[Cite as Inverness v. Maher, 2015-Ohio-3816.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
INVERNESS GARDENS, LLC,
PLAINTIFF-APPELLEE,
v. CASE NO. 5-15-16
LINDSEY MAHER,
DEFENDANT-APPELLANT,
v. OPINION
ROBERT W. MAURER, ET AL.
DEFENDANTS-APPELLEES.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2011-CV-218
Judgment Affirmed
Date of Decision: September 21, 2015
APPEARANCES:
Patricia F. Lowery for Appellant
Scott T. Coon for Appellee, Inverness Gardens, LLC
Case No. 5-15-16
SHAW, J.
{¶1} Defendant–appellant Lindsey Maher (“Maher”) brings this appeal
from the April 3, 2015, judgment of the Hancock County Common Pleas Court
awarding plaintiff–appellee, Inverness Gardens, LLC (“Inverness”), money
damages for unpaid rent.
{¶2} The facts relevant to this appeal are as follows. Maher began working
for Greenbriar, the parent company of Inverness, in August of 2007. Greenbriar
was characterized as “a management company” that oversaw a number of real
estate properties located all over northwest Ohio. While working for Greenbriar,
Maher collected rent from various rental properties and assisted people in filling
out rental applications.
{¶3} In 2008, Maher became a manager and in March or April of 2009, she
began working as a resident manager for Inverness. Inverness was characterized
as a limited liability company owning an apartment complex in Findlay, Ohio,
which contains approximately 100 rental units. As a resident manager for
Inverness, Maher moved into one of the Inverness apartments at a discounted rate.
She never signed a lease for the apartment, but agreed to a monthly amount in rent
and paid it regularly. In October of 2009, Maher moved to a second, smaller unit
at Inverness and stayed there until September 13, 2010, when she was fired as a
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resident manager. At no time did Maher pay rent for the second unit or have a
written lease.
{¶4} On February 16, 2011, Inverness filed a complaint in the Findlay
Municipal Court, alleging two claims against Maher: breach of her oral lease and
fraud. Inverness sought damages in the amount of $14,900. (Doc. No. 7).
{¶5} On April 12, 2011, Maher filed her answer, which included
counterclaims against Inverness and a cross-complaint1 against two of its owners,
Robert Maurer (“Robert”) and Patricia Maurer (“Patricia”) for failure to pay
minimum wage, wrongful withholding of a paycheck, defamation, and abuse of
process. Maher claimed damages in excess of $25,000. Maher also requested that
she receive attorney’s fees, particularly those related to the wage claims. As the
amount of Maher’s counterclaim exceeded the jurisdictional limit of the Findlay
Municipal Court, the matter was transferred to the Hancock County Common
Pleas Court on April 14, 2011. (Doc. No. 8).
{¶6} On May 2, 2011, Robert and Patricia filed an answer denying Maher’s
claims, and they also filed a motion to dismiss them as parties, arguing that they
could not be personally liable for the actions of Inverness. (Doc. Nos. 15, 16).
1
As we noted when this Court dismissed Maher’s prior appeal for lack of a final appealable order, the Ohio
Rules of Civil Procedure do not have a provision regarding the filing of a cross-complaint. See Inverness
Gardens v. Maher, 3d Dist. Hancock No. 5-13-39, 2014-Ohio-3669, at fn 1. Instead, Maher asserted a
counterclaim against Inverness and joined Robert and Patricia as defendants to the counterclaim under
Civ.R. 13(H). Id. However, as we noted in our prior dismissal, where a party is properly joined to an
action a “mislabeling is of no substantive consequence.” ABN Amro Mtge. Group, Inc. v Arnold, 2d Dist.
Montgomery No. 20530, 2005-Ohio-925, ¶ 20.
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Also on May 2, 2011, Inverness filed its answer denying Maher’s claims and
asserting a number of affirmative defenses. (Doc. No. 17).
{¶7} On August 1, 2011, Maher filed an amended answer, which added a
claim of civil conspiracy and also asserted all of the claims against a new party,
Elizabeth Maurer-Iott (“Elizabeth”) (collectively with Robert and Patricia “the
Maurers”). (Doc. No. 25). Inverness and the Maurers filed their answers to
Maher’s claims on August 23, 2011. (Doc. Nos. 31, 32). The Maurers also filed a
motion to dismiss them as defendants on August 23, 2011. (Doc. No. 33).
{¶8} On September 9, 2011, Maher filed a motion to dismiss the action
against her, including an argument that the fraud claim against her was not plead
with sufficient particularity as required under Civ.R. 9(B). (Doc. No. 36). On
September 22, 2011, the trial court denied Maher’s motion, and found that “fraud
was pleaded with more than enough particularity in this matter * * *.” (Doc No.
38).
{¶9} On September 26, 2011, the trial court denied the Maurers’ motion to
dismiss them as parties. (Doc. No. 39).
{¶10} On October 4, 2011, Maher was deposed. The litigation then
proceeded further through discovery. Numerous discovery motions were filed and
ruled upon by the trial court. The parties also proceeded unsuccessfully through
mediation, and the matter was set for a bench trial.
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{¶11} On the day of the scheduled bench trial, September 9, 2013, Maher
dismissed Patricia and Elizabeth as parties and dismissed her abuse of process and
civil conspiracy claims. (Doc. No. 85). Robert remained a party. (Id.)
{¶12} The case then proceeded to a bench trial. At trial, Inverness called
Maher as its first witness and asked questions relating to both of its claims. Maher
testified that part of her duties as a resident manager for Inverness included
collecting rent and subsequently tracking rental payments on tenant cards and on a
ledger sheet. If people failed to pay their rent, they were left off of the ledger
sheet, which only detailed information regarding payments. Maher was also
required to create a rent roll, detailing whether each apartment was occupied or
vacant. For the occupied apartments, the rent roll contained detailed information
regarding the tenants, including their names as well as the amount of their monthly
rent. Tenants appeared on the rent roll regardless of whether they paid rent for
that month.
{¶13} Maher was asked whether she followed company policies and
whether she collected rent from her friends living at Inverness. She was also
asked whether she filled out tenant cards incorrectly and why she reported some
people as delinquent to Inverness while failing to report others. Maher testified
that she did have friends at the apartment complex and that she did not report
some of these friends as delinquent to Inverness, but could not remember why.
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She also stated that she never accepted cash for rent, and that a tenant, Eric
Sommers, had never paid rent for a townhouse he occupied at the Inverness
property.
{¶14} In addition, Maher testified that she incorrectly included her friend,
Lindsay Bauer, as having made payments on Bauer’s tenant card that Bauer never
actually made. However, Maher testified that the tenant cards were kept in her
office and were never sent to Maher’s superiors and thus the improper entries were
only discovered once the tenant cards were later looked at. The ledger sheets,
which showed who had actually made payments, were sent to Maher’s superiors,
and did not contain similar incorrect payment information for Bauer.
{¶15} As to Inverness’s claim for back-rent, Maher testified that she never
had a written lease with Inverness. Maher testified that the first apartment she
stayed in at Inverness, 934J, she paid rent for at a discounted rate due to her
employment. Maher testified that in late September 2009/early October 2009, she
moved into apartment 934L, a smaller unit across the hall from her prior unit.
Maher was in apartment 934L until the time she was fired, September 13, 2010.
{¶16} Maher testified that she never paid rent on apartment 934L because
she was never told how much to pay for the apartment. Maher further testified
that she did not pay because she did not believe she had to and thought it was part
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of her compensation. Maher indicated, however, that she would have paid if she
was told how much to pay.
{¶17} In addition, Maher was shown the rent roll for a time when she
occupied unit 934L, which had a rent figure of $400 per month written in, which
would have reflected the same discount she received on her prior apartment.
Although Maher was the one who created these rent rolls, she testified that she did
not fill out the $400 per month figure, and she did not know how it had gotten on
the rent roll.
{¶18} Regarding Maher’s claims for Inverness failing to pay minimum
wage and wrongful withholding of a paycheck, Maher testified that she typically
filled out a time sheet and submitted it every Thursday. Maher testified that she
worked eight hours on Friday September 10, 2010, and approximately two hours
on Monday September 13, 2010, before she was fired that morning. Maher
testified that she was never compensated for those ten hours.2 In addition, Maher
also stated that she would regularly drive from Inverness in Findlay to the main
office in Bowling Green to pick up paychecks and drop off documents. Maher
testified that she should have been compensated for that driving time as well,
though she admitted she had never put that time on her time card, and that she was
going to Bowling Green anyway to pick up her paychecks.
2
Maher indicated her hourly rate while working for Inverness was $10.50.
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{¶19} Inverness next called Eric Sommers, who testified that at one point
he had lived with Maher in one of the apartments at Inverness, but eventually they
took separate apartments. Sommers testified that he had given rental payments in
cash to Maher for the townhouse he occupied while at Inverness. He also testified
that he had entered into a payment agreement with Inverness to pay back the rent
that he owed that Inverness had never received.
{¶20} Lindsay Bauer was called as the next witness. She testified that she
was Maher’s friend during the time they both resided at Inverness. Bauer also
testified that she did not pay rent for almost a year while at Inverness, but that
Maher had both notified her of her delinquency and stated that if Bauer did not
pay rent she might be evicted. Bauer stated that “it was my mistake I didn’t pay
my rent.” (Trial Tr. at 166). Bauer also testified, similar to Sommers, that she had
entered into a payment plan with Inverness to pay back the rent she had not
previously paid.
{¶21} Inverness then called Patricia Maurer to the stand. Patricia testified
as to how Maher was hired and trained. Patricia testified that after Maher had
done a good job working with Greenbriar, Maher moved to Inverness to be the
resident manager. Patricia testified that she first noticed problems with Maher’s
management of Inverness in June or July of 2010 when she realized the accounts
for Inverness were low. (Tr. at 174-175). Patricia also testified that when she
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noticed discrepancies in the amount of money that Inverness was generating she
asked Elizabeth Maurer-Iott to investigate.
{¶22} Elizabeth Maurer-Iott then testified, providing greater detail as to the
hiring and training of Maher. She testified that Maher had falsified records and
not followed company procedures for collecting rent. Elizabeth also testified that
while she did not have Maher sign a written lease, she and Maher had specifically
agreed for Maher to pay $400 per month in rent for the 934L apartment, reflecting
the same discount Maher had received on her prior apartment at Inverness.
{¶23} As its last witness, Inverness called Robert Maurer to the stand, who
testified as to company policies and that he “couldn’t understand in [his] own
mind why [Maher] would be giving apartments away to friends or not friends, and
this many apartments.” (Tr. at 245). He also testified that he had sent Maher a
letter asking her to pay her rent or he may contact the prosecutor to investigate. At
the conclusion of Robert’s testimony, Inverness entered its exhibits into evidence
and rested its case.
{¶24} Maher then proceeded to her case-in-chief and first called David
Maurer, another manager of Inverness who also served at one time as Inverness’s
counsel. David was called to the stand to rebut the fraud claims against Maher and
establish that Inverness had never reasonably relied on any of the discrepancies
resulting from Maher’s management.
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{¶25} Maher then took the stand a second time. Maher disputed the
testimony of Eric Sommers, testifying that while she and Sommers had lived
together, he paid her his share of rent in cash but Eric had never paid cash for the
townhouse he resided in on his own after Maher moved out.
{¶26} Maher was also presented with a bill prepared by her attorney
reflecting attorney fees related to this case, specifically regarding the wage claims.
Maher acknowledged that she was paying a “discounted rate” of $175 an hour to
her attorney, and that her attorney stated he had expended the listed hours in
pursuit of Maher’s wage claim. The attorney’s bill was entered into evidence. At
the conclusion of her testimony, Maher rested.
{¶27} The parties then proceeded to closing arguments and the trial court
left the record open for written briefs regarding Maher’s wage claims and the law
related to them. Both parties submitted briefs on September 19, 2013. (Doc. Nos.
89, 90).
{¶28} On October 1, 2013, the trial court filed a 16-page decision on the
matter. After making factual and legal findings, the trial court concluded that
Inverness had proven by a preponderance of the evidence that it was entitled to
rent and damages to the apartment from Maher in the total amount of $5,068.33.
(Doc. No. 91). The trial court also concluded that Maher had proven by a
preponderance of the evidence that she was entitled to wages for hours worked for
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which she was not compensated in the amount of $105.00. Further, the trial court
found that Maher was entitled to additional liquidated damages of $200.00 as a
result of Inverness’s failure to pay Maher’s wages within 30 days, and damages of
$210.00 pursuant to Article II, section 34a of the Ohio Constitution, for a total
award of $515.00. (Id.) However, the court found that Maher had failed to
provide the proper evidence required to establish the amount of her attorney fees
related to the wage claims, and thus was not entitled to recover them. The trial
court found that Maher was entitled to a set-off of $700.00 for two money orders
she had sent to Inverness as part of a failed settlement prior to the trial. Thus the
trial court ultimately determined that Maher owed Inverness a net judgment in the
amount of $3,853.33. (Id.)
{¶29} On October 7, 2013, Maher made a motion for findings of fact and
conclusions of law, which was overruled on October 11, 2013 by the trial court.
(Doc. Nos. 92, 93). In overruling the motion, the trial court stated that it had made
extensive findings of fact and conclusions of law in its decision.
{¶30} On November 21, 2013, a judgment entry was issued purporting to
journalize the findings made in the October 1, 2013 decision into a final judgment.
The November 21, 2013, judgment entry was appealed to this Court in Inverness
Gardens v. Maher, 3d Dist. Hancock No. 5-13-39, 2014-Ohio-3669. This Court
dismissed Maher’s appeal for lack of a final appealable order, finding that the trial
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court’s judgment entry did not dispose of Inverness’s fraud claim against Maher,
or of Maher’s defamation claim against Robert individually. Maher at ¶ 28.
{¶31} After this Court dismissed Maher’s appeal, Maher then filed a
“Motion for Hearing for Attorney Fees Regarding Wage Claims.” (Doc. No. 108).
The motion argued that plaintiff’s counsel had submitted attorney fees up to the
time of trial but additional fees had been incurred throughout the trial and while
briefing the law regarding wage claims. (Id.)
{¶32} Inverness then filed a motion requesting a final judgment based on
the evidence already presented at the trial. (Doc. No. 112). Maher opposed this
motion, arguing that this case did not allow for a nunc pro tunc entry. (Doc. No.
113).
{¶33} On December 19, 2014, the trial court held a hearing to allow the
parties to make final arguments on the outstanding issues that were not finalized in
its prior judgment entry. At that time, Inverness withdrew its Fraud claim against
Maher, leaving the only outstanding issue Maher’s defamation claim against
Robert Maurer individually. The parties made closing arguments on this issue,
based on the evidence presented at trial. After the closing arguments, Maher
attempted to call another attorney to the stand to testify as to attorney fees in this
case related to the wage claim. The trial court determined that Maher could not
call the attorney, stating that Maher already had her opportunity to properly
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present evidence as to attorney’s fees at the trial on this matter, and that Maher had
failed to do so. The trial court stated that the determination on the outstanding
issues did not allow Maher to reopen other issues that had already been decided.
{¶34} The trial court did allow Maher to proffer the testimony of Mark
Owen, a litigation attorney on the reasonableness and necessity of the fees
regarding the wage claim. At the conclusion of the hearing, the trial court stated
that it would leave the record open for the parties to file briefs on the issue of
whether the attorney’s fees must be addressed.
{¶35} On January 15, 2015, Maher filed a “Brief in Support of Lack of
Final Judgment” arguing that the attorney’s fee issue was not res judicata as this
Court never took jurisdiction. (Doc. No. 116). On January 16, 2015, Inverness
filed a response. (Doc. No. 117).
{¶36} On January 26, 2015, the trial court filed a decision addressing the
issues that had not been addressed in its prior entry, which had been appealed and
dismissed. The trial court determined that Inverness voluntarily dismissed its
fraud claim and that in any event Inverness failed to prove any damages associated
with the fraud claim and thus was not entitled to judgment. (Doc. No. 119). The
trial court then addressed Maher’s outstanding defamation claim against Robert
Maurer individually and determined that Maher failed to prove her claim. (Id.)
Next, the trial court addressed Maher’s attorney fee arguments and found that
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Maher had failed to establish at trial the “lodestar”3 number required under Bittner
v. Tri-Cty. Toyota, Inc., 58 Ohio St.3d 143, 146 (1991). The trial court thus found
that there was no credible testimony about the reasonableness and necessity of the
fees incurred and that counsel could not later attempt to reopen that issue to
correct its prior failings. (Id.)
{¶37} On April 3, 2015, the trial court issued a final judgment entry
memorializing its findings from its original entry that this Court determined was
not final, and its findings in its January 26, 2015 decision, which disposed of the
remaining claims. (Doc. No. 122). It is from this judgment that Maher appeals,
asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED IN DETERMINING THAT THE
JUDGMENT ENTRY FILED NOVEMBER 21, 2013, WHICH
WAS NOT FINAL AS TO ALL PARTIES, WAS FINAL AS TO
SOME OF THE PARTIES AND CLAIMS AND, THEREFORE,
RES JUDICATA ATTACHED TO THOSE CLAIMS.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED IN DETERMINING THAT
APPELLANT MAHER HAD NOT PRESENTED EVIDENCE
OF WAGE CLAIM-BASED ATTORNEY FEES, DURING
THE TRIAL, DESPITE THE UNCHALLENGED
TESTIMONY OF THE EMPLOYEE AS TO THE
DELINEATED ATTORNEY FEE BILL FOR THE WAGE
3
“Lodestar” has been defined as, “[a] reasonable amount of attorney’s fees in a given case, [usually]
calculated by multiplying a reasonable number of hours worked by the prevailing hourly rate in the
community for similar work, and often considering such additional factors as the degree of skill and
difficulty involved in the case, the degree of its urgency, its novelty, and the like.” Black’s Law Dictionary,
10th Ed.2014); see also Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546
106 S.Ct. 3088 (1986).
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CLAIM FEES, WHICH FEE BILL WAS ADMITTED AS
EVIDENCE WITHOUT OBJECTION AND WITH NO
FINDING THAT THE NUMBER OF HOURS AND/OR
HOURLY RATE WAS UNREASONABLE.
ASSIGNMENT OF ERROR 3
THE TRIAL COURT ERRED IN DENYING APPELLANT-
EMPLOYEE’S OCTOBER 2014 MOTION FOR ATTORNEY
FEES WHEN THE MOTION WAS MADE AFTER TRIAL
AND BEFORE THE EXISTENCE OF A FINAL
APPEALABLE ORDER, BASED UPON THE ASSERTION OF
RES JUDICATA, BECAUSE APPELLANT HAD FILED AN
INTERIM APPEAL, WHICH WAS DISMISSED FOR LACK
OF A FINAL APPEALABLE ORDER.
ASSIGNMENT OF ERROR 4
THE TRIAL COURT ERRED IN FAILING TO FIND
APPELLANT MAHER PRESENTED SUFFICIENT
EVIDENCE TO ESTABLISH ADDITIONAL
UNCOMPENSATED HOURS WORKED WHERE APPELLEE
KNEW OR SHOULD HAVE KNOWN OF THE HOURS
APPELLANT MAHER WAS WORKING IN ADDITION TO
THOSE PAID.
ASSIGNMENT OF ERROR 5
THE TRIAL COURT ERRED IN OFFSETTING ANY
JUDGMENT OWED TO APPELLEE-PLAINTIFFS WITH
THE WAGES AND PENALTIES OWED FROM APPELLEE-
PLAINTIFFS TO APPELLANT-DEFENDANT, RATHER
THAN ORDERING THE PAYMENT OF SAME WITHIN
THIRTY (30) DAYS OF THE JUDGMENT ENTRY.
ASSIGNMENT OF ERROR 6
THE TRIAL COURT ERRED IN FINDING SUFFICIENT
EVIDENCE TO IMPLY A CONTRACT BETWEEN
APPELLANT MAHER AND APPELLEE INVERNESS
GARDENS WHERE NO EVIDENCE OF DURATION OR
OTHER ESSENTIAL TERMS WAS PRESENTED.
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ASSIGNMENT OF ERROR 7
THE TRIAL COURT ERRED IN FINDING AN ORAL LEASE
BETWEEN APPELLEE AND APPELLANT AND FAILING
TO ALSO FIND THAT ANY SUCH ORAL AGREEMENT
VIOLATED THE STATUTE OF FRAUDS.
ASSIGNMENT OF ERROR 8
THE TRIAL COURT ERRED IN AWARDING DAMAGES TO
INVERNESS ON A CONTRACT THEORY OF RECOVERY
UNDER AN ORAL LEASE, BEYOND A THIRTY (30) DAY
TENANCY AND THIRTY (30) DAY NOTICE PERIOD,
WHERE THERE IS NO EVIDENCE OF AN AGREEMENT
AS TO THE DURATION OF SAID CONTRACT.
ASSIGNMENT OF ERROR 9
THE TRIAL COURT ERRED IN FAILING TO FIND THAT
APPELLEE INVERNESS GARDENS FAILED TO MITIGATE
THEIR DAMAGES WHERE APPELLANT NEVER MADE
ANY RENTAL PAYMENTS TO INVERNESS AND
APPELLEE INVERNESS WAS IN POSSESSION OF THE
RECORDS DEMONSTRATING APPELLANT’S FAILURE
TO PAY ANY RENTAL PAYMENTS.
ASSIGNMENT OF ERROR 10
THE TRIAL COURT ERRONEOUSLY LIMITED THE
CROSS-EXAMINATION OF INVERNESS MEMBER, DAVID
MAURER BY PREVENTING MAHER FROM
THOROUGHLY CROSS-EXAMINING DAVID MAURER;
INCLUDING ABOUT REPRESENTATIONS MADE TO
OTHER COURTS THAT LEASES EXIST, WHICH DID NOT.
ASSIGNMENT OF ERROR 11
THE TRIAL COURT ERRED IN FAILING TO ORDER
APPELLEE INVERNESS GARDENS LLC AND ROBERT
MAURER TO PAY APPELLANT LINDSEY MAHER’S
COURT COSTS WHERE MAHER’S COSTS WERE
INCURRED IN PURSUIT OF HER WAGE CLAIM.
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{¶38} We elect to address some of the assignments of error together, and
out of the order in which they were raised.
Sixth, Seventh, and Eighth Assignments of Error
{¶39} In Maher’s sixth, seventh, and eighth assignments of error she makes
various arguments contending that the trial court erred in finding that an oral
contract for a month-to-month tenancy existed for Maher’s apartment at Inverness
and awarding Inverness back rent for the months Maher did not pay. Specifically,
in Maher’s sixth assignment of error she argues that there was not sufficient
evidence to support an implied contract between Maher and Inverness. In Maher’s
seventh assignment of error, she argues that any such oral lease would violate the
statute of frauds. In Maher’s eighth assignment of error she argues that the lack of
duration of the lease should limit the amount of recovery.
{¶40} At the outset, we note that sufficiency of the evidence “ ‘is a test of
adequacy.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 11,
quoting State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “ ‘Whether the
evidence is legally sufficient to sustain a verdict is a question of law.’ ” Id.
{¶41} In this case, regarding her apartments at Inverness, Maher testified
that she stayed in apartment 934J until the end of September 2009. At that time,
Maher testified that she was residing with an acquaintance, Eric Sommers. Maher
testified that she was paying rent for apartment 934J while she was the resident
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manager at inverness in the amount of $450.00 per month, which was a discounted
rate due to her employment. Maher was confronted with her tenant ledger, which
showed she had been paying rent in the amount of $450.00 for apartment 934J, but
it also showed she had missed a payment in August of 2009. (Plaintiff’s Ex. 18).
Maher testified it was possible she missed a payment while at that apartment.
{¶42} Maher testified that at the end of September 2009/beginning of
October 2009 she moved across the hall to a smaller apartment, 934L, and that she
stayed in that apartment until moving out the day she was fired, September 13,
2010. Maher testified that she never signed a lease for her apartment, that she
never had an oral agreement to lease the apartment, and that she was never told
how much she was supposed to pay so she felt it was part of her compensation
even though her job stayed the same and she was still residing at Inverness.
Maher testified that she would have paid if she had been told what to pay.
{¶43} To contradict Maher’s testimony that there was never an agreement
for Maher to reside in apartment 934L, Inverness entered into evidence two rent
rolls, the first dated January 8, 2010, which showed Maher in apartment 934L on a
“mo-mo” tenancy at the rate of $400. (Plaintiff’s Ex. 7). The second rent roll
entered into evidence was dated May 17, 2010, and contained the same
information. (Plaintiff’s Ex. 8). Maher testified that it was her sole responsibility
to create the rent rolls. When asked why there was a figure of $400 and a month-
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to-month tenancy listed if there had never been an agreement, Maher testified that
she did not know and that she had not put the $400 figure in the rent roll.
{¶44} Moreover, Elizabeth Maurer-Iott, Maher’s supervisor who worked
from the Bowling Green office, specifically testified that she and Maher had orally
agreed to a month-to-month tenancy at the rate of $400 per month, which reflected
the same discount Maher had previously received at her last apartment. (Tr. at
194).
{¶45} On appeal, Maher contends that the preceding testimony and exhibits
did not constitute sufficient evidence to establish an oral contract for a month-to-
month tenancy. In its original decision on the matter where the trial court
analyzed the evidence presented, the trial court conducted the following analysis
on this issue.
The evidence provides that Maher stayed in Unit J with Eric
Sommers, an acquaintance until late September 2009, at which
point she moved across the hall to Unit L. According to the
Tenant Ledger for Unit 934 J, Maher made a pro-rated rental
payment in March 2009 of $246.67 and monthly payments of
$450.00 in April, May, June, July, and September, 2009.
(Plaintiff’s Exhibit 18). The evidence clearly indicates that
Maher did not make a payment in August 2009. Maher does not
dispute that she had an obligation to pay rent for that unit
should the Court find that an amount is owed. Maher further
conceded that it is possible she missed a payment. Therefore the
Court finds that Maher owes $450.00 due to Inverness Gardens
for Unit 934 J for the month of August, 2009.
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* * * [The trial court then analyzes whether Maher owes a late
fee and finds that there was no written lease to establish a late
fee provision].
[The trial court analyzes whether Maher owes rent for
apartment 934J for October and November of 2009 and finds
that she did not as Inverness knew she had moved across the hall
and had given her permission to do so]. * * *
Maher alleges that she has no obligation to pay rent for her term
of October 2009 to September 2010 because there was no
meeting of the minds regarding essential lease terms.
According to Plaintiff’s Exhibit 6, a rent roll dated July 8, 2009,
Maher was occupying Unit 934 J with Eric Sommers on a
month-to-month tenancy at the rate of $450.00 a month. There
is no dispute this rate was discounted due to her employment at
Inverness. The rate of Unit 934 J was $500.00 on a rent roll
dated January 1, 2010 (after Maher moved out) and $525.00 on
May 17, 2010. (Plaintiff’s Exhibits 7-8). Plaintiff’s Exhibit 6
shows the rent of Unit 934 L as $475.00 on July 8, 2009. On
January 1, 2010, the rent roll was updated to show Maher
residing in Unit 934 L at a rent of $400.00. It was the duty of
Maher to create the rent rolls and submit them to the home
office in Bowling Green, Ohio.
Beth Iott, Maher’s direct supervisor, confirmed that the parties
had agreed upon a discounted monthly rent obligation of
$400.00. It is clear from the testimony that Maher had paid rent
previously and even admitted that she had an expectation to owe
rent for Unit 934 L. It is disingenuous for Maher to assert that
she need not pay rent for the unit due to her employment with
Inverness based upon their prior arrangement. Moreover, the
fact that Maher was the only one would could have entered this
amount into the computer, which happens to be an identical
discount to that applied to her previous unit, is compelling
evidence that the parties had agreed to a price of $400.00 per
month for Unit 934 L.
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As a result, the Court finds that Maher owed $400.00 per month
for her occupation of Unit L which she failed to pay for the
months of October, November, and December 2009, and for
January, February, March, April, May, June, July, August, and
thirteen days of September 2010. Therefore Plaintiff is entitled
to damages in the amount of $4,573.33 as back rent due for Unit
934 L from October 2009 to September 13, 2010. * * *
(Doc. No. 91).
{¶46} The trial court conducted a thorough analysis of the evidence and
testimony presented, and we cannot find that the trial court erred in determining
that sufficient evidence was presented to establish an oral contract for a month-to-
month tenancy. The trial court’s decision was supported by competent credible
evidence, therefore, Maher’s sixth assignment of error contending that sufficient
evidence was not presented is overruled.
{¶47} Maher next claims in her seventh assignment of error that if this
Court determines an oral lease did exist, any oral lease executed with Inverness
would violate the statute of frauds. Maher specifically argues that even if an oral
lease is found, there is no evidence of duration.
{¶48} Ohio’s statute of frauds requires that leases be put into writing. R.C.
§ 1335.04. “However, ‘if an agreement may be terminated or completed within a
year upon the happening of some contingency, it is not covered by the Statute of
Frauds.’ ” Hastings v. J.E. Scott Corp., 2d Dist. Miami No. 22296, 2004-Ohio-
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1821, ¶ 16, quoting Ford v.. Tandy Transp., Inc., 86 Ohio App.3d 364, 382 (4th
Dist.1993).
{¶49} In this case, the rent rolls for January and May of 2010 listed
Maher’s tenancy as “mo-mo” under the lease expiration heading. Only one other
lease on those rent rolls contained the same “mo-mo” designation, whereas all of
the other leases (in excess of 80), contained a specified date the lease would end.
In Hastings v. J.E. Scott Corp., 2d Dist. Miami No. 22296, 2004-Ohio-1821, the
Second District Court of Appeals determined that where an oral lease is for a
month-to-month tenancy the lease could be completed within a year and therefore
was not covered by the statute of frauds. Hastings at ¶ 16. The same analysis
applies here, and Maher’s argument that no duration was specified is not well-
taken. Therefore, Maher’s seventh assignment of error is overruled.
{¶50} Maher next argues in her eighth assignment of error that the trial
court erred by awarding Inverness back rent when there was no “agreed duration
or term.” Specifically, Maher contends that “the extent of contract could have
only been two (2) months; that being the first month, or month of residency and
the notice period of one month.” (Appt.’s Br. at 18). Notably, Maher cites no law
to support this contention and we have previously determined that the trial court
did not err in determining that Maher had agreed to a month-to-month tenancy at
the rate of $400. Therefore we cannot find that the trial court erred by determining
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that Maher was liable for more than two months of rent. Accordingly, Maher’s
eighth assignment of error is overruled.
Ninth Assignment of Error
{¶51} In Maher’s ninth assignment of error she argues that the trial court
erred by failing to find that Inverness did not mitigate its damages. Specifically,
Maher argues that it was Inverness’s own fault that it did not find out Maher had
not paid rent for apartment 934L, that Inverness should have discovered it earlier
and thus mitigated its damages by catching Maher’s delinquency and having her
move out or pay rent earlier.
{¶52} Maher moved into apartment 934L in October of 2009 and resided
there until September 13, 2013, when her employment was terminated. Maher
testified she moved out the same day she was terminated. Patricia Maurer testified
that she first learned of an issue with Maher’s management of Inverness in June or
July of 2010 when she realized Inverness’s accounts were lower than she expected
them to be. Patricia asked her daughter Elizabeth Maurer-Iott, Maher’s direct
supervisor, to look into the issue.
{¶53} Elizabeth Maurer-Iott testified that when she looked into the matter
by checking the information Maher had been sending to the Bowling Green office,
she noticed that several people had not paid rent, so she asked Maher to prepare a
“delinquency report” to show who was behind on their rent. Maher did, and the
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delinquency report did not include Maher. Others were also left off of the
delinquency report who were not paying their rent. Elizabeth Maurer-Iott testified
that when the discrepancies were found, she went down and talked to Maher about
the inaccuracies and ultimately terminated Maher’s employment.
{¶54} Maher now suggests that she should not be liable for her back rent
because the discrepancies should have been caught earlier by her supervisors.
While closer supervision may have revealed the issues earlier, the Maurers all
testified that they trusted Maher to be able to do her job, as she had been working
for them for a while before Maher was made a resident manager at Inverness. It
was also Maher’s responsibility to notify her superiors of delinquencies. Once the
Maurers learned of the discrepancies that resulted from Maher’s management,
they promptly investigated the issue. There is no indication that Inverness delayed
learning of Maher’s discrepancies and thus directly failed to mitigate its damages.
Thus we cannot find that the trial court erred in failing to find that Inverness did
not mitigate its damages. Therefore, Maher’s ninth assignment of error is
overruled.
Fourth Assignment of Error
{¶55} In Maher’s fourth assignment of error, she argues that the trial court
erred by determining that Maher did not present sufficient evidence to establish
additional uncompensated hours for her wage claims. Specifically, Maher
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contends that she presented sufficient evidence that she had driven from Findlay to
Bowling Green to drop off paperwork and pick up her paycheck, and she should
have been compensated for that time.
{¶56} At trial, Maher testified on direct-examination as follows regarding
her purportedly additional uncompensated travel time.
Q: Were there other hours you weren’t paid for?
A: Yes.
Q: When?
A: If when I would travel to the Bowling Green office I would
stop my time at 5, not driving time, to drop off stuff for – if we
were there – depending how long I was there.
Q: What were you going to the Bowling Green office to do?
A: To pick up paycheck [sic] and to drop off whether it was a
full sheet or sometimes applications, apartment checks out –
apartment check out files. The camera if there was any pictures.
Q: Okay.
A: Receipts.
Q: So approximately what’s the drive time?
A: Half hour.
Q: Round trip or just there?
A: Just one way.
Q: So there and back was an hour?
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A: Correct.
Q: And how often did you do that?
A: I’m not going to say every Friday, but the majority of
Fridays.
Q: From what date?
A: From when I started working.
***
Q: When was that?
A: I believe April of 2008.
Q: All the way up until?
A: September.
(Tr. at 98-99).
{¶57} Elizabeth Mauerer-Iott confirmed that Maher would regularly come
to the Bowling Green office on Fridays to pick up her paycheck. (Tr. at 193).
Maher contends that this testimony established that she had worked 104 hours
(one trip per week for two years) that were unpaid by Inverness. However, Maher
also testified on cross-examination as follows.
Q: Okay. You also testified during your direct and cross
examination that you had to write down your hours so they
would know how much to pay you?
A: Correct.
Q: Did you write down your drive hours?
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A: No.
Q: Is it fair to say you needed to drive up there anyway to pick
up your paycheck?
A: Yeah. Because how else was I going to get it.
(Tr. at 134).
{¶58} When analyzing the evidence on this issue, the trial court made the
following determination.
* * * Defendant has also claimed that she is entitled to
compensation for at least one hour per week for travel to the
Bowling Green office to pick up paychecks for herself and for
other Inverness employees under the same theory. While it is
possible that this time was compensable, Maher has failed to
show by a preponderance of the evidence the amount of hours
worked based upon the following: (1) Maher failed to show with
sufficient specificity the frequency of trips to the Bowling Green
office; (2) Maher failed to prove that the trips were made outside
of her normal working hours (for which she was compensated);
and (3) Maher never raised this issue during the course of her
employment. All of these reasons cast serious doubts on her
credibility.
The Court, therefore, finds that Maher has failed to establish by
a preponderance of the evidence that she is entitled to
compensation for her purported repeated driving time to the
Bowling Green office.
(Doc. No. 91).
{¶59} After reviewing the evidence submitted, and given the trial court’s
credibility determination, we cannot find that the trial court erred in determining
that sufficient evidence was not presented to find that Maher “worked” the
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uncompensated hours. Maher testified that she never put her travel time on her
time card, it is not clear that she did the driving after work hours, and it is not clear
how often Maher was taking documents up to the Bowling Green office rather
than just picking up her paycheck—or if it was even necessary to drive documents
to Bowling Green rather than fax/e-mail them, which Elizabeth Maurer-Iott
testified was a normal means of communication. For all of these reasons we
cannot find that the trial court erred in determining that sufficient evidence was
not presented to establish this portion of Maher’s wage claims. Accordingly,
Maher’s fourth assignment of error is overruled.
First, Second, and Third Assignments of Error
{¶60} In Maher’s first, second, and third assignments of error she makes
various arguments contending that the trial court erred by denying her request for
attorney’s fees related to her wage claims. Specifically, Maher argues that the trial
court improperly found that her arguments were barred by res judicata, and that
the unchallenged attorney fee bill presented to Maher while she was on the witness
stand was sufficient to establish attorney fees related to the wage claims.
{¶61} “Before awarding attorney fees, a trial court must determine the
reasonableness of the time spent on the matter and the reasonableness of the
hourly rate.” Hubbard v. Hubbard, 3d Dist. Defiance No. 4–08–37, 2009–Ohio-
2194, ¶ 12, citing Bagnola v. Bagnola, 5th Dist. Stark No.2004CA00151, 2004–
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Ohio–7286. Evidence must be presented that the hours expended on the case by
the attorney were necessary and that the rates are comparable to those in the
community for similar services by attorneys of a similar level of skill.
United Assn. of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industr
y v. Jack's Heating, AirConditioning & Plumbing, Inc., 3d Dist. Hardin No. 6–12–
06, 2013–Ohio–144, ¶ 20. The party requesting attorney fees carries the burden of
proof to show that the request was reasonable. Id. at ¶ 22. Trial courts should not
speculate as to whether the hours were necessary or that the fee itself is
reasonable. Id. at ¶¶ 28, 31.
{¶62} We review a trial court’s decision on whether to award attorney’s
fees under an abuse of discretion standard. United Assn. of Journeymen &
Apprentices of the Plumbing & Pipe Fitting Industry v. Jack's Heating, Air
Conditioning & Plumbing, Inc., 3d Dist. Hardin No. 6-12-06, 2013-Ohio-144, ¶
15. A trial court will be found to have abused its discretion when its decision is
contrary to law, unreasonable, not supported by the evidence, or grossly unsound.
Id. citing State v. Boles, 2d Dist. No. 23037, 2010–Ohio–278, ¶ 17–18, citing
Black's Law Dictionary 11 (8th Ed.2004). Under the abuse of discretion standard,
a reviewing court may not simply substitute its judgment for that of the trial court.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). In applying abuse of
discretion review to attorney fee awards, we only reverse a trial court's order upon
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a showing that “the amount of fees [awarded] is so high or so low as to shock the
conscience.” White v. Lima Auto Mall, Inc., 3d Dist. Allen No. 1–08–63, 2009–
Ohio–411, ¶ 15.
{¶63} In this case Maher requested attorney’s fees related to her wage
claims in her counterclaim. Maher asserts that pursuant to the Ohio Constitution
Article II section 34a, attorney’s fees are awarded to a claimant who has prevailed
on a wage claim.
{¶64} In order to attempt to establish her attorney’s fees at trial, Maher’s
counsel presented Maher with a bill while Maher was on the witness stand. The
bill, Exhibit P, was for fees related to the wage claims at a charged rate of “175 an
hour,” which Maher testified represented a discounted rate because of a family
relationship with her attorney. (Tr. at 304-305). Exhibit P stated that 12.3 hours
had been worked on the wage claims at the rate of $175 an hour, and that $345 in
fees had been incurred for a total amount of $2,497.50. Exhibit P was entered into
evidence without objection.
{¶65} Based on this evidence as to attorney’s fees presented at trial, the
trial court made the following determination in its decision on the matter after
citing the applicable law.
Defendant did not seek a [separate] hearing on the issue of
attorney fees and did not file a motion to bifurcate the
proceedings. As a result, the Court is left to determine
Defendant’s attorney fees solely from the evidence adduced at
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the court trial. At trial Defendant’s attorney presented a bill of
$2,497.50 and Defendant testified that she owed this amount to
her attorney for defense of Plaintiff’s claims and for prosecution
of Defendant’s counterclaims. The Defendant has not
satisfactorily proven a lodestar number under the Bittner
analysis and the Court therefore cannot award attorney fees.
The Third District has held that submission of an itemized bill is
insufficient evidence to carry the burden of proof set forth in
Bittner. Id. (citations omitted). There was no testimony as to the
reasonableness of this amount, an affidavit submitted by
Defendant’s counsel as to the reasonableness of the rate charged
and the hours worked, or testimony from an independent
attorney regarding the difficulty of the litigation or the
reasonableness of the fee charged. There is also no testimony
which would allow the Court to apportion the bill of attorney
fees into an amount used for prosecution of Defendant’s wage
claims. Such testimony is necessary given the multiple issues
presented in this case.
Absent this essential testimony the Court is left to speculate
as to a reasonable amount of time necessary to prosecute this
action. As a result the Court must deny Defendant her attorney
fees in this matter since she has failed to carry the burden under
Bittner to show that these fees were reasonable.
(Doc. No. 91).
{¶66} After the court’s decision was attempted to be memorialized in a
final judgment, Maher appealed. This Court dismissed that appeal for lack of a
final appealable order based on other outstanding issues. Following the dismissal,
Maher filed a “Motion for Hearing for Attorney Fees Regarding Wage Claims.”
(Doc. No. 108). In the motion, Maher requested a hearing to establish additional
fees that had been incurred during the trial and while briefing legal issues related
to wage claims. (Id.)
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{¶67} On December 19, 2014, the trial court held a hearing to allow the
parties to give closing arguments on the issues that this Court had said remained
unresolved in the trial court’s prior judgment entry. After the parties gave closing
arguments as to those issues, Maher attempted to call an attorney to present
evidence as to attorney’s fees that had been incurred in this case, and to testify that
such fees were reasonable and necessary. The trial court did not allow Maher to
present this testimony, determining that Maher had already been given an
opportunity to properly establish attorney’s fees at trial and failed to do so. Maher
argued that since the prior judgment had been determined by this Court not to be
final she should be able to supplement the evidence that had been submitted
regarding attorney’s fees. Further, Maher argued that the attorney’s bill that was
entered into evidence through Maher’s testimony at trial was not objected to and
thus was effectively stipulated to be reasonable and necessary.
{¶68} Although the trial court disagreed with Maher and denied her the
opportunity to present evidence, Maher did proffer the testimony of Mark Owen,
an attorney specializing in litigation. Owen testified that he reviewed this case and
the bills associated with it. Owen testified that the bills he had been shown
appeared reasonable and necessary.
{¶69} The trial court subsequently issued a decision addressing the issues it
failed to address in its prior entry and addressing Maher’s claims that had been
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made regarding attorney’s fees since the original non-final judgment. In the
decision, the trial court reiterated that Maher failed to establish the reasonableness
and necessity of fees at trial, and that Maher improperly attempted to substantiate
her attorney’s fees through her bill alone. (Doc. No. 119). The trial court also
stated Maher had not requested a bifurcation of proceedings prior to the trial and
had not made any request until after the appeal was dismissed for lack of a final
appealable order for fees relating to the trial and post-trial work. (Id.) The trial
court also found that res judicata was applicable to Maher’s attorney’s fee claims.
{¶70} Maher contends on appeal that her claims for attorney’s fees were
not barred by res judicata because no final judgment had been issued when she
made her post-trial request, and that the trial court erred in finding that Maher had
not presented sufficient evidence to support her wage claims given that her exhibit
related to attorney’s fees at trial was not objected to.
{¶71} On our own review, while we would note that perhaps the trial
court’s use of “res judicata” was improper as no final judgment had been issued, it
would seem that what the trial court was really suggesting was that it would not
reconsider its prior ruling on the issue of attorney’s fees when Maher already had
her attempt at trial to litigate the attorney’s fees claims. Nevertheless, the trial
court did rule on Maher’s original request for attorney’s fees, finding that Maher
had failed to establish that her fees were reasonable and necessary, and the trial
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court reiterated the same analysis as an independent basis to deny Maher’s claims
for attorney’s fees in its final decision. The trial court’s analysis on this issue in
both its earlier decision and in its final decision is consistent with this Court’s
prior case law.
{¶72} This Court has previously addressed the issue of what is required to
establish attorney’s fees in United Assn. of Journeymen & Apprentices of the
Plumbing & Pipe Fitting Industry v. Jack's Heating, Air Conditioning &
Plumbing, Inc., 3d Dist. Hardin No. 6-12-06, 2013-Ohio-144. In that case, we
recognized “that merely submitting an attorney’s itemized bill is insufficient to
establish the reasonableness of the amount of work billed.” Jack’s Heating at ¶
24, citing Whitaker v. Kear, 123 Ohio App.3d 413, 424, 704 N.E.2d 317 (4th
Dist.1997).
{¶73} In this case, all that was presented to establish attorney’s fees at trial
was Maher’s attorney’s bill. Maher contends that since the bill was not objected
to, opposing counsel essentially stipulated that the fees were reasonable and
necessary. However, stipulating to the admissibility of a document is not akin to
stipulating to its truth. Similarly, stipulating to the admissibility of an attorney’s
fee bill would not allow the document to self-authenticate the reasonableness and
necessity of the fees, which requires the testimony of someone with the
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appropriate expertise. Thus as Maher did not present this testimony, we cannot
find that the trial court erred in denying Maher’s requests for attorney’s fees.
{¶74} Similarly we cannot find that the trial court erred in denying the
supplemental fees requested by Maher after this Court’s dismissal, or that the trial
court erred in denying Maher a second opportunity to try and establish what she
did not establish in the actual trial itself. The trial court was not presented with
newly discovered evidence that would warrant reconsideration of its prior ruling.
Rather, the trial court was asked to allow additional evidence when Maher had the
opportunity to present the evidence previously. Therefore, we cannot find that the
trial court erred on this issue either.
{¶75} While res judicata was perhaps not an appropriate vehicle for the
trial court to use as one basis to deny attorney’s fees in this case, the trial court did
not solely rely on res judicata to deny Maher’s requests for attorney’s fees as she
suggests. And as Maher failed to establish her attorney’s fees at trial, we cannot
find that the trial court erred. Therefore Maher’s first, second, and third
assignments of error are overruled as the trial court had a valid independent basis
to deny Maher’s request for attorney’s fees.
Tenth Assignment of Error
{¶76} In Maher’s tenth assignment of error, she argues that the trial court
erred by limiting her cross-examination of David Maurer. Specifically, Maher
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argues that in limiting David Maurer’s cross-examination Maher was unable to
establish potential bias and otherwise impeach and contradict the credibility of
their claims regarding Maher’s oral lease.
{¶77} In deciding whether a court erred in admitting or excluding evidence,
we review a trial court’s decision under an abuse of discretion standard. Ayers v.
Ishler, 5th Dist. Delaware No. 11 CAE 01 0001, 2011-Ohio-4272, ¶ 23 (“The
admission or exclusion of evidence is left to the sound discretion of the trial
court.”)
{¶78} In her case-in-chief, Maher called David Maurer to the stand, who
was another manager for Inverness and had not been called by Inverness. David
testified to a number of people who were left off of Maher’s rent rolls who
Inverness had reached an agreement with to pay back rent. David’s testimony was
used in part to establish the lack of damages from Inverness’s fraud claim.
{¶79} While David was on the stand, the following exchange occurred as
Maher’s counsel asked David about his written leases.
[MAHER’S COUNSEL]: In response to a motion to dismiss
filed in this case, you filed a response that said that the Plaintiff
as your client, Inverness Gardens, had no written instruments
relating to Candace Watson, David Barnes, Lindsey Bauer, Eric
Sommers. But there are written leases for – an actual written
lease for David Barnes. Why did you file a response that said
there were no written instruments?
[PLAINTIFF’S COUNSEL]: Objection, Your Honor. This is
an extraneous matter.
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THE COURT: Correct. This would be a matter for sanctions.
Sustained.
[MAHER’S COUNSEL]: Your Honor, it goes to credibility.
THE COURT: No it doesn’t. I just ruled, so move on.
[MAHER’S COUNSEL]: That’s all, Your Honor.
(Tr. at 297-298).
{¶80} On appeal Maher argues that the trial court excluding David from
answering the preceding question so prejudiced her as to require a new trial. She
contends that undermining David’s credibility would have undermined the
purported oral lease with Maher.
{¶81} Despite Maher’s arguments, the evidence presented as to Maher’s
oral lease was from Maher and Elizabeth Maurer-Iott. This testimony was
supplemented by Maher’s rent rolls, which she created herself. This Court fails to
see how impeaching David’s credibility as a manager of Inverness impacts the
other evidence presented on that issue.
{¶82} Nevertheless, we also fail to see how the question was relevant to the
actual claims the trial court was presented with, or how David’s actions as
representative counsel undermine the claims specifically. Notwithstanding these
points, there is absolutely no indication that any answer David would have given
would have altered the trial in such a manner as to warrant Maher receiving a new
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trial, thus rendering any error harmless. Therefore for all of these reasons Maher’s
tenth assignment of error is overruled.
Fifth Assignment of Error
{¶83} In Maher’s fifth assignment of error she argues that the trial court
erred in offsetting the judgment owed to Inverness with Maher’s award rather than
ordering Maher to be paid within 30 days of the judgment entry. Specifically,
Maher argues that pursuant to R.C. 4113.15 and the Ohio Constitution Article II
section 34a Maher was required to be paid on her wage claims within 30 days of
the finding that she was owed back pay.
{¶84} In this case Maher was awarded a total of $515.00 for her wage
claims, which included $105.00 for compensation, $200.00 for a liquidated
damages penalty for Inverness’s failure to pay within thirty days of Maher’s
payday and $210.00 for damages under Ohio Constitution Article II section 34a.
The trial court added Maher’s $515.00 judgment to $700.00 in money orders
Maher had sent Inverness in an attempt to settle the matter to give her a total
award of $1215.00. Inverness had been awarded a total of $5,068.33 for its claims
related to this case. The trial court offset the two awards, awarding Inverness a
total of $3,853.33. Maher now claims that the trial court should have ordered the
wage claims and damages to be paid immediately to Maher, rather than offset
them with Inverness’s award. The result of this would be for Inverness to pay
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Maher $515.00 up front, and then increase the obligation Maher owed Inverness
by $515.00.
{¶85} Maher has provided us with no case law to establish that a trial court
is wholly without authority to offset competing judgments in a situation such as
this. Thus at the very least we cannot find that the trial court abused its discretion
in offsetting the judgments. Accordingly, Maher’s fifth assignment of error is
overruled.
Eleventh Assignment of Error
{¶86} In Maher’s eleventh assignment of error, she argues that the trial
court erred in failing to order Inverness to pay all of the court costs where Maher’s
costs were incurred in pursuit of her wage claim. Specifically, Maher contends
that pursuant to R.C. 4111.10 and R.C. 4111.14(L) costs for a successful wage
claim lawsuit are required to be paid by the employer.
{¶87} At the outset, it is clear from the trial court’s judgment entry that the
court costs in this case were divided equally between the parties. Maher suggests
in her assignment of error that because she prevailed on her wage claim that her
employer, Inverness, should be responsible for all of the court costs despite the
fact that Inverness prevailed on one of its claims as well.
{¶88} The wage claim itself was but one of several claims that proceeded
all the way to trial in this case. We cannot accept Maher’s suggestion that as a
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rule no matter how large or substantial litigation is, if one party prevails on a
single wage claim the entire costs must be assessed to the other party even if the
other party has prevailed on some or all of its claims. While the revised code
would indicate that costs related to the wage claim must be paid by the employer,
there is no indication that in this case splitting the total costs equally between the
parties would account for an improper award of costs related to the wage claims
when Inverness successfully prosecuted a claim against Maher. Therefore we
cannot find that the trial court erred in distributing costs equally, and Maher’s
eleventh assignment of error is overruled.
{¶89} For the foregoing reasons Maher’s assignments of error are overruled
and the judgment of the Hancock County Common Pleas Court is affirmed.
Judgment Affirmed
ROGERS, P.J. and PRESTON, J., concur.
/jlr
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