[Cite as Germadnik v. Auld, 2018-Ohio-2889.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


 RON GERMADNIK,                                  :        OPINION

                  Plaintiff-Appellant,           :
                                                          CASE NO. 2017-T-0113
         - vs -                                  :

 ERIN AULD,                                      :

                  Defendant-Appellee.            :


 Civil Appeal from the Trumbull County Court, Eastern District.
 Case No. 2017 CVI 00120 E.

 Judgment: Affirmed in part and reversed in part; remanded.


 Randil J. Rudloff, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270,
 Warren, OH 44482 (For Plaintiff-Appellant).

 Erin Auld, pro se, 7057 West Boulevard, Apt. 175, Youngstown, OH 44512 (Defendant-
 Appellee).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Ron Germadnik, appeals from a decision of the Trumbull County

Court, Eastern District, awarding a judgment in favor of appellee, Erin Auld, in the amount

of $4,445.00, plus costs and interest, in relation to an eviction action and resulting

counterclaim.

        {¶2}      Mr. Germadnik rented property to Ms. Auld for $485.00 per month. Their

agreement provided for late charges of $25.00 per month. Ms. Auld failed to pay the full

monthly rent from July 2016 through April 2017; she made several partial payments
during that time, which totaled $890.00. On or about April 3, 2017, Mr. Germadnik served

Ms. Auld with a three-day notice to leave the premises. He then engaged in the following

behavior: on April 3, 2017, he terminated Ms. Auld’s electric service; on April 6, 2017, he

changed the locks; on April 9, 2017, he removed portions of Ms. Auld’s personal property

from the rental property and deposited it in her mother’s driveway.

       {¶3}   On April 25, 2017, Mr. Germadnik filed a claim in the small claims division

of the trial court for back rent and late fees in the amount of $4,625.00, plus interest and

costs. Ms. Auld filed a counterclaim on May 15, 2017, alleging damages in the amount

of $5,485.00 for unlawful eviction, trespassing, damaged and stolen property, lost wages,

sexual and verbal harassment, and failure to return her security deposit. Neither party

was represented by counsel.

       {¶4}   A hearing was held on October 10, 2017, the transcript of which has not

been provided to this court for review. The small claims court issued a journal entry

thereafter, ultimately ruling in favor of Ms. Auld. The court found that Mr. Germadnik was

entitled to a total of $4,210.00 ($3,960.00 in back rent and $250.00 in late charges) but

that Ms. Auld was entitled to $3,885.00 in compensatory damages plus an award of

punitive damages in the amount of $4,770.00 for “plaintiff’s malicious acts in this self help

eviction.” It was therefore ordered that Mr. Germadnik’s award was set off against Ms.

Auld’s award, resulting in a judgment against Mr. Germadnik in the amount of $4,445.00,

plus costs and interest from October 10, 2017.

       {¶5}   Thereafter, Mr. Germadnik retained counsel. Upon his request, the small

claims court issued findings of fact and conclusions of law on November 13, 2017.

       {¶6}   The court found that, due to Mr. Germadnik’s “calculated campaign to

remove [Ms. Auld] extra judiciously,” Ms. Auld suffered $820.00 in damages to personal

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property, including items that were either “dumped” in her mother’s driveway or not

returned; $280.00 in damages to the contents of her freezer that were thawed when

electric service was terminated; $300.00 in lost income for two days of work; the $485.00

unreturned security deposit for which no accounting was made, in violation of R.C.

5321.16(B); and $2,000.00 compensation for “her normal living routine [that] was

completely disrupted including the removal and non-return of her mail.”

       {¶7}   The court further held that Mr. Germadnik “egregiously violated all of the

prohibitions of R.C. 5321.15(A) by not only terminating the electric service but also locking

[Ms. Auld] out. He, subsequently, disposed of her mail as well as removed some of

Defendant’s possessions from the leasehold and dumped them in [Ms. Auld’s] mother’s

driveway.” It therefore concluded that Mr. Germadnik’s “actions were so blatant and

calculated as to rise to the level of pure maliciousness,” thereby justifying the $4,770.00

punitive damages award.

       {¶8}   This matter is now before this court on Mr. Germadnik’s notice of appeal.

He has assigned one error for our review:

       {¶9}   “The small claims court division erred in holding that appellee was entitled

to an award of punitive damages against appellant in the sum of $4,770.00.”

       {¶10} All of Mr. Germadnik’s arguments raise questions of law, which are

reviewed de novo. Ohio Bell Tel. Co. v. Pub. Util. Comm., 64 Ohio St.3d 145, 147 (1992);

see also Wren v. Tutolo, 11th Dist. Geauga No. 2012-G-3104, 2013-Ohio-995, ¶8.

Compensatory Damages

       {¶11} Mr. Germadnik initially raises an issue regarding the award of compensatory

damages. Because Ms. Auld was afforded the opportunity to respond in her brief on

appeal, we will address the issue raised and argued. Mr. Germadnik argues the trial court

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erred in awarding compensatory damages for discomfort and disruption of living

conditions because there was no such demand for relief in Ms. Auld’s counterclaim.

       {¶12} In support of his argument, Mr. Germadnik cites to Simon v. Durham, 98

Ohio App.3d 828, 831 (8th Dist.1994), which held that the trial court was prohibited from

awarding damages in excess of the amount demanded by a plaintiff. The Simon Court

reached this decision by relying on former Civ.R. 54(C), which provided, in relevant part,

that “a demand for judgment which seeks a judgment for money shall limit the claimant

to the sum claimed in the demand unless he amends his demand not later than seven

days before the commencement of the trial[.]” That provision, however, was deleted from

the Civil Rules in 1994. The Staff Note explains the effect of this deletion: “That is, the

party seeking relief is not necessarily confined to the request for recovery in the prayer,

but may seek to amend after seven days before the commencement of trial, subject to

Civ. R. 15(A), or in any event recover more at trial than that prayed for, subject to Civ. R.

15(B).” (Emphasis added).

       {¶13} The current version of Civ.R. 54(C) limits recovery to the amount prayed for

in a demand for judgment only when judgment is entered by default, which does not apply

to the case before us, as both parties appeared before the court for a determination on

the merits. Civ.R. 54(C) now provides that, “[e]xcept as to a party against whom a

judgment is entered by default, every final judgment shall grant the relief to which the

party in whose favor it is rendered is entitled, even if the party has not demanded the

relief in the pleadings.” (Emphasis added.)

       {¶14} Civ.R. 15(B) provides, in part: “When issues not raised by the pleadings are

tried by express or implied consent of the parties, they shall be treated in all respects as

if they had been raised in the pleadings.” The rule further states that, “[i]f evidence is

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objected to at the trial on the ground that it is not within the issues made by the pleadings,

the court may allow the pleadings to be amended and shall do so freely when the

presentation of the merits of the action will be subserved thereby and the objecting party

fails to satisfy the court that the admission of such evidence would prejudice him in

maintaining his action or defense upon the merits.” Nevertheless, “[f]ailure to amend as

provided herein does not affect the result of the trial of these issues.” Id.

       {¶15} In her counterclaim, Ms. Auld requested a total of $5,485.00 for unlawful

eviction, trespassing, damaged and stolen property, lost wages, sexual and verbal

harassment, and failure to return her security deposit. She later filed an accounting with

the trial court, the total of which remained $5,485.00; that total includes a request of

$2,000.00 for “pain and suffering due to sexual harassment, verbal assault, and loss of

home/animal endangerment.” Mr. Germadnik filed a response, in which he denied the

factual basis for Ms. Auld’s request but did not take issue with the fact that this language

was not specifically pled in her counterclaim. Additionally, Mr. Germadnik does not assert

that he raised any relevant objection at the hearing, and, in the absence of a transcript,

we must presume the regularity of the proceedings in this regard. Ostrander v. Parker-

Fallis Insulation Co., 29 Ohio St.2d 72, 74 (1972). Finally, we note that a request for

damages due to an “unlawful eviction” does, by its very nature, imply a disruption of one’s

normal living routine.

       {¶16} There is no basis for this court to conclude the small claims court erred in

awarding Ms. Auld $2,000.00 for the complete disruption of her normal living routine, even

though that specific statement was not included in her counterclaim.

       {¶17} This argument is not well taken.




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Punitive Damages

       {¶18} Mr. Germadnik next asserts the small claims court erred in awarding

punitive damages to Ms. Auld because small claims divisions do not have jurisdiction to

award punitive damages.

       {¶19} The small claims divisions of municipal and county courts have limited

subject-matter jurisdiction. R.C. 1925.02(A)(2)(a)(iii) excludes “[a]ctions for the recovery

of punitive or exemplary damages” from the jurisdiction of small claims divisions. See

also Vacca v. Tradin’ Post Classifieds, 2d Dist. Montgomery No. 21278, 2006-Ohio-2916,

¶18. It does not, however, exclude “statutorily provided damages which may have, in

part, a punitive effect.” Klemas v. Flynn, 66 Ohio St.3d 249, 252 (1993).

       {¶20} A small claims court may award “double damages,” as authorized by R.C.

5321.16(C), relating to the landlord’s wrongful withholding of a tenant’s security deposit:

“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.” The Ohio Supreme Court has

explained that, even though an award of these “double damages” has somewhat of a

punitive effect, they “do not thereby become ‘punitive damages’ as that term has been

defined in the common law.” Klemas, supra, at 252.

              The double damages recoverable under R.C. 5321.16(C) are simply
              a measure of the damages allowable and are akin to liquidated
              damages rather than punitive damages. These additional damages
              serve to compensate injured tenants for the temporary loss of the
              use of that money given to the landlord as a security deposit and for
              the time and inconvenience of having to sue for the recovery of
              money wrongfully withheld. In addition, the possibility of double
              damages creates an incentive for landlords to comply with the law.

Id. at 251-252.



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        {¶21} Here, the small claims court did not award “double damages” pursuant to

R.C. 5321.16(C). Rather, it very clearly awarded punitive damages based on its finding

that Mr. Germadnik had acted maliciously. The court cited two cases as authority for its

punitive damages award. The first, O’Neil v. Walburg, 70 Ohio App.2d 30, involved an

award made by a municipal court (which, we note, was reversed due to the appellate

court’s holding that R.C. 5321.15(C) does not authorize punitive damages). The second,

Meacham v. Miller, 79 Ohio App.3d 35, involved an award made by a common pleas

court. Thus, neither case stands for the proposition that the small claims division at issue

here had jurisdiction to award punitive damages.

        {¶22} The award of punitive damages made by the small claims court was in error.

        {¶23} We must remand this matter to the small claims court to vacate the punitive

damages award. Mr. Germadnik’s award for past due rent and late charges, in the

amount of $4,210.00, should only be set off against the amount awarded to Ms. Auld for

compensatory damages, which was $3,885.00. Therefore, the trial court shall enter

judgment in favor of Mr. Germadnik in the amount of $325.00, plus costs and interest.

        {¶24} The remaining arguments raised by Mr. Germadnik are hereby rendered

moot.

        {¶25} The judgment of the Trumbull County Court, Eastern District, is affirmed in

part and reversed in part. This matter is remanded for the trial court to enter judgment

consistent with this opinion.



THOMAS R. WRIGHT, P.J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only in part and dissents in part, with a
Concurring/Dissenting Opinion.



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                                 ____________________


DIANE V. GRENDELL, J., concurs in judgment only in part and dissents in part, with a
Concurring/Dissenting Opinion.

       {¶26} I concur with the judgment that reversal of the compensatory damages

award is unwarranted and the determination that the award of punitive damages must be

reversed.   I write separately, however, to emphasize the impropriety of addressing

arguments not raised as separate assignments of error. Additionally, I dissent from the

decision to remand this matter to the lower court since reversal and modification of the

punitive damages award is more consistent with the purposes of judicial economy.

       {¶27} First, a review of the appellant, Ron Germadnik’s, brief reveals that although

he asserts a sole assignment of error taking issue with the lower court’s award of punitive

damages, he raised various arguments within that error relating to compensatory

damages. Despite this procedural deficiency, the majority has chosen to address the

merits of these issues within the context of the assignments of error raised by Germadnik.

       {¶28} It is not the role of this court to raise assignments of error on appellant’s

behalf in order to create compliance with the appellate rules. As has been clearly held,

“[a]ppellate courts review assignments of error—we sustain or overrule assignments of

error and not mere arguments.” (Citation omitted.) State v. Neal, 2016-Ohio-64, 57

N.E.3d 272, ¶ 38 (4th Dist.); Gill v. Grafton Corr. Inst., 10th Dist. Franklin No. 10AP-1094,

2011-Ohio-4251, ¶ 17 (“[w]e are disinclined to consider this argument because it does

not correspond with the assignment of error”). The fact that Germadnik may have raised

arguments within his brief in favor of his claim for compensatory damages does not

change the fact that his assignment of error addresses only punitive damages. By



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considering arguments as assignments of error, this court is essentially searching for and

creating assignments on the appellant’s behalf. This creates a slippery slope in which

this court violates the well-recognized principle that it is not this court’s duty to “root out”

arguments on behalf of the appellant, especially given that he could have easily raised

the compensatory damages issue in a separate assignment of error. See State v. Herron,

11th Dist. Lake Nos. 2009-L-119, et al., 2010-Ohio-2050, ¶ 16. Consistency by an

appellate court is a linchpin to justice and fairness. By failing to comply with the foregoing

principles, this court again demonstrates a dangerous lack of consistency. See Filby v.

Filby, 11th Dist. Geauga No. 2017-G-0142, 2018-Ohio-907, ¶ 11 (Grendell, J., concurring

in judgment only) (emphasizing the majority’s inconsistency in its interpretation and

application of the clearly defined term “shall”).

       {¶29} If this court addresses assignments of error not specifically raised by

appellant, even if the issues were raised by him, it also prevents the appellee from having

a fair opportunity to brief these issues. While the appellee may have been aware of the

general arguments raised by the appellant, since assignments of error, rather than

arguments, formulate the basis for this court’s analysis and decisions, this puts the

appellee at a disadvantage. Thus, this court should decline to address arguments that

are not properly raised in an assignment of error, as required by App.R. 16(A), thereby

affirming the judgment as to this issue.

       {¶30} Further, the decision of the majority to remand this matter to the trial court

with instructions for the court to enter judgment as described in the opinion is unnecessary

and inefficient. This court has the authority under App.R. 12(A)(1)(a) to modify the lower

court’s judgment. In a similar matter, where there was an improper award of restitution,

this court found the correct remedy was to reverse and modify the court’s judgment to

                                               9
remove the portion of the award that was contrary to law. In re M.A., 2016-Ohio-1161,

61 N.E.3d 630, ¶ 32 (11th Dist.). Since there is no need for the trial court to make any

additional findings in the present matter, this is the type of situation where a remand is

unnecessary and again inconsistent with past precedent.

       {¶31} In addition to the fact that this court has previously declined to remand in

similar situations, it is also worth noting that vacating the judgment and entering the proper

award without a remand advances the principle of judicial economy. As this court has

emphasized, judicial economy and efficiency are principles that must be considered by

the courts when issuing any decision. See Painesville City Local Schools Bd. of Edn. v.

Ohio Assn. of Pub. School Emps., 11th Dist. Lake No. 2005-L-100, 2006-Ohio-3645, ¶

15.

       {¶32} For the foregoing reasons, I concur with the judgment of this court to reverse

in part, in relation to punitive damages, but disagree with the decision to order an

unnecessary remand. To the extent that the majority affirms the award of compensatory

damages, I concur in the judgment solely for the reasons outlined above.




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