Appeals court: Judge erred in barring landlord

May 20, 2010 at 12:03a.m.

By PETER H. MILLIKEN

YOUNGSTOWN

An appeals court has ruled that a county court judge erred when he barred a landlord from making further filings in his court.

The judge said he made his decision because of a balance that exceeded $3,000 in outstanding court costs and fees.

“This decision was unconstitutionally entered without notice or an opportunity to be heard and is an unconstitutional denial of access to the courts,” the 7th District Court of Appeals ruled.

The three-judge panel rendered its unanimous decision in a dispute between Judge David D’Apolito of Mahoning County Area Court, Austintown, and the landlord, GMS Management Corp. of Cleveland, concerning court costs and fees for evictions.

Judge D’Apolito violated GMS’s right to due process of law, the appeals court ruled.

GMS owns five Austintown apartment complexes totaling 1,322 apartments.

“We have to hold the courts to the highest standard to protect the constitution, and that’s what the 7th District did here,” said Michael Stavnicky of Beachwood, GMS’s lawyer.

“There was no hearing. There was no due process. There was no notice,” he said of Judge D’Apolito’s actions. “The landlords have been taking it on the chin for these additional filing fees.”

GMS argued 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, court and sheriff’s costs, which the landlord must then collect from the tenant being evicted.

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

Practically speaking, the judge acknowledged collecting fees from an evicted tenant isn’t realistic, but he said performing such collections isn’t the court’s job. The costs of evictions are part of a landlord’s cost of doing business, he added.

The appeals court decision was written by Judge Joseph J. Vukovich, with Judges Cheryl L. Waite and Mary DeGenaro concurring.