         [Cite as Drake Townhomes, L.L.C. v. Woodberry, 2017-Ohio-6968.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



DRAKE TOWNHOMES, LLC,                           :         APPEAL NO. C-160632
                                                          TRIAL NO. 14CV-11032
        Plaintiff-Appellee,                     :

                                                :             O P I N I O N.
  vs.
                                                :
DANIELLA WOODBERRY,
                                                :
    Defendant-Appellant,
                                                :
 and
                                                :
KENNETH WILLIAMS,

    Defendant.                                  :




Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed from is: Affirmed as Modified

Date of Judgment Entry on Appeal: July 26, 2017


Geoffrey A. Modderman, for Plaintiff-Appellee,

John Rebel, for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}   Defendant-appellant Daniella Woodberry1 appeals from the judgment

of the Hamilton County Municipal Court in favor of plaintiff-appellee Drake

Townhomes, LLC, on Drake Townhomes’ complaint to recover damages due under a

residential lease upon Woodberry’s breach. The trial court awarded damages for two

months’ unpaid rent and five days of late fees for each month, offset those damages

with a security deposit, and entered judgment for Drake Townhomes in the amount

of $850.

       {¶2}   We find no merit to Woodberry’s argument that the trial court

misapplied provisions of the Landlord-Tenant Act when it determined that she owed

two months’ rent.    Further, we reject Woodberry’s argument that a stipulated-

damages provision in a lease for late fees is a per se unenforceable penalty. Finally,

for the reasons that follow, we hold that it would be unconscionable in this case to

enforce a provision for late fees related to unpaid rent for the month after Woodberry

had vacated the apartment. Thus, we affirm the trial court’s judgment as modified.

                    I. Background Facts and Procedure

       {¶3}   The facts are largely undisputed.      In February 2007, Woodberry

entered into a lease agreement with Drake Townhomes under which Drake

Townhomes agreed to lease to Woodberry a residence on Mayfair Street in

Cincinnati for an initial term ending the following year, in exchange for a monthly

rent of $670 and a $670 security deposit. Monthly rental payments were due on or




1The complaint and other original papers erroneously identified Woodberry as “Danielle
Woodbury.”


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before the first day of the month, and late rent payments not postmarked by the first

day of the month incurred a $10 late fee for each day late, with a maximum of $150.2

        {¶4}    Except for circumstances not relevant here, the lease agreement

provided for the automatic renewal of the lease on a month-to-month basis except

upon 30 days’ written notice of either the tenant’s or landlord’s desire to terminate.

The lease specified that if either party provided the notification after the first of the

month, the notice would not take effect until the first day of the subsequent month.

        {¶5}    Further, the lease allowed for a change in the terms and conditions of

the lease. Paragraph 43 of the lease provided:

                Changing Terms and Conditions of Lease

                Landlord must give Tenant at least 30 days [of] notice

                before the lease term ends. If any terms and conditions

                are changed, Tenant has 10 days from the date of

                receiving the notice to decide to accept or not accept the

                changes.

                If Tenant does not give the required notice within the 10

                day period, the lease renews under the new terms and

                conditions given by the Landlord.

        {¶6}    Woodberry lived at the unit with her two sons. Her rent increased to

$680 in 2013, after Drake Townhomes had given written notification of a change in

the terms of tenancy. Of importance to this appeal, on March 27, 2014, Woodberry

received a written “Notice to Change Terms of Tenancy” indicating that her total

rental payment would be increased by $10 per occupant for a “water/sewer utility


2We accept the parties’ agreement on this issue, even though we do not read the lease to contain a
cap of $150.



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fee,” effective May 1, 2014. The notice form gave Woodberry the option of checking

one box to indicate the acceptance of the $30 increase and the continuation of the

month-to-month lease, or a second box that provided a 30-day notice to terminate

the lease and contained space to fill in a move out date.

       {¶7}   Woodberry checked the box indicting her desire to give 30 days’ notice

to terminate the lease and indicated that she would move out by June 1. Woodberry

signed the notice and mailed it to Drake Townhomes with a check for rent in the

amount of $680. The envelope was postmarked on May 10, but Drake Townhomes

did not receive it until May 19 because Woodberry addressed it incorrectly.

       {¶8}   On May 12, before receiving Woodberry’s rent for May and notice to

terminate, Drake Townhomes served Woodberry with a three-day notice to vacate

for the nonpayment of rent and filed this action for eviction and money damages.

Woodberry received the three-day notice, but believing that her rent check had been

lost in the mail, she stopped payment on the first check and sent a second rent check

in the amount of $680 that Drake Townhomes received on May 22.

       {¶9}   After receipt of the checks, Drake Townhomes returned them to

Woodberry along with a handwritten note indicating that if she moved out by June 1

“the eviction” would be dismissed.      Scott Peck, the agent for Drake Townhomes,

testified that the notation concerning the dismissal of the eviction was consistent

with a conversation he had with Woodberry in which he told her that he would

dismiss the eviction if she moved out by June 1. Woodberry, however, testified that

Peck told her that she “could disregard the eviction” and that she would not “owe

him anything” if she moved out by June 1.            She claimed that based on his

representations, she moved out June 1, instead of taking her time to move out during

the month of June.



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       {¶10} Woodberry vacated the property and returned the keys on June 1,

2014. Drake Townhomes entered the unit in mid-June to ready it for a new tenant

and rerented the apartment beginning July 1.

       {¶11} Drake Townhomes dismissed the eviction claim but continued with the

litigation of the damages claim for past due rent and late fees. Eventually Drake

Townhomes obtained a default judgment against Woodberry and Kenneth Williams,

who was also a signatory to the lease and had been named as a defendant, in the

amount of $910, as neither had answered or otherwise responded to the complaint.

       {¶12} Woodberry successfully moved to set aside the default judgment after

filing an affidavit that detailed the basis of her belief that Drake Townhomes was

going to dismiss the entire action. She then answered and counterclaimed.

       {¶13} At a trial before a magistrate, Woodberry maintained that she believed

that the entire action would be dismissed if she moved out by June 1.          She also

argued that the application of R.C. 5321.17 obviated her duty to pay June rent, the

late-fee provision was an unenforceable penalty, and an award of damages was

contrary to R.C. 5321.14, which relates to unconscionable clauses in leases.

       {¶14} The magistrate found for Drake Townhomes and against Woodberry

on the claims and counterclaims. The magistrate determined that Woodberry owed

rent of $710 for both May and June. The magistrate further determined that the

lease allowed for an award of late fees, and that an award was “appropriate” for both

May and June given Woodberry’s failure to pay rent. But after finding that “the fees

called for in the lease of $10 per day with a maximum of $150 [wa]s not equitable,”

and that an amount of $50 per month was “equitable,” the magistrate awarded $50

per month, for a total of $100 in late fees. The magistrate rendered a decision in




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favor of Drake Townhomes for $850, which it computed after crediting Woodberry

for her security deposit.

       {¶15} The trial court then overruled Woodberry’s objections to the

magistrate’s decision and adopted the magistrate’s decision by entry. Woodberry

now appeals, raising three assignments of error.

                                    II. Analysis

       {¶16} In her first assignment of error, Woodberry maintains that the trial

court’s award of June rent was contrary to R.C. 5321.17(B). This provision is a

subdivision of R.C. 5321.17, which is the part of the Landlord-Tenant Act that sets

forth the minimum notice required to “terminate or to fail to renew” periodic

tenancies. As provided by R.C. 5321.17(B), the minimum notice is 30 days for a

month-to-month tenancy such as Woodberry’s.             Although Woodberry does not

challenge the determination that she did not provide notice in time to avoid an

obligation for June rent, she contends that she did not have to give sufficient notice

because Drake Townhomes’ notice of increase in rent was a 30-day notice of

termination or nonrenewal as contemplated by R.C. 5321.17(B).

       {¶17} Woodberry’s argument, however, ignores the language of the March

notice. In the notice, Drake Townhomes announced a change in a term of the

tenancy, namely the amount of rent, as contemplated by paragraph 43 of the lease.

Conversely, R.C. 5321.17(B) refers to a notice to quit the tenancy—either by

termination or nonrenewal of the lease. Because Drake Townhomes’ March notice

was not a notice of termination or nonrenewal of the tenancy, Woodberry has failed

to demonstrate that the award of June rent was contrary to R.C. 5321.17(B) and,

therefore, we overrule the first assignment of error.




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       {¶18} In her second assignment of error, Woodberry maintains that the trial

court’s award of June rent was erroneous because her nonpayment of rent was a

breach of the lease that obviated her duty to give 30 days’ notice to end the tenancy.

In support of her argument, she cites R.C. 5321.17(D). This provision provides

              This section [on notice] does not apply to a termination

              based on the breach of a condition of a rental agreement

              or the breach of a duty and obligation imposed by law,

              except that it does apply to a breach of the obligation

              imposed on a tenant by division (A)(9) of section

              5321.05 of the Revised Code.

       {¶19} As applied in this case, R.C. 5321.17(D) would allow Drake Townhomes

to proceed with an eviction without providing the statutorily required 30-day notice

of termination because Woodberry had breached a condition of her lease by her

nonpayment of rent. Woodberry misapplies the language of the statute when she

contends that it eliminates her duty to provide the requisite notice.

       {¶20} Because Woodberry’s nonpayment of rent did not obviate her duty to

give 30 days’ notice to terminate the tenancy, she failed to demonstrate the error

assigned. Thus, we overrule the second assignment of error.

       {¶21} In her third assignment of error, Woodberry argues that the trial court

erred by awarding late fees. She first contends that under contract law, a provision

in a lease allowing and specifying an amount of damages for the late payment of rent

is always a penalty and unenforceable. And, she continues, because the late-fee

provision was unenforceable, Drake Townhomes could not recover late-fee damages

without proof of actual damages. Here, Drake Townhomes only presented general

evidence of damages from her failure to pay on time. Therefore, she concludes that



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                     OHIO FIRST DISTRICT COURT OF APPEALS



because Drake Townhomes did not present any specific evidence of actual damages,

the trial court’s decision was not supported by competent, credible evidence and was

“arbitrary.”

       {¶22} We must first address Woodberry’s argument that late-fee provisions

in leases allowing stipulated damages are per se unenforceable penalties. When

interpreting contract provisions that specify damages, Ohio law draws a distinction

between liquidated-damages clauses, which are enforceable, and penalty clauses,

which are not. In Sampson Sales, Inc. v. Honeywell, Inc., 12 Ohio St.3d 27, 465

N.E.2d 392 (1984), the Ohio Supreme Court set forth the current test to determine

whether a contract provision should be characterized as a liquidated-damages clause

or an unenforceable penalty:

               Where the parties have agreed on the amount of

               damages, ascertained by estimation and adjustment,

               and have expressed this agreement in clear and

               unambiguous terms, the amount so fixed should be

               treated as liquidated damages and not as a penalty, if the

               damages would be (1) uncertain as to amount and

               difficult of proof, and if (2) the contract as a whole is not

               so   manifestly   unconscionable,      unreasonable,    and

               disproportionate in amount as to justify the conclusion

               that it does not express the true intention of the parties,

               and if (3) the contract is consistent with the conclusion

               that it was the intention of the parties that the damages

               in the amount stated should follow the breach thereof.




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Id. at syllabus, following Jones v. Stevens, 112 Ohio St. 43, 146 N.E. 894 (1925),

paragraph two of the syllabus.

         {¶23} The Supreme Court recently emphasized the general rules with respect

to stipulated-damages provisions. To that end, a “per diem measure of damages * * *

is more likely to be an enforceable liquidated-damages provision than an

unenforceable penalty,” and in determining the reasonableness of the amount of

liquidated damages, a court must look at the per diem amount, and not to the

aggregate amount of liquidated damages in application. Boone Coleman Constr., Inc.

v. Village of Piketon, 145 Ohio St.3d 450, 2016-Ohio-628, 50 N.E.3d 502, ¶ 30 and

31. Further, when a provision is upheld as a liquidated-damages provision, the

measure of damages for a breach will be based on that stipulated amount, absent any

other valid defense; if the provision is rejected as a penalty, the recovery of damages

is limited to the amount of actual damages proven. See id. at ¶ 12, quoting Dave

Gustafson & Co., Inc. v. South Dakata, 83 S.D. 160, 164, 156 N.W.2d 185 (1968),

quoting 22 American Jurisprudence 2d, Damages, Section 235, at 321 (1965).

         {¶24} Woodberry contends that a stipulated-damages clause for the late

payment of rent is an unenforceable penalty as a matter of law in a residential lease.

But the case she cites, Wadsworth v. Starcher, 11 Dist. Ashtabula No. 97-A-0054,

1998 WL 553160 (June 26, 1998), holds the opposite (upholding a late-fee award of

$100).

         {¶25} This court has not squarely addressed the issue, but we can discern

nothing in Ohio’s Landlord-Tenant Act that forbids the use of a valid liquidated-

damages clause with respect to late fees in a residential lease. See R.C. 5321.06 (“A

landlord and tenant may include in a rental agreement any terms and conditions,

including any term relating to rent, the duration of an agreement, and any other



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provisions governing the rights and obligations of the parties that are not

inconsistent with or prohibited by Chapter 5321 of the Revised Code or any other

rule of law.”). We note that at least one municipality in Ohio has enacted a code

provision creating a maximum monthly amount for any fee for late payment of rent,

which suggests the provisions are not per se unenforceable. See Cleveland Municipal

Code 375.02(c).

       {¶26} Although Woodberry is correct that ordinarily damages must be

proved by evidence, her argument ultimately fails because the parties to a residential

lease may obviate this requirement by agreeing to a liquidated-damages clause, and

she does not present any argument as to why the late fee in this case was a penalty,

and not an enforceable liquidated-damages clause, in light of the Samson Sales

factors. Thus, Woodberry has failed to demonstrate that the trial court erred by

awarding late-fee damages that were not based on evidence of actual damages.

       {¶27} Woodberry’s next argument implicates R.C. 5321.14(A), which

provides:

              If the court as a matter of law finds a rental agreement,

              or any clause thereof, to have been unconscionable at

              the time it was made, it may refuse to enforce the rental

              agreement or it may enforce the remainder of the rental

              agreement without the unconscionable clause, or it may

              so limit the application of an unconscionable clause as to

              avoid any unconscionable result.

       {¶28} Whether a term is unconscionable is an issue of law that this court

reviews de novo, considering the setting, purpose and effect of the clause. See R.C.

5321.14(A) and (B).



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       {¶29} We address this issue with the understanding that the trial court

accepted in part Woodberry’s argument that an award of late fees was subject to the

limitations of R.C. 5321.14(A), and it found the $10 per day late-fee clause

unenforceable after the fifth day of the month. Drake Townhomes did not cross-

appeal on this issue, and instead took the position that the magistrate’s decision

adopted by the trial court was “supported by the evidence.”

       {¶30} In light of Drake Townhomes’ position on this issue on appeal, which

concedes that Woodberry had established both procedural and substantive

unconscionability, we conclude upon our de novo review that any award of late fees

for June would be unconscionable. As established at trial, Drake Townhomes had

indicated around mid-May that it would not accept rents, Woodberry moved out on

the agreed-upon date based on her belief that she would not owe any rent or late fees

for June, Drake Townhomes was able to occupy the apartment in mid-June to make

it ready for the July tenant, and Drake Townhomes did not incur any water-usage

fees for the apartment in June that were charged as rent because Woodberry had

moved out. To enforce the challenged term of the lease with respect to June late fees

would be grossly unfair in the particular circumstances of this case. Thus, we sustain

Woodberry’s third assignment of error in part and overrule it in part.

                                  III. Conclusion

       {¶31} Accordingly, finding error in the trial court’s award of late fees related

to June rent, we modify the trial court’s judgment to reflect a judgment for Drake

Townhomes in the amount of $800, and we affirm the judgment as modified.

                                                      Judgment affirmed as modified.

MYERS and MILLER, JJ., concur.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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