IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
CONSTELLATION OHIO, L.L.C., CASE NO. 2025-P-0076
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
JASMYN MCCLAIN., Trial Court No. 2024 CV 00068 Defendant/Third Party
Plaintiff-Appellant,
- vs -
BRON ROEDER,
Third Party Defendant-
Appellee.
OPINION AND JUDGMENT ENTRY Decided: September 14, 2026 Judgment: Affirmed
Chad E. Murdock, P.O. Box 334, Rootstown, OH 44272 (For Plaintiff-Appellee and Third Party Defendant-Appellee).
David Glenn Phillips, The Brown Hoist Building, 4403 St. Clair Avenue, Cleveland, OH 44103 (For Defendant/Third Party Plaintiff-Appellant).
JOHN J. EKLUND, J.
{¶1} Here, Appellees, Constellation Ohio, L.L.C. (Constellation), and its owner, Bron Roeder (Roeder), granted a tenancy to Appellant, Jasmyn McClain, expecting to receive rental payments and an additional monthly pet fee. Appellant argues that
Appellees did not warn her that she would be responsible for the additional pet fee. She also says Appellees violated statutory and contractual duties they owed her.
{¶2} Appellant now appeals three judgments of the Portage County Court of Common Pleas: the trial court’s September 30, 2025 Judgment granting summary judgment for Appellees on Counts Three, Four, and Five of her Counterclaims; the October 3, 2024 Judgment granting partial summary judgment for Appellees on Counts One and Two of her Counterclaims; and the trial court’s October 29, 2024 Judgment denying Appellant’s Motion for Leave to Amend her Answer and Counterclaims.
{¶3} Appellant raises six assignments of error. In her first and second assignments of error, Appellant argues the trial court erred in granting partial summary judgment on Counts One and Two of her Counterclaims for Discrimination and Retaliation under R.C. 4112.02(H) and (I). In her third, fourth, and fifth assignments of error, Appellant argues the trial court erred in granting summary judgment to Appellees on Counts Three, Four, and Five of her Counterclaims, which alleged Appellees breached the lease agreement, retaliated against her in violation of R.C. 5321.02, and that Constellation failed to return her security deposit. Her sixth assignment of error relates that the trial court erred by denying her Motion for Leave to Amend her Answer and Counterclaims.
{¶4} Having reviewed the record and applicable law, we find that Appellant’s first and second assignments of error are without merit. Appellant cannot establish that Appellees discriminated on the basis of disability by charging a generally applicable pet fee and cannot establish retaliation where Appellees took no adverse action against her.
{¶5} Next, Appellant’s third assignment of error is without merit because Appellant did not comply with the rental agreement’s termination and move out
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procedures when she terminated her lease in late October 2023. Likewise, Appellant’s fourth assignment of error is without merit because there is no evidence that Appellees made any threats of eviction based on Appellant’s complaints about necessary repairs in the apartment. Appellant’s fifth assignment of error is without merit because the trial court properly found that Appellees had itemized each of the deductions from Appellant’s security deposit for unpaid rent and damages.
{¶6} Finally, the trial court did not abuse its discretion by denying Appellant’s Motion to Amend Answer and Counterclaims filed 34 weeks after filing her Answer and Counterclaims and well after she knew or should have known that Appellees had made handwritten markups to the rental agreement.
{¶7} Therefore, we affirm the judgment of the Portage County Court of Common Pleas.
Substantive and Procedural History Rental Agreement and tenancy:
{¶8} Constellation leases rental properties in Ohio. Roeder is the sole owner of Constellation, and Constellation has no other employees. Constellation leased an apartment to Appellant and her daughter. Appellant’s daughter is disabled and requires the assistance of an emotional support animal. According to Appellant, Roeder informed her that an emotional support animal would not be a problem.
{¶9} Appellant signed the lease on July 7, 2023. When she did, she initialed two sections that indicated there would be a non-refundable pet deposit of $100.00 and an additional $50.00 per month pet rent.
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{¶10} Appellant examined the apartment and, on August 1, 2023, notified Roeder that certain repairs were needed. Specifically, Appellant stated that the toilet was constantly running and that she was concerned about the water bill, which the tenant was responsible for paying. She also said that a door lock needed to be replaced, non-working stove burners needed repairs, the laundry door was off the tracks and not operating properly, and a rusty picnic table needed to be removed.
{¶11} On August 1, Roeder sent Appellant a message stating that he would look into each of these issues. He also said that a comfort animal does not qualify as a service animal and that Appellant would be required to pay the $100.00 deposit and an additional $50.00 per month in rent.
{¶12} Roeder acknowledged that he added handwritten markups to the lease after Appellant had signed to indicate that Appellant would be responsible for the additional pet fees. Roeder said that he emailed a PDF copy of the lease with his handwritten markups to Appellant in July of 2023. However, the email did not alert Appellant to these markups. Appellant maintains that she did not become aware of these markups until the end of July 2024.
{¶13} Appellees did not immediately repair or remedy the issues Appellant identified, and she contacted Roeder on August 21, 2023, about these issues. At this time, she also notified Roeder of a faucet leak and that the washing machine was not working properly.
{¶14} On August 24, 2023, Roeder emailed Appellant and told her that he had consulted his attorney and determined that an emotional support animal did not qualify as a “service animal” and that Appellant was responsible to pay the additional deposit of
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$100.00 and additional monthly fee of $50.00. Appellant responded that such a request was illegal given her daughter’s disability.
{¶15} On August 29, 2023, Appellant again contacted Roeder about the requested repairs and stated that she was willing to move out, saying “[l]et me know if you want to break the lease and refund my security deposit and I’ll start looking for an apartment elsewhere.” Roeder responded that if Appellant did not pay the additional pet fee in addition to her base rent by September 1, that she would “receive a 3-day notice to vacate the property and I will take you to court where I will seek full payment and restitution to include late fees and legal reimbursement.”
{¶16} On September 27, 2023, Appellant, through counsel, notified Roeder that she intended to move out by the end of September or alternatively that she would deposit October’s rent with the court because Appellees had failed to make repairs to the apartment. The letter also stated that Appellant was entitled to terminate the lease under R.C. 5321.02, to seek damages for moving into and out of the apartment, and to recover half of the rent she had paid due to the condition of the apartment.
{¶17} On September 28, 2023, Appellant responded to the letter and offered to release Appellant from the rental agreement but stated that she would still be legally responsible to pay rent while her belongings remained in the apartment.
{¶18} Appellant deposited her October 2023 rent with the Kent Municipal Court and moved out of the apartment at the end of October 2023. The parties agree that Appellees resolved Appellant’s complaints about the stove, the faucet, and the bathroom leak sometime in early October. However, Appellant’s complaints about the laundry room door and the issues with the washing machine were not resolved before she moved out.
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{¶19} Appellees did not return any of the $1,050.00 security deposit when Appellant moved out. Roeder sent an email to Appellant on November 20, 2023, itemizing deductions from the security deposit. Those deductions included: $200.00 for cleaning, $180.83 for carpet cleaning, $640.00 for a broken laundry door, and $452.64 for the Kent water bill, for a total of $1,473.47. Based on these deductions, Roeder stated that Appellant owed $423.64 not covered by her security deposit. Roeder later reduced this amount to $1,083.47 based on a reduction in the cost to repair the laundry room door and a credit to the water bill. This left a balance of $33.47 over the security deposit.
{¶20} Roeder testified during his deposition that the tenant had not cleaned the apartment, and therefore he charged the cleaning fee. He said that when a tenant does not leave the apartment “spotless,” he will deduct the cleaning fee from the security deposit. He also said that he has the carpets cleaned each time a tenant moves in and deducted the fee from Appellant’s security deposit.
{¶21} Roeder said that the laundry door was “completely broken” and needed to be replaced. He said that when Appellant moved in, the door was merely off the track but not broken. Roeder could not recall if he examined the door or put it back on its track while Appellant was living in the apartment.
{¶22} Appellant stated in an affidavit that she incurred $200.00 in moving costs and rented a new apartment that cost $250.00 more per month. Constellation’s Complaint and Appellant’s Counterclaims:
{¶23} On November 29, 2023, Constellation filed a Complaint for Breach of Lease in the Portage County Municipal Court. Constellation alleged that Appellant had breached the lease by: “(a) not paying the pet fee and rent, (b) assuming her September and
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October 2023 rent was deposited with the Court, not depositing or paying any rent for November 2023 or for the balance of the term, (c) not providing at least 30 days’ notice before vacating the premises (section 9 [Termination of Contract by Resident]), and (d) not fully complying with section 10 [End of Annual Contracts & Move-Out Procedures].”
{¶24} Section 9 of the Rental Agreement, Termination of Contract by Resident, provides in relevant part that the resident is “always required to give a 30-day written notice regardless of the end date of the RENTAL CONTRACT.” Section 9 also states that a renter may cancel the rental contract at any time. However, the renter must first obtain written authorization from the property owner, must comply with Section 10 when moving out, and must continue to be responsible for all rents due until the property owner is able to find new tenants or has signed a release and waiver of responsibility for rent.
{¶25} Section 10 of the rental agreement, End of Annual Contracts & Move-Out Procedures, requires that a renter must notify the property owner of the intent to vacate in writing at least 30 days in advance.
{¶26} On January 9, 2024, Appellant filed an Answer and Counterclaim against Constellation and Roeder. She raised five Counterclaims: (1) Discrimination under R.C. 4112.02(J) based on the need to have a disability-related assistant animal in her private residence; (2) Retaliation under R.C. 4112.02(J) for requiring extra payments for the emotional support animal and threatening her with eviction and breach of lease; (3) Breach of Lease Agreement under R.C. 5321.04(A) for failing to make timely and/or full repairs in the apartment; (4) Retaliation under R.C. 5321.02(A)(2) by threatening to evict Appellant or seeking additional payments, which entitled her to terminate the lease agreement; and (5) Failure to Return Security Deposit pursuant to R.C. 5321.16.
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{¶27} Appellant sought removal to the Portage County Court of Common Pleas.
On January 11, 2024, the Municipal Court granted Appellant’s motion, and the case was transferred to the Portage County Court of Common Pleas.
{¶28} On July 22, 2024, Appellees filed a Motion for Partial Summary Judgment as to Counts One and Two of Appellant’s Counterclaim. Appellees argued that Appellant’s emotional service animal was a pet or a therapy animal and not a “service animal” pursuant to the Americans with Disabilities Act (ADA). Appellees argued that they did not refuse housing accommodation to Appellant on the basis of her daughter’s disability and that the extra pet fee applied equally to all tenants. On this basis, Appellees argued that partial summary judgment on Appellant’s Discrimination and Retaliation claims under Counts One and Two were subject to summary judgment.
{¶29} On September 9, 2024, Appellant filed a Motion for Leave to Amend her Answer and Counterclaims Instanter. Appellant sought to add an additional count of Intentional Spoliation based on the handwritten markups added to the lease. Appellees filed an opposition.
{¶30} Also on September 9, 2024, Appellant filed her Opposition to Appellees’
Motion for Partial Summary Judgment. Appellees filed a Reply in support of their motion.
{¶31} On September 24, 2024, the magistrate issued an Order denying Appellant’s Motion for Leave to Amend her Answer and Counterclaims based on the case being nine months old and the motion being likely to cause delay.
{¶32} On October 3, 2024, the trial court granted partial summary judgment in favor of Appellees on Counts One and Two of Appellant’s Counterclaims. The trial court said the case would proceed on the counts in Constellation’s Complaint and the remaining
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counts in Appellant’s Counterclaims. The Judgment Entry was one page and provided no factual or legal basis for the judgment.
{¶33} On October 3, 2024, Appellant filed a Motion to Set Aside Magistrate’s Order and/or Objections to Magistrate’s Decision relating to the magistrate’s order denying her Motion to Amend Counterclaims.
{¶34} On October 7, 2024, Constellation filed a Response to Appellant’s Motion to Set Aside Magistrates Order and a Withdrawal of an Allegation in the Complaint. Constellation withdrew its allegation in paragraph 10 of the Complaint, which dealt with Appellant’s failure to pay the pet fee in the lease. By withdrawing this allegation, Appellees argued that Appellant had no further basis to add the Spoliation count.
{¶35} On October 29, 2024, the trial court denied Appellant’s Motion to Set Aside Magistrate’s Order and/or Objections to Magistrate’s Decision. The trial court cited two primary reasons for doing so: first, that Constellation withdrew its claim relating to the failure to pay pet rent, and second, Appellant’s delay of “300 days to bring up the issue of the markings is an unreasonable delay.”
{¶36} On April 3, 2025, Appellant filed her Motion for Summary Judgment. In it, she moved for summary judgment on the remaining Counts of her Counterclaims (Counts Three, Four, and Five) and on all claims set forth by Constellation.
{¶37} On April 4, 2025, Constellation filed a second Motion for Partial Summary Judgment as to its remaining claims for Appellant’s breach of the lease agreement by not complying with the termination-of-lease provisions in the contract.
{¶38} In its second Motion for Partial Summary Judgment, Constellation provided affidavits from Roeder stating that Appellant owed $1,998.00 for unpaid rent for
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November 2023 and for 28 days in December 2023 until the property could be rented. In addition, Roeder stated that Appellant owed $33.47 for damages over the security deposit. In total, Constellation sought damages of $2,031.47.
{¶39} On September 30, 2025, the trial court ruled on Constellation’s second Motion for Partial Summary Judgment and Appellant’s Motion for Summary Judgment.
{¶40} As to Constellation’s Breach of the Lease claim, the trial court found that Appellant had vacated “the premises without lawful termination,” which “constitutes a breach of the lease.” The trial court found that Constellation had established damages for unpaid rent in the amount of $1,050.00 for November 2023 and an additional $948.00 for 28 days of December where the property remained unlet. The trial court also determined there were other incidental damages for an aggregate of $2,031.47.
{¶41} As to Appellant’s Counterclaim Count Three, Breach of Contract, the trial court determined that Constellation made timely repairs to the toilet, sink, faucet, and stove and that Constellation offered Appellant an early release from the lease agreement “if she complied with early termination provisions, which she did not.” Therefore, the trial court found no material issue of fact establishing Appellant’s Count Three.
{¶42} As to Appellant’s Counterclaim Count Four, Retaliation, the trial court determined that any threats of eviction Appellant received were not based on her requests for repairs and were instead based on her “refusal to pay the pet deposit and fee.”
{¶43} As to Appellant’s Counterclaim Count Five, Failure to Return Security Deposit, the trial court determined that Constellation “provided an itemized statement of deductions, including cleaning, carpet cleaning, doorframe repair, and a water bill. While [Appellant] disputes the propriety of these charges, the evidence shows that deductions
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were made for unpaid rent and damages reasonably related to noncompliance with the Lease.”
{¶44} On October 2, 2025, the trial court issued a Nunc Pro Tunc Journal Entry that included language providing for the release of Appellant’s deposited rent to Constellation.
{¶45} Appellant timely appealed raising six assignments of error.
Standard of Review
{¶46} Assignments of error one through five relate to the trial court’s granting summary judgment. We review a trial court’s entry of summary judgment de novo, i.e., independently and without deference to the trial court’s determinations. DelleCurti v. Fetty, 2017-Ohio-7965, ¶ 13 (11th Dist.).
{¶47} Summary judgment is proper when (1) “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law”; and (2) “it appears from the evidence or stipulation, and only from the evidence or stipulation, that 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, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.” Civ.R. 56(C).
{¶48} “[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the
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absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims.” Dresher v. Burt, 1996-Ohio-107, ¶ 18. “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied.” Id. “However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.” Id.
{¶49} When considering a motion for summary judgment, the trial court may not weigh the evidence or select among reasonable inferences. Moore v. Trumbull Mem. Hosp., 2016-Ohio-1366, ¶ 16 (11th Dist.). Rather, all doubts and questions must be resolved in the non-moving party’s favor. Id. In addition, “‘the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’” Turner v. Turner, 1993-Ohio-176, ¶ 8, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
{¶50} Appellant’s sixth assignment of error relates to the trial court’s denial of her Motion to Amend her Answer and Counterclaim. We review the denial of a motion to amend pleadings under an abuse of discretion standard. Shavel v. Shavel, 2023-Ohio- 4876, ¶ 42 (11th Dist.).
Assignments of Error and Analysis
{¶51} We address Appellant’s first and second assignments of error together.
{¶52} The first asserts (1) the trial court erred by granting Appellees’ Motion for Partial Summary Judgment on Count One for Discrimination under R.C. 4112.02(H) and
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4112.02(J) because there were genuine issues of fact in dispute and they were not entitled to judgment as a matter of law; and (2) the trial court’s decision was based on an error of law in its determination.
{¶53} Appellant’s second assignment of error parrots the first for the trial court’s granting Appellees partial summary judgment on Count Two of Appellant’s Counterclaims for Retaliation under R.C. 4112.02(I).
{¶54} Appellees’ Motion for Summary Judgment argued that Constellation allowed any tenant to keep a dog for an additional monthly fee. Constellation charged this additional monthly fee regardless of whether a dog was kept as a pet or an animal assistant pursuant to Adm.Code 4112-5-07(C).
{¶55} R.C. 4112.02(H)(1) provides that it is an unlawful discriminatory practice for any person to “[r]efuse to sell, transfer, assign, rent, lease, sublease, or finance housing accommodations . . . because of race, color, religion, sex, military status, familial status, ancestry, disability, or national origin[.]”
{¶56} Adm.Code 4112-5-07(C) provides:
Every person with a disability who has an animal assistant or who obtains an animal assistant shall be entitled to keep the animal assistant on the premises purchased, leased, rented, assigned, or subleased by such person with a disability. He or she shall not be required to pay any extra charge for such animal assistant but shall be liable for damage done by the animal assistant to the premises.
(Emphasis added.)
{¶57} R.C. 4112.024(F) provides that
Nothing in divisions (H)(1) to (18) of section 4112.02 of the Revised Code shall be construed to require any person . . . renting property . . . to relieve any person with a disability of any obligation generally imposed on all persons regardless of disability in a written lease, rental agreement, or contract of purchase or sale, or to forbid distinctions based on the inability
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to fulfill the terms and conditions, including financial obligations, of the lease, agreement, or contract.
{¶58} Appellees argued that they did not charge Appellant any “extra charge”
beyond the charge applied equally to all tenants with pets. Appellees contended that this excludes a finding of discrimination and warranted granting summary judgment.
{¶59} In response, Appellant argued that Roeder had initially represented that Appellant would not have to pay any pet fee. When Roeder later insisted that Appellant pay the pet fee, this constituted discrimination.
{¶60} However, whether Roeder initially represented that Appellees would waive the pet fee is of no moment because Appellant has not even alleged that Appellees sought for Appellant “to pay any extra charge for” the animal. See Adm.Code 4112-5-07(C). At most, Appellant has asserted that Roeder first told her she would not have to pay a pet fee and later changed his mind and told her that she would have to pay the same pet fee that every other tenant pays. Viewing the evidence in a light most favorable to Appellant, she cannot establish that Appellees discriminated against her by charging a generally applicable pet fee. R.C. 4112.024(F) contemplates such situations and provides that a landlord is not obligated to relieve a person with a disability from an obligation generally imposed on all tenants regardless of disability.
{¶61} As to Count Two, Retaliation, Appellees argued that although they threatened Appellant with eviction, there was no adverse action taken against Appellant for her failure to pay the pet fee during her tenancy. Because there was no adverse action, Appellees argued that Appellant cannot establish her Retaliation claim as a matter of law. Appellant argues that the threat of eviction was an adverse action sufficient to establish her Retaliation claim.
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{¶62} R.C. 4112.02(I) provides that it is “an unlawful discriminatory practice . . .
[f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section . . . .” In order to establish a prima facia claim of Retaliation, the claimant must prove the following: (1) the claimant engaged in a protected activity, (2) the defending party was aware that the claimant had engaged in that activity, (3) the defending party took an adverse action against the claimant, and (4) there is a causal connection between the protected activity and adverse action. Greer-Burger v. Temesi, 2007-Ohio-6442, ¶ 13.
{¶63} “If a complainant establishes a prima facie case, the burden then shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason’ for its actions.” Id. at ¶ 14, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the defending party satisfies this burden, the burden shifts back to the claimant to demonstrate “that the proffered reason was not the true reason for the employment decision.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
{¶64} Appellees did not seek eviction against Appellant and never collected the pet fee.
{¶65} “Mere threats of alleged adverse . . . action are generally not sufficient to satisfy the adverse action requirement.” Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004). In the context of employment actions, “an adverse employment action is a ‘materially adverse change in the terms or conditions of . . . employment because of [the] employer's conduct.’” Id., quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.1996).
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{¶66} In a similar way, a mere threat to take legal action over the disputed pet fee is not an adverse action. Because Appellees never initiated any adverse action against Appellant on the basis of the pet fee, Appellant cannot establish that Appellees took adverse action against her.
{¶67} Moreover, Appellant cannot establish any causal link between Appellees’
seeking to charge a pet fee and her engaging in any protected activity. Appellant did not show any threat to evict her because of her daughter’s disability or the use of an animal assistant. See Reid v. Plainsboro Partners, III, 2010-Ohio-4373, ¶ 58 (10th Dist.).
{¶68} Accordingly, Appellant’s first and second assignments of error are without merit.
{¶69} Appellant’s third assignment of error similarly asserts the trial court erred by granting summary judgment in favor of Appellees on Count Three of Appellant’s Counterclaims under R.C. 5321.04 for breach of the lease agreement. Again, she asserts there were disputed genuine issues or material fact so that Appellees were not entitled to judgment as a matter of law and that the trial court’s decision was based on an error of law.
{¶70} R.C. 5321.04(A) provides in relevant part:
A landlord who is a party to a rental agreement shall do all of the following:
...
(2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition;
...
(4) Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air conditioning fixtures and
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appliances, and elevators, supplied or required to be supplied by the landlord . . . .
{¶71} R.C. 5321.07 provides, in part:
(A) If a landlord fails to fulfill any obligation imposed upon him by section 5321.04 of the Revised Code, other than the obligation specified in division (A)(9) of that section, . . . the tenant may give notice in writing to the landlord, specifying the acts, omissions, or code violations that constitute noncompliance. The notice shall be sent to the person or place where rent is normally paid.
(B) If a landlord receives the notice described in division (A) of this section and after receipt of the notice fails to remedy the condition within a reasonable time considering the severity of the condition and the time necessary to remedy it, or within thirty days, whichever is sooner, and if the tenant is current in rent payments due under the rental agreement, the tenant may do one of the following:
(1) Deposit all rent that is due and thereafter becomes due the landlord with the clerk of the municipal or county court having jurisdiction in the territory in which the residential premises are located;
...
(3) Terminate the rental agreement.
(Bold added.)
{¶72} As to Appellant’s Counterclaim Count Three, Breach of Contract, Appellant
argues that she notified Appellees of certain issues with the toilet, sink, bathroom faucet, laundry room door, and washing machine as late as August 21, 2023, and that Appellees did not remedy those issues within 30 days. She also argues that on September 27, 2023, she notified Roeder that these problems had not been remedied and that she would either terminate her lease or deposit her rent for the month of October with the Clerk of Court. It is undisputed that Appellant deposited her October rent with the Clerk of Court and that sometime in October, Appellees remedied the issues with the toilet, the leaking faucet, and the stove. It is also undisputed that Appellant nevertheless terminated the rental agreement by moving out of the apartment at the end of October. Appellant did not PAGE 17 OF 25 provide written notice of her intention to terminate the lease and did not continue to deposit rent for the month of November.
{¶73} Appellant chose to deposit her October rent as one of the remedies provided in R.C. 5321.07(B). She had the right to do so, as Appellees did not remedy her complaints within 30 days. However, Appellees did address all of the R.C. 5321.04 concerns that she raised in October. Therefore, when Appellant terminated the rental agreement at the end of October, she no longer had justification under R.C. 5321.04 to terminate the lease at her discretion. Therefore, she was obligated to provide notice compliant with the rental agreement to terminate the lease.
{¶74} Although Roeder communicated with Appellant and told her that he would release her from the rental agreement, Appellant failed to comply with Sections 9 and 10 of the rental agreement: the “Termination of Contract by Resident” provision and the “End of Annual Contracts & Move-Out Procedures” provision. Appellant has not argued that she did comply with these procedures or was otherwise relieved of the obligation to do so.
{¶75} Therefore, the trial court correctly granted summary judgment in favor of Appellees as to Count Three of Appellant’s Counterclaim for Breach of Lease.
{¶76} Accordingly, Appellant’s third assignment of error is without merit.
{¶77} Appellant’s fourth assignment of error asserts that the trial court erred in granting summary judgment in favor of Appellees as to Count Four of her Counterclaim for Retaliation.
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{¶78} Appellant argues that the Retaliation claim under Count Two of her Counterclaim and the Retaliation claim under Count Four of her Counterclaim occurred in close proximity to each other but that they were based on different protected activities.
{¶79} Specifically, Appellant argues that Appellees retaliated by threatening to evict her after she requested that Appellees make necessary repairs as required by R.C. 5321.04 and depositing her rent with the Clerk of Court under R.C. 5321.07. She argues that because of these threats, she was entitled to terminate the lease agreement and should not be responsible for any unpaid rents.
{¶80} R.C. 5321.02 provides in relevant part:
(A) Subject to section 5321.03 of the Revised Code, a landlord may not retaliate against a tenant by increasing the tenant’s rent, decreasing services that are due to the tenant, or bringing or threatening to bring an action for possession of the tenant’s premises because:
...
(2) The tenant has complained to the landlord of any violation of section 5321.04 of the Revised Code;
...
(B) If a landlord acts in violation of division (A) of this section the tenant may:
...
(3) Terminate the rental agreement.
In addition, the tenant may recover from the landlord any actual damages together with reasonable attorneys’ fees.
(Bold added.)
{¶81} The facts here demonstrate that Appellant notified Roeder of certain issues
in need of repair that fall under a landlord’s responsibilities as set forth in R.C. 5321.04. Roeder sent a message to Appellant on August 1, 2023, saying that he would address Appellant’s concerns about necessary repairs in the apartment.
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{¶82} On August 29, 2023, Appellant again contacted Roeder about repairing the faucet, toilet, and stove, as well as other complaints. In this message, she asked if Roeder would be ok with her breaking the lease and refunding her security deposit. Roeder did not directly threaten Appellant about evicting her because of the requests for repairs in the apartment. Although Roeder warned Appellant that a failure to pay the pet fee would result in him seeking to evict her and seeking full payment and restitution, this threat was unrelated to Appellant’s complaints about repairs.
{¶83} One “substantial factor” in determining the parties’ motives is the “temporal proximity” of the events. Reid, 2010-Ohio-4373, at ¶ 39 (10th Dist.). However, temporary proximity “does not create a presumption of retaliatory motive under Ohio law.” Karas v. Floyd, 2 Ohio App.3d 4, 6 (2d Dist. 1981). While Appellant’s request for repairs made before August 1, 2023, and Roeder’s threats to evict her for failure to pay the pet fee were proximate in time, these were separate issues. One dealt with an alleged non-payment of rent and an accompanying threat of eviction for failure to pay while the other involved repairs to the apartment. Appellant has not provided evidence that the two issues are otherwise linked and therefore cannot establish that Appellees retaliated against her “because” of her complaints. Accordingly, Appellant’s fourth assignment of error is without merit.
{¶84} Appellant’s fifth assignment of error asserts that the trial court erred by granting summary judgment in favor of Appellees as to Appellees’ failure to return her security deposit.
{¶85} R.C. 5321.16 governs landlords’ return of security deposits. R.C.
5321.16(B) and (C) provide as follows:
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(B) 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 attorney fees under division (C) of this section.
(C) If the landlord fails to comply with division (B) of this section, the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorney fees.
{¶86} “[T]he terms ‘amount due’ . . . and ‘money due’ . . . mean the security
deposit, less any amounts found to be properly deducted by the landlord for unpaid rent and damages to the rental premises pursuant to R.C. 5321.16(B) or pursuant to the provisions of the rental agreement.” Vardeman v. Llewellyn, 17 Ohio St.3d 24, 28-29 (1985). “[T]he term ‘amount wrongfully withheld’ means the amount found owing from the landlord to the tenant over and above any deduction that the landlord may lawfully make.” Id. at 29. “[T]he failure to comply with R.C. 5321.16(B) and to provide the tenant with a list of itemized deductions renders the landlord liable for double damages only as to the amount wrongfully withheld and not as to the entire amount of the security deposit.” Id.
{¶87} Appellees did not return any of the $1,050.00 security deposit when Appellant moved out. Roeder sent an email to Appellant, itemizing the deductions for a total of $1,473.47. Roeder later reduced this amount to $1,083.47 based on a reduction in the cost to repair the laundry room door and a credit to the water bill. This left a balance of $33.47 over the security deposit. Roder’s deposition testimony set forth the basis for
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each of Appellees’ itemized deductions and explained why that amount was reduced. Even viewing the evidence in a light most favorable to Appellant, Appellees established entitlement to the security deposit in the amount claimed.
{¶88} Accordingly, Appellant’s fifth assignment of error is without merit.
{¶89} Appellant’s sixth assignment of error states: “The Trial Court abused its discretion in denying Appellant’s Motion for Leave to Amend her Counterclaims.”
{¶90} Civ.R. 15(A) provides in relevant part that
[a] party may amend its pleading once as a matter of course within twenty-
eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading . . . . In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave.
Civ.R. 15(A) “favors a liberal amendment policy and a motion for leave to amend should be granted absent a finding of bad faith, undue delay or undue prejudice to the opposing party.” Hoover v. Sumlin, 12 Ohio St.3d 1, 6 (1984).
{¶91} We review a motion to amend under an abuse of discretion standard.
Shavel, 2023-Ohio-4876, at ¶ 42 (11th Dist.). An abuse of discretion is the “‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2010-Ohio- 1900, ¶ 62, quoting Black’s Law Dictionary (8th Ed. 2004).
{¶92} “Although the rule encourages liberal amendment, limitations do exist and ‘motions to amend pleadings pursuant to Civ.R. 15(A) should be refused if there is a showing of bad faith, undue delay, or undue prejudice to the opposing party.” Deutsche Bank Natl. Trust Co. v. Germano, 2012-Ohio-5833, ¶ 23 (11th Dist.), quoting Turner v. Cent. Local School Dist., 1999-Ohio-207, ¶ 18. In addition, “[w]here a plaintiff fails to make a prima facie showing of support for new matters sought to be pleaded, a trial court acts
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within its discretion to deny a motion to amend the pleading.” Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120 (1991), syllabus.
{¶93} The party seeking to amend the pleading must establish justification for a delay. Durig v. Youngstown, 2025-Ohio-4719, ¶ 36. On appeal, the burden is on the movant to demonstrate that the trial court abused its discretion. Id. A trial court may reasonably find that “unjustified and prejudicial inaction” are “grounds to deny the movant leave to amend a pleading under Civ.R. 15(A) when the movant had sufficient information to raise the subject of the proposed amendment before the opposing party expended time and resources responding to timely raised issues.” Id. at ¶ 38. In Germano, we said that the filing of a motion for leave to amend three years after initially filing a counterclaim and 22 days after the plaintiff filed its motion for summary judgment posed an unnecessary delay to the case. Id. at ¶ 24-25.
{¶94} Appellant argues that the trial court erred by denying her Motion for Leave to Amend her Answer and Counterclaims. In her Motion, Appellant sought to add a Counterclaim of Spoliation of evidence based on Appellees’ alteration of the lease agreement. Appellees argue that Roeder sent Appellant a PDF copy of the lease with the alterations in July 2023 via email. However, Appellant maintains that she did not look at the lease closely because she had no reason to believe it was different than the copy she signed. Appellant argues that she did not become aware of the alterations to the lease until the end of July 2024.
{¶95} Appellees state that Constellation’s withdrawal of any claim for the additional pet rent makes the spoliation issue immaterial to the lawsuit. In turn, Appellant argues that the issue of her daughter’s emotional support animal was paramount to her
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and that she would not have entered into the lease agreement had she known of the additional pet fee Appellees intended to impose.
{¶96} Appellant sought to amend her Counterclaims seven weeks after Appellees filed their first Motion for Partial Summary Judgment and 34 weeks after filing her Answer and Counterclaims. Although Appellant argues that she did not become aware of the markups in the rental agreement, Constellation attached a copy of that agreement to its Complaint filed in January 2024. Litigation had proceeded for some time before Appellant sought to amend her Counterclaims, and Appellant did not provide meaningful justification for her delay. Under these circumstances, it was not an abuse of discretion for the trial court to deny Appellant’s Motion to Amend her Counterclaims.
{¶97} Accordingly, Appellant’s sixth assignment of error is without merit.
{¶98} For the foregoing reasons, the judgment of the Portage County Court of Common Pleas is affirmed.
MATT LYNCH, P.J., SCOTT LYNCH, J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this court, Appellant’s assignments of error are without merit. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is affirmed.
Costs to be taxed against Appellant.
JUDGE JOHN J. EKLUND
PRESIDING JUDGE MATT LYNCH, concurs
JUDGE SCOTT LYNCH,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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