[Cite as Constellation Ohio, L.L.C. v. McClain, 2026-Ohio-3579.]
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 DefendantAppellee.
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-Ohio4876, ¶ 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
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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 twentyeight 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-Ohio1900, ¶ 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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