[Cite as Phillimore v. Butterbaugh, 2014-Ohio-4641.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DON PHILLIMORE 

 Plaintiff-Appellee 

-vsAUBRI BUTTERBAUGH 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Patricia A. Delaney, J. 

: Hon. Craig R. Baldwin, J. 

: 

: 

: Case No. 14CA32 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court 

of Common Pleas, Case No. 2012CV1360 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: October 17, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN RUBIS ERIC S. MILLER 

1360 E. Ninth Street, 1000 IMG Center 13 Park Avenue West, Suite 608 

Cleveland, OH 44114 Mansfield, Ohio 44902 
[Cite as Phillimore v. Butterbaugh, 2014-Ohio-4641.]

Gwin, P.J. 

{¶1} Appellant appeals the March 17, 2014 judgment entry of the Richland 

County Court of Common Pleas overruling her objections to the magistrate’s decision, 

adopting the magistrate’s decision, and entering judgment for appellee on appellant’s 

counterclaims. 

Facts & Procedural History

{¶2} In September of 2011, appellant Aubri Butterbaugh (“Butterbaugh”) 

contacted appellee Donald Phillimore (“Phillimore”) about renting an apartment owned 

by Phillimore. On September 29, 2011, the parties signed a lease for 555 Crescent 

Road, Apartment C, Mansfield, Ohio, that was to commence on November 1, 2011. 

The lease, entitled “rental agreement,” is a one page-document signed by Butterbaugh 

and states as follows: 

This agreement is made this 29th day of Sept. 2011 at Mansfield, 

Ohio between Don R. Phillimore, Owner and Aubri Butterbaugh, 

known as the Tenant. The owner does rent to Tenant on a yearly 

basis and is paid monthly. Beginning the 1st day of November 

2011 at a monthly rental of $600.00. If paid before or on due date 

rent will be $550.00. The premises located at 555 #3 Crescent 

Road Mansfield, Ohio, 22907. 

{¶3} The agreement further provided that: the tenant will pay all charges for 

utilities used by him upon said premises, said premises will be kept in a clean and 

orderly condition, all damages to the premises or buildings caused by accident, noise, 

abuse or neglect, shall be repaired at the expense of the tenant, a security deposit of 
Richland County, Case No. 14CA32 3 

$550 made by above-named tenant is refundable within 30 days after vacating of the 

premises, providing the tenant has fulfilled the leasing period and the terms of the 

Leasing Agreement, it is agreed that the $550 security deposit is not to be used for any 

part of the monthly rent payment, and no promises or agreements have been made 

other than the within terms. As discussed below, the parties dispute what subsequently 

occurred. 

{¶4} On December 6, 2011, Phillimore filed a complaint in Mansfield Municipal 

Court containing causes of action for both eviction and damages for unpaid rent and 

late fees against Butterbaugh. Both parties appeared at the eviction hearing pro se on 

December 20, 2011, and, on the same day, Phillimore was granted an order of eviction 

and writ of restitution for December 27, 2011, against Butterbaugh. Butterbaugh 

vacated the premises on December 26, 2011. On January 23, 2012, Phillimore filed a 

motion for default judgment on his damages claim for unpaid rent and late fees. The 

motion for default was granted on January 25, 2012. Phillimore subsequently filed a 

Notice of Court Proceeding to Collect Debt and wage garnishment against Butterbaugh. 

{¶5} Butterbaugh filed a motion for stay of execution of judgment on March 27 

and a motion for relief from judgment on March 29, 2012 as to the default judgment 

taken against Butterbaugh on January 25, 2012 for $600 plus court costs. 

Butterbaugh’s motion for relief from judgment was granted on August 29, 2012 due to 

inadvertence. In October of 2012, the proceeds from the garnishment were utilized to 

pay court costs and the balance of the funds were returned to Butterbaugh. On October 

12, 2012, Butterbaugh filed an answer to Phillimore’s complaint and counterclaims for 

retaliatory eviction, wrongful eviction, wrongful seizure of security deposit, deceptive act 
Richland County, Case No. 14CA32 4 

and practice pursuant to the Ohio Consumer Sales Practices Act, wrongful garnishment 

and fraud, and constructive eviction. Because of the jurisdictional limit on damages of 

the counterclaims, the case was transferred to the Richland County Court of Common 

Pleas. The trial court subsequently granted Phillimore’s motion for summary judgment 

on the constructive eviction claim since Butterbaugh did not relinquish possession of the 

premises prior to the judicial eviction. A bench trial was conducted before a magistrate 

on May 31, 2013. At the beginning of the trial, Phillimore dismissed his complaint for 

damages and the parties proceeded on Butterbaugh’s counterclaims. 

{¶6} Butterbaugh testified on direct examination. She stated that when she 

signed the lease on September 29, she gave Phillimore a check for the $550 security 

deposit, but told Phillimore to wait a few days to cash the check. Because Phillimore 

did not wait to cash the check, the check bounced. Butterbaugh testified that she gave 

him a second check about a week later and paid the $12 processing fee for the original 

bounced check. Butterbaugh stated she paid Phillimore $200 to move in early on 

October 20th. After Butterbaugh told Phillimore she would like a washer and dryer, 

Phillimore offered to purchase a washer and dryer, front the purchase price, and sell 

them to her over the twelve month lease term at $50 per month. 

{¶7} Butterbaugh testified that when she moved into the apartment on October 

20th, the apartment was dirty, the toilet had overflowed, and there was standing water in 

the shower. When she called Phillimore about the issues, he sent over a plumber that 

evening who snaked the toilet and drains and gave her a bacterial solution to use in the 

shower. Butterbaugh stated that she set up an online bill pay from her bank account 
Richland County, Case No. 14CA32 5 

prior to November 1, but the November rent payment was erroneously sent to her 

address rather than Phillimore’s address. 

{¶8} Butterbaugh testified that in late November her entire basement flooded 

with sewage water and her dry cleaning was submerged in the water. When she 

contacted Phillimore, he immediately returned her call. Butterbaugh again called 

Phillimore and Butterbaugh testified that he told her she had to clean up the basement 

and pay to replace her items. Butterbaugh stated that Phillimore told her to grab a mop, 

put on a pair of boots, and get down in the basement to clean it up. However, 

Phillimore did then send over someone to clean Butterbaugh’s basement. Butterbaugh 

testified that her toilet again overflowed in December, but she did not notify Phillimore 

because her conversations with him were upsetting to her. 

{¶9} With regards to the December rent, Butterbaugh testified that Phillimore 

told her if the rent was not in his bank account by the end of business on December 1, 

he would evict her. Butterbaugh stated she told him she was worried about the 

basement and would call the health department. Butterbaugh mailed the December 

rent check to Phillimore to an address she found on the auditor’s website, which 

contained an incorrect P.O. number. Butterbaugh testified she received a three-day 

eviction notice on December 2, 2011 and attended the eviction hearing on December 

20, 2011 without counsel. Butterbaugh moved out of the apartment on December 26, 

2011. She cashed the check Phillimore sent to her in January of 2012 that was $338.04 

of her $550 security deposit. 

{¶10} On cross-examination, Butterbaugh testified that she had no evidence or 

proof that she established the online bill pay with her bank. Butterbaugh stated that her 
Richland County, Case No. 14CA32 6 

rent was due on December 1st and that since the check was not to Phillimore on 

December 1st, the rent was late. Butterbaugh testified she knew she had a 

responsibility to get the check to Phillimore on December 1st. Butterbaugh stated she 

mailed the check to Phillimore on December 1st, even though Phillimore specifically told 

her if she did not have the check to him at the close of business on December 1st, he 

would move forward with an eviction complaint. Butterbaugh acknowledged that if she 

mailed the check on December 1st, Phillimore would not receive it on December 1st. 

Butterbaugh agreed that Phillimore’s name, address, and phone number were on the 

back of the lease, but stated that she did not know they were on the back of the lease 

until the eviction hearing. Despite the fact she knew Phillimore’s phone number, 

Butterbaugh did not call to ask his address when sending the December rent check. 

Butterbaugh testified that when she complained to Phillimore, he would attempt to take 

care of the issue the same day. Butterbaugh stated she received the return of the 

security deposit, but did not receive notice of the garnishment hearing. 

{¶11} Butterbaugh rested after her testimony. Phillimore made a motion for a 

directed verdict on all the counterclaims and the trial court took this motion under 

advisement. 

{¶12} Phillimore testified that he has been buying, selling, and managing rental 

properties for twenty years and has never evicted a tenant prior to Butterbaugh. 

Phillimore stated that after Butterbaugh called him about the apartment, they both went 

through the apartment and she filled out the lease application. After Phillimore 

approved Butterbaugh as a tenant, he told her that the rent was due on the first of the 

month, that she could not have any pets, that she was responsible for paying the 
Richland County, Case No. 14CA32 7 

utilities, and that he would take care of the lawn and snow plowing. Phillimore testified 

that, while Butterbaugh was standing right next to him, he flipped over the lease and 

wrote his name, address, and phone number on the back of the lease and informed her 

that if she needed to contact him or send a rent check, she should use the information 

he wrote on the back of the lease. Butterbaugh also wanted a washer and dryer, and, 

although Phillimore did not usually do this, he told her he would get a washer and dryer 

and put her on a payment plan of an extra $50 every month until the washer and dryer 

were paid in full. The parties signed a separate statement indicating Butterbaugh would 

pay an additional $50 monthly for the washer and dryer in excess of the $550 rental 

payment. Phillimore approved Butterbaugh’s request to move in early on October 20th 

for a pro-rated fee of $200. 

{¶13} Phillimore testified that when Butterbaugh gave him the check for the 

security deposit, she did not tell him to hold the check for a couple of days. Phillimore 

did not receive the November rent check on November 1st, so he called Butterbaugh 

who was “kind of snippy” and when he asked her to write another check, she told him 

he would have to wait for the other check to be returned to her. Phillimore received the 

November rent check on November 5th after Butterbaugh called and told him he would 

have to pick it up from her apartment. When Phillimore did not get the December rent 

check in his December 1st mail, he called Butterbaugh and told her the rent was due 

before the close of business or he was going to start eviction proceedings. Phillimore 

testified Butterbaugh called him a bully and that he felt like he had to fight for rent 

checks every month and it would only get worse. Phillimore received the rent check on 

December 3rd, but did not open the envelope. 
Richland County, Case No. 14CA32 8 

{¶14} When Butterbaugh called in October about the toilet backing up, 

Phillimore called Roto-Rooter the same day to snake the drain. Phillimore stated that 

after a downpour on November 28th, Butterbaugh’s neighbors complained about their 

drains being slow, so he called a plumbing service to snake out the water lines in 

Butterbaugh’s basement because that is where the clean-out was. Phillimore testified 

there was approximately 1⁄2 inch of water in Butterbaugh’s basement after the heavy rain 

and it was rainwater, not sewer water. Phillimore was present when they cleaned the 

lines and saw them pulling out tampons and wet wipes out of the lines. The plumber 

had to return the next day to jet the line due to the material in the lines and Phillimore 

stated Butterbaugh’s dirty clothes were in the same place as when they snaked the 

drain. Phillimore testified that when he told Butterbaugh what they found in the lines 

she told him he was “getting personal.” Butterbaugh wanted Phillimore to clean up the 

residue and he told her it was just rainwater and he was not going to clean up a little bit 

of rainwater. However, he later changed his mind and sent someone over to clean the 

basement. Phillimore denies telling Butterbaugh to put her boots on and learn what it 

means to be a woman. 

{¶15} Phillimore testified that he has never evicted anyone in twenty years and 

has accepted late rent payments previously if the tenant gave him a courtesy call. 

Phillimore stated that he did not evict Butterbaugh because she complained of the 

problems in the apartment, but evicted her because of her late rent payments and 

because he felt like collecting rent each month from her was a continuous struggle. 

{¶16} On cross-examination, Phillimore testified that he did not check to see 

whether Butterbaugh’s bank sent the November check to the wrong address. Further, 
Richland County, Case No. 14CA32 9 

that he did not penalize her for the late November payment. At the conclusion of the 

trial, defense counsel conceded that he could not prove the consumer sales practices 

act counterclaim. 

{¶17} On December 13, 2013, the magistrate issued a decision on the remaining 

counterclaims. The magistrate found that Phillimore’s motion for directed verdict was 

inappropriate procedurally for a non-jury trial, that the proper motion is a motion for a 

Rule 41(B)(2) dismissal, and the magistrate had to determine whether Butterbaugh 

proved each of her counterclaims by a preponderance of the evidence. With regards to 

the retaliatory eviction claim, the magistrate determined that each party presented 

evidence in support of their theory as to why Phillimore evicted Butterbaugh, the 

retaliatory motive of not correcting the water problems versus her consistently failing to 

make timely rent payments and that the parties’ testimony was in direct conflict with 

each other. The magistrate concluded Phillimore was the more credible witness. On 

Butterbaugh’s wrongful eviction claim, the magistrate found that the rental agreement 

expressly states the monthly rent is due and owing on the first of the month and also 

that the actions of the parties clearly indicate Butterbaugh knew her rent was due on the 

first day of the month. The magistrate also found against Butterbaugh on her wrongful 

eviction claim because she did not request a stay of the municipal court’s writ of 

restitution and did not appeal from that decision. 

{¶18} On Butterbaugh’s claim for wrongful seizure of a security deposit, the 

magistrate found Butterbaugh did not comply with the terms of the lease agreement by 

failing to pay her rent timely and thus she is not entitled to the return of any of the 

security deposit. With regards to Butterbaugh’s wrongful garnishment or abuse of 
Richland County, Case No. 14CA32 10 

process claim, the magistrate found that the prior proceeding in the Mansfield Municipal 

Court was not wrongful, not retaliatory, not malicious, and Phillimore had probable 

cause to file the action. 

{¶19} Butterbaugh filed objections to the magistrate’s decision on December 27, 

2013. The trial court overruled Butterbaugh’s objections on March 17, 2014. 

Butterbaugh appeals the March 17, 2014 judgment of the Richland County Common 

Pleas Court and assigns the following as error: 

{¶20} “I. THE COURT BELOW ERRED IN FINDING THAT THE LANDLORD 

HAD A RIGHT TO EVICT THE TENANT FOR LATE PAYMENT BECAUSE RENT WAS 

ACTUALLY PAID TIMELY AS A MATTER OF LAW. ACCORDINGLY, THE COURT 

ALSO ERRED IN DISMISSING THE TENANT’S CLAIM FOR WRONGFUL EVICTION. 

{¶21} "II. THE COURT BELOW ERRED IN FINDING THAT THE LANDLORD 

HAD A RIGHT TO WITHHOLD ANY PORTION OF THE SECURITY DEPOSIT. 

{¶22} "III. THE COURT BELOW ERRED IN FAILING TO HOLD THE 

GARNISHMENT OF THE TENANT’S WAGES PROCEDURALLY WRONGFUL. THE 

15-DAY DEMAND LETTER AND THE WAGE GARNISHMENT FILED BY THE 

LANDLORD SHOW THAT HE SENT THEM TO AN OLD ADDRESS AFTER HE HAD 

LEARNED OF THE TENANT’S NEW ADDRESS. IT WAS THUS ERROR TO DISMISS 

THE CLAIM FOR ABUSE OF PROCESS BECAUSE THE LANLORD’S KNOWING USE 

OF THE WRONG ADDRESS DEFEATED THE PROCEDURAL PROTECTIONS FOR 

DEBTOR-WAGE EARNERS PROVIDED BY OHIO’S WAGE GARNISHMENT LAW. 
Richland County, Case No. 14CA32 11 

{¶23} "IV. GIVEN THAT THE LANDLORD DISMISSED HIS CLAIM FOR 

MONEY AT THE BEGINNING OF THE TRIAL, THE COURT BELOW ERRED IN 

DISMISSING THE TENANT’S CLAIM FOR ABUSE OF PROCESS.” 

Civil Rule 41(B)(2) Standard of Review

{¶24} Civil Rule 41(B)(2) permits a defendant in nonjury action to move for 

dismissal of the action after the close of the plaintiff’s case. Dismissals under Civil Rule 

41(B)(2) are similar in nature to a directed verdict in jury actions; however, because a 

Civil Rule 41(B)(2) dismissal is used in nonjury actions, it requires the trial court and 

reviewing court to apply different tests. See Central Motors Corp. v. Pepper Pike, 63 

Ohio App.2d 34, 409 N.E.2d 258 (8th Dist. 1979). Civil Rule 41(B)(2) specifically 

provides that the trial court may consider both the law and the facts. Therefore, under 

the rule, the trial judge as the trier of fact does not view the evidence in a light most 

favorable to the plaintiff, but instead actually determines whether the plaintiff has proven 

the necessary facts by the appropriate evidentiary standard. See L.W. Shoemaker, 

M.D., Inc. v. Connor, 81 Ohio App.3d 748, 612 N.E.2d 369 (10th Dist. 1992); Harris v. 

Cincinnati, 79 Ohio App.3d 163, 607 N.E.2d 15 (1st Dist. 1992). Even if the plaintiff has 

presented a prima facie case, dismissal is still appropriate where the trial court 

determines that the necessary quantum of proof makes it clear that plaintiff will not 

prevail. Fenley v. Athens Cty. Genealogical Chapter, 4th Dist. No. 97CA36, 1998 WL 

295496 (May 29, 1998), citing 3B Moore, Federal Practice (1990), Paragraph 41.13(4). 

Where the plaintiff’s evidence is insufficient to sustain plaintiff’s burden in the matter, the 

trial court may dismiss the case. Levine v. Beckman, 48 Ohio App.3d 24, 548 N.E.2d 

267 (10th Dist. 1988). However, if the judge finds the plaintiff has proven the relevant 
Richland County, Case No. 14CA32 12 

facts by the necessary quantum of proof, the motion must be denied and the defendant 

is required to put on evidence. Central Motors Corp., supra.

{¶25} A trial court’s ruling on a Civil Rule 41(B)(2) motion will be set aside on 

appeal only if it is erroneous as a matter of law or against the manifest weight of the 

evidence. Ogan v. Ogan, 122 Ohio App.3d 580, 702 N.E.2d 472 (12th Dist. 1997). As 

an appellate court, we neither weigh the evidence nor judge the credibility of the 

witnesses. Our role is to determine whether there is relevant, competent, and credible 

evidence upon which the fact finder could base its judgment. Cross Truck Equip. Co. v. 

The Joseph A. Jeffries Co., 5th Dist. No. CA5758, 1982 WL 2911 (Feb. 10, 1982). 

Accordingly, judgments supported by some competent, credible evidence going to all 

the essential elements of the case will not be reversed as being against the manifest 

weight of the evidence. C.E. Morris Co. v. Foley Constr., 54 Ohio St.2d 279, 376 

N.E.2d 578 (1978). 

I. 

{¶26} Butterbaugh argues the trial court erred as a matter of law by dismissing 

her claim for wrongful eviction because the rent was paid timely. She argues the lease 

does not state the rent due date each month and that the most logical interpretation of 

the lease is that the tenant can pay $600 any day of the month for rent, but to get the 

$50 discount the tenant must pay on or before the first of the month. We disagree. 

{¶27} R.C. 5321.15(A) provides that no landlord may initiate any act, including 

exclusion from the premises or threat of an unlawful act, against a tenant to recover 

possession of the premises other than what is provided in R.C. Chapters 1923, 5303, 

and 5321. R.C. 5321.03(A) provides that a landlord may bring an action under Chapter 
Richland County, Case No. 14CA32 13 

1923 of the Revised Code for possession of the premises if: (1) the tenant is in default 

in the payment of rent * * *. 

{¶28} Ohio law recognizes the contractual nature of a lease. See Bevy’s Dry 

Cleaners & Shirt Laundry, Inc. v. Streble, 2 Ohio St.2d 250, 208 N.E.2d 528 (1965). 

“Only when the language of a contract is unclear or ambiguous * * * will extrinsic 

evidence be considered in an effort to give effect to the parties’ intentions. * * * When 

the contract terms are unambiguous, courts will not in effect create a new contract by 

finding an intent not expressed in the clear language employed by the parties.” Shifrin 

v. Forest Enterprises, Inc., 64 Ohio St.3d 365, 1992-Ohio-28, 597 N.E.2d 499. 

Common words in a contract will be given their ordinary meaning “unless manifest 

absurdity results, or unless some other meaning is clearly evidenced form the face or 

overall contents of the instrument.” Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 

241, 374 N.E.2d 146 (1978). If the terms of the contract are determined to be clear and 

unambiguous, the interpretation of the language is a question of law. State ex rel. 

Parsons v. Fleming, 68 Ohio St.3d 509, 1994-Ohio-172, 628 N.E.2d 1377. 

{¶29} In this case, the plain language used in the lease clearly provides that 

Butterbaugh was obliged to pay rent on the first of each month as the rental agreement 

states that the rent is paid on a monthly basis and states that it begins on the 1st day of 

November 2011. Giving these words their common, ordinary meaning, the terms of the 

contract are clear and unambiguous that the rent is due and owing on the first of the 

month. 

{¶30} However, even if we were to find the terms of the lease ambiguous, we 

find there is competent and credible evidence in the record to support the trial court’s 
Richland County, Case No. 14CA32 14 

conclusion that both parties understood Butterbaugh’s rent was due on the first day of 

the month. When terms of an agreement are ambiguous, parol evidence may be used 

to explain the understanding of the parties at the time the agreement was entered into. 

See Ohio Crane Co. v. Hicks, 110 Ohio St. 168, 143 N.E. 388 (1924). If we determine a 

contract to be ambiguous, we must decide the meaning of the terms in the contract and 

this determination is a question of fact. Walter v. Agoston, 12th Dist. Warren No. 

CA2003-03-039, 2004-Ohio-2488. 

{¶31} In this case, Butterbaugh testified that she asked Phillimore to move in 

early on October 20th and pay the pro-rated amount of $200. On cross-examination, 

Butterbaugh stated that her rent was due on December 1st and that since the check 

was not to Phillimore on December 1st, the rent was late. Butterbaugh futher testified 

that she knew she had a responsibility to get the check to Phillimore on December 1st. 

Further, after Phillimore approved Butterbaugh as a tenant, he told her that the rent was 

due on the first of the month, that she could not have any pets, that she was responsible 

for paying the utilities, and that he would take care of the lawn and snow plowing. 

Accordingly, we find the record contains sufficient credible evidence to support the trial 

court’s conclusions on the meaning of the language contained in the lease. 

Nominal Breach

{¶32} Butterbaugh further argues that even if the rent was due on the 1st of 

each month, her late payment was not a breach of the lease because it is a nominal or 

technical departure from the lease agreement and she has substantially performed the 

contact pursuant to Burlington Resources Oil & Gas Co. v. Cox, 133 Ohio App.3d 543, 

729 N.E.2d 398 (4th Dist. 1999). We disagree. 
Richland County, Case No. 14CA32 15 

{¶33} “A party does not breach a contract when that party substantially performs 

the terms of the contract * * * [n]ominal, trifling, or technical departures from the terms of 

a contract are not sufficient to breach it.” Id. at 548. A breach is material if it is 

essential to the purpose of the contract. Software Clearing House, Inc. v. Intrak, Inc., 

66 Ohio App.3d 163, 583 N.E.2d 1056 (1st Dist. 1990). While generally the time of 

performance of a contract may be a technical departure from the terms, “when the 

parties have included an express stipulation of time then the time of performance is of 

the essence of the contract.” Brown v. Brown, 90 Ohio App.3d 781, 630 N.E.2d 763 

(11th Dist. 1993). A court can also find that such a requirement is implied from the 

nature of the contract itself. Id.; Gardner v. Hidden Harbour Partners, 6th Dist. Lucas 

No. L-97-1182, 1997 WL 799710 (Dec. 31, 1997). 

{¶34} In this case, the lease expressly states a time for performance so “time is 

of the essence” by agreement. Butterbaugh was obligated to pay her rent by the first of 

each month. Further, the nature of the contract itself, a residential lease agreement 

with a definite monthly rent amount and due date, implies that time is of the essence. 

Accordingly, because Butterbaugh’s failure to pay rent on time is more than a “nominal, 

trifling, or technical” departure from the terms of the lease, she did not substantially 

perform her obligations under the lease. 

Butterbaugh’s Remaining Arguments 

{¶35} Butterbaugh also briefly lists other reasons as to why her rent was not 

late, including that the lease gave Phillimore no right to evict for rent paid one day late, 

that since she paid $50 more than the rent owing the unconscionable late fee was 

actually tendered by Butterbaugh, that she actually prepaid her rent in light of the 
Richland County, Case No. 14CA32 16 

amount she had already paid Phillimore, that the delay was caused by Phillimore’s 

failure to comply with R.C. 5321.18(A) which requires the lease to contain the landlord’s 

name and address, and that she timely mailed the rent to him to an address she 

obtained from the auditor’s website. 

{¶36} We find all of these contentions to be clearly without merit based upon the 

evidence presented, including the testimony of Butterbaugh herself. Regarding her 

claims that she actually paid the late fee and that she prepaid the rent in light of the 

amount paid, Butterbaugh and Phillimore both testified that they made a separate 

agreement for Butterbaugh to pay an additional $50 per month for the washer and dryer 

and both testified that they agreed to early entry on October 20th as requested by 

Butterbaugh for the pro-rated amount of $200. Butterbaugh never testified that the $50 

additional she tendered each month was for anything other than the washer and dryer 

fee and there is no indication in any of the evidence presented that the $200 paid for 

early entry in October was any sort of pre-payment for November or December. 

Butterbaugh never testified that she paid the late fee and Phillimore testified she was 

not subject to the late fee. 

{¶37} Butterbaugh argues that due to Phillimore’s failure to provide her with his 

address pursuant to R.C. 5321.18(A), she was forced to acquire an incorrect address 

from the auditor’s website. While Butterbaugh testified that she did not see the name 

and address on the back of the lease until the eviction hearing, there is no dispute that 

this information was on the back of the lease. R.C. 5321.18(A) requires that the written 

rental agreement for residential premises contains the name and address of the owner 

and there is no dispute that Phillimore’s name, address, and phone number were on the 
Richland County, Case No. 14CA32 17 

back of the rental agreement in accordance with the statute. Phillimore testified that 

when he wrote his address on the lease, he told Butterbaugh to send any rent checks to 

that address. Butterbaugh acknowledges she had Phillimore’s phone number but did 

not call him to inquire about his address. 

{¶38} Butterbaugh fails to cite any legal support for her contention that the lease 

had to contain a provision that Phillimore had the right to evict Butterbaugh for rent paid 

one day late for him to be able to evict her. Phillimore’s power to evict is vested in the 

Ohio Revised Code. Accordingly, none of the reasons listed by Butterbaugh are 

supported by the law or evidence as reasons why her rent was not late. 

Preservation of Butterbaugh’s Wrongful Eviction Claim 

{¶39} Finally, we find Butterbaugh failed to preserve her wrongful eviction claim. 

In Keesey v. Superior Mobile Homes, Inc., 5th Dist. Tuscarawas No. 2000AP80057, 

2001 WL 293253 (March 20, 2001), we found that where an appellant never took up 

residence in the home after the writ of restitution, failed to request a stay of the 

municipal court’s writ of restitution, and failed to appeal from that decision, there was no 

legal basis to support the claim for wrongful eviction. Here, though Butterbaugh filed a 

Rule 60(B) motion with regards to Phillimore’s second cause of action for damages, 

Butterbaugh did not seek a stay or appeal the Mansfield Municipal Court’s judgment of 

eviction or writ of restitution. Like in Keesey, Butterbaugh never again took up 

residence in the home after the writ of restitution went into effect. Though Butterbaugh 

attempts to distinguish this case from Keesey by stating she was current in her rent, as 

discussed above, we find that Butterbaugh was not current in her rent. 

{¶40} Based on the above, Butterbaugh’s first assignment of error is overruled. 
Richland County, Case No. 14CA32 18 

II. 

{¶41} Butterbaugh asserts that Phillimore wrongfully withheld a portion of her 

security deposit. It is undisputed that Butterbaugh left the apartment on December 26, 

2011 and, on January 23, 2012, Phillimore returned $338.04 of her $550.00 security 

deposit. Butterbaugh cashed the check. As specifically noted by Butterbaugh in her 

brief, her second assignment of error is premised upon the success of her first 

assignment of error and the amount deducted from the security deposit was fair if 

Phillimore had the right to evict Butterbaugh. In Assignment of Error I, we determined 

Phillimore had a right to evict Butterbaugh based upon her failure to timely pay her rent. 

Accordingly, Butterbaugh’s second assignment of error is overruled. 

III. & IV. 

{¶42} Butterbaugh finally argues that the court below erred in failing to find that 

the garnishment of her wages was wrongful because the 15-day demand letter and the 

wage garnishment filed by Phillimore were sent to an old address and because 

Phillimore dismissed his claim for damages at the beginning of the trial. 

{¶43} As noted by the trial court, Butterbaugh concludes that for this particular 

counterclaim, wrongful garnishment, abuse of process, and malicious prosecution are 

one and the same. In order to state a cause of action for this counterclaim, Butterbaugh 

must prove four elements: (1) malicious institution in prior proceedings against the 

plaintiff by defendant; (2) lack of probable cause for the filing of the prior lawsuit; (3) 

termination of the prior proceedings in the plaintiff’s favor; and (4) seizure of the 

plaintiff’s person or property during the course of the prior proceedings. Robb v. 

Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 1996-Ohio-189, 662 N.E.2d 9. 
Richland County, Case No. 14CA32 19 

Actions for malicious prosecution have been met with disfavor by Ohio courts, which 

have allowed recovery only when a plaintiff fully complies with the requirements of such 

an action. Harvey v. Republic Services of Ohio, 5th Dist. Stark No. 2007 CA 00278, 

2009-Ohio-1343. Thus, a plaintiff’s failure to establish any one element by a 

preponderance of the evidence is fatal to a malicious prosecution claim. Id. 

{¶44} As stated by Butterbaugh in her brief, assignments of error III and IV are 

premised on the success of her first assignment of error because if we determine there 

is no basis for Phillimore to have sued Butterbaugh for December’s rent, the 

garnishment of her wages is also wrongful. 

{¶45} Here, we find the trial court did not err in finding that the prior proceeding 

was not malicious and that Phillimore had probable cause to file the action. As 

discussed above, Phillimore had a valid basis to have sued Butterbaugh for December’s 

rent. The garnishment was set in motion through the use of the court pursuant to a 

judgment in Phillimore’s favor and limited the amount to a sum of back rent and court 

costs. There is competent and credible evidence to support the trial court’s 

determination that Phillimore’s initiation of the proceeding was not malicious as 

Phillimore testified he initiated the proceedings because Butterbaugh was late in paying 

her rent. Because Phillimore proceeded under a lawfully issued eviction, writ of 

restitution, and judgment for damages, the municipal court’s subsequent decision to 

vacate the judgment on damages does not operate to retroactively transform a lawful 

act into an unlawful one. See Kessey v. Superior Mobile Homes, Inc., 5th Dist. 

Tuscarawas No. 2000AP080057, 2001 WL 293253 (March 20, 2001). Accordingly, the 
Richland County, Case No. 14CA32 20 

trial court property dismissed Butterbaugh’s wrongful garnishment claim. Butterbaugh’s 

third and fourth assignments of error are overruled. 

{¶46} Based on the foregoing, appellant’s assignments of error are overruled. 

The March 17, 2014 judgment entry of the Richland County Court of Common Pleas is 

affirmed. 

By Gwin, P.J., 

Delaney, J., and 

Baldwin, J., concur