[Cite as Abdalla v. Wilson, 2019-Ohio-1882.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 GEORGE ABDALLA                                JUDGES:
                                               Hon. William B. Hoffman, P.J
         Plaintiff – Appellant                 Hon. John W. Wise, J.
                                               Hon. Craig R. Baldwin, J.
 -vs-
                                               Case No. 18-CA-00112
 DONALD T. WILSON

        Defendant – Appellee                   O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Licking County Municipal
                                               Court, Case No. 16 CVI 297



 JUDGMENT:                                     Vacated; Final Judgment Entered

 DATE OF JUDGMENT ENTRY:                       May 14, 2019


 APPEARANCES:


 For Plaintiff-Appellant                       For Defendant-Appellee

 ROBERT N. ABDALLA, ESQ.                       DONALD T. WILSON
 Reese Pyle Meyer PLL                          7 Meadows Drive
 P.O. Box 919                                  Apt. A
 36 North 2nd Street                           Thornville, Ohio 43076
 Newark, Ohio 43058-0919
Licking County, Case No. 18-CA-00112                                                    2

Hoffman, P.J.
       {¶1}   Appellant George Abdalla appeals the judgment entered by the Licking

County Municipal Court awarding Appellee Donald T. Wilson damages in the amount of

$290.97 for non-return of his security deposit.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellant was the landlord of a residence on Lake Drive in Thornville, Ohio,

which he rented to Appellee from 2014, to 2016. On September 28, 2016, Appellant filed

a civil complaint in the Licking County Municipal Court, Small Claims Division, against

Appellee, seeking more than $4,000.00 for damages caused to the rental property. The

trial court set the matter for a mediation conference, which was scheduled for November

1, 2016. Appellee did not appear, but he subsequently claimed he had not received his

summons in time. After a rescheduled mediation conference, the parties were unable to

resolve the dispute. Both notices sent to Appellee concerning the mediation conference

stated:



              If you believe you have a claim against the Plaintiff, you must file a

       counterclaim with the Court and must serve the Plaintiff and all other parties

       with a copy of the counterclaim at least seven (7) days prior to the

       Magistrate’s hearing date of the Plaintiff’s claim.



       {¶3}   An evidentiary hearing was scheduled before a magistrate for February 23,

2017. The notice sent to Appellee of the hearing date again included the language

concerning the requirement of filing a counterclaim. Appellee did not file a counterclaim,

and trial went forward on Appellant’s claims.
Licking County, Case No. 18-CA-00112                                                         3


         {¶4}   On March 9, 2017, the magistrate issued a decision, finding Appellee had

caused $459.03 in damages, but applying a $450.00 security deposit held by Appellant

to offset these damages. Thus, judgment was granted in favor of Appellant for the sum of

$9.03.

         {¶5}   On March 15, 2017, Appellee, in lieu of filing an objection to the magistrate's

decision, filed a request for reconsideration, claiming the $450.00 security deposit

mentioned in the magistrate’s decision was actually a deposit of $750.00, citing one of

the trial exhibits. Appellee also filed a request for findings of fact and conclusions of law.

         {¶6}   On April 4, 2017, the magistrate issued an order modifying his March 9,

2017 decision to grant judgment in favor of Appellee in the amount of $290.97, reflecting

the security deposit of $750.00. Appellant filed a motion to set aside said magistrate's

order, arguing Appellee could not obtain a judgment on a claim he did not plead or assert

during pre-trial or trial. The magistrate, rather than the trial court judge, issued an entry

denying Appellant’s motion.

         {¶7}   On May 23, 2017, the trial court issued a judgment entry affirming and

adopting the magistrate's April 4, 2017 order and awarding judgment in favor of Appellee

for $290.97. Appellant filed an appeal with this Court. We found the magistrate’s April

4, 2017, order was a nullity, and thus the trial court’s May 23, 2017, order was a nullity as

well. We dismissed the appeal on the grounds it was premature. Abdalla v. Wilson, 5th

Dist. Licking No. 17 CA 0056, 2018-Ohio-500.

         {¶8}   The magistrate filed an amended decision after the dismissal of the appeal,

awarding Appellee $290.97. Appellant filed objections to the decision, arguing Appellee

could not recover his security deposit, as he did not set forth a counterclaim alleging
Licking County, Case No. 18-CA-00112                                                      4


Appellant wrongfully withheld the deposit. The trial court found pursuant to Civ. R. 15(B),

the court should freely allow the pleadings to be amended when the presentation of the

merits of the action will be served thereby, and entered judgment in accordance with the

magistrate’s decision, awarding Appellant $459.03 on his claim for damages and

Appellee $750 for the non-return of his security deposit.

       {¶9}   It is from the November 6, 2018, judgment of the Licking County Municipal

Court Appellant prosecutes this appeal, assigning as error:



              THE TRIAL COURT ERRED BY ENTERING JUDGMENT ON

       APPELLEE’S NON-ASSERTED COUNTERCLAIM.



       {¶10} The trial court found the pleadings were amended to include a claim for non-

return of Appellee’s security deposit pursuant to Civ. R. 15(B):



              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. Such amendment of the pleadings as may

       be necessary to cause them to conform to the evidence and to raise these

       issues may be made upon motion of any party at any time, even after

       judgment. Failure to amend as provided herein does not affect the result of

       the trial of these issues. If evidence is 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
Licking County, Case No. 18-CA-00112                                                    5


      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. The court may

      grant a continuance to enable the objecting party to meet such evidence.



      {¶11} The issue of the security deposit was initially raised by the magistrate:



             MR. ABDALLA: That is what it comes to minus the eight hundred

      dollars.

             THE COURT: And the eight hundred dollars that is the eight hundred

      that you had as a security deposit?

             MR. ABDALLA: That was…that was the August… that was the July

      rent that I was asking for.

             THE COURT: And he paid that?

             MR. ABDALLA: Yes he paid that.

             THE COURT: So then…so then really that listing on here is not

      accurate you really it is not four thousand six hundred eighty four dollars he

      paid you six hundred dollars more than or eight hundred dollars more than

      that and you ended up with three thousand eight hundred eighty four dollars

      and you didn’t have any security deposit is that correct?

             MR. ABDALLA: That…the security deposit was deducted from the

      24 times that he was late late [sic] fee.
Licking County, Case No. 18-CA-00112                                                       6


       {¶12} Tr. 14-15.

       {¶13} Appellee testified in his case in chief:



              I did give him a deposit of seven hundred fifty dollars I believe it was

       and um…I believe that those things are documented here so I just don’t feel

       any of it besides the drywall, the hauling, and the siding on the back porch

       are issues that I should have to pay for I believe.



       {¶14} Tr. 33.

       {¶15} We find the record does not support the trial court’s finding the parties tried

the wrongful retention of the security deposit by express or implied consent. The issue

of the security deposit was raised initially by the magistrate, not by either of the parties.

Despite receiving written notice on three separate occasions he would have to file a

counterclaim if he had a claim against Appellant, Appellee failed to file a counterclaim

concerning the security deposit, and he did not raise the issue orally at trial. Further,

while the magistrate offset Appellant’s damages by the security deposit, the magistrate

did not find the pleadings had been amended pursuant to Civ. R. 15(B) based on the

evidence presented at trial.

       {¶16} Further, Appellee did not seek amendment of the pleadings or raise the

issue of wrongful retention of the deposit subsequent to trial. His only objection to the

magistrate’s decision was the amount of the deposit; he did not seek to file a counterclaim

based on the limited evidence presented regarding the security deposit, nor did he claim

the deposit was wrongfully retained by Appellant.
Licking County, Case No. 18-CA-00112                                                    7


       {¶17} Accordingly, we find the trial court erred in amending the pleadings to allow

a claim by Appellee for Appellant’s failure to return his security deposit. The assignment

of error is sustained.

       {¶18} The judgment of the Licking County Municipal Court is vacated. Pursuant

to App. R. 12(B) we hereby enter final judgment in favor of Appellant in the amount of

$459.03.




By: Hoffman, P.J.
Wise, John, J. and

Baldwin, J. concur
