COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73623 MARY SHEA, : ACCELERATED : Plaintiff-Appellee : JOURNAL ENTRY : AND vs. : OPINION : NANCY GEORGE, : PER CURIAM : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 15, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Cleveland Heights Municipal : Court : Case No. CVI-970784 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Mary Shea, Pro Se 1340 Brookline Road, Suite C204 Cleveland Heights, Ohio 44121 For defendant-appellant: Theodore A. Amata ` 2447 Lee Road Cleveland Heights, Ohio 44118 -2- PER CURIAM: On August 21, 1996, appellant, Nancy George, and appellee, Mary Shea, entered into a lease agreement for the suite on the second and third floors of the home located at 2453 Lee Road, Cleveland Heights, Ohio. The lease was to run from September 1, 1996, through August 31, 1997, with a monthly rent of $725.00, and a security deposit equal to that amount. Problems arose, leading the appellee to request a termination of the lease agreement prior to its provided for expiration. In response to this request, appellant sent Shea a letter stating I received your letter and I do not have a problem with the thirty day notice. You must vacate the property on April 30, 1997 or you will be charged $50.00 per day after this date. I will pick up the keys from you at 6:00 p.m. on April 30, 1997. If you have any other questions please address them in writing to me at my office. No mention of a security deposit exists in this letter, but Shea testified that she and George orally agreed that the security deposit would be returned to Shea within seven days of the day Shea vacated. George refuted the validity of this statement. In turn, the appellant never returned the security deposit and claims to be entitled to the entire deposit due to appellee's breach, as well as additional damages for lost rent as a result of Shea's departure. Shea, on the other hand, sought double damages for George's failure to itemize the disposition of the security deposit within thirty days of the lease's termination. -3- The case was heard before a magistrate, whose decision was reviewed and adopted by the trial court, which awarded only the return of Shea's deposit. Appellant timely filed and assigns two errors for our review. Assignments of error one and two are interrelated in both law and fact and will thus be treated together. Assignments of error one and two state: THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING THAT THE APPELLEE-PLAINTIFF WAS ENTITLED TO THE RETURN OF HER DEPOSIT BECAUSE OHIO LAW REQUIRES HER TO PROVE THAT SHE COMPLIED WITH THE TERMS OF THE LEASE AGREEMENT IN ORDER TO ENTITLE HER TO THE RETURN OF HER SECURITY DEPOSIT. THE MANIFEST WEIGHT OF THE EVIDENCE SHOWS THAT PLAINTIFF FAILED TO DISCHARGE HER OBLIGATIONS UNDER THE LEASE, THAT APPELLANT-DEFENDANT SUFFERED DAMAGES AS A RESULT OF THE BREACH, AND THAT APPELLEE-PLAINTIFF WAS NOT ENTITLED TO THE RETURN OF THE DEPOSIT. In an action by a tenant/lessee for the recovery of a wrongfully withheld security deposit, R.C. 5321.16 of the Landlord and Tenants Act controls. R.C. 5321.16 provides in pertinent part: (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 attorneys fees under division (C) of this section. -4- (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 attorneys fees. An action under this statute for the unreturned security deposit and any related penalty is a separate and distinct claim belonging solely to the tenant. Prescott v. Makowski (1983), 9 Ohio App.3d 155, 458 N.E.2d 1281. See, also, Sherwin v. Cabana Club Apartments (1980), 70 Ohio App.2d 11, 433 N.E.2d 932. Any claim that a landlord has for any unpaid rent or damages to the property may be maintained separately or in a counterclaim to tenant's claim. Prescott, supra. Sherwin, supra. In the instant case, the parties entered into an agreement, as evidenced by the undated letter sent to Shea by George, where the appellant would effect an early termination of her lease without penalty. Appellee complied with the terms dictated in this letter and effected the agreed upon early termination. There is some confusion as to the oral obligations thereafter, with appellee maintaining an agreement was reached for the return of the security deposit and appellant denying the existence of such an agreement. However, since the parties agreed upon an early termination, as opposed to a default by appellee, R.C. 5321.16 was triggered when appellant failed to return Shea's security deposit or provide a notice with an itemization of deductions within the statutes proscribed thirty days. This court explained the consequences of violating these provisions in Sherwin v. Cabana Club Apartments (1980), 70 Ohio App.2d 11, 17, 433 N.E.2d 932, 937, when we held: -5- " * * * [T]he landlord's failure to provide a notice containing an itemization of deductions from the security deposit within thirty days of termination of the lease automatically penalizes the landlord in the amount of the security deposit and reasonable attorney's fees, where the tenant brings an action to recover his security deposit under R.C. 5321.16." (Footnote deleted.) Accordingly, since our holding in Sherwin still stands, appellant's penalty within the provisions of R.C. 5321.16 apply and judgment for plaintiff was proper. Judgment affirmed. -6- It is ordered that appellee recover of appellant her 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 Cleveland Heights 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. JOSEPH J. NAHRA, PRESIDING JUDGE DIANE KARPINSKI, JUDGE MICHAEL J. CORRIGAN, 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 .