[Cite as Ohio Specialized Invests., Ltd. v. Campbell, 2017-Ohio-1244.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



OHIO SPECIALIZED                                    :            JUDGES:
INVESTMENTS, LTD.                                   :            Hon. W. Scott Gwin, P.J.
                                                    :            Hon. Craig R. Baldwin, J.
        Plaintiff-Appellant                         :            Hon. Earle E. Wise, Jr., J.
                                                    :
-vs-                                                :
                                                    :
BRIONA CAMPBELL                                     :            Case No. 2016CA00176
                                                    :
        Defendant-Appellee                          :            OPINION




CHARACTER OF PROCEEDING:                                         Appeal from the Canton Municipal
                                                                 Court, Case No. 2016-CVG-2096




JUDGMENT:                                                        Affirmed




DATE OF JUDGMENT:                                                March 31, 2017




APPEARANCES:

For Plaintiff-Appellant                                          For Defendant-Appellee

ROBERT P. CAMPBELL                                               DREW GONYIAS
2800 West Market Street                                          1225 North Main Street
Akron, OH 44333                                                  North Canton, OH 44720
Stark County, Case No. 2016CA00176                                                     2

Wise, Earle, J.

       {¶ 1} Plaintiff-Appellant, Ohio Specialized Investments, LTD., appeals the July

26, 2016 judgment entry of the Canton Municipal Court finding appellant violated R.C.

5321.04(A)(1) and awarding damages to Defendant-Appellee, Briona Campbell.

                        FACTS AND PROCEDURAL HISTORY

       {¶ 2} In January 2015, the Canton City Health Department ("health department")

found an unacceptable level of lead in a home located on Milton Court in Canton, Ohio.

Appellant was ordered to abate the hazard and submit a Certificate of Examination which

it did not do. In October 2015, the health department declared the property uninhabitable

pursuant to R.C. 3742.40, failure to comply with lead hazard control order. Lead hazard

warning signs were placed on every entrance door.

       {¶ 3} On March 25, 2016, appellee entered into a rental agreement whereby she

would rent the Milton Court home from appellant in exchange for $550.00 per month.

Appellee paid appellant $850.00 as a security deposit and a utilities deposit. She also

paid $70.00 for prorated rent for March. The first monthly rental payment was due on

April 1, 2016.

       {¶ 4} As appellee was moving into the home and unpacking, she was made

aware of a possible lead issue in the home. She called the health department and was

told the home was deemed uninhabitable due to an unacceptable level of lead.

       {¶ 5} Appellee did not make her first monthly rental payment on April 1, 2016. On

April 14, 2016, appellant posted on the home a three day notice to vacate. Appellee did

not vacate the home.
Stark County, Case No. 2016CA00176                                                        3


       {¶ 6} On May 2, 2016, appellant filed a forcible entry and detainer action to evict

appellee and recover money damages for unpaid rent and property damage. On May 4,

2016, appellee filed an answer and a counterclaim, followed by a first amended answer

and counterclaim, and then a second amended answer and counterclaim filed on June

20, 2016.      In her counterclaim, appellee alleged retaliatory eviction (R.C. 5321.02),

breach of warranty of habitability (R.C. 5321.04), emotional distress, and violations of

R.C. 5321.15 (refusal to return her belongings).

       {¶ 7} A bench trial was held on July 25, 2016. By judgment entry filed July 26,

2016, the trial court found the home was uninhabitable because appellant had violated

orders from the health department to abate the lead issue. The trial court determined

because appellant violated R.C. 5321.04(A)(1), failure to comply with the requirements of

the health code, it refused to enforce the provisions of the rental agreement, and

dismissed appellant's complaint in its entirety. The trial court found in favor of appellee

on her counterclaim of breach of warranty of habitability, and awarded her damages in

the amount of $920.00 ($550.00 security deposit, $300.00 utilities deposit, and $70.00 in

prorated rent), and ordered the return of her belongings. The trial court found against

appellee on her counterclaims of retaliatory eviction, emotional distress, and violations of

R.C. 5321.15.

       {¶ 8} On August 9, 2016, appellant filed a motion for new trial. A hearing was

held on August 30, 2016. By judgment entry filed August 31, 2016, the trial court denied

the motion.1




We note appellant did not file a notice of appeal on the August 31, 2016 denial of the
1

motion for new trial, nor did it assign an error on the issue for our review.
Stark County, Case No. 2016CA00176                                                         4


       {¶ 9} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶ 10} "THE TRIAL COURT ERRED IN FINDING A TECHNICAL VIOLATION OF

OHIO REVISED CODE SEC. 5321.04(A)(1) TO BE GROUNDS FOR AN AWARD OF

DAMAGES."

                                              I

       {¶ 11} In its sole assignment of error, appellant claims the trial court erred in

awarding damages to appellee based on a technical violation of R.C. 5321.04(A)(1). We

disagree.

       {¶ 12} In its judgment entry filed July 26, 2016, the trial court determined appellant

violated R.C. 5321.04(A)(1) which states: "A landlord who is a party to a rental agreement

shall do all of the following: (1) Comply with the requirements of all applicable building,

housing, health, and safety codes that materially affect health and safety."

       {¶ 13} In reaching this determination, the trial court found the following:



              Plaintiff is the owner of a home located at 814 Milton Court N.W.

       Canton, Ohio 44708. Plaintiff leased the home to tenants. A minor child of

       a tenant contracted lead poisoning. The child was medically tested and

       found to have an elevated lead blood level.         The Canton City Health

       Department (Stark County Health Department) investigated the allegations.

       An inspection of the home on January 5, 2015 indicated an unacceptable

       presence of lead. Orders were issued on January 22, 2015 by the Health
Stark County, Case No. 2016CA00176                                                         5


       Department that the home was uninhabitable. Plaintiff did not appeal these

       findings within the ninety day appeal period. The Health Department posted

       signs on all entrances of the house as to the lead hazard. Plaintiff did not

       properly abate the presence of the lead. Plaintiff violated the orders of the

       Health Department by leasing the home to Defendant.

              The signs that were posted by the Health Department were removed

       prior to Plaintiff showing the home to Defendant.



       {¶ 14} R.C. 3742.40 governs failure to comply with lead hazard control order and

states the following:



              If the owner and manager of a residential unit, child care facility, or

       school fails or refuses for any reason to comply with a lead hazard control

       order issued under section 3742.37 of the Revised Code, the director of

       health or board of health that issued the order shall issue an order

       prohibiting the owner and manager from permitting the unit, facility, or

       school to be used as a residential unit, child care facility, or school until the

       unit, facility, or school passes a clearance examination. On receipt of the

       order, the owner or manager shall take appropriate measures to notify each

       occupant, in the case of a residential unit, and the parent, guardian, or

       custodian of each child attending the facility or school, in the case of a child

       care facility or school, to vacate the unit, facility, or school until the unit,

       facility, or school passes a clearance examination. The director or board
Stark County, Case No. 2016CA00176                                                           6


      shall post a sign at the unit, facility, or school that warns the public that the

      unit, facility, or school has a lead hazard.          The sign shall include a

      declaration that the unit, facility, or school is unsafe for human occupation,

      especially for children under six years of age and pregnant women. The

      director or board shall ensure that the sign remains posted at the unit,

      facility, or school and that the unit, facility, or school is not used as a

      residential unit, child care facility, or school until the unit, facility, or school

      passes a clearance examination.



      {¶ 15} During the bench trial, the trial court heard from Rick Miller, Lead Risk

Assessor for the health department. T. at 49-50. Mr. Miller testified he performed a lead

risk assessment on the subject home, completing the inspection on January 5, 2015. T.

at 51, 54. The inspection and tests established an unacceptable lead level in the home.

T. at 54; Defendant's Exhibit B. Mr. Miller issued an order to appellant on January 22,

2015, to abate the lead in the home. T. at 56. A property owner is given ninety days to

abate known lead hazards. Id. Because Mr. Miller never heard back from appellant within

the ninety day period, he posted on the home in June 2015 a citation for a hearing. T. at

55-57. On June 26, 2015, appellant's "managing member," Todd Cleavenger, contacted

Mr. Miller and asked for a copy of the January order and for an extension to abate the

lead. T. at 13, 57-58. Mr. Miller granted the extension to August 30, 2015. T. at 59.

      {¶ 16} Mr. Miller explained any contractor hired to abate the lead is required to

submit a Method of Control Form to the health department to ensure the work is being

done correctly, as well as a work notification form with the Ohio Department of Health. T.
Stark County, Case No. 2016CA00176                                                      7


at 59-60. Mr. Miller further explained: "So you just can't have Joe Schmo come in and -

- and change out doors. You can't just have your - - a regular maintenance man come in

and do painting. It's not that way at all. It has to be done by a licensed lead abatement

contractor." T. at 73. Once the work is completed, a clearance examination is conducted

and if passed, a Certificate of Examination is submitted to the health department. T. at

61.

      {¶ 17} Because a Certificate of Examination was never submitted to the health

department, Mr. Miller posted another hearing notice on the home and mailed a notice to

appellant of a hearing scheduled for September 28, 2015. T. at 63. Appellant did not

attend the hearing. Id. On October 5, 2015, Mr. Miller posted on the home and issued to

appellant a Notice of Noncompliance and Order to Vacate the Property. T. at 64. Mr.

Miller explained once that notice is issued, a home is "placarded with lead hazard warning

signs," and its a violation of the law to remove the signs. Id. The home is uninhabitable

until the lead is abated and the clearance examination is passed. T. at 65.

      {¶ 18} On April 6, 2016, Mr. Miller discovered appellee was living in the home

against the order to vacate. T. at 66-67. All the signs that Mr. Miller had placed on the

home had been removed. T. at 67. At the time of the hearing on July 25, 2016, the health

department still had not received a Certificate of Examination; therefore, the home should

have remained vacant since October 2015. T. at 65, 77.

      {¶ 19} Appellee testified while she was unpacking her belongings on March 28,

2016, she became aware of the lead issue from a previous tenant. T. at 106-107. She

contacted Mr. Miller and left a message. T. at 109. Appellee had two minor children,

ages eight and four. T. at 106. She stated she would have never moved into the home
Stark County, Case No. 2016CA00176                                                           8


if she had known of the lead issue because "I know that with lead, it actually affects the

children, um, more than anything." Id. In fact, after Mr. Miller confirmed the lead issue,

appellee moved her children out of the home immediately and had them stay with her

mother because "I didn't want them to have to even get a chance of, you know, catchin'

anything."   T. at 112.    The children never really lived in the home.         Id.   Appellee

acknowledged she had paid appellant $550.00 for a security deposit, $300.00 for a

utilities deposit, and $70.00 for prorated rent for March. T. at 102-103, 112.

       {¶ 20} Mr. Cleavenger testified and stated lead abatement work was done on the

home prior to appellee moving in. T. at 24. He was under the impression his former

property manager, Melissa Bunnell, had handled the matter. T. at 25-28. Mr. Cleavenger

was unaware a lead problem still existed until April 2016. T. at 26, 28.

       {¶ 21} Melissa Bunnell testified and stated she was working for appellee when she

retrieved a certified mail packet at the post office from the health department regarding

the lead based paint abatement. T. at 82-83. Ms. Bunnell hand-delivered the packet to

Mr. Cleavenger who "initially threw it away. What he did with it afterwards I don't know."

T. at 84-85. Ms. Bunnell did not arrange for any specific contractor to perform the lead

abatement work because "that was up to" Mr. Cleavenger. T. at 88.

       {¶ 22} Given the testimony and evidence presented to the trial court, we find the

trial court had ample evidence to support its determination that appellant had violated

R.C. 5321.04(A)(1), and the home was uninhabitable due to the lead issues at the time

the home was rented to appellee.         The violation was more than "a mere technical

violation" as argued by appellant in its brief at 9. Appellant's acts in this case were a clear

violation of R.C. 5321.04(A)(1).
Stark County, Case No. 2016CA00176                                                      9

      {¶ 23} As held by the Supreme Court of Ohio in Sikora v. Wenzel, 88 Ohio St.3d

493, syllabus, 2000-Ohio-406, 727 N.E.2d 1277, "[a] landlord's violation of the duties

imposed by R.C. 5321.04 (A)(1) or 5321.04(A)(2) constitutes negligence per se * * *."

Therefore, appellee is entitled to damages. She stated she would have never rented the

home if she had been aware of the lead issue. The trial court's award of $920.00,

appellee's initial payment upon signing the rental agreement, is supported in the record.

The $550.00 security deposit and the $300.00 utilities deposit are listed in the March 25,

2016 rental agreement (Plaintiff's Exhibit 5). The $70.00 prorated rent for March is not

disputed.

      {¶ 24} Upon review, we find the trial court did not err in awarding appellee

damages of $920.00 for a violation of R.C. 5321.04(A)(1).

      {¶ 25} The sole assignment of error is denied.
Stark County, Case No. 2016CA00176                                                  10


      {¶ 26} The judgment of the Canton Municipal Court of Stark County, Ohio is hereby

affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




EEW/sg 323
