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Landlord takes dispute with judge to high court
Collecting fees from evicted tenants isn’t the court’s job, a judge says.
COLUMBUS — A landlord with five Austintown apartment complexes is asking the Ohio Supreme Court to bar Judge David A. D’Apolito of Austintown Court and Anthony Vivo, Mahoning County clerk of courts, from closing the court’s doors to that landlord because of a dispute over unpaid court costs.
GMS Management Corp. of Cleveland filed the complaint seeking a writ of prohibition from the state’s top court Thursday to prevent Judge D’Apolito and the clerk from collecting from the landlord sheriff’s fees for enforcing evictions.
The complaint also seeks an order blocking the judge and clerk from carrying out the judge’s threat to bar further court filings from GMS once the unpaid fees reached $5,000.
The complaint says the judge told GMS’ lawyer, James R. Ogden, after a May 15 hearing that GMS owed more than $3,000 in court costs and that the court’s policy is to bar any new complaint filings once when the amount due reaches $5,000.
No writ of prohibition has been issued, and no hearing has been set by the high court to hear arguments on why such a writ should or should not be issued.
GMS owns the Hillbrook, Kerrybrook, and Fox Run apartment complexes, all on Raccoon Road, Four Seasons Apartments on New Road and Deer Creek Apartments on Deer Creek Court. Together, these Austintown complexes contain 1,322 apartments, according to the complaint.
In the complaint, GMS argues that state law says sheriff’s fees for enforcing evictions are to be paid by the evicted tenant.
“All costs associated with serving and/or enforcing writs of restitution are to be assessed against the judgment debtor, not the judgment creditor,” GMS argued in its filing at the high court.
A writ of restitution to return the apartment to the landlord is what a deputy sheriff serves on a tenant as the deputy enforces an eviction in a case in which the tenant won’t leave voluntarily.
When he gives a landlord a judgment permitting an eviction, Judge D’Apolito awards to the landlord any back rent owed, payment for any damage to the premises and court and sheriff’s costs, which the landlord must then collect from the tenant being evicted, the judge said.
“I’m not going to order the sheriff to continue to do these evictions if GMS isn’t willing to pay” for them, Judge D’Apolito said. “We’re all in a budget crunch. The sheriff is doing this work but not getting paid for it.”
The Buckeye State Sheriff’s Association has set the fee for serving a writ of restitution at $60, said Mary Pat Gilboy, fiscal officer in the sheriff’s department.
Last year, the sheriff’s department served 376 writs of restitution or possession. This year’s total is 154 from January through May. June and July figures are not available.
Typically, writs of restitution are issued in apartment-complex evictions, and writs of possession are issued to remove home occupants after foreclosures.
From a practical standpoint, the judge acknowledged that collecting fees from an evicted tenant isn’t realistic, but he said performing such collections is not the court’s job.
Costs associated with evictions are part of a landlord’s cost of doing business, the judge said, noting that every other landlord assumes this burden.
“Maybe they should be more selective when they bring these tenants in,” the judge said, referring to GMS’ screening of potential new tenants.
“We’ve not had an opportunity to review the legal issues involved and do the appropriate research,” said Paul J. Gains, Mahoning County prosecutor. Gains, who will defend the judge and the clerk in this case, declined to comment further after his initial reading of the complaint.
Scott A. Grossen, administrator for the clerk of courts, declined to comment because he hadn’t read the complaint.
T. Christopher O’Connell, one of two Beachwood lawyers who filed the complaint with the state’s top court on behalf of GMS, did not return a call seeking comment.
milliken@vindy.com