with RLM Properties to rent the

property located at 214 Freeman Avenue in Urbana for $780 per month, effective June 1,

2011. On December 10, 2013, RLM Properties brought a forcible entry and detainer action

against Brammer, seeking restitution of the property and damages for unpaid rent, late fees,

and other expenses. Brammer did not respond to the complaint. The trial court granted

restitution of the property and ordered Brammer to move out by 6:00 p.m. on January 5,

2014. The court scheduled a damages hearing for January 10, 2014.

       {¶ 3}    At the January 10 damages hearing, RLM Properties indicated that Brammer

had not yet moved out, but was expected to move on Sunday, January 12. The trial court

continued the hearing until January 24, 2014; that hearing proceeded as scheduled. At the

hearing, RLM Properties requested a total of $5,632.93 in damages. Brammer did not

appear for either hearing.

       {¶ 4}     According to RLM Properties’ evidence, between April 2012 and

December 2013, Brammer was obligated to pay a total of $16,380 ($780 x 21 months) in

rent. RLM Properties prorated the amount that Brammer owed for January 2014, the month

that she was evicted. The prorated amount came to $301.92, for a total rent obligation of
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$16,681.92. During this time period, Brammer paid a total of $13,030 for rent, leaving an

unpaid balance of $3,651.92. On January 9, 2014, RLM Properties applied Brammer’s

security deposit ($780) to the balance due, leaving a final rent balance of $2,871.92.

        {¶ 5}     According to Brammer’s lease, rent was “due and payable monthly in

advance of the first day of each month.” RLM Properties could charge a $50 late fee if rent

was not received “following the fifth day of each month” and an additional $50 late fee

“after the 15th of the month.”1 In addition, if rent had not been received by 9:00 a.m. on the

sixth day of the month, a three-day notice would be posted. The lease does not contain a

provision indicating how payments would be applied if back rent were due. In other words,

the lease does not state whether payments would be applied first to any arrearage or whether

payments would be applied to the current month’s rental obligation.

        {¶ 6}       RLM Properties imposed both $50 late fees for 20 of the 22 months

between April 2012 and January 2014 (20 months x $100 = $2,000). It charged only a

five-day late fee for the other two months (2 months x $50 = $100). In addition, RLM

Properties charged a $10 fee for the delivery of a three-day notice on 11 different months (11

months x $10 = $110). RLM Properties’ request for damages included $2,210 for these

fees.


           1
                Specifically, the Late Payment Charge provision in Brammer’s lease
   read:
           Tenant hereby agrees that should rental payment be delayed
           following the fifth day of each month, a late payment will be
           assessed in the amount of $50 and $50 after the 15th of the
           month. A three day eviction notice will be posted on the premises
           anytime your payment is not received by the 5th of the month. If a
           three day [notice] is posted you will be accessed [sic] an additional
           $10 posting fee.
                                                                                           4

       {¶ 7}    RLM Properties also requested additional damages, as follows: (1) $196.11

for Brammer’s water bill, (2) $17.03 to replace four mini-blinds, (3) $18.99 to replace a

wired smoke alarm, (4) $10.88 to replace two broken toilet seats, (5) $160 and $128 for

cleaning labor by two individuals, and (6) $20 for removal of trash from the garage (2 hours

x $10 per hour). RLM Properties provided a copy of the water bill and store receipts for the

smoke alarm, mini blinds, and toilet seats. The company also provided an invoice from

Brian S. Daniels for the cleaning and trash removal charges.

       {¶ 8}    The same day as the hearing (January 24), the trial court issued a judgment

entry in favor of RLM Properties in the amount of $2,578.05, plus interest and court costs.

The court found that Brammer owed a total of $16,681.92 for rent, plus a $100 late fee, and

was entitled to a credit of $14,590 for payments she made (including her security deposit).

The court awarded the requested damages for the water bill, mini blinds, and smoke alarm,

but did not award anything for the toilet seats. It found damages for cleaning labor and

trash in the amount of $154.

       {¶ 9}    On February 3, 2014, RLM Properties filed a “motion to correct error,”

asking the court to correct its judgment to reflect total damages of $5,632.93, the amount

sought at the hearing, plus interest and costs. The trial court denied the motion.

       {¶ 10} RLM Properties appeals from the trial court’s judgment.                Its sole

assignment of error states:

       The decision of the trial court was against the manifest weight of the

       evidence in that it awarded insufficient damages on uncontradicted

       evidence in a default judgment context.
                                                                                               5

       {¶ 11}    RLM Properties challenges the trial court’s calculation of the amount of

rent due, the late charges, and the three-day notice fees. It does not challenge the exclusion

of damages for the toilet seats or the amount of damages for cleaning and trash labor. RLM

Properties requests that the judgment be modified to reflect damages of $5,408.05.

       {¶ 12}    Default judgments are governed by Civ.R. 55, which provides:

       When a party against whom a judgment for affirmative relief is sought has

       failed to plead or otherwise defend as provided by these rules, the party

       entitled to a judgment by default shall apply in writing or orally to the court

       therefor[.] * * * If, in order to enable the court to enter judgment or to

       carry it into effect, it is necessary to take an account or to determine the

       amount of damages * * *, the court may conduct such hearings or order such

       references as it deems necessary and proper and shall when applicable accord

       a right of trial by jury to the parties.

       {¶ 13}    The trial court has the discretion to determine whether a hearing on

damages is necessary upon a default judgment. Id.; e.g., Thomason v. Hamilton, 2d Dist.

Greene No. 07-CA-60, 2008-Ohio-3492, ¶ 6, citing Myers & Frayne Co., LPA v. Ivory, 175

Ohio App.3d 43, 45, 2008-Ohio-428, 884 N.E.2d 1145 (2d Dist.) “Proof of damages is not

required before a default judgment can be granted in an action filed upon a liquidated

damage claim based upon an account. However, when the judgment is not liquidated, or

only partially liquidated, it is reversible error for the trial court to enter a default judgment

without holding a hearing on the damages issue.” (Citations omitted.) Mid-American

Acceptance Co. v. Reedy, 11th Dist. Lake No. 89-L-14-072, 1990 WL 94816, *2 (June 29,
                                                                                               6

1990), quoted by Hull v. Clem D’s Auto Sales, 2d Dist. Darke No. 2011 CA 6,

2012-Ohio-629, ¶ 7. As stated by the Tenth District:

       “[W]hen the complaint and the motion for default judgment clearly set forth

       the amount of damages” and reveal the amount to be ascertainable, “the trial

       court does not abuse its discretion in relying on the amount asserted” in the

       complaint.     If, by contrast, “the determination of damages necessarily

       requires consideration of information outside a written instrument, the trial

       court abuses its discretion in failing to hold an evidentiary hearing to

       determine the exact amount of damages.”

(Citations omitted.) Am. Communications of Ohio, Inc. v. Hussein, 10th Dist. Franklin No.

11AP-352, 2011-Ohio-6766, ¶ 16.

       {¶ 14} RLM Properties sought unpaid rent and fees, as well as sums for the water

bill, damage to the property, and other expenses, which were unliquidated. The trial court

properly held a hearing on damages, during which RLM Properties presented evidence.

       {¶ 15}    “Weight of the evidence 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. It

indicates clearly to the jury [or other fact finder] that the party having the burden of proof

will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find

the greater amount of credible evidence sustains the issue which is to be established before

them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’”

 Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, citing

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
                                                                                                                                      7

         {¶ 16}        An appellate court applies the same manifest-weight-of-the-evidence

standard in criminal and civil cases. Eastley at ¶ 17. The appellate court must review the

entire record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine whether in resolving conflicts in the evidence, the factfinder clearly

lost its way and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered. A court of appeals “must always be mindful of the

presumption in favor of the finder of fact.” Eastley at ¶ 19, ¶ 21. The discretionary power

to grant a new trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the judgment. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E

.2d 717 (1st Dist.1983), cited with approval in Thompkins at 387.

         {¶ 17} The trial court calculated the total rent owed between April 2012 and

January 2014 as $16,681.92, and it credited Brammer with total payments of $14,590

(including the security deposit). The record supports the trial court’s calculation of the total

rent owed. However, the Move-Out Report indicates that Brammer paid a total of $13,030

for rent, and RLM Properties applied Brammer’s security deposit of $780 to the balance

due.2 Accordingly, Brammer’s total credit should have been $13,810. We therefore agree

that the credit amount of $14,590, as found in the judgment entry, was against the manifest

weight of the evidence.



              2
                 The security deposit provision of Brammer’s lease states that the security deposit “will be held to cover any possible
   damage to the property * * * and in no case will it be applied to back or future rent.” It also states that “[n]o refund will be made
   if tenant has not paid in full, 12 active months of rent.” Brammer has not disputed RLM Properties’ application of her security
   deposit to her balance due or any other term of the security deposit provision, and we state no opinion on the validity of any of its
   terms.
                                                                                          8

       {¶ 18} RLM Properties further challenges the trial court’s award of $100 in late fees

and its failure to award any three-day notice fees. The company argues that, by failing to

respond to the complaint, Brammer admitted to the amount of fees that she owed and waived

any challenge to RLM Properties’ calculation of the fees. It further claims that the trial

court’s judgment regarding the fees is against the manifest weight of the evidence.

       {¶ 19} In its complaint, RLM Properties alleged that Brammer was in default for

rent and late fees in the amount of $5,600 (as of December 10, 2013). RLM Properties

attached a copy of the lease and a three-day notice, dated November 18, 2013, to the

complaint. The three-day notice indicated a balance forward of $3,960 as of September 30,

2013, rent and fees assessed in October and November, and a balance due of $4,770 as of

November 18, 2013.

       {¶ 20} We disagree with RLM Properties that the trial court was required to accept

RLM Properties’ calculation of its damages simply because Brammer did not respond to the

complaint. Under Civ.R. 8(D), “[a]verments in a pleading to which a responsive pleading is

required, other than those as to the amount of damage, are admitted when not denied in the

responsive pleading.” (Emphasis added.) The trial court may enter a default judgment

without a hearing where the amount claimed is liquidated or can be calculated from evidence

contained in the record. See Columbus Mgmt. Co. v. Nichols, 10th Dist. Franklin No.

92AP-191, 1992 WL 193694, *4 (Aug. 4, 1992). But once the trial court determined that it

would hold a hearing on damages, the court was entitled to consider all of the evidence

submitted by RLM Properties in determining the amount of damages to which RLM

Properties was entitled. See CitiMortgage, Inc. v. Kermeen, 2d Dist. Darke No. 2011 CA 2,
                                                                                             9

2012-Ohio-1655, ¶ 35.

          {¶ 21}   In contrast, by failing to respond to RLM Properties’ complaint, Brammer

did waive any claim that the amounts of the late fees ($50) and of the three-day notice fee

($10) were unreasonable and unenforceable. “That a provision for liquidated damages

constitutes a penalty rather than a valid liquidated damages provision is an affirmative

defense.” UAP-Columbus JV326132 v. O. Valeria Stores, Inc., 10th Dist. Franklin No.

07AP-614, 2008-Ohio-588, ¶ 12; see also Arrow Uniform Rental, Inc. v. Nix, 8th Dist.

Cuyahoga No. 81144, 2002-Ohio-5855, ¶ 15. Civ.R. 8(C) requires affirmative defenses to

be raised in a responsive pleading, and the failure to raise an affirmative defense (other than

those listed in Civ.R. 12(B)) in a pleading or an amendment to a pleading waives that

defense. Jim’s Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18, 20, 688 N.E.2d 506

(1998).

          {¶ 22}   The trial court did not explain its reasons for awarding only $100 in late

fees and no three-day notice fees. We cannot discern from the record why the court chose

not to award any fees for delivery of a three-day notice, particularly when a copy of the

November 18, 2013 three-day notice was attached to the complaint. In addition, we can not

deduce how the trial court determined that an award of $100 in late fees was appropriate,

other than to speculate that the trial court believed such an amount was “fair.” With the

record before us, we must conclude that the trial court’s failure to award any damages for

three-day notice fees and its award of only $100 in late fees was against the manifest weight

of the evidence.

          {¶ 23} Our conclusion does not mean, however, that the trial court is required to
                                                                                          10

accept RLM Properties’ assertion that it is entitled to all of the fees that it claimed. Our

review of the Move-Out Report presented at the damages hearing indicates that not all of the

fees may have been appropriately imposed. For example, Brammer paid a total of $780 in

rent during four different months, and she paid more than $780 in rent on six other

occasions. RLM Properties charged her the $50 15-day late fee on each of these months (a

total of $500), even though the full rental amount for that month had been paid by the

fifteenth of the month. Three of those months, RLM Properties assessed the $50 five-day

late fee, even though payment was received on the fifth of the month. (The lease provides

for the late fee if payment is delayed following the fifth day.) RLM Properties also issued a

three-day notice on two of those months when full payment had been made on the fifth of

the month. (The lease provides for a three-day notice when payment is not made “by the

5th of the month” and states that the notice will be posted when payment is not received “by

9:00 a.m. on the sixth day of the month.”) Accordingly, in determining the amount of

damages on remand, the court should review the evidence submitted by RLM Properties and

evaluate which fees were assessed in accordance with the lease.

       {¶ 24} RLM Properties’ assignment of error is sustained.

       {¶ 25} The trial court’s judgment will be reversed, and the matter will be remanded

for the trial court to recalculate damages, consistent with this Opinion.



                                          ..........

DONOVAN, J. and HALL, J., concur.

Copies mailed to:
                       11

Darrell L. Heckman
Jayne Brammer
Hon. Gil S. Weithman
