[Cite as Jensen v. Blvd. Invests. Ltd., 2016-Ohio-5325.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 103658



                                       KURTIS JENSEN

                                                             PLAINTIFF-APPELLEE

                                                       vs.

                    BOULEVARD INVESTMENTS LTD.
                                                             DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                        Civil Appeal from the
                                  Cleveland Heights Municipal Court
                                       Case No. CVI 1500191

        BEFORE: McCormack, J., Jones, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                            August 11, 2016
ATTORNEY FOR APPELLANT

Ted S. Friedman
32901 Station Street #105
Solon, OH 44139


ATTORNEY FOR APPELLEE

Bradley Hull
30195 Chagrin Blvd.
Suite 110 North
Pepper Pike, OH 44124
TIM McCORMACK, J.:

       {¶1}    Defendant-appellant, Boulevard Investments, Ltd., appeals from a judgment

of the Cleveland Heights Municipal Court that awarded Boulevard Investment’s former

tenant, Kurtis Jensen, double damages and attorney fees under R.C. 5321.16 for its failure

to return a security deposit to Jensen.    After a review of the record and applicable law,

we affirm the judgment of the municipal court.

Procedural Background

       {¶2} Jensen (“Tenant” hereafter) rented a unit in a Cleveland Heights apartment

owned by Boulevard Investments, Ltd. (“Landlord” hereafter).          The lease was for a term

of 12 months from July 1, 2013, to June 30, 2014. As part of the lease agreement,

Tenant paid Landlord a security deposit of $750, the return of which is the subject matter

of this appeal.

       {¶3} Several months into the lease, the landlord-tenant relationship deteriorated.

In November 2013,        Tenant filed a complaint against Landlord           in the Cuyahoga

County Court of Common Pleas, in Cuyahoga C.P. No. CV-13-817919. Tenant claimed

a breach of the warranty of habitability, alleging Landlord failed to repair, among other

items, a leaking kitchen sink, chipped paint on the ceiling and shower walls, a broken

window handle, and a broken bulb in a bathroom heat lamp.1 On February 5, Landlord


        Because of the litigation, Tenant filed an application in January 2014 with the Cleveland
       1


Heights Municipal Court to deposit two months of rent (M.C. No. LLT14000001). Subsequently, in
December 2014, Tenant filed a motion for a return of the rent he had deposited with the court. No
objection was lodged by Landlord and the municipal court returned the deposited rent to Tenant.
filed an answer and a counterclaim for unpaid rent for February 2014; Landlord also

alleged damages to the premises.

       {¶4} Tenant moved out on June 30, 2014, at the end of his lease term, after being

notified by Landlord that his lease would not be renewed. A month later, on July 22,

2014, Landlord notified Tenant it would not return his security deposit and provided a list

of damaged items to which the security deposit would apply.

       {¶5} On September 2, 2014, Tenant requested leave in the common pleas court

case to add his security deposit claim to the case.    The trial court did not rule on the

motion.   At the trial scheduled for the case two days later, neither Landlord nor its

counsel appeared.    Consequently, the common pleas court entered a judgment against

Landlord. Landlord appealed that judgment to this court in Jensen v. Blvd. Invests., Ltd.,

8th Dist. Cuyahoga No. 102126.

       {¶6} While that appeal was pending, on February 24, 2015, Tenant filed the

instant case in Cleveland Heights M.C. No. CVI 1500191, for a return of his security

deposit. He sought double damages and attorney fees under R.C. 5321.16.

       {¶7} Subsequently, on March 5, 2015, the parties reached a settlement in 8th

Dist. Cuyahoga No. 102126 and dismissed the appeal. Six weeks after the settlement on

the appeal, Landlord filed an answer on April 17, 2015, in the security deposit case and

raised a counterclaim for unpaid rent and attorney fees totaling $3,000.

       {¶8} After a hearing, a municipal court magistrate decided the case in favor of

Tenant.   The magistrate first found that the security deposit claim was not barred by res
judicata because at the time Tenant filed his complaint for a breach of the warranty of

habitability in the common pleas court, Tenant was still residing in the premises and his

claim for the unreturned security deposit had not arisen.

       {¶9} After finding Tenant’s security deposit claim not barred by res judicata, the

magistrate determined that Tenant left the premises in generally good condition, ordinary

wear and tear excepted.     The magistrate found Tenant not responsible for mold, peeling

paint, and a broken storm window, but found a cleaning fee of $75 charged for the stove

and oven reasonable.      Subtracting the $75 fee from the security deposit, the magistrate

found Landlord wrongfully withheld $675 of the security deposit. Pursuant to R.C.

5321.16, which requires double damages and attorney fees when a landlord wrongfully

withholds a security deposit, the magistrate awarded Tenant the statutory double damages

in the amount of $1,350, plus attorney fees.

       {¶10} Landlord filed objections to the magistrate’s decision, which objections

were overruled by the court.    On appeal, Landlord raises two assignments of error:

       1.     The Trial Court erred when it concluded that Appellee’s claim for
              the failure to return his security deposit was not barred by the
              Doctrine of Res Judicata.

       2.     The Trial Court erred when it awarded Appellee double damages and

              attorney fees pursuant to R.C. 5321.16.

       {¶11} A civil judgment that is “supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed by a reviewing court as
being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co.,

54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

Res Judicata

       {¶12}      Under the first assignment of error, Landlord claims the security deposit

matter was barred by res judicata.   The claim lacks merit.

       {¶13} Under the doctrine of res judicata, “‘[a] valid, final judgment rendered upon

the merits bars all subsequent actions based upon any claim arising out of the transaction

or occurrence that was the subject matter of the previous action.’” Kirkhart v. Keiper,

101 Ohio St.3d 377, 2004-Ohio-1496, 805 N.E.2d 1089, ¶ 5, quoting Grava v. Parkman

Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. An existing final judgment

between the parties to litigation is conclusive as to all claims that were or might have

been litigated in a first lawsuit. Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60,

62, 558 N.E.2d 1178 (1990).     Four elements must be met in order for the doctrine of res

judicata to apply:   “(1) there was a prior valid judgment on the merits; (2) the second

action involved the same parties as the first action; (3) the present action raises claims

that were or could have been litigated in the prior action; and (4) both actions arise out of

the same transaction or occurrence.” Reasoner v. Columbus, 10th Dist. Franklin No.

04AP-800, 2005-Ohio-468, ¶ 5, citing Grava at 381-382.

       {¶14} Here, regardless of whether Tenant’s R.C. 5321.26 claim for a return of the

security of deposit arose “out of the same transaction or occurrence” as his claim of a

breach of the warranty of habitability, the R.C. 5321.26 claim had not arisen at the time
he filed the common pleas court case in November 2013 — that claim did not exist until

July 22, 2014, eight months after the common pleas court case was filed, when Landlord

notified Tenant his security deposit would not be returned. Although Tenant sought

permission from the common pleas court to have this newly existing claim adjudicated

together with his claim of breach of warranty of habitability, the court did not grant

Tenant’s motion to amend his complaint, and it was not required to do so. Patterson v.

V&M Auto Body, 63 Ohio St.3d 573, 589 N.E.2d 1306 (1992) (it is within the trial court’s

discretion to grant a motion to amend a complaint).      As Tenant was unable to add the

security deposit claim to its complaint, the security deposit matter could not be and was

not litigated in the prior case.   Therefore, the municipal court was correct that Tenant’s

security deposit claim was not precluded by res judicata.   The first assignment of error is

without merit.

The Forwarding Address Requirement for a Return of Security Deposit

       {¶15} Under the second assignment of error, Landlord argues the trial court erred

in awarding Tenant double damages and attorney fees under R.C. 5321.16. Landlord

claims Tenant did not provide Landlord in writing a forwarding address as required by the

statute.

       {¶16} R.C. 5321.16(B) states:

       Upon termination of the rental agreement any property or money held by the
       landlord as a security deposit may be applied to the payment of past due
       rent and to the payment of the amount of damages that the landlord has
       suffered by reason of the Tenant’s noncompliance with section 5321.05 of
       the Revised Code or the rental agreement. Any deduction from the
       security deposit shall be itemized and identified by the landlord in a written
      notice delivered to the tenant together with the amount due, within thirty
      days after termination of the rental agreement and delivery of possession.
      The Tenant shall provide the landlord in writing with a forwarding address
      or new address to which the written notice and amount due from the
      landlord may be sent. If the tenant fails to provide the landlord with the
      forwarding or new address as required, the tenant shall not be entitled to
      damages or attorneys fees under division (C) of this section.

(Emphasis added.)

      {¶17} Furthermore, under R.C. 5321.16(C), a landlord who wrongfully withholds a

tenant’s security deposit is liable for damages equal to twice the amount wrongfully

withheld and for reasonable attorney fees. See Smith v. Padgett, 32 Ohio St.3d 344, 349,

513 N.E.2d 737 (1987).

      {¶18} The double damages afforded by R.C. 5321.16 serves to compensate injured

tenants for the time, inconvenience, and cost of having to sue for the recovery of money

wrongfully withheld.     Lytle v. K&D Group, Inc., 8th Dist. Cuyahoga No. 84889,

2005-Ohio-4310, ¶ 12.    The possibility of double damages and attorney fees creates an

incentive for a landlord to comply with the law. Id.

      {¶19} Accordingly, although the statute requires a tenant to provide the landlord in

writing a forwarding address, for equity’s sake, the courts have avoided a hypertechnical

application of the statute. Instead, the courts have considered R.C. 5321.16 as a statute

permitting “substantial compliance as a predicate to its protections.”        Wehrley v.

Sunchase Am., Ltd., 12th Dist. Butler No. CA99-11-191, 2001 Ohio App. LEXIS 256,

13 (Jan. 29, 2001), citing Smitson v. Zeches, 10th Dist. Franklin No. 92AP-1773, 1993

Ohio App. LEXIS 4036, 2 (Aug. 17, 1993). A tenant’s written notice of his or her
forwarding address is required by R.C. 5321.16(B) “solely to ensure that landlord has

some reasonable method to return the security deposit.” Prescott v. Makowski, 9 Ohio

App.3d 155, 156, 458 N.E.2d 1281 (8th Dist.1983). “The purpose of requiring written

notice is not to be hypertechnical but, instead, to create certainty.” McGowan v. DM

Group IX, 7 Ohio App.3d 349, 352, 455 N.E.2d 1052 (10th Dist.1982).

       {¶20} Therefore, “where a landlord has a reasonable avenue to contact the former

tenant, the landlord’s statutory duty under R.C. 5321.16 is triggered.” Wehrley at 3.

Under the existing liberal construction of the statute, the courts have held that the

forwarding address requirement is met and the court must give effect to the penalties

section in R.C. 5321.16(C) where the landlord has actual knowledge of the tenant’s new

address such that compliance with the landlord’s duties pursuant to R.C. 5321.16(B) is

possible.   Prescott at 156; Adams v. Davenport, 2d Dist. Greene No. 2005-CA-108,

2006-Ohio-4646; Mahoney v. Abood, 6th Dist. Lucas No. L-92-230, 1992 Ohio App.

LEXIS 5873 (Nov. 20, 1992). The courts have also held that a landlord had sufficient

notice of a tenant’s new address where the notice is given to a third party who has acted

as the landlord’s agent. Ridenour v. Neufer, 64 Ohio App.3d 453, 454, 581 N.E.2d 1152

(9th Dist.1989); see also Cristal v. DRC Internatl., Inc., 74 Ohio App.3d 493, 599 N.E.2d

706 (8th Dist.1991).

       {¶21} Here, on July 22, 2014, while the common pleas court case was pending,

Landlord sent a letter to Tenant, by way of electronic mail to Tenant’s counsel, informing

Tenant that his security deposit would not be returned. The magistrate found that,
although no forwarding address was provided in writing by Tenant, the forwarding

address requirement was met because Tenant was represented by counsel, whose contact

information was known to and utilized by the Landlord. We agree.

         {¶22} The facts of the instant case are similar to Wehrley.       In that case, the

landlord did not receive a forwarding address in writing but the tenant provided the

landlord with the name and address of the tenant’s attorney.          The Twelfth District

recognized the purpose of the statute would be defeated if a burden was imposed on a

landlord to track down the former tenant; however, as the court reasoned, where the

landlord had a reasonable basis to believe that the tenant could be contacted through the

tenant’s attorney, it would thwart the purpose of the statute to refuse to give effect to its

provisions.    Wehrley, 12th Dist. Butler No. CA99-11-191, 2001 Ohio App. LEXIS 256

at 13.

         {¶23} Similarly here, Tenant was represented by counsel in the pending common

pleas case when Tenant vacated the premises in June 2014.        In fact, Landlord informed

Tenant that his security deposit would not be returned through electronic mail sent to

Tenant’s counsel.    Thus, Landlord had a reasonable avenue to contact Tenant to return

his security deposit.   Under these circumstances, the trial court properly gave effect to

the provisions of R.C. 5321.16 and awarded double damages and attorney fees, after

determining that a portion of Tenant’s security deposit had been wrongfully withheld.

         {¶24} The municipal court’s judgment is supported by competent, credible

evidence from the record.    The second assignment of error is without merit.
       {¶25} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
TIM McCORMACK, JUDGE

LARRY A. JONES, SR., A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
