[Cite as Continental Ents., Ltd. v. Franklin, 2016-Ohio-3055.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102899




                  CONTINENTAL ENTERPRISES, LTD.
                                                            PLAINTIFF-APPELLANT

                                                      vs.

                           MYRON FRANKLIN, ET AL.
                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                        Civil Appeal from the
                                    Shaker Heights Municipal Court
                                       Case No.13-CVG-01306

        BEFORE: Laster Mays, J., Keough, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: May 19, 2016

                                                      -i-
ATTORNEY FOR APPELLANT

Ted S. Friedman
32901 Station Street, Suite 105
Solon, Ohio 44139


ATTORNEYS FOR APPELLEES

Gary Cook
3800 Lakeside Avenue, Suite 400
Cleveland, Ohio 44114

Michael Aten
17529 Madison Avenue, Suite 211
Lakewood, Ohio 44107
ANITA LASTER MAYS, J.:

       {¶1}    Plaintiff-appellant Continental Enterprises, Ltd. (“Continental”), appeals

the trial court’s finding for defendants-appellees Myron Franklin (“Myron”) and Tracy

Cloud Franklin (“Tracy”) (collectively the “Franklins”), determining that Continental’s

retaliatory conduct served to terminate the residential lease between the parties. The trial

court also dismissed Continental’s counterclaims, ordered that the clerk of courts release

the funds that the Franklins placed in rent escrow to Continental, and granted a judgment

to Continental in the amount of $220.

       {¶2}   Continental provides a single assignment of error, that the trial court erred

in concluding that Continental engaged in retaliatory conduct as prohibited by R.C.

5321.02. We disagree and affirm the trial court’s decision.

I.     BACKGROUND AND FACTS

       {¶3} Alan Pearlman (“Pearlman”) is the property manager and sole owner of the

Continental apartments complex. The Franklins’ leased an apartment (“Unit”) for a

one-year term beginning October 1, 2012, and ending September 30, 2013. The lease

contained a provision that automatically renewed for an additional year if the tenants

failed to provide written notice at the designated post office box address at least 60 days

prior to the expiration date. Interaction between the parties was primarily by email.
       {¶4}   On October 24, 2013, Pearlman emailed the Franklins asking that they call

him regarding installation of washers and dryers in the apartment units, followed by an

October 25, 2013 email stating that a workman would enter their Unit to determine where

the water line holes would be drilled and an October 26, 2013 notification that

Continental would enter the Unit on October 28, 29, and/or 30, 2013, to drill holes in the

floor and ceiling of one of the guest bedroom closet areas. The Franklins responded the

morning of October 28, 2013, that they had been out of the country, had just received the

email and would clear out the closet later that day so the contractors could enter the next

day or one day the following week. Pearlman emailed later that afternoon that Continental

had entered the Unit and the work had been performed.

       {¶5}   In an October 29, 2013 email to Pearlman, the Franklins expressed their

dismay that the contractors entered the apartment in spite of their objection, and left dust

on the furniture and surroundings and otherwise left the area in disarray. The Franklins

also stated that they had previously expressed their dissatisfaction with apartment

maintenance issues, requested that Pearlman provide an estimated completion date for the

project, and took issue with the lack of proper notice for access to the Unit. Pearlman

did not respond.

       {¶6}   On October 30, 2013, the Franklins emailed the City of Shaker Heights

Housing Department (“City”) complaining that: (1) Continental entered the Unit without

proper scheduling and failed to clean up debris, leaving the living space unusable until

final project completion, a projected date for which Continental refused to provide; (2)
rust had been leaking from the building roof onto their vehicles that were parked in their

assigned spaces in the parking garage, and Continental refused to reassign their parking to

a non-leaking area; and (3) Continental’s lack of responsiveness in making repairs. On

the second point, the Franklins identified a problem with moisture entering the brick

exterior of the building, causing discoloration to the Unit walls that the maintenance man

stated required tuck-pointing and mortar, but no efforts to repair had been made. The

next day, the Franklins asked the City whether they could place their rent in escrow

pending completion of the repairs.

       {¶7}    The City inspected the premises and issued code violation notices on

November 4, 18, and December 9, 2013. On November 14, 2013, Pearlman provided

email notification to the Franklins that a painter would enter their Unit at 8:00 a.m. the

next morning to:

       make the minor repair to your living room wall as a result of your calling to
       complain to the City of Shaker Heights Housing Department. You will
       need to move your possessions out of the way before my painters arrive. I
       have reviewed your recent emails and neither of you ever mentioned any
       water damage to your living room wall. I guess I am supposed to be a
       mind reader when it comes to making repairs in your apartment. You must
       be disappointed when the inspector found only one item that needed to be
       repaired.

       {¶8} A series of emails were exchanged the next day with the Franklins objecting

to the short notice and Pearlman stating that his employee, “James” would see them at

“4:26:01 P.M.” Pearlman further informed them that a carpenter would enter their Unit

within the next day or two, on Saturday or Sunday, to frame the closet and directed that

they move their possessions out of the way. The Franklins replied that they had guests
using the guest room that weekend but that work could begin that Monday. They also

copied the City and reminded Pearlman that his actions were “moving towards

harassment.”

      {¶9} Pearlman replied that the work would be performed anyway and thanked the

Franklins for the Ohio Landlord Tenant Law advice. The same day, Pearlman notified

the Franklins that contractors would be working in several units, including the Franklins,

the next week from Monday through Friday between 8:00 a.m. and 5:00 p.m. as needed.

The morning of Saturday, November 16, 2013, Pearlman advised the Franklins that the

carpenter had to go out of town so carpentry work would begin on Sunday.

      {¶10} Pearlman subsequently admonished the Franklins for allegedly preventing

his workers from entering their Unit during the weekend of November 16, 2013. They

were informed that their Unit would be completed “whenever it gets done,” and warned

that, if they prevented entry again, the police would be summoned to enforce access.

      {¶11} The Franklins advised Pearlman on November 18, 2013, that the Unit was

available to access that week, including Saturday if needed. They reiterated their request

for an estimated date of completion. A copy was directed to the City. On November 23,

2013, Pearlman emailed that contractors would enter their Unit, as needed, on Monday,

Tuesday, and Wednesday to install water and drain lines. The Franklins thanked him for

the notice and informed Pearlman that they would be entertaining their family from

November 27, 2013, through Monday, December 2, 2013, for the Thanksgiving holiday

and asked that Pearlman honor their observation of Sundays as a religious holiday. They
stated that anytime after December 2, 2013, with proper notification, access would not be

a problem.

       {¶12} Pearlman responded that access was required on December 2 as well as

through December 6, 2013, as needed, from 8:00 a.m. to 5:00 p.m. and warned the

Franklins that a refusal to grant access would result in Pearlman’s calling the police to

force access. On December 3, 2013, Pearlman emailed that in light of the Franklins’

denial of access on December 2, 2013, the contractors would leave the water and drain

lines exposed if the Franklins continued to “play games.”            The Franklins denied

Pearlman’s assertion.

       {¶13}    Also, on December 3, 2013, Pearlman emailed the Franklins and several

other tenants that they had failed to pay December 2013 rent and that their rent was to be

placed in the rental office door mail slot per the lease requirements. The Franklins

responded that their rent check had been placed in a sealed envelope, accompanied by a

notice to Pearlman, and placed in the payment slot on November 30, 2013.

       {¶14}    The notice referenced in the email was a November 30, 2013 letter

addressed to Pearlman entitled “notice to correct conditions.” The notice advised that

the Unit had been rendered unsafe and uninhabitable due to the unfinished washer and

dryer installation project instituted on October 28, 2013. It further advised that failure to

resolve the issues within a reasonable amount of time “may result” in rent escrow with the

court. Pearlman replied that he had not received the envelope and suggested that the

Franklins issue a replacement check.
       {¶15}    Pearlman refused the Franklins offer to meet with Pearlman to provide the

replacement check and obtain a receipt, and advised them that they now owed a $30 late

fee. On December 6, 2012, Pearlman emailed the Franklins that he had just discovered

the deposited envelope because it was under the shelving in the office:

       The envelope was pushed into the mail slot with extra force causing it not to
       drop into the collection box. Your check will be deposited today. As far as
       your letter is concerned, your apartment is not uninhabitable. You have
       prevented us from entering your apartment on at least 5 occasions. Your
       threat to escrow your monthly rent payment does not bother me as the legal
       process will work both ways.

       {¶16}    The Franklins informed him that a stop payment had been put on the

check based on Pearlman’s suggestion and allegation that the check had not been received

and, in light of his refusal to meet and issue a receipt, the replacement check was sent to

the post office box stated in the lease. Pearlman admonished that they were not to send a

check to the post office box and stated they should contact their bank to rescind the stop

payment on the initial check or they would also owe a returned check fee. He further

admonished that they were not supposed to send any payments to the post office box

address, and said:

       Let me make this as simple as possible for you. If I do not receive an
       official bank check by noon tomorrow for $1,315.00 (includes $30.00 late
       fee and $30.00 returned check fee). I will instruct my attorney to file a
       lawsuit against you. Thank you.

       {¶17} The installation project was not yet complete and, on December 7, 2013,

Pearlman advised the Franklins that contractors would enter the Unit to work on the

washer and dryer installation from December 9 through 13, 2013. The installation would
subsequently be inspected and, upon approval, followed by closing of the guest bedroom

wall and opening the wall in the hallway.

       {¶18}   Pearlman filed a complaint against the Franklins on December 16, 2013,

in the Shaker Heights Municipal Court on December 16, 2013 for “failure to pay

December 2012 rent of $1,255.00 plus late fee at $30.00 plus returned check fee of 30.00.

 Failure to pay January 2013 rent of $1,255.00 plus late fee of $30.00.” The complaint

was amended on December 20, 2013, to reflect failure to pay rent and fees for December

2013 and January 2014.

       {¶19} On December 31, 2013, the Franklins initiated their rent deposit with the

court as stated in their prior notice. The Franklins denied the complaint allegations on

January 8, 2014, and counterclaimed for breach of the covenant of quiet enjoyment,

partial constructive eviction, breach of the implied warranty of habitability, violation of

R.C. 2323.51 for filing a frivolous claim, libel, and retaliation under R.C. 5321.02. The

Franklins vacated the Unit on January 31, 2014.

       {¶20} Continental filed a third amended complaint on February 7, 2014, seeking

rent through September 30, 2014, based on the renewal clause of the lease, late fees,

turnover costs, and property damage.        A bench trial ensued and written closing

statements submitted. Copies of the email exchanges and photographs depicting the Unit

during and after occupancy were also offered into evidence.

       {¶21}   On April 13, 2015, the trial court issued a Decision and Judgment Entry

finding by a preponderance of the evidence that Continental engaged in retaliatory
conduct in violation of R.C. 5321.02. The trial court determined that the Franklins

lawfully exercised their right to terminate their rental agreement so the lease did not

extend through September 2014, that the apartment was in good condition at the time they

vacated, and the washer and dryer installation was still incomplete so there was no

entitlement to damages.

       {¶22} The trial court also pointed out that there had never been a problem with

the receipt of rent until December 2013, after the Franklins complained to the City, and

after Pearlman actually received the notice of intent to escrow. Continental filed the

complaint for the December rent and fees, as well as the January 2014 rent that was not

yet due. The trial court concluded that the Franklins lawfully exercised their right to

terminate the lease under R.C. 5321.07, and that Pearlman had engaged in retaliatory

conduct in violation of R.C. 5321.02.

       {¶23} Pearlman was awarded $220 rent for December 2013 and rent of $1,255

for January 2014. The security deposit was applied as well as the $1,255 in escrow with

the court, constituting payment in full of the January 2014 rent obligation.      Final

judgment was awarded to Continental in the amount of $220. The remaining claims by

the parties were denied.

II.    ASSIGNMENT OF ERROR

       {¶24}   Continental contends that the trial court erred when it concluded that

Continental engaged in retaliatory conduct prohibited by R.C. 5321.02. We disagree.

III.   STANDARD OF REVIEW
      {¶25}    We apply a manifest weight standard of review when reviewing civil

appeals from bench trials. Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d

1273 (1984). The guiding presumption is that the trial court’s findings were correct.

This Court will not reverse its decision as against the manifest weight of the evidence

except “if it is supported by some competent, credible evidence going to all the essential

elements of the case.” Seasons Coal at 80, quoting C.E. Morris Co. v. Foley Constr. Co.,

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

standard of review, “a finding of an error in law is a legitimate ground for reversal.”

Seasons Coal at 79. See also N. Shore Auto Fin., Inc. v. Block, 188 Ohio App.3d 48,

2010-Ohio-2447, 934 N.E.2d 381, ¶ 8 (8th Dist.)

IV.   LAW AND ANALYSIS

      {¶26}     R.C. 5321.02 provides:

      (A) Subject to section 5321.03 of the Revised Code, a landlord may not
      retaliate against a tenant by increasing the tenant’s rent, decreasing
      services that are due to the tenant, or bringing or threatening to bring an
      action for possession of the tenant’s premises because:

      (1) The tenant has complained to an appropriate governmental agency of a
      violation of a building, housing, health, or safety code that is applicable to
      the premises, and the violation materially affects health and safety;

      (2) The tenant has complained to the landlord of any violation of section
      5321.04 of the Revised Code;

      (3) The tenant joined with other tenants for the purpose of negotiating or
      dealing collectively with the landlord on any of the terms and conditions of
      a rental agreement.

      (B) If a landlord acts in violation of division (A) of this section the tenant
      may:
       (1) Use the retaliatory action of the landlord as a defense to an action by
       the landlord to recover possession of the premises;

       (2) Recover possession of the premises; or

       (3) Terminate the rental agreement.

       In addition, the tenant may recover from the landlord any actual damages
       together with reasonable attorneys fees.

       (C) Nothing in division (A) of this section shall prohibit a landlord from
       increasing the rent to reflect the cost of improvements installed by the
       landlord in or about the premises or to reflect an increase in other costs of
       operation of the premises.

(Emphasis added.) R.C. 5321.02.

       {¶27} Continental posits that the Franklins’ claim of retaliation must fail because,

“nowhere in the body of any of the pleadings do Defendants allege that Plaintiff increased

their rent, decreased services or brought or threatened to bring an action of possession.”

As a result, Continental concludes that the retaliation claim fails, “due to its defective

adherence to the literal terms of the statute.”

       {¶28}    Continental also offers that the testimony at trial does not support an

increase in rent, decrease in services, or bringing or threatening to bring an action for

possession as required by R.C. 5321.02.           To that end, we preface our analysis by

clarifying that we presume regularity in the proceedings where, as in this case, the

transcript of proceedings has not been filed on appeal. N. Olmsted v. Rock, 8th Dist.

Cuyahoga No. 99333, 2013-Ohio-3152, ¶ 21.
         {¶29}    Continental cites no legal authority in support of their R.C. 5321.02

argument as required by App.R. 16(A)(7). We, therefore, are not required to address this

assignment of error. 1     See Thornhill v. Thornhill, 8th Dist. Cuyahoga No. 92913,

2009-Ohio-5569, ¶ 11, citing App.R. 16(A)(7) (declining to address an assignment of

error where party fails to support argument with citation to legal authority).

         {¶30}     In the interest of justice, we state that the scope of retaliatory acts

encompassed by R.C. 5321.02 is not afforded the strict and narrow construction proposed

by Continental. “The 1974 Landlords and Tenants Act was designed to balance the

rights between landlords and tenants, not to give one party an unfair advantage over the

other.       See Smith v. Wright, 65 Ohio App.2d 101, 110, [416 N.E.2d 655 (8th

Dist.1979)].” Rice v. Reid, 3d Dist. Crawford No. 3-91-34, 1992 Ohio App. LEXIS

2145, at *8 (Apr. 23, 1992). “[T]he outcome of each case dealing with the Act will

depend upon the individual facts presented therein.” Smith at 110.

         {¶31} The question of retaliation has arisen in cases such as a landlord’s refusal

to renew a lease agreement. See, e.g., Indian Hills Senior Community v. Sanders, 8th

Dist. Cuyahoga No. 78780, 2001 Ohio App. LEXIS 3717, at *7 (Aug. 23, 2001), and

K&D Mgmt., L.L.C. v. Masten, 8th Dist. Cuyahoga No. 98894, 2013-Ohio-2905. In

assessing a retaliation claim, the trial court is charged with determining the motives and



        The four cases cited by Continental are offered to support their argument
         1

that the only other termination mechanism available to the Franklins was for
breach of the warranty of habitability and R.C. 5321.07, information that is
informative but is not determinative of the question posed on appeal.
the reasons for the landlord’s actions and “temporal proximity is a substantial factor in

determining such motives.” (Citations omitted.) Reid v. Plainsboro Partners, III, 10th

Dist. Franklin Nos. 09AP-442 and 09AP-456, 2010-Ohio-4373, ¶ 39.

        {¶32}   Based on our review of the record, we disagree with          Continental’s

assertion that the facts fail to support the trial court’s finding that the Franklins

established retaliation pursuant to R.C. 5321.02. The Franklins’ retaliation claim states

that the activities complained of “collectively” constitute a violation of R.C. 5321.02.

The allegations include the failure to exercise reasonable care in performing the washer

dryer installation, unreasonable demands for access to the unit without notice for

indefinite periods and at inconvenient times, failure to correct unsafe conditions,

deprivation of use of a portion of the Unit, and frivolously filing the lawsuit in December

2013.

        {¶33} Further to the R.C. 5321.02 elements of a change in rent or services, the

Franklins were deprived of the full use of their guest room, and the removal of a closet,

from late October 2013 forward and, as the trial court stated, the installation was

incomplete by the end of December 2013. In implementing its washer/dryer installation

project in October 2013 Continental served notice on the Franklins of the various times

that it wanted access to the unit, sometimes for consecutive days at a time between the

hours of 8:00 a.m. and 5:00 p.m. The Franklins sometimes resisted the notifications

because they were, for example, out of town and did not receive the notice until the
morning entry was planned, or they expected guests during the holiday who would occupy

the guest room where the work was being conducted.

      {¶34} After the Franklins lodged a report with the City, the tone of the emails

became increasingly contentious and Pearlman’s attitude toward effecting a mutual

accommodation for access to the Unit became more negative. As the trial court noted,

Pearlman even threatened to call the police if there was an access issue, even though the

email evidence reflects requests for arguably reasonable accommodation, for example,

requesting that the work begin on a Monday as a religious accommodation.

      {¶35}     The December rent situation was unique in the history of the lease

duration. Pearlman first sent an email addressed to the Franklins and several tenants

claiming failure to pay rent.   In spite of the Franklins insistence that an envelope

containing the December rent and a note was properly deposited into the office mail slot

as required by the lease on November 30, 2012, Pearlman:

      (1) declared he had not received the check and note and suggested the
      Franklins issue a new check and include a late fee;

      (2) “discovered” the envelope under a shelf on December 6, 2013, alleging
      that it was under the shelf because the Franklins deposited it into the
      payment slot with force;

      (3) indicated he was going to deposit the original check even though he had
      been informed that a stop payment had been issued per his suggestion;

      (4) refused to meet with the Franklins to accept the replacement check and
      issue a receipt;

      (5) penalized the Franklins with a late fee and a returned check fee for a
      situation that the facts demonstrate Pearlman created; and
       (6) filed suit December 16, 2013 for the December rent plus a late fee and
       returned check fee, as well as the January 2014 rent which was not yet due.

       {¶36}     We reiterate that, in examining a landlord’s reasons and motives in

determining retaliation, “temporal proximity is a substantial factor in determining such

motives.” (Citation omitted.) Reid at ¶ 39. The chronology of events supports the

presence of the proximity factor in this case.

       {¶37}    This court finds that the ongoing, repetitive requests for access to the Unit

and the extended period of time taken to complete the construction, interfering with the

Franklins’ use of the Unit; Pearlman’s obstreperous tone and threats to call the police to

obtain access; the effective increase of rent for December 2013 to include unwarranted

fees for late payment of rent and a returned check where the late receipt was caused by

Pearlman’s actions or inactions, culminating in filing the complaint for December rent

and January 2014 rent that was not yet due and that occurred after actual receipt of the

intent to rent deposit, constituted a violation of R.C. 5321.02.

       {¶38}     Appellant’s assignment of error is without merit.        The trial court’s

decision is affirmed.

       It is ordered that appellees recover from 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.
__________________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
