Landlord case goes to court of appeals

By Peter H. Milliken

YOUNGSTOWN — A dispute between a landlord with five Austintown apartment complexes and a county court judge concerning court costs and fees for evictions has moved from the Ohio Supreme Court to the 7th District Court of Appeals.

The landlord, GMS Management Corp. of Cleveland, agreed to drop its action at the Ohio Supreme Court against Judge David D’Apolito of Mahoning County Area Court, Austintown, and to file a notice of appeal in the 7th District Court of Appeals.

In a Sept. 24 judgment entry, GMS and Judge D’Apolito agreed that GMS would deposit $4,049 in disputed fees in escrow with the Mahoning County clerk of courts, and that Judge D’Apolito and the clerk would accept new filings from GMS pending resolution of the appeal. GMS put the money in escrow that day.

“I thought it made sense. The [Austintown] court was going to get its money in full and then let the court of appeals decide” the matter on its merits, Judge D’Apolito said, explaining why he made the agreement with GMS. Judge D’Apolito said Monday he is confident he will prevail in this dispute.

Last month, GMS asked the state’s top court to stop Judge D’Apolito and Anthony Vivo, the clerk, from barring further filings from GMS because of a dispute over unpaid court costs and fees.

GMS sought a writ of prohibition from the top court to prevent the judge and the clerk from collecting from the landlord sheriff’s fees for enforcing evictions.

The Supreme Court, which had referred the case to mediation and hadn’t ruled on the matter, dismissed the case Monday at GMS’ request.

On Sept. 2, Judge D’Apolito issued an order blocking GMS from making further filings in his court because of what he said was a balance exceeding $3,000 in outstanding court costs and fees.

GMS filed a notice of appeal of that order last week in the 7th District Court of Appeals.

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 apartment complexes contain 1,322 apartments.

GMS argues in court papers that state law says sheriff’s fees for enforcing evictions are to be paid by the evicted tenant, not the landlord.

When he gives a landlord a judgment permitting an eviction, Judge D’Apolito said he 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.

Judge D’Apolito said in August he was unwilling to order the sheriff to continue performing the evictions if GMS won’t pay for them.

From a practical standpoint, the judge acknowledged that collecting fees from an evicted tenant isn’t realistic, but he said performing such collections isn’t the court’s job. Costs associated with evictions are part of a landlord’s cost of doing business, he said.

GMS’ lawyer, Michael R. Stavnicky of Beachwood, did not respond to a request for comment.