[Cite as K&D Mgt., L.L.C. v. Jones, 2021-Ohio-4310.]

 

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

K&D MANAGEMENT, L.L.C., : 

 

 Plaintiff-Appellee, : 

 No. 110262 

 v. : 

 

HALLE JONES, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, 

 AND REMANDED

RELEASED AND JOURNALIZED: December 9, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-20-932468 

 

Appearances: 

Powers Friedman Linn, PLL and Rachel C. Cohen, for 

appellee. 

Halle Jones, pro se. 

MARY J. BOYLE, A.J.: 

This appeal stems from a dispute between a residential tenant and 

landlord over damages for the tenant’s failure to move out of her apartment when 

the lease term ended and for the landlord’s alleged breaches of two separate leases. 
Defendant-appellant, Halle Jones, appeals from the trial court’s order granting 

summary judgment in favor of plaintiff-appellee, K&D Management, L.L.C. 

(“K&D”), and the building owner, Reserve Apartments, Ltd. (“Reserve”). Jones 

raises six assignments of error for our review: 

1. It was prejudicial error to dismiss all Appellant’s 

counterclaims/third-party claims * * *, including 

Counterclaims/Third-Party Claims Numbers 1-3 that Appellees did not 

move to dismiss in Appellees’ motion for summary judgment[.] 

2. It was prejudicial error to determine that Appellant’s December 15, 

2020 motion for summary judgment on liability for Appellant’s 

counterclaims/third-party claims was moot. * * * 

3. It was prejudicial error to deny Appellant’s August 28, 2020 motion 

for summary judgment to dismiss the Complaint. * * * 

4. It was prejudicial error to grant * * * Appellees’ combined summary 

judgment motion to dismiss Appellant’s Counterclaim/Third-Party 

Claim Number 4 * * * and for judgment in Appellees’ favor on the 

Complaint claim[.] 

5. It was prejudicial error and an abuse of discretion to rule that 

Appellant’s discovery motions were moot: Appellant’s November 9, 

2020 motion for a continuance to receive Appellees’ discovery 

responses * * *; Appellant’s motion to compel Appellees’ discovery 

responses * * *; and Appellant’s Civil Rule 56(F) motion for a 

continuance to receive Appellees’ discovery responses[.] 

6. It was prejudicial error and an abuse of discretion to rule that 

Appellant’s motion to amend the Answer was moot. * * * 

We find that Jones is liable to K&D for damages only for the number 

of days she remained in the apartment after her lease term ended — not for the entire 

month. We also find that K&D improperly withheld Jones’s security deposit under 

the first lease and is therefore liable to Jones for double damages. We otherwise 

affirm the trial court’s judgments and overrule Jones’s assignments of error. 
I. Procedural History and Factual Background 

In May 2020, K&D filed a complaint against Jones for breaching a 

residential lease agreement that the parties executed in May 2016. According to the 

lease and account statement attached to the complaint, Jones’s lease term ended on 

May 31, 2018, but she did not move out of the apartment until June 11, 2018, and 

did not pay any rent for the month of June 2018. K&D demanded $4,598.55 in 

damages, representing “accelerated rent” and other charges from June 2018 to 

October 2018. 

In August 2020, K&D filed a motion for default judgment in the 

amount of $898.55, representing rent and other charges for only the month of June 

2018. The trial court ultimately denied this motion. 

The same day K&D filed its motion for default judgment, Jones filed 

an answer and “counterclaims” against K&D and Reserve.1 She claimed that she had 

two lease agreements with K&D. She stated that the parties first executed a lease 

with a term from May 26, 2015, to May 31, 2016, and she attached a copy of this 

lease to her complaint. She claimed that she paid to K&D a security deposit pursuant 

1 Jones filed a single pleading titled, “ANSWER of [Jones] to [K&D]’s Complaint, 

and COUNTERCLAIM of [Jones] against [K&D] for Breach of Contract and pursuant to 

R.C. 5321.16, and COUNTERCLAIM of [Jones] against Counterclaim Defendant, Reserve 

Apartments, Ltd. for Breach of Contract and pursuant to R.C. 5321.16.” Although Jones’s 

claims against K&D are properly titled counterclaims, Jones’s claims against Reserve are 

actually third-party claims against a third-party defendant. See Civ.R. 14(A). For ease of 

reference, in this opinion, we will refer to Jones’s “claims.” 
to this 2015 lease. She alleged that on May 31, 2016,2 she moved from one apartment 

unit into another unit in the same building. She claimed that she and K&D executed 

a second lease for this unit with a term from June 1, 2016, to May 31, 2017, and she 

paid a second security deposit to K&D pursuant to the terms of this 2016 lease. This 

2016 lease, attached to K&D’s complaint, automatically renewed for another term 

from June 1, 2017, to May 31, 2018, and is the subject of K&D’s complaint. 

Jones brought four claims against K&D: (1) breach of the 2015 lease 

for failing to “properly credit payments,” (2) breach of the 2016 lease for failing to 

“properly credit payments,” (3) breach of the 2015 lease for failing to return the 

security deposit she paid pursuant to the 2015 lease, and (4) breach of the 2016 lease 

for failing to return the security deposit she paid pursuant to the 2016 lease. Jones 

alleged that her claims against K&D “relate” to the Reserve Square Apartments, and 

Reserve owned the apartment building. Jones claimed that Reserve should 

therefore be liable for “all or part of” the damages that K&D owed her. Jones 

demanded $800.44 in damages from both K&D and Reserve. 

The same day that Jones filed this pleading, she filed a motion for 

summary judgment on K&D’s claim for Jones’s failure to move out of the apartment 

when her second lease term ended on May 31, 2018. She explained that on February 

28, 2018, she sent an email to K&D providing notice that she would be moving out 

when her lease ended on May 31, 2018, and she attached the email as an exhibit. 

2 The complaint states that she moved on May 31, 2015, but in a later motion to 

amend her answer, Jones clarified that “2015” was a typo and that she actually moved on 

May 31, 2016. 
She also supported her summary judgment motion with an affidavit. She averred in 

part that “[a]pproximately seven to ten days after June 1, 2018,” she received a 

notice under her door demanding that she vacate the unit. Jones argued in her 

summary judgment motion that she and K&D therefore had no lease agreement in 

June 2018, and she owed no rent to K&D for June 2018 or later. 

In October 2020, K&D and Reserve filed an opposition to Jones’s 

summary judgment motion. They also filed a joint motion for summary judgment 

on (1) K&D’s claim for Jones’s alleged breach of the 2016 lease, and (2) Jones’s four 

claims for K&D’s alleged breaches of the 2015 and 2016 leases. K&D and Reserve 

argued that when Jones did not vacate the apartment until June 11, 2018, she 

created a new 0ne-year lease term, and she became liable for another year of rent. 

K&D stated that it was nonetheless “electing” to pursue only $898.55, representing 

rent for “the time” Jones remained in the apartment in June 2018. In their summary 

judgment motion, K&D and Reserve characterized Jones’s four claims for breaches 

of the 2015 and 2016 leases as “a claim for the return of her security deposit” and 

maintained that K&D applied Jones’s security deposit that she paid pursuant to the 

2016 lease to the amount she owed for June 2018 rent. 

In November 2020, Jones filed a combined reply in support of her 

summary judgment motion on K&D’s claim and a motion for “a continuance 

pursuant to Civ.R. 56(F)” to file an opposition to K&D and Reserve’s summary 

judgment motion on her four claims. She maintained that she was still waiting to 
receive K&D’s discovery responses regarding its efforts to find a replacement tenant 

and to mitigate its damages. 

Also in November 2020, Jones filed a motion for leave to amend her 

answer to add an affirmative defense that the 2016 lease was “illegal or 

unenforceable,” to clarify that “all debits and credits on the account are at issue,” 

and to correct a typo. 

In December 2020, Jones filed a motion to compel K&D’s discovery 

responses. Jones also filed an opposition to K&D and Reserve’s summary judgment 

motion on her four claims and a continuance to respond more fully after she 

received K&D’s discovery responses. Jones argued in her opposition that K&D 

overcharged her for utilities and rent from May 2015 to May 2018 and failed to 

return her security deposits under both the 2015 and the 2016 leases. She supported 

her opposition with seven exhibits, including both leases and K&D’s response to her 

requests for admissions. Jones then filed a motion for “partial summary judgment 

as to liability for all counterclaims.” In this motion, she incorporated her arguments 

and exhibits from her opposition to K&D’s summary judgment motion. 

On January 3, 2021, the trial court granted K&D and Reserve’s 

motion for summary judgment on all claims. The trial court found that K&D was 

entitled to payments for rent and utilities for “the days in June 2018 that [Jones] 

resided in the apartment[.]” The trial court entered judgment against Jones for the 

exact amount K&D requested for the entire month of June 2018, $898.55, plus 

interest at the statutory rate from the date of the order. The trial court also denied 
as moot Jones’s motion to amend her answer, motion to compel, and two motions 

for summary judgment. 

On January 14, 2021, Jones filed a combined motion for relief from 

judgment pursuant to Civ.R. 60, motion to stay proceedings, and motion to waive 

supersedeas bond. She maintained that she received K&D’s partial discovery 

response on December 31, 2020, three days before the trial court’s order granting 

summary judgment to K&D and Reserve on Sunday, January 3. She also argued 

that the trial court’s finding that K&D is entitled to payment for the days in June 

2018 that she resided in the apartment meant that the judgment against her should 

be prorated, not rent for the entire month. 

In February 2021, Jones timely appealed the trial court’s judgment 

granting K&D and Reserve’s summary judgment motion. The following week, Jones 

filed a motion in this court requesting that we remand the matter to the trial court 

for the limited purpose of ruling on her post-judgment motion. We granted the 

motion and remanded. On remand, the trial court denied Jones’s post-judgment 

motion. This court reinstated the appeal. We address Jones’s assignments of error 

out of order for ease of discussion. 

II. Summary Judgment 

Jones argues in her first four assignments of error that the trial court 

erred in granting K&D and Reserve’s summary judgment motion and in denying her 

summary judgment motions. Jones’s first four assignments of error overlap with 

each other, but all challenge the merits of the trial court’s summary judgment 
rulings.3 Therefore, instead of addressing these assignments of error in 

chronological order, we will address them as we consider the merits of each claim 

presented by K&D and Jones. 

We review a trial court’s judgment granting a motion for summary 

judgment de novo. Citizens Bank, N.A. v. Richer, 8th Dist. Cuyahoga No. 107744, 

2019-Ohio-2740, ¶ 28. Thus, we independently “examine the evidence to determine 

if as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland Bd. of 

Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997). We therefore 

review the trial court’s order without giving any deference to the trial court. Citizens 

Bank at ¶ 28. “On appeal, just as the trial court must do, we must consider all facts 

and inferences drawn in a light most favorable to the nonmoving party.” Glemaud 

v. MetroHealth Sys., 8th Dist. Cuyahoga No. 106148, 2018-Ohio-4024, ¶ 50. 

Pursuant to Civ.R. 56(C), summary judgment is proper where (1) 

“there is no genuine issue as to any material fact,” (2) “the moving party is entitled 

to judgment as a matter of law,” and (3) “reasonable minds can come to but one 

conclusion, and that conclusion is adverse to the party against whom the motion for 

summary judgment is made.” Harless v. Willis Day Warehousing Co., 54 Ohio 

3 In her first assignment of error, Jones contends that the trial court erred because 

K&D and Reserve failed to move for summary judgment on three of her claims. In her 

second assignment of error, she maintains that the trial court erred in denying her motion 

for summary judgment on all four of her claims. In her third assignment of error, she 

contends that the trial court should have granted her motion for summary judgment on 

K&D’s claim for damages for the entire month of June 2018. In her fourth assignment of 

error, she argues that the trial court erred in granting K&D’s motion for summary 

judgment on K&D’s claim and her claim for the return of her security deposit under the 

2016 lease. 
St.2d 64, 66, 375 N.E.2d 46 (1978). Trial courts should award summary judgment 

only after resolving all doubts in favor of the nonmoving party and finding that 

“reasonable minds can reach only an adverse conclusion” against the nonmoving 

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 

(1992). 

The moving party carries an initial burden of setting forth specific 

facts that demonstrate his or her entitlement to summary judgment. Dresher v. 

Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to 

meet this burden, summary judgment is not appropriate. Id. at 293. If the movant 

does meet this burden, the burden shifts to the nonmovant to establish the existence 

of genuine issues of material fact. Id.

A. K&D’s Claim that Jones Breached the 2016 Lease 

In her third assignment of error, Jones argues that the trial court 

erred by denying her motion for summary judgment on K&D’s claim for breach of 

contract. In her fourth assignment of error, she also contends that the trial court 

erred in granting K&D and Reserve’s summary judgment motion on this claim. She 

maintains that K&D cannot establish the first prong of a breach-of-contract claim: 

the existence of a contract between them in June 2018. K&D argues that the trial 

court correctly granted summary judgment in its favor on its claim that Jones 

breached the 2016 lease because Jones renewed the lease term for another year 

when she stayed in the apartment into June 2018. 
To recover on a claim for breach of contract, a plaintiff must 

demonstrate (1) the existence of a binding contract, (2) performance by the plaintiff, 

(3) breach by the defendant, and (4) damages resulting from the breach. Corsaro v. 

ARC Westlake Village, Inc., 8th Dist. Cuyahoga No. 84858, 2005-Ohio-1982, ¶ 20, 

citing Am. Sales, Inc. v. Boffo, 71 Ohio App.3d 168, 175, 593 N.E.2d 316 (2d 

Dist.1991). 

The 2016 lease states that the lease term was June 1, 2016, to May 31, 

2017, and that the term “shall renew from year to year” with a 2-percent increase in 

the monthly rent, “unless either party notifies the other, in writing, at least sixty (60) 

days prior to the end of the then current term, that either party desires to terminate 

this Rental Agreement at the end of such term.” There is no dispute that the lease 

renewed for a term of June 1, 2017, to May 31, 2018, with a 2-percent increase in 

monthly rent. 

Jones presented evidence that in February 2018, more than sixty days 

before the end of the “then current term,” Jones sent an email to K&D providing 

notice that she intended to terminate the rental agreement. The email states the 

following in relevant part: “I’m giving notice that I will be moving out at the end of 

my lease, which ends May 31[.]” In an affidavit, Jones stated that on May 31, 2018, 

she went to K&D’s office to “verify final move-out procedures,” and the employee 

with whom she spoke initially could not locate any record of her notice of 

terminating the lease. Jones averred that the employee “eventually did confirm” 

that K&D had her notice from February. Jones also presented an email she sent to 
K&D on May 31, 2018, forwarding her February email and stating, “Please see one 

email I sent in February below. FYI. I am moving but staying in the downtown 

Cleveland area, so I can follow up with [a]nything at Reserve Square even after I 

move.” K&D does not challenge this evidence or Jones’s argument that she gave 

K&D notice that she intended to terminate the lease. 

However, as the parties agree, Jones remained in the apartment after 

the lease terminated on May 31, 2018. K&D maintains that Jones’s continued 

occupancy of the apartment into June created a new one-year lease term, but that it 

is seeking payment only for the entire month of June 2018 as a gesture of “good 

faith.” Jones argues that the conduct of the parties shows that they did not intend 

to enter a new one-year lease term. 

“A tenant who holds over, or remains in possession of leased 

property, after the term of his lease expires is a tenant at sufferance.” Adams v. 

Relmax, 2018-Ohio-1751, 111 N.E.3d 758, ¶ 10 (8th Dist.). In such a situation, “the 

landlord may elect to treat the tenant as a trespasser, or hold him to a new lease 

term.” Kazmaier v. Fat Jacks, L.L.C., 6th Dist. Woods Nos. WD-09-048 and WD09-057, 2010-Ohio-3627, ¶ 18. “In such cases, the conduct of the parties determines 

whether an implied contract arises.” Steiner v. Minkowski, 72 Ohio App.3d 754, 762 

(6th Dist.1991). The right of a landlord to hold the tenant to a new lease term “will 

not be affected by the fact that the tenant refused to renew the lease, and gave notice 

that he had hired other premises.” Pyros v. Gould, Inc., 8th Dist. Cuyahoga No. 

61999, 1993 Ohio App.LEXIS 2373, 11-12 (May 6, 1993), quoting Baltimore & O.R. 
Co. v. West, 57 Ohio St. 161, 166-167, 49 N.E. 344 (1897). But “[t]he theory of 

holding over is never permitted to operate against the clear intention of the parties.” 

Pyros, citing Smith v. Gulf Refining Co., 57 Ohio App. 73, 74, 11 N.E.2d 706 (8th 

Dist.1937). 

Jones relies on Palevsky v. Bentfield, 46 Ohio App. 385, 188 N.E. 660 

(8th Dist.1933), in which this court held that a tenant who gave his landlord notice 

that he would vacate the premises but held over in the property for one day after his 

lease ended was not liable to the landlord for an extra month of rent. We recognized 

a general rule that “where a tenant holds over for a day or a fraction of a day, the 

landlord has a right to consider the tenancy as continuing and to demand his rent 

which has become due.” Id. at 387. We explained that “holding over is based upon 

an implied agreement[.]” Id. By remaining in the property, the tenant shows that 

“he intends to continue the relationship,” and “[i]f the landlord so elects, the tenant 

is then bound.” Id. But we found that the tenant’s act of notifying the landlord of 

his intent to vacate the property “clearly rebutted any intention on the part of the 

tenant to remain,” and “no implied agreement resulted or could result.” Id. at 388. 

K&D and Reserve argue that Palevsky is distinguishable because (1) 

the parties in Palevsky had agreed to only a month-to-month tenancy, (2) the 

opinion does not specify whether the agreement was written or oral, (3) the opinion 

does not specify whether the parties’ agreement included “an unambiguous renewal 

provision,” and (4) the tenant held over for less than one day. However, these factual 

differences between this case and Palevsky do not diminish our reasoning in 
Palevsky that tenants’ acts of notifying their landlords of their intent to move out is 

relevant to determine whether an implied contract for a new rental term was 

created. And Palevsky is not the only case standing for this principle. See, e.g., 

Jones v. Simondis, 11th Dist. Trumbull No. 97-T-0073, 1998 Ohio App. LEXIS 1210, 

16 (Mar. 27, 1998) (finding that a tenant’s conduct of giving his landlord notice of 

his intent to vacate the premises was “an indication” that he did not intend to 

continue the tenancy even though he did not return his keys until two days after the 

tenancy period ended). 

K&D and Reserve also argue on appeal that Jones’s conduct of 

remaining in the apartment into June 2018 was inconsistent with her notice that she 

intended to terminate the lease, and she therefore “waive[d]” her notice. However, 

K&D and Reserve did not make this argument in their summary judgment motion, 

and they cannot raise it for the first time on appeal. Realty Trust Servs., L.L.C. v. 

Mohammad, 8th Dist. Cuyahoga No. 108968, 2020-Ohio-3736, ¶ 16. 

Regardless of Jones’s intent, the more relevant inquiry is K&D’s 

conduct and whether K&D chose to treat Jones as a trespasser or to hold her to a 

new lease term. See Pyros, 8th Dist. Cuyahoga No. 61999, 1993 Ohio App.LEXIS 

2373, at 11 (“The election is solely that of the landlord.”). The record must contain 

“some evidence that the landlord acquiesced in the tenant’s holding over.” Pyros,

citing Baltimore, 57 Ohio St. at 168, 49 N.E. 344. For example, in Simondis, the 

Eleventh District found that the tenant was not liable for a full month of rent even 

though he did not return his keys until two days after his tenancy period ended in 
part because the record contained no evidence that the landlord “acquiesced” in the 

tenant’s “holding over” or that the landlord “affirmatively elected to treat [the 

tenant] as a holdover tenant.” Simondis at 16. And in Pyros, we found that a 

commercial tenant was not liable for rent for an additional term because evidence 

that the landlord denied the tenant access to the building showed that the landlord 

had elected to treat the tenant as a trespasser and “never acquiesced to a hold-over 

tenancy.” Pyros at 15. 

The evidence in this case shows that K&D elected to treat Jones as a 

trespasser, not to hold her to a new lease term. In her affidavit attached to her 

summary judgment motion, Jones averred that “[a]pproximately seven to ten days 

after June 1, 2018,” she received a letter from K&D under the door of her apartment 

“demanding that [she] vacate the Residential Unit[.]” Jones also produced a “Final 

Account Statement,” which she averred K&D had mailed to her in July 2018 (and 

which lists a balance due of $11,302.55). The statement is dated June 29, 2018, and 

it includes a line item for “Notice Given” on June 11, 2018. K&D does not challenge 

Jones’s evidence and does not dispute that it put a letter under Jones’s door 

demanding that she vacate the apartment. The account statement attached to K&D’s 

summary judgment motion also shows that K&D initially charged Jones for only 

eleven days’ worth of rent and utilities in June 2018: on June 1, 2018, K&D charged 

Jones for rent and utilities and the same day gave her a credit for 19 days. K&D did 

not charge Jones rent for the rest of June 2018 until June 29, 2018 — after K&D 

demanded that she vacate and after she did vacate the apartment. K&D’s conduct 
demonstrates that it initially treated Jones as a trespasser, charged her for only the 

days she trespassed, and did not agree to a holdover tenancy. K&D’s conduct and 

Jones’s notice that she planned to terminate the lease show that the parties did not 

intend to renew the lease term even though Jones retained possession of the 

apartment beyond May 31, 2018. 

Accordingly, no contract existed between K&D and Jones for a new 

lease term from June 2018 to June 2019. Jones is therefore not liable to K&D for 

rent for the entire month of June 2018 or accelerated rent for the remainder of the 

year. 

However, the parties agree that the lease term ended on May 31, 2018, 

and the undisputed summary judgment evidence shows that Jones did not move out 

of the apartment until June 11, 2018. Therefore, Jones breached the lease 

agreement, and K&D is entitled to damages for the 11 days in June 2018 that Jones 

remained in the apartment beyond the lease term. See Ozdemir v. Boldt, 6th Dist. 

Lucas No. L-18-1022, 2018-Ohio-5008, ¶ 20-23 (holding that tenant who held over 

5 days beyond end of lease term was liable for 5 days of prorated rent, not the entire 

month of rent); Village Station Assocs. v. Geauga Co., 84 Ohio App.3d 448, 451-

452, 616 N.E.2d 1201 (11th Dist.1992) (finding that a tenant was liable only for the 

value of the 9 days it held over). The account statement attached to K&D’s summary 

judgment motion shows that Jones’s account balance for 11 days of damages 

(including charges for 11 days of rent and utilities, a late fee, and credit for her 

security deposit) was $323.35. 
The trial court’s order granting summary judgment to K&D stated 

that K&D was entitled to payment for rent and utilities “for the days in June 2018 

that [Jones] resided in the apartment” but nonetheless ordered Jones to pay 

$898.55 — which included rent and utilities for the entire month, not prorated for 

11 days. We therefore affirm the trial court’s judgment granting K&D summary 

judgment on its claim, but we modify the damages award. 

Accordingly, we overrule in part Jones’s third and fourth assignments 

of error as they relate to damages for 11 days in June 2018, and we sustain them in 

part as they relate to damages for the remainder of the month of June 2018. We 

hold that Jones is liable to K&D for $323.35. 

B. Jones’s Claims 

In her first assignment of error, Jones argues that the trial court erred 

in granting summary judgment in favor of K&D and Reserve on three of her four 

claims. She maintains that K&D and Reserve moved for summary judgment only 

on (1) K&D’s claim that Jones breached the 2016 lease, and (2) Jones’s claim that 

K&D failed to return her security deposit under the 2016 lease. She argues that K&D 

and Reserve’s summary judgment motion did not address her claims that (1) K&D 

overcharged her under the 2015 lease, (2) K&D overcharged her under the 2016 

lease, and (3) K&D failed to return her security deposit under the 2015 lease. In her 

second assignment of error, Jones argues that the trial court erred in denying her 

motion for partial summary judgment as to liability on her claims as moot. 
K&D and Reserve moved for summary judgment on “all claims.” 

However, in their two-paragraph argument section addressing Jones’s claims, K&D 

and Reserve characterize Jones’s four claims “as a claim for the return of her security 

deposit” that she paid pursuant to the 2016 lease. K&D and Reserve presented an 

argument only on Jones’s claim for the return of her security deposit under the 2016 

lease, and they completely ignored her claims regarding K&D’s alleged improper 

charges under the 2015 and 2016 leases and K&D’s alleged failure to return Jones’s 

security deposit under the 2015 lease. In their appellee briefs to this court, K&D and 

Reserve again do not address these claims. 

However, all four of Jones’s claims are properly before us for review. 

Civ.R. 13(B) provides that “[a] pleading may state as a counterclaim any claim 

against an opposing party not arising out of the transaction or occurrence that is the 

subject matter of the opposing party’s claim.” This court has previously recognized 

that “any claim against an opposing party, even if not arising from the same 

operative facts, may be raised as a counterclaim.” Midland Funding, L.L.C. v. 

Trivers, 8th Dist. Cuyahoga No. 101792, 2014-Ohio-5557, ¶ 15; see also 

CitiMortgage, Inc. v. Slack, 8th Dist. Cuyahoga No. 94899, 2011-Ohio-613, ¶ 11. 

Even though Jones’s claims were unrelated to K&D’s claim that she failed to timely 

move out of the apartment, she properly brought them as permissive counterclaims 

pursuant to Civ.R. 13(B). 

 Jones filed a motion for summary judgment as to the liability portion 

on all four of her claims (requesting to preserve the issue of damages for trial), and 
the trial court entered summary judgment in favor of K&D and Reserve on all four 

claims even though K&D and Reserve did not address the two claims related to the 

2015 lease and the claim that K&D overcharged her pursuant to the 2016 lease. The 

text of the trial court’s judgment entry states that it is granting summary judgment 

on K&D and Reserve’s “complaint and against [Jones’s] counter and cross claims,” 

but the rest of the text of the judgment entry addresses only K&D’s claim that Jones 

failed to move out of the apartment on time and does not mention Jones’s claims 

regarding the 2015 lease or alleged improper charges under the 2016 lease. 

It was improper for the trial court to grant summary judgment in 

favor of K&D and Reserve on Jones’s claims without actually considering the claims. 

However, this error warrants reversal only if we find, after our de novo review of the 

merits of Jones’s claims, that K&D and Reserve are not entitled to judgment as a 

matter of law. 

1. Improper Charges under the 2015 Lease 

For her first claim, Jones argues that K&D and Reserve breached the 

2015 lease by charging her for water and electricity. She argues that Cleveland 

Codified Ordinances (“C.C.O.”) 375.05 prohibited K&D and Reserve from charging 

her for these utilities. 

C.C.O. 375.05, titled “Payment of Utilities” states as follows: 

(a) A landlord who is a party to a rental agreement shall pay for the 

electric, gas, and water services for the tenant’s dwelling unit unless: 

(1) The applicable utility service is provided to the tenant’s 

dwelling unit through an individual meter or submeter that 

measures usage only in the tenant’s dwelling unit; and 
(2) The rental agreement provides that, with respect to the 

applicable utility service, the tenant shall pay only for the cost 

of the utility service that is provided through the individual 

meter or submeter during the tenancy; and 

(3) The rental agreement provides that the tenant shall have 

reasonable access at all times to the individual meter or 

submeter, for the purpose of reading the meter or submeter; 

and the landlord grants the tenant such access to the individual 

meter or submeter; and 

(4) The provisions in the rental agreement that implement this 

section are stated in clear and unambiguous language. 

Jones argues that although she does not know if the utility services 

were provided to her apartment through an individual meter, K&D and Reserve did 

not meet elements numbers two, three, or four because the 2015 lease did not 

provide in “clear and unambiguous language” that she would pay only for the cost 

of the utility provided through her individual meter and that she would have 

reasonable access to the meter at all times. She maintains that K&D and Reserve 

were therefore obligated to pay for her electric, gas, and water services. 

After reviewing the evidence in the record, we find that K&D and 

Reserve did not violate C.C.O. 375.05. The account statements show that K&D 

charged Jones monthly for “utility recovery charges.” This demonstrates that K&D 

paid the utility companies and simply passed the cost on to Jones. C.C.O. 375.04 

requires landlords to pay for electric, gas, and water service unless the tenant’s unit 

has a separate meter; the ordinance does not prohibit the landlords from then 

charging tenants for the services. The ordinance provides a form of tenant 

protection where utility meters are shared by requiring the utilities to be in the 
landlord’s name. See McDonough, Then and Now: The Uniform Residential 

Landlord and Tenant Act and the Revised Residential Landlord and Tenant Act — 

Still Bold and Relevant?, 35 U. Ark. Little Rock L. Rev. 995-996 (2013). But the 

ordinance does not exempt tenants from paying for the utility services they use in 

the form of rent or payment to their landlords. 

Accordingly, we find that there is no genuine issue of material fact, 

and K&D and Reserve are entitled to judgment as a matter of law on this claim. We 

therefore overrule Jones’s first and second assignments of error as they pertain to 

this claim. 

2. Improper Charges under the 2016 Lease 

Jones also asserted as a claim that K&D and Reserve breached the 

2016 lease by charging her for water and electricity. As we explained previously, 

C.C.O. 375.05 did not prohibit K&D from passing on the costs of these utilities to 

Jones. However, under this claim, Jones also argues that K&D overcharged her for 

rent when the 2016 lease automatically renewed in June 2017. 

The 2016 lease provides that rent would be $889.00 per month from 

June 1, 2016, to May 31, 2017, and increase by 2 percent each year. The parties also 

executed a “Rent Credit/Incentive Lease Addendum,” which stated that it “is made 

a part of the Lease executed by the parties.” The addendum provided in relevant 

part that “Resident has received from Landlord rent credits and/or incentive(s) in 

the form of: PEP Discount = $22.00 off for the months of June 2016 to June 2017.” 

It also stated that “Resident acknowledges that the rent credits and/or incentives 
listed with end dates (if applicable) in Paragraph 1 will cease and the rent amount 

will be increased to the market rental rate upon renewal of the lease term.” With the 

“PEP Discount,” the rent for June 2016 to June 2017 was therefore $867.00 per 

month. 

Jones argues that when this lease automatically renewed in June 

2017, the 2-percent rent increase should have been calculated from her discounted 

rent of $867.00, resulting in monthly rent of $884.00 for the following year. She 

maintains, however, that K&D calculated the 2-percent increase from the prediscounted rate of $889.00 and therefore overcharged her for rent. 

We disagree with Jones’s argument. The 2016 lease states that the 2-

percent yearly rental increase “shall be computed on the rental amount as stated in 

this Rental Agreement for the initial year and thereafter on the rental amount for a 

renewal term regardless of any rent credit previously granted to Resident(s) by 

Agent.” Pursuant to the addendum to the 2016 lease, the $22.00 per-month 

discount is a “rent credit.” Jones’s rent for June 2017 through May 2018 was 

therefore properly a 2-percent increase from the prediscounted rate of $889.00 per 

month. 

Accordingly, we find that K&D and Reserve did not overcharge Jones 

for water, electricity, or rent under the 2016 lease. There is no genuine issue of 

material fact, and K&D and Reserve are entitled to judgment as a matter of law on 

this claim. We therefore overrule Jones’s first and second assignments of error as 

they pertain to this claim. 
3. Failure to Return Security Deposit Paid Pursuant to the 2015 

Lease 

Jones also maintains as a claim that K&D and Reserve failed to return 

the $99.00 security deposit that she paid when she signed the May 2015 lease. 

R.C. 5321.16(B) provides: 

Upon termination of the rental agreement any property or money held 

by the landlord as a security deposit may be applied to the payment of 

past due rent and to the payment of the amount of damages that the 

landlord has suffered by reason of the tenant’s noncompliance with 

section 5321.05 of the Revised Code or the rental agreement. Any 

deduction from the security deposit shall be itemized and identified by 

the landlord in a written notice delivered to the tenant together with 

the amount due, within thirty days after termination of the rental 

agreement and delivery of possession. The tenant shall provide the 

landlord in writing with a forwarding address or new address to which 

the written notice and amount due from the landlord may be sent. If 

the tenant fails to provide the landlord with the forwarding or new 

address as required, the tenant shall not be entitled to damages or 

attorneys fees under division (C) of this section. 

R.C. 5321.16(C) states that if a landlord fails to comply with division 

(B), “the tenant may recover the property and money due him, together with 

damages in an amount equal to the amount wrongfully withheld, and reasonable 

attorneys fees.” “The double damages afforded by R.C. 5321.16 serves to 

compensate injured tenants for the time, inconvenience, and cost of having to sue 

for the recovery of money wrongfully withheld.” Jensen v. Blvd. Invests. Ltd., 8th 

Dist. Cuyahoga No. 103658, 2016-Ohio-5325, ¶ 18. 

Furthermore, R.C. 5321.16(B) requires the tenant to provide written 

notice of his or her forwarding address “solely to ensure that [the] landlord has some 

reasonable method to return the security deposit.” Prescott v. Makowski, 9 Ohio 
App.3d 155, 156, 458 N.E.2d 1281 (8th Dist.1983). If a landlord has “actual notice 

of a former tenant’s new address,” then the tenant may recover damages under 

R.C. 5321.16(C) if the landlord fails to comply with R.C. 5321.16(B). Amon v. Keagy, 

11th Dist. Trumbull No. 2008-T-0033, 2009-Ohio-3794, ¶ 23. 

After reviewing the record, we find that K&D failed to comply with 

R.C. 5321.16(B). In its responses to Jones’s requests for admissions, K&D admitted 

that Jones paid a $99.00 security deposit pursuant to the 2015 lease. The record 

shows that when the 2015 lease terminated, Jones moved into a different unit within 

the same apartment building, so K&D had actual knowledge of Jones’s new address. 

K&D admitted that it “returned no part of this security deposit to Jones,” and there 

is no evidence in the record that K&D provided Jones with written notice that it was 

making any deductions from the security deposit. Furthermore, Jones attached to 

her opposition to K&D and Reserve’s summary judgment motion a document from 

the Ohio Department of Commerce stating that K&D reported $39.73 to the Division 

of Unclaimed Funds for Jones’s “security deposit” for unit “#6V,” which was the unit 

subject to the 2015 lease. 

Accordingly, we find that K&D and Reserve are not entitled to 

judgment as a matter of law on this claim. To the contrary, we find that there is no 

genuine issue as to any material fact, and Jones is entitled to judgment as a matter 

of law on this claim. We therefore sustain Jones’s first and second assignments of 

error as they pertain to this claim. We reverse the trial court’s grant of K&D and 

Reserve’s summary judgment motion and denial of Jones’s summary judgment 
motion on this claim. Because Jones’s security deposit was $99.00 and K&D failed 

to comply with R.C. 5321.16(B), Jones is entitled to double damages in the amount 

of $198.00.4

4. Failure to Return Security Deposit Paid Pursuant to the 2016 

Lease 

In her final claim, Jones argues that K&D and Reserve failed to return 

the $99.00 security deposit she paid when she signed the 2016 lease. However, 

R.C. 5321.16(B) provides that the landlord may apply a tenant’s security deposit “to 

the payment of past due rent[.]” K&D therefore complied with R.C. 5321.16(B) when 

it subtracted Jones’s $99.00 security deposit from the amount Jones owes for the 

days in June that she retained possession of the apartment. 

We therefore find that there is no genuine issue of material fact, and 

K&D and Reserve are entitled to judgment as a matter of law on this claim. We 

overrule Jones’s second and fourth assignments of error as they pertain to this 

claim.5

III. Jones’s Discovery Motions and Motion to Amend Answer 

In her fifth assignment of error, Jones argues that the trial court erred 

in ruling that her motion to compel discovery responses was moot and not ruling on 

4 Pursuant to R.C. 5321.16(C), if Jones retained counsel, she would also be entitled 

to reasonable attorney fees. 

5 Jones’s first assignment of error challenges the trial court’s order granting K&D 

and Reserve’s summary judgment motion on her first three claims, not her claim for the 

return of her security deposit under the 2016 lease. However, her second assignment of 

error challenges the trial court’s denial of her summary judgment motion on all four 

claims, and her fourth assignment of error challenges the trial court’s grant of summary 

judgment to K&D and Reserve on this claim. 
her motion for a continuance to oppose K&D and Reserve’s summary judgment 

motion pending their discovery responses. In her sixth and final assignment of 

error, Jones argues that the trial court erred in ruling that her motion for leave to 

amend her answer was moot. Jones “consolidated” these assignments of error into 

a single argument that the trial court erred in denying these motions because it 

provided no reasoning and simply denied them as “moot.” 

We review these rulings for abuse of discretion. See Nemcek v. N.E. 

Ohio Regional Sewer Dist., 8th Dist. Cuyahoga No. 98431, 2012-Ohio-5516, ¶ 7 

(explaining that we review a denial of a motion to compel discovery for abuse of 

discretion); Seget v. Seget, 8th Dist. Cuyahoga No. 83905, 2014-Ohio-6209, ¶ 9 

(“The decision to grant or deny a motion for continuance lies within the discretion 

of the trial court and will not be reversed on appeal unless the trial court has abused 

its discretion.”); Franciscan Communities, Inc. v. Rice, 8th Dist. Cuyahoga No. 

109889, 2021-Ohio-1729, ¶ 32 (“We review a trial court’s decision to deny a motion 

for leave to file an amended pleading for an abuse of discretion.”). An abuse of 

discretion connotes that the trial court’s attitude was unreasonable, arbitrary, or 

unconscionable. Ruwe v. Bd. of Twp. Trustees, 29 Ohio St.3d 59, 61, 505 N.E.2d 

957 (1987). 

In her motion to compel discovery, Jones sought documents and 

interrogatory responses that included the following topics: witnesses and 

documents K&D and Reserve intended to introduce at trial, all charges and credits 

K&D applied to Jones’s account from May 2015 through June 2018; K&D’s efforts 
to re-lease the apartment; the damages K&D intended to prove at trial; any notice 

that K&D provided to Jones that it was deducting from her security deposit pursuant 

to the 2015 lease, and communications that K&D placed under her door in June 

2018. 

Docket entries dated December 23, 2020, show that the trial court 

denied as moot Jones’s motion to compel discovery and motion to amend her 

answer. On January 3, 2021, the trial court granted K&D and Reserve’s summary 

judgment motion. The record reflects that the trial court did not rule on Jones’s 

motion for a continuance to file a more complete opposition to K&D and Reserve’s 

summary judgment motion after receiving discovery, but it is deemed denied for the 

purposes of this appeal. See State v. Nikolic, 8th Dist. Cuyahoga No. 108779, 2020-

Ohio-3718, ¶ 5, citing Savage v. Cody-Zeigler, Inc., 4th Dist. Athens No. 06CA5, 

2006-Ohio-2760, ¶ 28 (“motions that a trial court fails to explicitly rule upon are 

deemed denied once a court enters final judgment”). 

Jones maintains that the trial court gave no reasoning why it denied 

these motions. However, given the timing of the trial court’s judgments, we can 

reasonably conclude that the trial court thought that further discovery and the 

proposed amendments to Jones’s answer would not have changed the summary 

judgment outcome. Based on the record before us, we cannot conclude that the trial 

court abused its discretion. 
Accordingly, we overrule Jones’s fifth and sixth assignments of error. 

We affirm the trial court’s judgments denying Jones’s discovery motions and motion 

to amend her answer. 

IV. Conclusion 

We affirm in part and reverse in part the trial court’s judgments 

consistent with this opinion. First, we affirm the trial court’s denial of Jones’s 

August 28, 2020 motion for summary judgment on K&D’s claim for breach of 

contract; November 6, 2020 motion to amend her answer; December 4, 2020 

motion to compel discovery; and December 4, 2020 motion for a continuance. 

Second, we affirm in part and reverse in part the trial court’s 

judgments denying Jones’s December 15, 2020 summary judgment motion on her 

claims and granting K&D and Reserve’s October 28, 2020 summary judgment 

motion. We affirm the judgments as they pertain to Jones’s claims for (1) improper 

charges under the 2015 lease, (2) improper charges under the 2016 lease, and (3) 

the return of her $99.00 security deposit under the 2016 lease. We also affirm the 

judgments as they pertain to K&D’s claim that Jones breached the 2016 lease. But 

we reverse the judgments as they pertain to Jones’s claim that K&D failed to return 

the $99.00 security deposit she paid pursuant to the 2015 lease: we hold that K&D 

failed to comply with R.C. 5321.16(B), and K&D is liable to Jones for double damages 

in the amount of $198.00. We also modify the damages award in the trial court’s 

order granting K&D and Reserve’s summary judgment motion: we hold that Jones 
is liable to K&D for damages for only the 11 days she remained in the apartment 

beyond the end of the lease term, in the amount of $323.35. 

We remand with instructions for the trial court to issue a journal entry 

that (1) awards Jones $198.00 in damages against K&D, and (2) awards K&D 

$323.35 in damages against Jones. 

It is ordered that appellant recover from appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

MARY J. BOYLE, ADMINISTRATIVE JUDGE 

KATHLEEN ANN KEOUGH, J., and 

EILEEN T. GALLAGHER, J., CONCUR