[Cite as Bonesteel v. Nash, 2016-Ohio-3114.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



PAMELA BONESTEEL, et al.                          JUDGES:
                                                  Hon. Sheila G. Farmer, P. J.
        Plaintiffs-Appellants                     Hon. W. Scott Gwin, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 15 CA 00019
EUGENE NASH

        Defendant-Appellee                        OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the County Court, Small
                                               Claims Division, Case No. CVI 1500088


JUDGMENT:                                      Affirmed in Part; Reversed in Part and
                                               Remanded


DATE OF JUDGMENT ENTRY:                        May 23, 2016



APPEARANCES:

For Plaintiffs-Appellants                      For Defendant-Appellee

PAMELA BONESTEEL, PRO SE                       EUGENE NASH
CHRIS BONESTEEL, PRO SE                        PRO SE
523 South Main Street                          7595 State Rt. 37 East
New Lexington, Ohio 43764                      New Lexington, Ohio 43764
Perry County, Case No. 15 CA 00019                                                      2

Wise, J.

       {¶1}   Appellants Pamela Bonesteel and Chris Bonesteel appeal from the decision

of the Perry County Court, Small Claims Division, which awarded judgment of $600.00 in

their favor in a dispute over a rental deposit against Appellee Eugene Nash. The relevant

facts leading to this appeal are as follows.

       {¶2}   Appellants rented a house from Appellee Nash on Lincoln Street in New

Lexington, Ohio, for a period of approximately three years, from 2011 to 2014. After

appellants moved from the residence in question, they requested a return of any and all

security deposit amounts. Appellee failed to return any deposit funds.

       {¶3}   On or about February 17, 2015, appellants filed an action in the Perry

County Court, Small Claims Division. The matter proceeded to a hearing before said court

on September 28, 2015. Appellants and appellee all appeared. Appellants requested

double damages and three years of interest on their claim against appellee for failure to

return the security deposit.

       {¶4}   After hearing the evidence and arguments, the trial court issued a judgment

entry on November 2, 2015. The court first found appellants had lived in the rental unit

for approximately three years, moving from the residence between October 4 and 5, 2014.

The trial court further found that notice of termination of the lease was provided to the

landlord by letter dated September 27, 2014, but that said letter wasn't placed in the

landlord’s renter box until October 3, 2014.

       {¶5}   The court thereupon determined that because appellee had not properly

notified appellant of the reason the deposit was being held, appellants were entitled to

the return of their deposit (the equivalent of one month’s rent). However, the trial court
Perry County, Case No. 15 CA 00019                                                         3


ruled that appellants were not entitled to double damages or any interest. Appellants were

thus awarded judgment in the amount of $600.00, plus court costs.

       {¶6}   Appellants filed a notice of appeal on November 27, 2015. They herein raise

the following two Assignments of Error:

       {¶7}   “I. ERROR IN THE JUDGMENT OF TRIAL JUDGE IN HIS FAILURE TO

AWARD DOUBLE DAMAGES FOR THE FULL SECURITY DEPOSIT. PLAINTIFFS

SHOULD HAVE BEEN AWARDED THE FULL $1200 AS REQUIRED BY OHIO

REVISED CODE.

       {¶8}   “II.   ERROR IN TRIAL JUDGE'S DISMISSAL OF REQUEST FOR

INTEREST ON THE SECURITY DEPOSIT PAID BY THE PLAINTIFFS. INTEREST

SHOULD HAVE BEEN GRANTED ON THE FULL $600 AT A RATE OF 5% PER YEAR

FOR THE FULL THREE YEARS TENANTS LIVED IN THE RENTAL HOME.”

                                                 I.

       {¶9}   In their First Assignment of Error, appellants contend the trial court erred in

not awarding them double damages as to their security deposit (i.e. $600.00 x 2, or

$1,200.00). We agree.

       {¶10} R.C. 5321.16(B) and (C), addressing procedures for security deposits, state

in pertinent part as follows:

       {¶11} “(B) 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
Perry County, Case No. 15 CA 00019                                                           4


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. ***.

       {¶12} “(C) If the landlord fails to comply with division (B) of this section, the tenant

may recover the property and money due him, together with damages in an amount equal

to the amount wrongfully withheld, and reasonable attorneys fees.”

       {¶13} In the case sub judice, the trial court rationalized its decision to limit the

award to appellants to $600.00 as follows:

       {¶14} “[R.C.] §5321.16(A) requires interest only if deposit exceeds the monthly

rental by fifty dollars or more, THEREFORE, demand for interest is not granted. Due to

this being a Small Claim, the Court has no power to order damages in excess of the

deposit.”

       {¶15} Judgment Entry, November 2, 2015, at 1-2, emphasis added.

       {¶16} We thus surmise the trial court’s conclusion that it lacked power to award

double damages in a small claims action was based on its reading of R.C.

1925.02(A)(2)(a)(iii), which states: “A small claims division does not have jurisdiction in

*** [a]ctions for the recovery of punitive or exemplary damages.”

       {¶17} However, the Ohio Supreme Court held as follows in Klemas v. Flynn, 66

Ohio St.3d 249, 611 N.E.2d 810, 1993-Ohio-45 (1993): “Damages recoverable pursuant

to R.C. 5321.16(C) are not ‘punitive damages’ under former R.C. 1925.02(A)(2)(c) and

are not excluded from the jurisdiction of small claims divisions of municipal and county

courts.” Id., at the syllabus.

       {¶18} We recognize that Klemas addressed former R.C. 1925.02(A)(2)(c), which

provided: “A small claims division does not have jurisdiction in *** [a]ctions for the
Perry County, Case No. 15 CA 00019                                                           5


recovery of punitive damages.” Modern R.C. 1925.02(A)(2)(a)(iii) is identical to the former

subsection except for the disjunctive addition of the term “exemplary.” Nonetheless, the

term “exemplary damages” is recognized as being synonymous with “punitive damages.”

See, e.g., Sherman v. Ejnes, 111 A.3d 371, 372, f.n. 1 (R.I. 2015), citing Black's Law

Dictionary 472, 474 (10th ed. 2014). As such, we find the syllabus rule of Klemas remains

good law for purposes of modern R.C. 1925.02(A)(2)(a)(iii).

       {¶19} Accordingly, we hold the trial court erred as a matter of law in finding it

lacked jurisdiction to award double damages. Furthermore, we note appellee has not filed

a brief in response to this appeal. App.R. 18(C) states in pertinent part: “If an appellee

fails to file the appellee's brief within the time provided by this rule, or within the time as

extended, the appellee will not be heard at oral argument * * * and in determining the

appeal, the court may accept the appellant's statement of the facts and issues as correct

and reverse the judgment if appellant's brief reasonably appears to sustain such action.”

       {¶20} Appellants’ First Assignment of Error is therefore sustained.

                                                  II.

       {¶21} In their Second Assignment of Error, appellants contend the trial court erred

in denying their claim for three years of five percent interest. We disagree.

       {¶22} R.C. 5321.16(A), addressing interest on security deposits, states as follows:

“Any security deposit in excess of fifty dollars or one month's periodic rent, whichever is

greater, shall bear interest on the excess at the rate of five per cent per annum if the

tenant remains in possession of the premises for six months or more, and shall be

computed and paid annually by the landlord to the tenant.”
Perry County, Case No. 15 CA 00019                                                           6


       {¶23} As cogently noted by the Eleventh District Court of Appeals: “A careful

reading of R.C. 5321.16(A) reveals that interest will only be payable on any sum of money

which is either in excess of $50 or in excess of one month's periodic rent, whichever is

greater.” Yancy v. Haehn, 11th Dist. Geauga No. 99-G-2210, 2000 WL 263757, (Mar. 3,

2000). As an appellate court, we may sustain an assignment of error where we conclude

a trial court may have misinterpreted a statute. See State v. Real Property Located at 345

N. Liberty Ave., 5th Dist. Stark No. 2006CA00281, 2007-Ohio-2485, ¶ 36.

       {¶24} In the case sub judice, the trial court rationalized its decision to deny interest

on the following basis:

       {¶25} “[R.C.] §5321.16(A) requires interest only if deposit exceeds the monthly

rental by fifty dollars or more, THEREFORE, demand for interest is not granted. ***.”

Judgment Entry, November 2, 2015, at 1-2, emphasis added.

       {¶26} It therefore indeed appears the trial court, by finding that the security deposit

must exceed the monthly rental by $50.00, added a prerequisite for interest recovery not

written in the statute by the General Assembly. However, in this instance, our review of

the lease agreement in the record indicates the security deposit of $600.00 simply was

not in excess of the monthly rent of $600.00, meaning appellee-landlord was not subject

to the interest requirement imposed by R.C. 5321.16(A). Cf. Hart v. Pervan, 8th Dist.

Cuyahoga No. 79915, 2002-Ohio-6219, ¶¶12-13.1

       {¶27} Accordingly, we hold the trial court did not commit reversible error in

denying appellants their request for statutory interest. Appellants’ Second Assignment of



1 Further review of this issue is limited by the lack of a transcript of the September 28,
2015 hearing. See Cervellino v. Tingler, 9th Dist. Summit No. 20944, 2002-Ohio-3036. ¶
21.
Perry County, Case No. 15 CA 00019                                                  7


Error is therefore overruled.

       {¶28} For the foregoing reasons, the judgment of the Perry County Court, Small

Claims Division, Perry County, Ohio, is hereby affirmed in part, reversed in part, and

remanded with directions to enter an additional $600.00 as judgment in favor of

appellants.


By: Wise, J.

Farmer, P. J., and

Gwin, J., concur.




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