[Cite as Rosalind Holmes v. Cobblestone Grove, 2017-Ohio-55.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




ROSALIND HOLMES,                                      :
                                                                CASE NO. CA2016-04-075
        Appellant,                                    :
                                                                     OPINION
                                                      :               1/9/2017
   - vs -
                                                      :

COBBLESTONE GROVE, et al.                             :

        Appellees.                                    :



                     CIVIL APPEAL FROM FAIRFIELD MUNICIPAL COURT
                                  Case No. 2015SCI00087



Rosalind Holmes, 1013 Springwater Court, Cincinnati, Ohio 45215, appellant, pro se

David D. Donnett, 1212 Sycamore Street, Suite 36, Cincinnati, Ohio 45202, for appellee



        M. POWELL, P.J.

        {¶ 1} Plaintiff-appellant, Rosalind Holmes, appeals a decision of the Fairfield

Municipal Court granting a $659 judgment in favor of her former landlord, defendant-

appellee, Cobblestone Grove Apartments, LLC ("Cobblestone").

        {¶ 2} In July 2015, Holmes entered into a written, one-year lease agreement with

Cobblestone to rent an apartment. The rent was $800 per month. Prior to this lease, she

had lived in the apartment for five years. In the late evening hours of August 4, 2015, or the

early morning hours of August 5, 2015, Holmes discovered a "massive" water leak and
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flooding in her kitchen and living areas. Holmes notified Cobblestone's maintenance person

of the problem around 1:00 a.m. The maintenance person arrived at the apartment at

approximately 3:00 a.m. and directed Holmes to vacate the apartment due to the flooding.

Holmes stayed with a friend. Holmes returned to her apartment on August 5, 2015, and

discovered that her furnishings had been pushed to one side of the apartment. The leak had

been repaired.

       {¶ 3} Subsequently, Cobblestone arranged for extraction of the water from the

apartment, testing for mold and mildew, and completion of the plumbing repairs. With the

exception of dry wall repair and additional testing for mold and mildew, the repair work was

completed by August 12, 2015. Cobblestone contracted with a second contractor because of

mold concerns. By letter dated August 14, 2015, Cobblestone notified Holmes that fans

would be set up in the apartment for the weekend for the purpose of fully drying the

apartment and that they would be removed on August 17, 2015. The letter further stated that

Cobblestone would be responsible for any extra electric charges Holmes may incur due to

the usage of the fans. The second contractor made two small holes into the walls to put air

down into them and used a dehumidifier and two carpet fans.

       {¶ 4} On August 9, 2015, Holmes sent an email to the property manager, stating the

apartment was not suitable to live in as she could not cook, watch television, or relax, and

requesting a suitable place to live until all repairs were done.

       {¶ 5} By letter dated August 21, 2015, Holmes through her attorney notified

Cobblestone she was terminating her lease due to unsuitable living conditions, and gave her

30-day notice of intent to vacate. The letter explained that there were holes in the bedroom

and kitchen walls, the carpets had not been cleaned, several fans and humidifiers had been

running constantly causing an increase in her electric bill, and her dining room furniture was

still "shoved into her living room." Holmes turned in her apartment keys to Cobblestone's

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office on September 30, 2015. Cobblestone re-leased the apartment effective October 31,

2015. Holmes submitted a claim for her personal property damage upon her renter's

insurance and was reimbursed except for depreciation and a $250 deductible.

      {¶ 6} On September 11, 2015, Holmes filed a small claims complaint in the municipal

court against Cobblestone, seeking $2,500 in damages. The matter proceeded to a hearing

before a magistrate on November 4, 2015. On the day of the hearing, Cobblestone filed its

answer and amended counterclaim, seeking $1,700 in damages. Holmes objected to the

amended counterclaim, arguing it was untimely filed. The magistrate offered to continue the

hearing, which Holmes refused, and the magistrate proceeded with the hearing. Holmes and

two of her friends testified on Holmes' behalf. Todd Hignite, a regional manager for

Cobblestone, testified on behalf of the company. Holmes stated she was seeking $2,932.32

in damages; Hignite stated Cobblestone was seeking $1,764.66 in damages.

      {¶ 7} At the hearing, Hignite testified that while some dry wall repairs remained, the

apartment was fully habitable by August 14, 2015. Certainly, the apartment was fully

habitable on September 30, 2015, when Holmes turned in her apartment keys. Hignite

admitted he did not walk through the apartment after the repairs were done. Hignite

personally offered to move Holmes to another apartment on August 14, 2015. Holmes

declined the offer because Cobblestone could not guarantee the alternate apartment would

be free of plumbing issues.

      {¶ 8} Holmes denied the apartment was fully habitable by August 14, 2015, or

September 30, 2015. While the leak had been fixed, there was mold and mildew, there was

"drywall everywhere, sanded down all over the kitchen area," she could not cook in the

kitchen, and the carpets had not been cleaned. One of Holmes' witnesses testified that on

the day he helped her move out, "the living conditions were pretty bad," there was a bad

smell "like really bad mold," and the drywall repairs were poorly done. Holmes also denied

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she was offered an alternate apartment to live in. Rather, Cobblestone gave her "the

runaround about another suitable place" and told her she did not need an alternative

apartment as the leak had been fixed.

       {¶ 9} On January 6, 2016, the magistrate found that Cobblestone had fulfilled its

obligations as a landlord under R.C. 5321.04 and 5321.07, and that it was entitled to the

October rent in the amount of $800. The magistrate further found that Holmes failed to meet

her burden of proof and that she was only entitled to be reimbursed for the additional electric

charges related to the repairs in the amount of $141.36. Consequently, the magistrate

recommended that a rounded $659 judgment be granted in favor of Cobblestone. Holmes

filed objections to the magistrate's decision, which were overruled by the municipal court.

       {¶ 10} Holmes now appeals, raising two assignments of error.

       {¶ 11} Assignment of Error No. 1:

       {¶ 12} THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING

APPELLEES FILING OF AN UNTIMELY COUNTERCLAIM WITHOUT LEAVE AND

GRANTING JUDGMENT IN FAVOR OF THE APPELLEES WHICH VIOLATED R.C.

1925.02(C) AND CIV.R. 13(F) AND 7(B)(1).

       {¶ 13} Holmes argues the municipal court abused its discretion when it allowed

Cobblestone to file its untimely counterclaim on the day of the hearing. Holmes asserts the

counterclaim was filed in violation of Civ.R. 7(B)(1), Civ.R. 13(F), and R.C. 1925.02(C).

       {¶ 14} Pursuant to R.C.1925.02(A), a small claims division of a municipal court has

jurisdiction in civil actions for the recovery of amounts not exceeding $3,000, exclusive of

interest and costs. R.C.1925.02(C) provides that any person who files a counterclaim "shall

file it with the small claims division and serve it on all other parties at least seven days prior to

the date of the trial of the plaintiff's claim in the original action." The record shows that the

summons advised Cobblestone, in compliance with R.C. 1925.05, that "If you believe you

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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 days prior to

the date of the trial of the plaintiff's claim."

       {¶ 15} Civ.R. 7(B)(1) provides that "[a]n application to the court for an order shall be

by motion which, unless made during a hearing or a trial, shall be made in writing. A motion,

whether written or oral, shall state with particularity the grounds therefore, and shall set forth

the relief or order sought." Civ.R. 13(F) provides that "[w]hen a pleader fails to set up a

counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires,

he may by leave of court set up the counterclaim by amendment."

       {¶ 16} It is within a trial court's discretion whether a party may, under appropriate

circumstances, amend a responsive pleading to include a counterclaim, and the court's

decision will not be disturbed absent a showing of an abuse of that discretion. Chase

Manhattan Mtge. Corp. v. Urquhart, 12th Dist. Butler Nos. CA2004-04-098 and CA2004-10-

271, 2005-Ohio-4627, ¶ 17. The Civil Rules favor a liberal amendment policy. See Amend v.

Morgan, 5th Dist. Ashland No. 14-COA-041, 2015-Ohio-3185.

       {¶ 17} We find no abuse of discretion by the municipal court in allowing Cobblestone

to file its untimely counterclaim on the day of the hearing. In his decision, the magistrate

stated that

               Counsel for Defendant Cobblestone Grove Apartments, LLC
               moved the Court to accept its Answer and Amended
               Counterclaim for $1,700.00 filed on November 4, 2015. Plaintiff
               Rosalind Holmes moved to strike (objected to) the counterclaim
               as untimely filed. As stated at the hearing, the Court permitted
               Defendant to present its amended counterclaim. The Court
               permitted Plaintiff to continue the hearing to a later date to
               provide her an opportunity to review and prepare for the
               counterclaim. Plaintiff wanted her complaint heard that evening
               on November 4 and did not want the hearing continued to a later
               date. Plaintiff made a continuing objection to the Court
               permitting Defendant to present its amended counterclaim and
               the Court made clear her option was to continue the case to
               another date to allow her time to prepare to respond or go
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              forward on both her complaint and her defenses to the amended
              counterclaim. (The discussion on these motions may have been
              earlier in the evening or immediately preceding the Court
              commencing the hearing. The Court makes this note for
              purposes of facilitating the clerk reviewing the recorded record, if
              necessary.)

              Applicable procedural rules permit a court discretion whether to
              allow parties to a civil action to add any related claims or
              counterclaims to the subject small claims civil action. The
              applicable rules are Rules of Practice and Procedure for the
              Fairfield Municipal Court, Rules 21 and 28[.] Ohio Civil Rule 15
              has some applicability to small claims court but with limitations
              due to the format of small claims court. See Civil Rule 1(C)(4)[.]

       {¶ 18} Subsequently, following Holmes' objections to his decision, the magistrate

issued an entry clarifying his decision:

              Plaintiff Rosalind Holmes filed an objection and the judge will
              decide the objection. The magistrate had no ex parte
              communications with any person in this case. The magistrate
              was not sure if the discussion on the record with all parties
              occurred earlier in the evening docket or immediately before
              hearing this case, is what the magistrate was trying to explain in
              the 1/16/16 decision.

       {¶ 19} As the magistrate's decision and subsequent entry indicate, Cobblestone orally

requested leave of court to file its untimely counterclaim on November 4, 2015, before the

hearing on Holmes' claims began. The magistrate offered to continue the hearing so that

Holmes could prepare a defense to the counterclaim. Holmes refused a continuance and the

magistrate granted Cobblestone's motion for leave to file its untimely counterclaim. Thus,

there was discussion on the record of the propriety of Cobblestone's counterclaim.

       {¶ 20} As the appellant, Holmes bears the burden to show error by reference to

matters in the record, and the responsibility to provide this court with a record of the facts,

testimony, and evidence in support of her assignment of error. Pedra Properties, L.L.C. v.

Justmann, 8th Dist. Cuyahoga No. 102909, 2015-Ohio-5427, ¶15. While Holmes provided a

transcript of the hearing itself, she did not provide a transcript of the discussion related to the

counterclaim or an appropriate substitute for the transcript under App.R. 9(C) or (D), and the
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transcript of the hearing does not support her argument. When the record is incomplete as

to assigned errors, "the reviewing court has nothing to pass upon and thus, as to those

assigned errors, the court has no choice but to presume the validity of the lower court's

proceedings, and affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).

      {¶ 21} We are mindful that throughout this process, Holmes has represented herself.

However, pro se litigants are held to the same standard as litigants who are represented by

counsel. Sparks v. Sparks, 12th Dist. Warren No. CA2015-10-095, 2016-Ohio-2896, ¶ 6,

citing State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124,

2009-Ohio-4688, ¶ 1. As a result, pro se litigants are presumed to have knowledge of the

law and correct legal procedures so that they remain subject to the same rules and

procedures to which represented litigants are bound. Sparks at ¶ 6. In other words, "[p]ro se

litigants are not to be accorded greater rights and must accept the results of their own

mistakes and errors, including those related to correct legal procedure." Cox v. Zimmerman,

12th Dist. Clermont No. CA2011-03-022, 2012-Ohio-226, ¶ 21.

      {¶ 22} The municipal court did not abuse its discretion in allowing Cobblestone to file

its untimely counterclaim on the day of the hearing. Holmes' first assignment of error is

accordingly overruled.

      {¶ 23} Assignment of Error No. 2:

      {¶ 24} THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST

WEIGHT OF EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE.

      {¶ 25} Holmes argues that the $659 judgment in favor of Cobblestone is not

supported by sufficient evidence and is against the manifest weight of the evidence because

Cobblestone failed to prove that: the repair work was completed, there was no mold as a

result of the leak, and she was offered another apartment. Holmes ostensibly challenges the

municipal court's finding that Cobblestone fulfilled its obligations as a landlord under R.C.

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5321.04 and 5321.07, and that her apartment was habitable by August 12, 2015.

       {¶ 26} The municipal court granted judgment in favor of Cobblestone, finding that

Holmes was not constructively evicted and was not entitled to terminate her lease because

Cobblestone had stopped the water leak within a few hours of being notified by Holmes, had

repaired the damage caused by the water leak in the days following, and thus had timely

made repairs. The court further found credible Hignite's testimony that the apartment was

habitable within ten days of the water leak.

       {¶ 27} An appellate court's function in reviewing the sufficiency of the evidence

supporting a judgment in a civil case is to examine all of the evidence admitted at trial and to

then determine whether there is "some competent and credible evidence going to all

essential elements of the case." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80

(1984); Schnecker v. Schindler, 12th Dist. Warren No. CA96-10-100, 1997 WL 292353, *1

(June 2, 1997).

       {¶ 28} A manifest weight challenge in a civil case concerns the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. In a

manifest weight analysis, the reviewing court weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether, in resolving

conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest

miscarriage of justice that the judgment must be reversed. Id at ¶ 20. In reviewing a bench

trial, an appellate court will uphold the trial court's determination unless it appears that the

record is such that no reasonable person could have concluded as the trial court did.

Garringer v. Gen. Motors Acceptance Corp., 12th Dist. Fayette No. CA92-06-011, 1992 WL

368717, *2 (Dec. 14, 1992); Schroeder v. Roger Foos Ins. Agency, 6th Dist. Lucas No. L-06-

1379, 2007-Ohio-5990.

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       {¶ 29} Ohio's landlord-tenant statute, R.C. Chapter 5321, imposes duties on landlords

and provides tenants with leverage to redress breaches of those duties. Miller v. Ritchie, 45

Ohio St.3d 222, 224 (1989). R.C. 5321.04(A)(2) requires that a landlord "[m]ake all repairs

and do whatever is reasonably necessary to put and keep the premises in a fit and habitable

condition." R.C. 5321.07(A) provides that if a landlord fails to fulfill any obligation imposed

under R.C. 5321.04, or if the conditions of the residential premises are such that the tenant

reasonably believes that a landlord has failed to fulfill those obligations, the tenant may give

notice in writing to the landlord, specifying the acts, omissions, or code violations that

constitute noncompliance. If the landlord fails to maintain the rental property in accordance

with statutory or contractual obligations, and the tenant is current in rent payments and

notified the landlord in writing of the violations, R.C. 5321.07(B)(3) allows the tenant to

terminate the rental agreement. Miller at 224.

       {¶ 30} "It is not a landlord's failure to fix any problem or to remedy any condition

'within a reasonable time * * * or within thirty days, whichever is sooner' that gives a tenant a

right to terminate his lease under R.C. 5321.07(B)." Pedra, 2015-Ohio-5427 at ¶ 19. Rather,

the remedies available under R.C. 5321.07(B) require a tenant to show that the landlord

violated (1) the lease agreement, (2) a building code that could materially affect health and

safety, or, as applicable here, (3) an obligation imposed by R.C. 5321.04. Id. A tenant must

show that a condition exists that renders the premises unfit or uninhabitable in order to

terminate a lease based on R.C. 5321.04(A)(2). Id. at ¶ 20.

       {¶ 31} Upon a thorough review of the record, we conclude that the municipal court's

finding the apartment was habitable by August 14, 2015, and thus, that Cobblestone had

made the premises habitable and safe for Holmes as required under R.C. 5321.04 and

5321.07, is against the manifest weight of the evidence.

       {¶ 32} The record indicates that on the night of the leak, Holmes was forced from her

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home because of water flooding her kitchen and living areas. Thereafter, Homes endured

repeated and continuing intrusions, which spanned several weeks, arising from a chain of

events put in motion by the original leak.

       {¶ 33} While the leak itself was repaired within a day, Holmes testified how difficult it

was to live in her home once the repairs were ongoing. Describing Holmes' living conditions

on the day he helped Holmes move out, one of Holmes' witnesses testified that the drywall

debris was "all over the furniture, the tables, the counter," and that the drywall "sand" was "all

over the house, on the couch, all over the place on the floors." Holmes' witness further

testified that Holmes' apartment was "literally like an unfinished job and the smell was like so

bad, like really mold like really bad mold because of the water damage * * * so I told her that

she shouldn't be staying in there because of the mold, and it was pretty bad." Similarly,

Holmes testified "there was mold and mildew grown" in her apartment after the leak was

repaired.

       {¶ 34} Holmes further testified that in addition to the mold, her life was disrupted by

the ongoing repairs as

              all of my furnishings, were all shoved into my living room and left
              there. They did not clean the carpets, they did not do anything
              else, they had drywall everywhere, sanded down all over the
              kitchen area, they put all the stuff, all everywhere, where I can't
              even cook in my kitchen * * * I can't even cook in my kitchen, it's
              not a suitable place to live.

       {¶ 35} Photographs admitted during the hearing show that large dryers and

dehumidifiers were in Holmes' apartment in areas where she should have been able to rest,

relax, and enjoy her home, and that there were large holes in the drywall of her apartment.

Holmes testified that the fans and dehumidifiers ran in her home for "almost three weeks."

Machinery was also crowded on Holmes' kitchen counters and items were moved from the

cabinets and crowded on the counters as well. Holmes explained her reason for leaving her

apartment, and stated "it was mold, mildew, I'm not going to sit in there and live and get sick."
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      {¶ 36} While the magistrate was "persuaded by Landlord's testimony that the

apartment was habitable on August 12," and thus, that the carpets were cleaned and repairs

were completed in a reasonable time, we note that Hignite did not submit any evidence in

support of his testimony, and in fact admitted he never observed the condition of the

apartment before Holmes moved out. During his testimony, Hignite referenced invoices

Cobblestone received and paid for work done in Holmes' apartment as evidence carpets had

been cleaned and repairs had been completed. However, Hignite clearly admitted that the

repairs were only done "to the best of my knowledge," and that he "did not walk the

apartment and personally see it." The only evidence Hignite offered was his statement that

there were paid invoices. Yet, he had no personal knowledge to establish that the work was

actually completed or whether the repairs returned the apartment to a fit and habitable

condition as required under R.C. 5321.04(A)(2).

      {¶ 37} In light of the foregoing, we find that the record is such that no reasonable

person could conclude, as the municipal court did, that Holmes' apartment was fit and

habitable by August 14, 2015, or September 30, 2015. We therefore conclude that the

municipal court's finding that Holmes failed to prove her apartment was uninhabitable is

against the manifest weight of the evidence. Accordingly, we sustain Holmes' second

assignment of error and pursuant to App.R. 12(C), reverse the judgment of the municipal

court and remand the case to the municipal court for further proceedings.

      {¶ 38} Judgment affirmed in part, reversed in part, and cause remanded.


      S. POWELL and PIPER, JJ., concur.




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