This cause came on for hearing before Magistrate Hummer by Order of Reference from Judge Maynard. Attorney Andrew Ruzicho represented plaintiff, Nancy Ridenour. Attorney James Becker represented defendant, Velva Dunn. The trial was heard by this magistrate over several days in the fall of 2001, as a result of which the magistrate issued a report and decision on February 20, 2002. When plaintiff filed a post-trial motion for attorneys fees, the matter was set for hearing on the issue of the fees. Sworn testimony was taken on May 13, 2002.
Having fully considered the testimony presented, the arguments of the parties and appropriate Ohio law, the magistrate concludes that plaintiff is entitled to an award of attorneys fees in the amount of $ 1,000.00.
The leading authority in Ohio with respect to attorneys fees as they relate to security deposit issues is Smith v. Padgett (1987), 32 Ohio St.3d 344. The Ohio Supreme Court in Padgett directed that any attorney fees awarded “must relate solely to the fees attributable to the tenant’s security deposit claim under R.C. 5321.16.” Padgett, at 344. The plaintiff in the current action alleged an unauthorized entry by the landlord and a pattern of harassment that gave the tenant the right to terminate the tenancy early. That series of allegations formed the majority of plaintiff’s claim, and the security deposit issue was secondary and subordinate to the tenant’s primary claim. The magistrate found against plaintiff on the unauthorized entry and the harassment claims. The majority of the trial time was devoted to plaintiff’s primary unauthorized entry and harassment claims and to the landlord’s counterclaim in response, which dealt with an alleged unauthorized occupant and the corresponding argument that the rental value of the apartment should have been higher because of the presence of more than one tenant. Thus, although the plaintiff prevailed, she recovered only a portion of the security deposit. The primary case cited by plaintiff, in support of his argument that more than $4,000 in attorney fees should be awarded, is distinguishable. In that case, Marple v. Woods ofNorthland, Franklin County Municipal Court Case No. 2001 CVI-5071 (September 25, 200 1), the trial court noted that the tenant prevailed on the primary claim in the complaint.
By contrast, defendant argues that plaintiff’s counsel should be denied any attorneys fee. The magistrate has considered the authority cited and rejects defendant’s position. Just as the case cited by plaintiff is distinguishable, so too are those cited by defendant. None provides guidance as clear and on point to this dispute as Smith v. Padgett.
One further matter requires comment. Defendant devoted significant attention to the conduct of counsel for plaintiff. While the language attributed to plaintiffs counsel — if indeed it was used — would be deplorable, the magistrate is convinced that counsel for plaintiff advanced plaintiff’s claim in good faith. The landlord/tenant relationship between plaintiff and defendant deteriorated over time and became very strained. While the magistrate ultimately concluded defendant did not “harass” plaintiff within the context of R.C. 5321.04(B), defendant’s comments as preserved on the recorded phone messages were hurtful and personal. Consequently, it is not surprising that plaintiff s counsel would assert, in good faith, the claim that defendant had harassed plaintiff in violation of the statute. Although that claim failed, counsel for plaintiff need not be penalized for advancing such a claim by denying him any fee award at all in connection with the security deposit claim. That would be error just as much as it would be error to award him requested fees when the bulk of the claim did not relate to the security deposit.
Applying the reasoning of Smith v. Padgett, the factors set forth in DR2-106 of the Code of Professional Responsibility, and the testimony of plaintiffs counsel and that of his expert witness Eric Willison, the magistrate concludes $1,000 represents a reasonable amount of attorney fees. The award amount recognizes plaintiff’s partial success on her security deposit claim while acknowledging her failure to prove the rest of her claims.
Final judgment to include an award to Plaintiff for attorney fees in the amount of $1000.