Michael Westmoreland, plaintiff, v. Joyce Pace, defendant, Case no. 2000 CVG 030643

JUDGMENT ENTRY AND DECISION

This cause came on before the court on October 4, 2001 upon plaintiffs motion for attorney fees Pursuant to O.R.C. 5321.05(C). A hearing was conducted on the motion.

The court previously entered judgment for plaintiff and against defendant in the amount of $1,128.42 plus costs and interest on May 2, 2001. The amount of $487.00 was for back rent and the balance of $641.42 was for the damages to the premises.

Defendant contends that plaintiff is barred from collecting attorney fees because he did not set forth a demand for attorney fees or mention O.R.C. 5321.05 in his pleadings. The courts have held that attorney fees which are awarded for a violation of a landlord tenant statute arc assessed as costs rather than damages. Christe v. GMS Mgt. Co., Inc. 88 Ohio St. 3d 376, 726 NE2d 497. Therefore, plaintiff need only demand costs in his pleadings to seek attorney fees.

The Plaintiff's complaint contains a demand for costs and therefore, the plaintiff makes a claim for attorney fees. The next question is whether any of the damages recovered by plaintiff fall under the specific provisions set forth under O.R.C.5321.05. The court finds that three of the items recovered under the damage claim pertain to categories set for in O.R.C. 5321.05. In particular, the cleaning fee of $125.00 is relevant to O.R.C. 5221.05 paragraph (1) and (2). These sections provide for the tenant to keep the premises sanitary and to dispose of all waste in a clean manner. Next the court finds that the replacement of the garbage disposal for $69.00 and the ceiling fan for $29.96 come under O.R.C. 5221.05 paragraphs (4) and (7). These sections require that the tenant maintain appliances it. good working order and use all electrical and plumbing fixtures properly. Therefore, the court finds that out of the $641.42 recovered for damages in this case, $223.96 pertain to items covered under O.R.C. 5221.05. This figure represents 34% of the damages recovered.

The plaintiff presented evidence that the attorney fee paid by the plaintiff in this case was one-third of the j udgment amount. The total judgment was $ 1,128.42 and therefore, one-third of this amount is $376.14. The court finds this amount to be reasonable. The court also finds that 34% of the $376.14 attorney fee can be related to the claims covered under O.R.C. 5221.05. This amount computes to $128.00. Moreover the plaintiff is entitled to the costs expended for the trial and the motion hearing. The evidence relates that $ 115.00 is the cost for the trial and the transcript fee for themotion hearing is $366.00. Moronvcr, the court finds that plaintiff may recover $125.00 as a fee for the motion hearing. Consequently, the court awards plaintiff $734.00 as attorney fees in this matter plus interest on this amount from date of this ruling and any additional court costs assessed for the motion hearing

Therefore, it is Ordered and Adjudged that plaintiff is entitled to recover $734.00 as attorney fees plus interest and costs from date of this ruling.

The Court hereby directs the Municipal Court Clerk to serve upon all parties notice of this judgment and its date of entry upon the journal.

JUDGE JAMES J. FAIS

October 10, 2001

Copies to:

Nathan A. Durst, Esq

1395 E Dublin-Granville Road, Ste 400

Columbus, Ohio 43229

Attorney for Plaintiff

Joyce Pace

2719 Westerville Road

Columbus. Ohio 43224

Defendant

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