Fay Gardens Mobile Home Park v. Newman

Per Curiam. This cause came on to be heard upon the appeal, transcript of the docket, journal entries and original papers from the County Court, Civil Division, Clermont County. Two separate actions in forcible entry and detainer were brought by the plaintiff, Fay Gardens Mobile Home Park, in the Clermont County Court. One of the actions was against Richard and Peggy Hunt who, after denying the allegations contained in the complaint, claimed the defense of retaliation and the defense of failure of the plaintiff to offer the opportunity to sign a rental agreement for a minimum period of one year. The defendants, Richard and Peggy Hunt (“Hunts”) also included in their answer a counterclaim for retaliation, a counterclaim for breach of an implied promise or warranty that the premises would be maintained in a habitable condition, a counterclaim for failure to keep the premises in a sanitary condition, and a counterclaim for failure to offer the opportunity to sign a rental *145 agreement for a minimum of one year. The total amount demanded in the counterclaim as damages was $8,100 plus reasonable attorney fees. The other action in forcible entry and detainer was against one Edwin A. Newman, who, in his answer, denied the allegations of plaintiffs amended complaint and set forth as defenses the claim that the complaint failed to state a cause of action upon which relief can be granted, that plaintiff, by accepting late payments of rent in the past had waived the right to evict him for late payment, and that the filing of the action was in retaliation for his joining and organizing with other tenants in order to deal collectively with plaintiff with regard to the condition of the premises. The answer of Newman also contained a counterclaim for retaliation, a counterclaim for breach of an implied warranty of habitability of the premises, a counterclaim for failure to maintain all septic systems, sanitary and storm sewers in working order, and a counterclaim for failure to permit the defendant to enter into a rental agreement for a minimum of one year. Newman demanded the sum of $1,765 as damages plus reasonable attorney fees. The two cases were scheduled to be tried jointly and, prior to trial, the trial judge called the attention of counsel to the monetary jurisdiction of the county court, which was $3,000. The attorney for Richard and Peggy Hunt said that, based on the information obtained by discovery, the counterclaim would be reduced to $4,398. He then pointed out that since there were two parties to the counterclaim, for purposes of jurisdiction, each party would claim one-half of the amount set forth in the counterclaim, and, on that basis, the court could award a total of $6,000 to the Hunts. After objection by plaintiff's counsel, the trial judge informed the attorney for the Hunts that such a division of the claim was not possible, after which the attorney for the Hunts agreed to proceed on the premise that they would “agree to be legally limited to the three thousand” dollars if the jury came back with a verdict for more than $3,000. During the pretrial discussion, the attorney for Newman consented to an order granting the plaintiff possession of the premises, but demanded the right to proceed on the counterclaim for retaliation. The case was tried before a jury which returned a verdict in favor of Newman in the sum of $1,500 plus attorney fees in the sum of $3,600. The jury also returned a verdict in favor of the Hunts in the sum of $1,125 plus attorney fees in the sum of $3,600. The trial judge then ordered each verdict reduced to the sum of $3,000. It is from the verdict of the jury as reduced by the trial judge that plaintiff appeals. The assignments of error are as follows: “I. The trial court erred to the prejudice of plaintiff in overruling its motion for a directed verdict on the issue of retaliation against defendant Newman. “II. The trial court erred to the prejudice of plaintiff in overruling its motion for judgment notwithstanding the verdict on the issue of retaliation against both defendants. “III. The trial court erred to the prejudice of plaintiff in overruling its motion for a new trial. “IV. The trial court erred to the prejudice of plaintiff in allowing, over its objection, the use of affidavits as to time spent on the case by the defendants’ attorneys and the hourly rate of one of them.” Before responding to the plaintiffs assignments of error, we raise sua sponte the question of the jurisdiction of the trial court over the counterclaim of the Hunts. R.C. 1911.011(E) provides, “[i]n any action in a county court in which the amount claimed by any defen *146 dant in any statement of counterclaim exceeds the jurisdictional amount defined in section 1909.04 of the Revised Code, the judge shall certify the proceedings in the case to the court of common pleas.” (Emphasis added.) R.C. 1909.04 reads as follows: “Under the restrictions and limitations of sections 1909.01 to 1909.10 of the Revised Code, judges of county courts have exclusive original jurisdiction in civil actions for the recovery of sums not exceeding five hundred dollars and original jurisdiction in civil actions for the recovery of sums not exceeding three thousand dollars.” Thus, the trial court was without jurisdiction to rule on plaintiff’s motion for a directed verdict or to hear the counterclaim of the Hunts, as the entire action should have been certified to the court of common pleas. Richwood Homes, Inc. v. Brown (1981), 3 Ohio App. 3d 204. Therefore, the judgment in favor of the Hunts is reversed and remanded to the Clermont County Court with instructions to transfer that action to the court of common pleas for determination of all issues in the entire case. We will now turn our attention to the plaintiffs assignments of error as they apply to Newman, whose counterclaim appears on its face to have been within the monetary jurisdiction of the trial court. In response to the plaintiff’s fourth assignment of error, which we perceive to be an objection to the allowance of unreasonable attorney fees as well as an objection to the type of evidence which was presented to the jury in support of the claim of these fees, we find that the attempt of the attorney for Newman to charge the plaintiff the sum of $3,600 in fees raises serious legal and ethical questions. It is disturbing to see the practice of law evolve into a business that penalizes its adversaries. Certainly, no lawyer would expect to do so much work for his client in the defense of an action to evict the client from a mobile home park as to justify a fee of $3,600 for his services. Why, then, should he expect to charge so much when it is the adversary who pays? Is this to be in the form of a penalty? If so, we cannot condone such charges. R.C. 3733.09(B) permits the recovery of “actual damages together with reasonable attorneys fees” for retaliation on the part of a park operator. (Emphasis added.) There is no authority for the recovery of punitive damages. Therefore, there is no authority for the award of attorney fees which are punitive in nature. Instead, the award of attorney fees must be limited to that which the attorney would have charged the client in the absence of a statutory provision for the recovery of attorney fees by the client. Also, the Code of Professional Responsibility does not permit fees that are in the form of a penalty for one’s adversary. Instead, the code provides that fees must be reasonable and should be governed in part by the result obtained. If a fee charged a client must meet these requirements, the fee assessed against the adversary must likewise meet the same test. It has been held that if the recovery is zero, no attorney fees can be awarded even though the statute which gives rise to the action provides for the recovery of reasonable attorney fees. Dyche Real Estate Fund v. Graves (1978), 55 Ohio App. 2d 153 [9 O.O.3d 321]. On that basis we are unable to comprehend any theory upon which a lawyer can justify a fee of $3,600 for obtaining a judgment in the sum of $1,500. We now direct our attention to the question of whether the affidavit of Sherri Slovin, the attorney for Newman, was admissible into evidence for the purpose of establishing the time spent on Newman’s case. 1 *147 We observe that the affiant was available in the courtroom, but chose not to testify. Consequently, there was no cross-examination of counsel as to the •number of hours expended, as to the need for the amount of time alleged to have been devoted to the case, or as to the need for the services of a professional for all of those hours. Thus, the affidavit was clearly hearsay as defined in Evid. R. 801(C), which reads as follows: “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Therefore, the affidavit was not admissible into evidence. Evid. R. 802. Thus, the plaintiff’s fourth assignment of error is well-taken and we sustain the same. In the first assignment of error, plaintiff argues that a tenant, who is in default for nonpayment of rent cannot, after having consented to judgment against him in the forcible entry and de-tainer action, maintain an action based on a counterclaim for retaliation. However, Newman maintains that although retaliation may not be a defense to a forcible entry and detainer action, it nonetheless constitutes a valid counterclaim even though the claimant is in default in the payment of rent. R.C. 1923.061(B), relating to forcible entry and detainer actions, provides that: “* * * In an action for possession of residential premises based upon nonpayment of the rent or in an action for rent when the tenant is in possession, the tenant may counterclaim for any amount he may recover under the rental agreement or under Chapter 3733. or 5321. of the Revised Code.* * *” Consequently, since a house trailer, or mobile home, is the subject of the action, we must examine the provision of R.C. Chapter 3733 in order to determine whether a counterclaim for retaliation can be maintained against the plaintiff under these circumstances. If the claim for retaliation is permitted under R.C. Chapter 3733, a counterclaim for retaliation is proper in an action for forcible entry and detainer under R.C. Chapter 1923. R.C. 3733.09(A) provides, in relevant part, that “[s]ubject to section S73S.091 of the Revised Code, a park operator shall not retaliate against a tenant by * * * bringing * * * an action for possession of the tenant’s premises * * *.” (Emphasis added.) If the park operator violates the prohibition against retaliation, the tenant may recover from the park operator actual damages which were caused by the retaliation. In addition, the tenant may recover reasonable attorneys fees. Although there is a prohibition against retaliatory action by the park operator, the park operator’s right to maintain the forcible entry and de-tainer action is preserved under certain enumerated circumstances. R.C. 3733.091(A) provides, in relevant part, that “[notwithstanding section 3733.09 of the Revised Code [prohibition against retaliation], a park operator may bring an action under Chapter 1923. [forcible entry and de-tainer] of the Revised Code for possession of the premises if: * * * [t]he tenant is in default in the payment of rent; * * (Emphasis added.) Further, and more relevant to our inquiry, division (B) of the same section provides that “[t]he maintenance of an action by the park operator under this section does not prevent the tenant from recovering damages for any violation by the park operator of the rental agreement or of section *148 3733.10 of the Revised Code.” Thus, although section (B) of R.C. 3733.091 ex- ■ pressly allows the defendant-tenant, in response to an action in forcible entry and detainer, to recover damages for the violation by the plaintiff-park operator of any of the obligations imposed upon the park operator by R.C. 3733.10, section (B) does not expressly allow the tenant to recover damages for the park operator’s retaliation in violation of R.C. 3733.09. We find that the General Assembly has failed to make specific provisions for the tenant to maintain an action for damages for retaliation in response to an action for possession based on nonpayment of rent. This failure, coupled with the statutory language which provides that the prohibitions against retaliation are subject to the operator’s right to evict for the tenant’s default in the payment of rent, indicates to us a legislative intent to preclude the tenant’s recovery of damages for retaliation in the park operator’s action for possession, if the tenant is in default in the payment of rent. Consequently, we hold that the trial court erred in failing to direct a verdict in favor of the plaintiff. Therefore, plaintiff’s first assignment of error is sustained. In view of our response to the first ■ assignment of error, we find the second and third assignments of error moot. Since we have determined that the trial court did not have jurisdiction over the action against the Hunts, our response to the cross-appeal is limited to the cross-appeal of Newman. In his first assignment of error on cross-appeal, Newman argues that the trial court erred in reducing the verdict of the jury to the court’s jurisdictional limit of $3,000. Newman contends that attorney fees are in the nature of costs and, therefore, should not be included in determining the jurisdictional limit of the court. We disagree. We concur with the Franklin County Court of Appeals which held in Dyche Real Estate Fund v. Graves, supra, that the award of attorney fees under R.C. 5321.04(B) of the Landlord-Tenant Act, the companion to R.C. 3733.10(B), is “in effect a part of the damages awarded to the tenant for the proving of the landlord’s proscribed acts.” (Emphasis added.) Dyche, supra, at 155. Thus, we hold that the award of attorney fees under R.C. 3733.10(B) is in the nature of damages, not costs, and any verdict consisting of damages and attorney fees must therefore be limited to the monetary jurisdiction of the trial court. Therefore, the first assignment of error in the cross-appeal is • overruled. We note, of course, that in view of our response to the plaintiff’s first assignment of error, this assignment of error is moot, but for the sake of judicial economy feel compelled to respond. In Newman’s second assignment of error on cross-appeal, he asserts that the trial court erred in denying his motion for additional attorney fees. Newman argues that attorney fees accrued for time expended on post-trial motions are also recoverable under R.C. 3733.10(B). Without addressing the specific issue raised, we hold that the assignment of error is not well-taken for the reasons stated in our holding relative to the plaintiff’s fourth assignment of error. Again, Newman has submitted evidence of attorney fees by way of affidavit. This is not permissible. Accordingly, Newman’s second assignment of error on cross-appeal is not well-taken and is overruled. Further, for the reasons given in our response to the first assignment of error, this assignment of error is moot. The assignments of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment herein appealed from be, and the same hereby is, reversed as to Newman, and that final *149 judgment be entered for the plaintiff; and that the judgment appealed from as to the Hunts be reversed and that the cause be remanded to the trial court for certification to the court of common pleas. Judgment reversed and cause remanded. Hendrickson, P.J., and Jones, J., concur. Whiteside, J., dissents. Whiteside, J., of the Tenth Appellate District, sitting by assignment in the Twelfth Appellate District. Footnotes [1] Slovin, the attorney for Newman, in an attempt to establish the basis for her fee, called on Donald White, a member of the Clermont County Bar, as an expert witness. *147 Slovin’s affidavit, showing the time spent on Newman’s case, was introduced into evidence for the purpose of establishing the number of hours Slovin spent in the preparation of Newman’s case. White found the hours reasonable for the type of case and testified as to a reasonable hourly rate.