COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68699/68700 THOMAS DAVIS : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TYRONE E. REED : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 20, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Cleveland Municipal Court : Case Nos. 92-CVH-26585 and : 93-CVG-1318 JUDGMENT : AFFIRMED IN PART; REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: C. DAVID WITT Attorney at Law 2000 Standard Building Cleveland, Ohio 44113-1701 CORNELIUS A. MANLY Attorney at Law 5715 Woodland Avenue Cleveland, Ohio 44104 For defendant-appellant: ALFRED F. NIMROD Attorney at Law 12025 Shaker Boulevard, #575 Cleveland, Ohio 44120 TIMOTHY E. McMONAGLE, J.: Appellant Tyrone Reed (hereafter referred to as "landlord" or "appellant") appeals from the judgment rendered for appellee Thomas Davis (hereafter referred to as "tenant" or "appellee") in the Housing Division of the Cleveland Municipal Court. For the reasons set forth below, we affirm in part, reverse in part and remand for further proceedings. This matter arises from two separate matters filed in the Housing Division of the Cleveland Municipal Court. In Case No. 92 CVF 26585, filed on October 27, 1992, Davis brought suit against Reed for actual and punitive damages and alleged, inter alia, that Reed failed to provide statutorily- and contractually-required services, failed to provide electricity to his apartment, filed a retaliatory eviction action against him, illegally terminated utility service and assaulted him on two occasions. Reed denied liability and brought a counterclaim for damages and injunctive relief in which he charged Davis with intentional and excessive overuse of water. In Case No. 93 CVF 1318, filed on January 19, 1993, Reed brought suit against Davis for restitution of the premises and unpaid rent. The cases were consolidated below and proceeded to trial on December 20, 1993. - 3 - The evidence established that in December, 1991, appellee, a disabled veteran and participant in the Section 8 Housing Voucher Program implemented by the Department of Housing and Urban Devel- opment (hereafter referred to as "HUD"), contacted appellant re- garding renting an apartment located on Phillips Avenue in Cleve- land. The parties subsequently executed an Assisted Lease Agree- ment, which provided that a HUD Public Housing Agency (hereafter referred to as "PHA") would assist the tenant in making the $396 monthly rental payment, that the landlord would maintain the unit in "decent, safe and sanitary" condition and that the landlord would provide all utilities for the unit. This agreement further provided that the lease term would begin on January 1, 1992 and that: 1.(D)(3). The tenant rent as determined by the PHA is the maximum amount the Landlord can require the tenant to pay as rent for the dwelling unit, including all services, main- tenance and utilities to be provided by the Landlord in accordance with this lease. * * * 1.(H) Termination of Tenancy. (1). The Landlord shall not terminate the tenancy except for: (i) Serious or repeated violation of the terms and conditions of the Lease. (ii) Violation of Federal, State or local law which imposes obligations on a tenant in connection with the occupancy or use of the dwelling unit and surrounding premises; - 4 - (iii) Other good cause. However, during the first year of the term of the lease, the owner may not terminate the tenancy for "other good cause" unless the termination is based on malfeasance or nonfeasance of the Tenant Family. * * * 2.(A)(1). The Landlord shall provide the utilities listed in column (1) [All utilities included within the rental charge.] In addition, the parties executed a Request for Lease Approval, for consideration by HUD, which likewise indicated that the monthly rental fee included all utilities for the apartment. The PHA subsequently inspected the unit and approved the parties' lease. It then entered into a housing assistance payment contract with Reed. Under the terms of this agreement, the PHA was respon- sible for $360 of the monthly rental, and Davis was responsible for the remaining $36. In addition, this document provided in relevant part as follows: 3.(B). The portion of the Contract rent pay- able by the Family ("tenant rent") is the maximum amount the Owner can require the Fam- ily to pay for rent of the Contract unit, including all services, maintenance and util- ities to be provided by the Owner in accor- dance with the Lease. *** The parties also signed a HUD Addendum to their previous lease and again agreed that the landlord was to provide all utilities for the dwelling and that the tenant rent was the maximum amount which the landlord could require the tenant to pay. Thereafter, the PHA sent Reed a Landlord Fraud Letter, which warned against requiring - 5 - extra payments from the tenant and reiterated that any payments in excess of the pre-set rent must receive prior approval by the housing authority. The record next reveals that shortly after Davis moved into the apartment, the parties mutually agreed that Davis would pro- vide some of the utility services for the unit, contrary to the provisions of their prior written agreements. According to Davis, Reed failed to make the required utility payments, and, when he asked Reed about it, Reed reportedly proposed that Davis pay the monthly bill for cooking gas and Reed would pay for the electri- city. Davis believed that he would be responsible for up to $36 per month for this bill, the amount equal to his monetary contri- bution to the rent, but he later learned that he would have to pay $150 for service to be connected in his name, presumably due to arrearages which Davis had incurred at his previous residence. According to Reed, however, Davis offered to pay both elec- tricity and cooking gas in lieu of his $36 rental payment. Reed testified that Davis inquired about the monthly totals for elec- tricity and cooking gas. Reed indicated that the two utilities cost approximately $30 per month, and Davis offered to pay these amounts in lieu of his $36 contribution to the rental amount. Davis explained to Reed that he would benefit from this arrange- ment because he was eligible for a subsidy for utilities and because the arrangement would allow him to pay off a prior utility bill instead of rent. - 6 - The evidence next established that in June, 1992, Davis lodged a complaint with the Code Enforcement Division of the City of Cleveland, which charged that the landlord had failed to provide utilities which were included in the rent. Code Enforcement Inspector Harriet Thomas subsequently undertook an inspection of the premises. She noted housing code violations in the building but did not obtain access to Davis's apartment. The evidence further established that East Ohio Gas commenced service to the apartment under Davis's name on January 2, 1992. During the time of Davis's tenancy, he made a single payment of $32.08 in April, 1992 and later received a credit from "HEAP." Thereafter, a charge of $838.29 was transferred to the account, representing Davis's balance from a previous residence. The evi- dence further revealed that service was disconnected on August 18, 1992 for "non-pay." Service was then restored from November 7, 1992 through June, 1993 in the name of Tyrone Reed. Records from Cleveland Electric Illuminating Co. established that electrical service to the apartment began on January 18, 1992 in Davis's name. Service continued until June 4, 1992. During that time period, charges accrued totalling $200.65, and no pay- ments were made. There was no electrical service to the apartment from June 4, 1992 until November 27, 1992, when service was re- stored in Reed's name. Reed maintained that he attempted to obtain electrical service to the apartment earlier in the month and that - 7 - he tendered a check to CEI to reconnect service, but there was no documentary evidence to support these contentions. The record further reveals that on June 29, 1992, Davis prepared notice to Reed indicating that he would be vacating the apartment within thirty days. This notice provided in relevant part as follows: *** I will be vacating the premises as of August 1, 1992, because of the following rea- sons: (1) failure to pay utilities as per our agreement (2) repair work never completed (3) no hot water (4) painted bathtub, paint peel- ing (5) toilet continues to overflow (6) front door has been locked for six months and I have never had a key (7) no smoke detectors ***. Davis testified that he sent this notice to Reed, through a custo- dian of the building, on June 29, 1992. Reed claimed, however, that he was not provided with this document until October, 1992 after the instant action had been filed. The record further reveals that on July 1, 1992, Reed gave Davis notice to vacate the premises. According to Davis, the eviction was retaliatory. He further claimed that Reed assaulted him when he served this notice and assaulted him again at a pre- trial in the matter. Reed denied assaulting Davis and also denied that the eviction was in retaliation for Davis's prior complaints; rather, the eviction was prompted by Davis's history of distur- bance of neighbors and destruction of property and of living and housekeeping habits resulting in damage to the unit. According to Reed, Davis annoyed neighbors in the building by attempting to sell them food which he had obtained from a hunger center, pulled up - 8 - floorboards from a common area and had loud and continuous traffic into his dwelling. The evidence next established that Reed gave Davis a three- day notice in furtherance of the eviction proceedings, but he later dismissed it in October, 1992 after Davis filed his action for, inter alia, retaliatory eviction. Finally, the evidence established that Davis vacated the premises in January, 1993, but, as set forth in Reed's action, Case No. 93 CVF 1318, unpaid rent totalling $396 had accrued as of this date. The matter was then submitted to the jury to determine lia- bility, the amount of compensatory damages and whether punitive damages and attorney fees would be awarded. The jury subsequently returned a verdict in favor of Davis in his claim of retaliatory eviction and awarded him $1,000, found for Davis in Davis's claim for punitive damages, found for Reed in Davis's common law claim for attorney fees, found for Davis in his claim for breach of statutory and contractual rights and awarded him $3,500, found for Reed in Davis's claim of assault, found for Reed in his claim that Davis violated his contractual responsibility to pay rent and awarded Reed $396, and found in favor of Davis on Reed's claim for damages for excessive water consumption. The trial court then reduced the verdicts to judgment, and Reed moved for judgment notwithstanding the verdict. Davis filed a "Memorandum RE: Determination as to Punitive Damages and Attorney Fees" on Novem- - 9 - ber 16, 1994. Thereafter, on January 17, 1995, the trial court awarded Davis $1,000 punitive damages and awarded Davis's counsel a total of $14,840. Reed now appeals and assigns eight errors for our review. For the sake of convenience, we shall address the assigned errors out of their predesignated order. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, IN DENYING ON FEBRUARY 15, 1995, APPELLANT'S TIMELY REQUEST FOR FINDING OF FACT AND CONCLUSIONS OF LAW, IN REGARDS TO THE TRIAL COURT'S JUDGMENT ANNOUNCED ON JANUARY 17, 1995, ON MATTERS NOT TRIED BEFORE A JURY, JUDGMENT AGAINST HIM BEING AS FOLLOWS: 1. TO THOMAS DAVIS, $1,000.00 IN PUNITIVE DAMAGES. 2. TO CORNELIUS MANLY, ESQ., $1,622.00 FOR ATTORNEY FEES. 3. TO C. DAVID WITT, ESQ., $13,178.00 FOR ATTORNEY FEES. 4. TO BE TAXED AS COSTS, EXPENSE INCURRED BY C. DAVID WITT, ESQ., THE AMOUNT OF $108.75. Findings of fact and conclusions of law are governed by Civ.R. 52. This rule is confined to non-jury trials, however. See Evans v. Dayton Newspapers, Inc. (1989), 57 Ohio App.3d 57, 58. See, also, Staff Notes ("Rule 52, governing the court's findings of fact and conclusions of law in a non-jury case, differs from Federal Rule 52 but is similar to previous Ohio statutory practice.") - 10 - Specifically, Civ.R. 52 is inapplicable to forcible entry and detainer proceedings on the authority of Civ.R. 1(C). State ex rel. GMS Management v. Callahan (1989), 45 Ohio St.3d 51, 55. The court explained: This court has stated that "[f]orcible entry and detainer, as authorized in R.C. Chapter 1923, is a summary proceeding in which 'any judge of a county court' may make inquiry into disputes between landlords and tenants, and, where appropriate, order restitution of the premises to the landlord." (Emphasis added and footnote omitted.) Cuyahoga Metro. Housing Auth. v. Jackson (1981), 67 Ohio St.2d 129, 130, 21 O.O.3d 81, 82, 423 N.E.2d 177, 178. Also, "[g]iven its summary nature, the drafters of the Rules of Civil Procedure were careful to avoid encrusting this special remedy with time consuming procedure tending to destroy its efficacy." Jackson, supra, at 131, 21 O.O.3d at 83, 423 N.E.2d at 179. The underlying purpose behind the forcible entry and detainer action "'is to provide a summary, extraordinary, and speedy method for the recovery of [the] possession of real estate in the cases especially enumerated by statute.'" *** Further, "'[t]he Civil Rules will *** be inapplicable if their application would frustrate the purpose of the [forcible entry and detainer] proceedings.'" Larson v. Umoh (1986), 33 Ohio App.3d 14, 16, 514 N.E.2d 145, 147. Id. at 54-55. In accordance with the foregoing, the trial court was not required to issue findings of fact and conclusions of law on the claims regarding attorney fees, punitive damages and costs. In any event, the purpose of separately stated findings of fact and conclusions of law is to enable the reviewing court to determine the merit of assigned error; if the court's ruling, - 11 - together with other parts of the court's record, provides an ade- quate basis upon which the reviewing court can decide the legal issues presented, there is substantial compliance with Civ.R. 52. Abney v. Western Res. Mut. Cas. Co. (1991), 76 Ohio App.3d 424, 431. In this instance, the transcript, pleadings and court's record provide an adequate basis upon which this court can determine whether the trial court erred in making its punitive damages, attorney fee and costs awards. The first assignment of error is overruled. II. Appellant's third assignment of error states: THE TRIAL COURT ERRED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, IN OVERRULING THE APPELLANT'S MOTION FOR JUDGMENT NOTWITHSTAND- ING THE VERDICT, AS TO THE VERDICTS RENDERED BY THE JURY ON THE TRIAL OF THE ISSUES RAISED BY THE PLEADINGS. Within this assignment of error, Reed maintains that the trial court erred in denying his motion for judgment notwithstanding the verdict on Davis's claims for retaliatory eviction and punitive damages. The test to be applied in ruling on a motion for judgment notwithstanding the verdict requires the court construe the evi- dence most strongly in favor of the non-moving party and if, upon all of the evidence, there is substantial evidence upon which - 12 - reasonable minds may differ, the motion must be denied. Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App.3d 181, 183. With regard to the claim for punitive damages, we note that the damages authorized by R.C. Chapter 5321 include actual damages and attorney fees. The statute does not provide for punitive damages. Nonetheless, the remedies available in Chapter 5321 are cumulative to those previously existing in tort law, Meacham v. Miller (1992), 79 Ohio App.3d 35, 39, and punitive damages may be awarded on such tort claim where the tenant can prove fraud, insult or actual malice in addition to actual damages. Id. In this matter, the record failed to establish that Reed acted in furtherance of fraud, insult or actual malice. The undisputed evidence reveals that the parties mutually agreed to modify their previous agreement, that Davis paid neither his por-tion of the rent nor the utilities required to be paid in accordance with the parties' modified agreement, that Davis complained to authorities when Reed failed to meet the provisions of the parties' previous agreement, that the utilities were not discontinued due to retaliation by Reed but were instead disconnected due to nonpayment over a period of many months, and that Reed dismissed his action for forcible entry and detainer while Davis remained in the apartment. In accordance with this undisputed evidence, reasonable minds could only conclude that Reed did not act with actual malice, and the trial court therefore erred in denying Reed's motion for judgment notwithstanding this particular portion of the verdict. - 13 - The award of punitive damages is therefore reversed herein. App. R. 12(B). As to the remaining claim, Reed maintains that he was enti- tled to judgment notwithstanding the verdict on Davis's claim for retaliatory eviction since the evidence disclosed that Davis did not perform his duties in accordance with the parties' mutual understanding. Reed correctly notes that pursuant to R.C. 5321.03, a landlord may, under the proper circumstances, bring an action for forcible entry and detainer where the tenant is in default of making rental payments, notwithstanding the statutory prohibition against retaliatory evictions. See, generally, Cuyahoga Metropolitan Housing Authority v. Watkins (1984), 23 Ohio App.3d 20, 25. It is clear, however, that where the landlord asserts a lawful reason for the eviction and the tenant maintains that it was, in fact, retaliatory, it is for the finder of fact to make an independent determination of the reasons for the landlord's action. See, e.g. Howard v. Simon (1984), 18 Ohio App.3d 14, 17-18; Weishaar v. Strimbu (1991), 76 Ohio App.3d 276, 286. The tenant is therefore required to show, by a preponderance of the evidence, that the landlord acted due to a retaliatory motive. Id. In this instance, the evidence demonstrated that the parties reached an agreement whereby Davis would pay at least one of the utility bills instead of paying rent to Reed, and this evidence tended to undermine Reed's claim that the action was filed because Davis was in default of making rental payments to him. Indeed, - 14 - Reed cited disturbances with the neighbors and other problems as the motivation for the eviction. Moreover, there was substantial evidence upon which reasonable minds could differ which tended to show that Reed filed his action for forcible entry and detainer due to a retaliatory motive, in light of the timing of Reed's first forcible entry and detainer action, in relation to Davis's complaint letter. In accordance with the foregoing, the trial court did not err in denying Reed's motion for judgment notwith- standing the verdict as to the claim of retaliatory eviction. The third assignment of error is sustained in part and over- ruled in part. III. Appellant's second assignment of error states: THE TRIAL COURT ERRED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, FOR FAILURE TO GIVE NOTICE AND OPPORTUNITY TO BE HEARD ON THE MERITS, PRIOR TO THE RENDITION OF THE JUDGMENT HEREINBEFORE REFERRED TO IN ERROR NO.1. With regard to the award of punitive damages, this issue has become moot in light of our disposition of Reed's third assignment of error. Accordingly, we will not address it herein. App.R. 12(A)(1)(c). With regard to the issue of attorney fees, it is well estab- lished that in a tort action, an award of attorney fees will not be sustained where there is a denial or a reversal of an award of - 15 - punitive damages. Ferritto v. Olde & Co. Inc. (1989), 62 Ohio App.3d 582, 588. Where the attorney fees are sought pursuant to R.C. Chapter 5321, this determination lies within the sound discretion of the trial court. Drake v. Menczer (1980), 67 Ohio App.2d 122. In Drake, this court noted that an award of attorney fees requires evidence that the time spent and hourly rate charged were reason- able and that DR 2-106(B) of the Code of Professional Responsibil- ity lists eight factors to be considered in evaluating an attor- ney's fee. In a concurring opinion, Judge Krenzler stated: [A] party seeking attorneys' fees has the burden of demonstrating the reasonable value of such services. Swanson v. Swanson (1976), 48 Ohio App.2d 85. While the determination of the amount of attorneys' fees is within the discretion of the trial court, there must be some evidence before the court to justify the award. Before an appellate court can affirm the award of reasonable attorneys' fees by a trial court, the record, whether in the form of affidavits and/or other documentary material submitted to the trial court, or in the form of a transcript of an oral hearing, must support the court's determination. Watters v. Love Admr. (1965), 1 Ohio App.2d 571. See also the Code of Professional Responsibility, DR 2- 106(B), which sets forth the guidelines to determine the reasonableness of attorneys' fees. The time spent by an attorney and a reasonable rate to be charged for that time are important factors to be considered by the court. But fees may not always be awarded only on the basis of time and an hourly charge. The trial court may disagree with the attorney as to the amount of time reasonably required to perform the particular service. The court will give the evidence such weight as is warranted under all the facts and circumstances in a given - 16 - case. The court's determination should be based upon the actual value of the necessary service. See Hlavin v. W.E. Plechaty Co. (1971), 28 Ohio App.2d 43. (Emphasis added.) Id. at 126. Similarly, in Swanson v. Swanson, supra, at 90-94, this court held that an attorney fee award which is obtained by simply multiplying the hourly rate by the hours expended is deficient as a matter of law. The court stated that time expended is only one of the factors to be considered pursuant to DR 2-106(B). Therefore, in order to render an award of reasonable attorney fees, the court must have evidence going to the factors set forth in DR 2-106(B), In re Hinko (1992), 84 Ohio App.3d 89, 95, and the court must therefore hold an evidentiary hearing. See, e.g., Breeding v. Herberger (1992), 81 Ohio App.3d 419, 422-423 (every motion, unless permitted to be heard ex parte, shall be determined by a court only after a hearing; an evidentiary hearing is a hearing at which evidence is adduced and a "trial" is conducted upon an issue). In this instance, the record reflects that Davis's attorney, Cornelius Manly, filed an affidavit in which he averred that he spent 11.08 hours representing Davis and listed the functions performed during that time and the fact that his hourly rate is $150 per hour, for a total of $1,662. Davis's other attorney, C. David Witt, filed an affidavit in which he averred that he had spent 119.8 hours on the matter and listed the functions performed during that time and the fact that his hourly rate is $110, for a - 17 - total of $13,178.00. Witt further averred that he had incurred cost expenses totaling $108.75. On January 17, 1995, the trial court awarded Manly the entire amount requested and Witt the entire amount requested in fees and costs, without holding a hearing as to the reasonableness of the amounts requested. The court clearly failed to consider and apply the guidelines set forth in DR 2- 106(B) for determining whether the requested fees were reasonable and therefore erred as a matter of law in deriving its attorney fee awards under R.C. Chapter 5321. Indeed, by awarding Davis's attorneys the entire amounts requested throughout the entire litigation, the court completely failed to take into account that Reed dismissed his action for forcible entry and detainer shortly after this action was filed and thereby mitigated fees. This matter must, therefore, be remanded for a redetermination of attorney fees in order for the court to ascertain a reasonable award in light of all of the factors of DR 2-106(B) and in light of the specific facts presented herein. With regard to costs, we note that Civ.R. 54(D) states as follows: Except when express provision therefore is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs. In Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 51, the supreme court held that the subject of costs is entirely dictated by statute. The court observed that "costs" may be defined as the statutory fees to which officers, witnesses, - 18 - jurors and others are entitled and that the term is not synonymous with "expenses." Id. In this instance, the court allowed as costs subpoena fees and copying costs which totalled $108.75. R.C. 2303.20(D) clearly sets forth costs for issuing subpoenas; however, there is no authority for including photocopying expenses as costs. Cincinnati ex rel. Simons v. Cincinnati (1993), 86 Ohio App.3d 258, 267. Accordingly, the costs portion of the court's award was erroneous and must be redetermined. Reed's second assignment of error is sustained. The trial court's award of attorney fees under R.C. Chapter 5321 and its award of costs are reversed and remanded for further proceedings consistent with this opinion. IV. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, IN OVERRULING THE MOTION OF APPELLANT, FILED ON JANUARY 19, 1995, FOR RELIEF AFTER JUDGMENT, AS TO THE JUDGMENT JOURNALIZED ON JANUARY 17, 1995, ON MATTERS NOT DECIDED BY A JURY[;] JUDGMENT AGAINST HIM BEING AS FOLLOWS: 1. TO THOMAS DAVIS, $1,000.00 IN PUNITIVE DAMAGES. 2. TO CORNELIUS MANLY, ESQ., $1,622.00 FOR ATTORNEY FEES. 3. TO C. DAVID WITT, ESQ., $13,178.00 FOR ATTORNEY FEES. - 19 - 4. TO BE TAXED AS COSTS, EXPENSE INCURRED BY C. DAVID WITT, ESQ., THE AMOUNT OF $108.75. In light of this court's decision and opinion as to Reed's second assignment of error, this assignment of error is moot. Accordingly, we will not address it herein. App.R. 12(A)(1)(c). V. Appellant's fifth assignment of error states: THE TRIAL COURT COMMITTED SUBSTANTIAL AND PREJUDICIAL ERRORS IN GIVING INSTRUCTIONS TO THE JURY; AND IN REFUSING TO SUBMIT PROPER INTERROGATORIES TO THE JURY, WHICH WERE PRO- POSED BY APPELLANT, PRIOR TO ORAL ARGUMENT. In the first portion of this assignment of error, Reed chal- lenges the court's instructions regarding the award of attorney fees. This portion of the assigned error is moot in light of our discussion as to Reed's second assignment of error. App.R. 12(A)(1)(c). In the second portion of this assignment of error, Reed maintains that the trial court erred in refusing to submit inter- rogatories to the jury. Civ.R. 49(B) governs the use of interrogatories and provides in pertinent part: The court shall submit written interroga- tories to the jury *** upon request of any party prior to the commencement of argument. *** The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the inter- rogatories shall be submitted to the jury in the form that the court approves. - 20 - In accordance with this rule, the trial court must submit inter- rogatories to the jury once they are requested by either party; however, the trial court has discretion to review and approve the appropriateness and content of the requested interrogatories. Ragone v. Vitale & Beltrami, Jr., Inc. (1975), 42 Ohio St.2d 161, paragraph one of the syllabus; Cincinnati Riverfront Coliseum, Inc. v. McNulty Co. (1986), 28 Ohio St.3d 333, 336. In this instance, Reed's proposed interrogatories stated: Is it your conclusion, from the preponderance of the evidence, that tenant-Davis being not always current in paying his such part of rent to landlord-Reed, he could always serve notices upon tenant-Davis and file his Court actions to evict tenant-Davis without landlord-Reed being retaliatory in such regards? Is it your conclusion from the preponderance or greater weight of the evidence, that tenant- Davis was always not current in paying his part of the rent of $36.00 to landlord-Reed? The court conducted the mandatory review of the interroga- tories and concluded that "they would be confusing to the jury in its attempt to find a solution to the issues of this case." (Tr. 401). We concur with that determination and therefore hold that the trial court acted well within its discretion in rejecting the proposed interrogatories. In any event, the court clearly in- structed the jury regarding Reed's claim for unpaid rent and submitted a special verdict form on this claim, therefore properly considering the issues raised therein. This portion of the assigned error therefore lacks merit. - 21 - The fifth assignment of error is overruled. VI. Appellant's sixth and seventh assignments of error state: THE TRIAL COURT COMMITTED PLAIN ERROR IN SUB- MITTING SPECIAL JURY VERDICT FORMS TO THE JURY, RATHER THAN CIVIL VERDICT FORMS, CONTRARY TO THE RULES OF CIVIL PROCEDURE, RULE 49. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT IN ITS "JUDGMENT ENTRY NUNC PRO TUNC FOR 12-28-93" ANNOUNCED ON NOVEMBER 16, 1994, AND JOUR- NALIZED ON NOVEMBER 21, 1994, WITHOUT WRITTEN MOTION OF EITHER PARTY AND WITHOUT PRIOR NOTICE TO APPELLANT WITH OPPORTUNITY TO BE HEARD; AND, IN EFFECT, GRANTING JUDGMENT IN PART TO APPELLEE NOTWITHSTANDING THE VERDICT. Appellant does not present any argument in support of these assignments of error; accordingly, they are rejected herein. See App.R. 12(A)(2); App.R. 16(A)(7); Park v. Ambrose (1993), 85 Ohio App.3d 179, 186. VII. Appellant's eighth assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, EVEN PLAIN ERROR, IN GRANTING RELIEF TO APPELLANT AND APPELLEE, WHEN THE EVIDENCE DISCLOSED THAT THEY VIOLATED FEDERAL RULES AND REGULATIONS BY AGREEING TO CHANGE THEIR SECTION 8 LEASE AS TO PAYMENT OF RENT AND UTILITIES WITHOUT CLEVELAND METROPOLITAN HOUSING AUTHORITY APPROVAL, CAUSING THE SECTION 8 LEASE BETWEEN THEM TO BECOME UNENFORCEABLE. Within this assignment of error, the landlord maintains that the parties' undisputed oral modification of their lease regarding - 22 - the payment of their utility bills rendered the terms of their written agreement void. As an initial matter, we note that subsequent acts and agree- ments may modify the terms of a contract and, unless otherwise specified, neither consideration nor a writing is necessary. Smaldino v. Larsick (1993), 90 Ohio App.3d 691, 698. A contract cannot be unilaterally modified, and the parties must mutually assent to the modification. Nagle Heating & Air Conditioning Co. Heskett (1990), 66 Ohio App.3d 547, 550. In this instance, the parties' Lease Addendum specifically provided that the landlord would provide all utilities and that, in the event of any conflict with other terms of the parties' lease, the terms of the Addendum would prevail. The undisputed evidence established, however, that Reed and Davis did orally and mutually agree to modify the terms of their agreement. Reed, therefore, cannot be found liable for breach of the modified pro-vision. In accordance with the two-issue rule, however, a general verdict will stand when one or more alternative grounds are submitted to the jury. See, e.g., Sapp v. Stoney Ridge Truck Tire (1993), 86 Ohio App.3d 85, 97. By application of this rule, the parties' oral modification does not alter the outcome reached by the jury. That is, the claim of retaliatory eviction properly stands since the jury was correctly instructed that this claim could be established where it was proven that Reed attempted to evict Davis and/or reduced service to him following Davis's complaints to a government - 23 - agency. Assuming Reed provided all required services to Davis during the tenancy, the jury could nonetheless conclude that Reed engaged in retaliatory conduct when he filed the first eviction. Similarly, the claim for violation of statutory and contractual rights properly stands since the jury was correctly instructed that this claim could be established where it was proven that Reed either failed to provide required utility service or failed to maintain the premises. Again, assuming that Reed provided all required utility service, there was evidence that he did not maintain the premises. In accordance with the foregoing, we discern no reversible error in connection with these assignments of error, and they are therefore without merit. In accordance with the foregoing, the trial court's punitive damage award is reversed, the trial court's statutory award of attorney fees and costs are reversed and remanded, and the awards as to compensatory damages are affirmed. - 24 - This cause is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. 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. SARA J. HARPER, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .