COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71221 KENNETH C. HILPERT, JR., : ET AL. : : Plaintiffs-appellees : : JOURNAL ENTRY -vs- : AND : OPINION GMS MANAGEMENT CO., INC., : ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: MAY 15, 1997 CHARACTER OF PROCEEDING: Civil appeal from Rocky River Municipal Court Case No. 95-CVF-1255 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: For Defendants-Appellants: JOHN J. DUFFY, ESQ. PAUL M. GREENBERGER, ESQ. JOHN J. DUFFY & ASSOCIATES 25400 Chagrin Blvd., Suite #101 23823 Lorain Road, #270 Beachwood, Ohio 44122 North Olmsted, Ohio 44070 - 2 - DYKE, J.: Appellees were tenants in an apartment building owned and operated by appellant. The parties had negotiated and agreed upon a one year lease, beginning on July 28, 1994. The apartment's rent was $469.00 per month. Pursuant to a rental rebate promotion offered by appellant, the first two months' rent was credited by $519.00. Appellees experienced difficulties with the heating system in the winter of 1994-1995 and communicated this problem to appellant. After several months of complaints, appellant sent a technician to repair the furnace. Appellant forwarded the repair bill to appellees. Appellees did not think it was their responsibility and did not pay the bill. Appellant notified appellees on March 8, 1995 of the intent to terminate their lease. A forcible entry and detainer suit was filed by appellant on April 11th. The suit claimed that rent was due but cited the $113.40 due on the repair bill for the furnace as the amount due. Thereafter, appellant and appellees reached a settlement agreement. Appellant dismissed its forcible entry and detainer suit. Appellees surrendered the premises several days following the agreement. The enforcement and terms of this agreement were at issue in the present action before the trial court. Appellees claimed that appellant agreed not only to dismiss the forcible entry and detainer action in return for appellees' surrender of the premises, but also to return their $230.00 security deposit. - 3 - Appellant did not return the deposit. Although the report on the condition of the apartment indicated that appellees left it in good condition, appellant billed appellees $163.00 for painting and cleaning. Appellant testified that those standard charges are passed on whenever the lease is broken by the tenants. Appellant further demanded the return of the $519.00 which was credited toward appellees' first two months rent as incentive to sign the lease. Appellees filed the present action in the Rocky River Municipal Court for the return of their security deposit. The trial court found that the oral agreement formulated to resolve the initial forcible entry and detainer suit was enforceable and under its terms, appellant owed the deposit to appellees. Appellant filed a timely notice of appeal from the court's decision to award appellees double the amount of the security deposit ($460.00), pursuant to R.C. 5321.16, $800.00 in diminished rent proceeds due to the heating problem and $1,684.00 in attorney fees plus interest. Appellant asserts three assignments of error. I THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS CONCLUSIONS OF LAW, INCLUDING, WITHOUT LIMITATION, CONCLUSIONS 10 & 11 BY FAILING TO COMPLY WITH THE APPLICABLE PROVISIONS OF THE STATUTE OF FRAUDS, R.C. 1335.05. Appellant argues that the parties' oral agreement following the initiation of the forcible entry and detainer suit violates the statute of frauds. Appellant's argument is not well taken. - 4 - The issue presented is not properly before this court. Appellant's assertion that the oral agreement is in violation of the Statute of Frauds was not raised in the pleadings, nor tried before the trial court. In fact, the pleadings assert that the agreement was non-existent, a figment of appellees' imagination. If an argument was not raised by the complaint nor decided by the lower court, it can not be reviewed on appeal. State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 175 and Republic Steel Corp. v. Bd. of Revision (1963), 175 Ohio St. 179, at the syllabus. Appellant's first assignment of error is overruled. II THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS CONCLUSION OF LAW 18 FINDING THAT ENFORCEMENT OF THE FULL INTEGRATION CLAUSE IN THE INSTANT RESIDENTIAL LEASE WOULD BE UNCONSCIONABLE. Appellant argues that the "no modification" clause of the agreement should have been enforced to prohibit parol evidence of the oral agreement to terminate the lease from being admitted at trial. The trial court found that appellant failed to object to testimony relating to the agreement. The trial court found that enforcement of the clause would be unconscionable under the circumstances. We affirm the trial court's determination. Appellant filed a forcible entry and detainer suit, which was dismissed pursuant to an agreement by the parties to terminate the lease. To enforce the original lease agreement and find appellees liable for not fulfilling its terms, where the appellant has made - 5 - his intention to terminate the lease clear, would be unconscionable. Appellant's second assignment of error is overruled. III THE TRIAL COURT IMPROPERLY ENFORCED A PURPORTED SETTLEMENT OF ONE CASE IN THE TRIAL OF ANOTHER. Appellant argues that one court can not enforce a settlement reached in another case. Appellant fails to cite an applicable legal basis for this assertion. Genuine issues were presented to the trial court below as to the existence and terms of the oral agreement. The substance of the first action was not at issue because it had been dismissed. The trial court had jurisdiction to hear the action to enforce the parties' oral agreement, notwithstanding any prior actions no longer pending. Appellant's third assignment of error is overruled. The trial court's decision to enforce the terms of the agreement in appellees' favor is affirmed. - 6 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Rocky River Municipal 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. JAMES D. SWEENEY, C.J. AND ROCCO, J., CONCUR ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .