Summary
In Jemo Assoc., Inc., the court held that counterclaims may be interposed in forcible entry and detainer actions, but did not hold that counterclaims must be interposed in such actions.
Summary of this case from Haney v. RobertsOpinion
No. 81-1444
Decided June 30, 1982.
Landlord and tenant — Forcible entry and detainer — Counterclaim allowable — Allegation of actual damages necessary.
1. A counterclaim may be interposed in any action in forcible entry and detainer, as authorized by Civ. R. 13.
2. In a forcible entry and detainer action, a counterclaim brought by the defendant-tenant under R.C. 5321.02(B) which seeks attorney's fees without alleging actual damages is insufficient as a matter of law.
CERTIFIED by the Court of Appeals for Mercer County.
Plaintiff-landlord, Jemo Associates, Inc., initiated an action in forcible entry and detainer under R.C. Chapter 1923 in the Municipal Court of Celina on October 7, 1980, alleging violations of the lease agreement by defendant-tenant, Tina M. Garman. Counsel for defendant, an attorney with Allen County Blackhoof Area Legal Services, moved to dismiss the complaint under Civ. R. 12(B)(6) for failure to state a claim upon which relief can be granted. The court permitted plaintiff to amend its complaint, and defendant thereafter filed an answer generally denying plaintiff's amended allegations, claiming as an affirmative defense that the eviction constituted retaliatory action on the part of the landlord. Defendant then made the following counterclaim:
Defendant's affirmative defense reads as follows:
"FIRST AFFIRMATIVE DEFENSE
"[R.C.] 5321.02(B)(1)
"1. Plaintiff's cause of action is being brought in retaliation against Defendant because:
"a. Defendant has complained to the Farmers Home Administration in June and July, 1980, of applicable violations of building, housing, health and safety code violations which materially affected health and safety. O.R.C. 5321.02(A)(1).
"b. Defendant has complained to the landlord-Plaintiff, through its agent DEB McINTYRE, of violation of the landlord's obligations under [R.C.] 5321.04.
"c. Defendant joined together with other tenants for the purpose of negotiating and dealing collectively with the landlord over terms and conditions of the rental agreement."
"Defendant's First Affirmative Defense as alleged above is here incorporated as if fully restated.
"WHEREFORE Defendant demands judgment (sic) against the Plaintiff on its action for forcible entry and detainer, and for attorney's fees as provided in [R.C.] 5321.02(B)(3)."
Plaintiff moved to dismiss the counterclaim, and the trial court granted the motion following a hearing on November 10, 1981. It concluded that R.C. 1923.061 only provides a tenant the right to file a counterclaim in an action for possession based on non-payment of rent or in an action for rent, and that Civ. R. 13, governing counterclaims and cross-claims, is inapplicable to actions in forcible entry and detainer by virtue of Civ. R. 1(C)(3).
R.C. 1923.061 provides:
"(A) Any defense in an action under Chapter 1923 of the Revised Code may be asserted at trial.
"(B) 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. In that event the court from time to time may order the tenant to pay into court all or part of the past due rent and rent becoming due during the pendency of the action. After trial and judgment, the party to whom a net judgment is owed shall be paid first from the money paid into court, and any balance shall be satisfied as any other judgment. If no rent remains due after application of this division, judgment shall be entered for the tenant in the action for possession. If the tenant has paid into court an amount greater than that necessary to satisfy a judgment obtained by the landlord, the balance shall be returned by the court to the tenant."
Civ. R. 1(C) provides in relevant part:
"These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * (3) in forcible entry and detainer * * *."
Defendant thereupon brought an original action in the Court of Appeals, unsuccessfully seeking a writ of prohibition to prevent dismissal of the counterclaim. Upon entry of the trial court decision dismissing the counterclaim without trial, defendant appealed to the Court of Appeals. Subsequently, the trial court dismissed the underlying action for possession, defendant having vacated plaintiff's premises.
Although it disagreed with the trial court reasoning that no right to counterclaim existed apart from R.C. 1923.061, the Court of Appeals affirmed the dismissal of the counterclaim. Acknowledging the existence of a right to counterclaim in an eviction action at common law and under the Rules of Civil Procedure, the Court of Appeals nevertheless held that by failing to plead actual damages, defendant could not in any event recover on her counterclaim and was therefore not aggrieved by its dismissal.
The court finding its judgment to be in conflict with the judgment of the Court of Appeals for Cuyahoga County in Lewis v. Romans (1980), 70 Ohio App.2d 7, certified the record of the case to this court for review and final determination.
In Lewis v. Romans, supra, a tenant sued her landlord and obtained judgment for damages under the Landlord-Tenant Act, R.C. Chapter 5321. The Court of Appeals for Cuyahoga County ruled: (1) that the tenant was entitled to an award of attorney's fees, as allowed by R.C. 5321.15(C), even though she was represented by the legal aid society; (2) that attorney's fees were to be taxed as costs and awarded by the trial judge rather than by the jury; and (3) that the attorney's fees award could be made payable directly to the legal aid society.
By certifying the instant appeal to this court as in conflict with Lewis v. Romans, supra, the Court of Appeals raises a question not previously addressed by this court, i.e., whether the Landlord-Tenant Act authorizes the award of attorney's fees to the prevailing tenant represented by an attorney paid with public funds. Since the tenant here has not prevailed, this issue is not ripe for decision. The language in the Court of Appeals opinion addressing the right-to-attorney's-fees question, being mere dictum, has no precedential value. The certification, however, does require this court to hear and "finally determine" the cause, as required by Section 3(B)( 4), Article IV of the Ohio Constitution. See Pincelli v. Ohio Bridge Corp. (1966), 5 Ohio St.2d 41, 44.
Messrs. Meikle, Tesno Luth and Mr. James Tesno, for appellee.
Ms. Sherri L. Katz, Ms. Louise McKinney, Ms. Carolyn L. Carter and Mr. Richard Gurbst, for appellant.
The initial question raised here is whether a counterclaim can be interposed in this action for possession under R.C. Chapter 1923, relating to forcible entry and detainer. The ultimate issue to be decided in this appeal is whether defendant-tenant stated a valid counterclaim when she sought no actual damages, only attorney's fees. We hold that a right to counterclaim did exist, but having failed to plead actual damages in her counterclaim, defendant-tenant did not state an actionable cause.
I.
Plaintiff brought these proceedings in forcible entry and detainer alleging defendant-tenant was holding over her term, having breached several obligations imposed upon her by the written rental agreement. See R.C. 1923.02(A)(1) and (9). As stated in R.C. 1923.061(A), any defense to a forcible entry and detainer action may be asserted at trial, and a counterclaim may be interposed "[i]n 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 * * *." R.C. 1923.061(B).
In this action, not one based upon nonpayment of rent, or seeking back rent, defendant sought to raise a counterclaim. The trial court, considering R.C. 1923.061(B) alone, held her counterclaim inappropriate and dismissed it. In so doing, the trial court failed to consider Civ. R. 13, which grants the right to compulsory and permissive counterclaims against any opposing party. We do not consider that rule by its nature "clearly inapplicable" to procedure in forcible entry and detainer. Nor does R.C. 1923.061(B) by its language bar counterclaims in situations other than actions for rent or based upon nonpayment of rent. Rather, that section merely serves to establish by order of the court "from time to time," a means of payment into the court of all rent, past due and accruing during the pendency of the action, from which any eventual net judgment may be satisfied. The legislative intent underlying R.C. 1923.061 was not to bar counterclaims in actions outside the scope of that section, but to preserve the tenant's right to possession and guarantee the existence of a fund to settle the various claims.
Finally, R.C. 1923.081, enacted in the same bill with R.C. 1923.061, appears to contemplate the possibility of counterclaims in any action in forcible entry and detainer for residential premises. It permits joinder of causes of action for possession, past rent due, damages, and counterclaims raised by defendant, in one trial.
R.C. 1923.081 provides, in relevant part:
"A trial on an action in forcible entry and detainer for residential premises * * * pursuant to Chapter 1923 of the Revised Code may also include a trial on claims of the plaintiff for past due rent and other damages under a rental agreement, unless for good cause shown the court continues the same. * * * If, at the time of the trial, the defendant has filed an answer or counterclaim, the trial may proceed on the claims of the plaintiff and the defendant."
The Court of Appeals correctly concluded that a counterclaim may be raised in any action in forcible entry and detainer, as authorized in Civ. R. 13. Nevertheless, the appellate court affirmed the decision of the trial court in dismissing the counterclaim, holding that defendant's "so-called `counterclaim'" was not one on which defendant could recover.
Whether the particular counterclaim in this case is compulsory under Civ. R. 13(A) or permissive under Civ. R. 13(B) was not briefed by the parties, and the resolution of the question is not necessary to our decision.
II.
The counterclaim held insufficient by the Court of Appeals consisted of a restatement of the affirmative defense of retaliation authorized in R.C. 5321.02. The statement, which substantially paraphrases R.C. 5321.02(A)(1) through (3), included no allegations of health and safety violations, or other breach of the landlord's obligations which could conceivably cause defendant to suffer damages. The defense merely alleged that she had complained of such conditions. Significantly, in response to plaintiff's interrogatories, defendant stated that she would not be presenting evidence on health, safety, or other violations by the landlord at trial. Defendant's affirmative defense therefore reduces to the allegation that the eviction action was instituted after defendant met with other tenants to discuss complaints about conditions and maintenance. The counterclaim alleged no actual damages resulting from the alleged retaliatory action, merely seeking "attorney's fees as provided in [R.C.] 5321.02(B)(3)."
R.C. 5321.02(B) provides:
"If a landlord acts in violation of division (A) of this section [by retaliating against a tenant who complains of conditions or joins with other tenants to negotiate or deal collectively with the landlord] 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." (Emphasis added.)
The language of R.C. 5321.02(B) expressly conditions the award of attorney's fees on a finding that the tenant suffered actual damages. By seeking attorney's fees in her counterclaim without claiming that any actual damages were incurred as the result of the landlord's alleged retaliatory conduct, defendant's pleading failed to satisfy the requirements of Civ. R. 8(A) governing claims for relief. That rule provides:
"A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded." (Emphasis added.)
Defendant's counterclaim set forth no grounds on which relief could be granted. Her failure to allege actual damages precluded judgment in her favor on the claim of retaliatory conduct.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and KRUPANSKY, JJ., concur.