Calanni v. Stowers , 2018 Ohio 4025 ( 2018 )

[Cite as Calanni v. Stowers, 2018-Ohio-4025.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106618
CHARLES A. CALANNI, ET AL.
PLAINTIFFS-APPELLANTS
vs.
MEGHAN E. STOWERS, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Lakewood Municipal Court
Case No. 2016 CVG 02396
BEFORE: McCormack, J., Kilbane, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: October 4, 2018
[Cite as Calanni v. Stowers, 2018-Ohio-4025.]
ATTORNEY FOR APPELLANT
Kenneth D. Myers
6100 Oak Tree Blvd., Suite 200
Independence, OH 44131
FOR APPELLEE
Meghan E. Stowers, pro se
1270 Lakeland Ave.
Lakewood, OH 44107
[Cite as Calanni v. Stowers, 2018-Ohio-4025.]
TIM McCORMACK, J.:
{¶1} Plaintiffs-appellants Charles and Cynthia Calanni appeal from the
Lakewood Municipal Court’s judgment on their claim for damages relating to an eviction
action. For the following reasons, we affirm.
Procedural History and Substantive Facts
{¶2} On December 16, 2016, the Calannis filed a complaint for forcible entry
and detainer and for monetary damages against their tenant, defendant-appellee Meghan
Stowers. The court granted the eviction, ordered the tenant to vacate the premises, and
scheduled the matter for a hearing on damages. On February 16, 2017, a magistrate
conducted the hearing on damages. Charles Calanni (hereinafter “Calanni”) and
Meghan Stowers appeared for the hearing.
{¶3} Calanni presented his own testimony, an itemized list of purported damages
and associated costs, and several pictures of the alleged damage to the apartment formerly
occupied by Stowers. Stowers offered her own testimony.
{¶4} The evidence established that Charles and Cynthia Calanni, as landlords,
entered into a rental agreement with Stowers for residential property in Lakewood, Ohio
at a monthly rent of $575. Stowers lived in the property from April 2013 until January
2017, at which time she was ordered by the court to vacate the premises. Calanni
introduced as evidence the rental agreement between the parties. Calanni asserted that
the rental agreement prohibits Stowers from “hanging []pictures, painting, redecorating,
or other alterations without the written permission of the owner.” Calanni also asserted
that Stowers acknowledged on the rental agreement that she was in receipt of the
apartment in “excellent condition.”
{¶5} Calanni testified that Stowers failed to pay rent for November 2016,
December 2016, and January 2017, and that she vacated the premises on January 15,
2017. He also claimed that Stowers failed to return her apartment keys. Stowers
testified, however, that she paid November’s rent, although she did not have a receipt.
She stated that Calanni never provided a receipt to her for rent and she typically paid in
cash. Stowers conceded that she did not pay December’s rent. She testified that she
moved out in December and returned the keys to Calanni at his automotive shop on
January 2.
{¶6} Calanni claimed Stowers owed back rent for November 2016 ($215),
December 2016 ($575), and January 2017 ($575), in addition to late fees ($57.50 per
month), for a total of $1,537.50. Regarding alleged damage to the premises, Calanni
claimed damages in the amount of $3,721.78 above and beyond ordinary wear and tear,
referring to the invoice purportedly prepared by Calanni’s subcontractor, Brian
Livingston. The alleged damages to the property included: drywall repairs ($298.47);
painting ($1,295); cleaning ($567.23); hardwood floor repairs ($34.92); carpet
replacement ($1,197.64); furniture moving ($345); lock repairs ($42.39); lock
replacement ($39.67); smoke detectors ($33.42); window repairs ($129.12); light fixture
replacement ($89.73); blind replacement ($68.42); and plumbing ($148).
{¶7} Calanni testified that he incurred moving costs to remove Stowers’s
furniture and other items, and in support, he introduced several pictures of the premises
that he claimed to have taken after Stowers moved out. Stowers testified, however, that
a number of items in the pictures, such as a table, boxes, bags of clothing, small chair,
ironing board, and a filing cabinet, had been moved prior to her move-out date of January
2. She conceded that the two large chairs, a couch, and a bed remained.
{¶8} Calanni testified as to the general condition of the property, claiming that
despite the prohibition in the rental agreement, Stowers had hung numerous items,
including pictures and stickers. As a result, there were several nail holes, remnant nails,
and damage to the walls, ceiling, and crown molding from the nails. Stowers admitted
that she hung pictures, a “hanging star,” a wreath, and lights. The pictures Calanni
introduced included pictures of a wreath and the hanging star; however, Stowers testified
that she had removed those items from the premises. Regarding the stickers, Calanni
stated that “when you take off the stickers, it leaves stains on the drywall.” Stowers
testified that the sticker of which Calanni referred was a hologram that “comes right off.
It doesn’t tear. [It is] meant for the wall.” Calanni claimed that due to the nail holes
and stickers throughout the apartment, he incurred damages to the drywall and painting of
the entire apartment. He stated that he had last painted the apartment “approximately
right before [Stowers] moved in.”
{¶9} Regarding the flooring, Calanni testified that Stowers had damaged the
hardwood floor under the carpeting. He also testified that the carpeting throughout the
apartment, which was “three years and nine months old,” and “in excellent condition
[upon move-in],” was damaged and needed to be replaced; it was “destroyed beyond any
recognition.” Calanni identified a red stain on the carpet. Stowers acknowledged that
she spilled red hair dye on the carpet. In support of his argument that the carpet was “in
excellent condition” prior to Stowers’s occupancy, Calanni identified the rental agreement
wherein Stowers acknowledged receipt of the apartment in “excellent condition.” He
did not provide receipts for the carpet installation that occurred prior to Stowers’s
tenancy. Stowers testified that the carpet was not new when she moved in, but it had
been steam-cleaned.
{¶10} Calanni further testified regarding alleged damage to the locks, missing
smoke detectors, broken windows, broken light fixtures, broken window blinds, and a
clogged toilet. Calanni claimed that Stowers broke her key in the lock, which Stowers
denied, stating that she had returned the keys to Calanni. Stowers testified that the
window and light shade were broken when she moved into the apartment. Stowers
testified that she had numerous problems with the toilet throughout her tenancy and she
had called Calanni to make repairs in the past.
{¶11} Finally, Calanni testified that his wife, Cynthia, had cleaned the entire
apartment and incurred costs associated with cleaning beyond a normal amount.
{¶12} After considering the evidence, the magistrate issued a decision on
February 23, 2017, recommending judgment in favor of the Calannis in the amount of
$2,262.32, which included a recommended award of $1,480 for back rent (November
2016, December 2016, and January 2017) and late fees (November 2016 and December
2016); a credit of $535; and $1,317.32 for other damages. The magistrate explained that
“the premises were left in a condition which would warrant one month to clear out, clean,
and ready the unit for the next tenant” and therefore applied the $535 from Stowers’s
security deposit as credit against the back rent and late fees awarded.
{¶13} In an eight-page decision, the magistrate addressed each item on the
Calannis’ list of damages. He found that the Calannis established by sufficient evidence
that they incurred damages beyond ordinary wear and tear as follows: (1) cleaning
($518.50); (2) carpet replacement ($598.82); and furniture moving ($200).
{¶14} In support of his finding regarding the claim for cleaning the premises, the
magistrate stated as follows:
Though the plaintiff testified that the photographs were taken sometime
after the defendant had vacated, the defendant was more credible when she
testified that the pictures were taken before she vacated the unit * * *. She
testified that most of the personal possessions were removed * * * before
her move-out date of January 2, 2017, with only two larger chairs, a couch,
and a bed remaining. Though the photographs do not fairly and accurately
depict the actual condition of the premises once the defendant had moved
out, the defendant offered no testimony that she or anyone on her behalf had
cleaned the unit. * * * [I]t is clear that cleanliness is not one of her stronger
attributes, which leads to the finding that the unit needed more than the
normal level of cleaning. And although the plaintiff claimed $567.23 as
the cleaning expense, $48.73 of that amount for “cleaning materials” is
not awarded since receipts and invoices * * * were not provided.
{¶15} The magistrate awarded half of the requested amount for carpet
replacement, finding that an allowance for depreciation is required, stating that “[t]he last
of a long line of tenants cannot be assessed for the entire cost of a carpet that is 10 years
old when several tenants have enjoyed the benefit of the carpeting.” The magistrate
noted that the Calannis failed to provide evidence to substantiate the age of the carpet and
the defendant stated that she did not believe the carpet was new when she moved in.
The magistrate therefore determined the carpet to be five years old and, allowing for
depreciation and the average life expectancy of carpeting of ten years, recommended the
Calannis receive $598.82 for the cost to replace the carpet.
{¶16} Regarding the Calannis’ claim for furniture moving, the magistrate awarded
$200 of the requested $345. The magistrate found Stowers’ testimony more credible
regarding which items were left behind, and he found the invoice of Brian Livingston,
that was submitted by Calanni, lacked sufficient detail, such as an hourly rate and the
number of hours worked, and it quoted an excessive amount, considering the limited
number of items being moved. The magistrate found the reduced amount to be a
reasonable cost for removing the bulk furniture (two chairs, a couch, and a bed) that
remained in the apartment.
{¶17} The magistrate also found that the Calannis failed to prove by sufficient
evidence damages beyond normal wear and tear for the following: hardwood floors;
lock repair and replacement; smoke detectors; window repairs; light fixture replacement;
blind replacement; and plumbing.
{¶18} In support of his decision regarding these repairs, the magistrate found
Calanni not credible when he testified that Stowers damaged the hardwood floors when
the floor was covered with wall-to-wall carpeting throughout the apartment and no photos
of the allegedly damaged floor were introduced. Noting a dispute among the parties
concerning whether the apartment keys had been returned, Stowers’s more credible
testimony regarding the lock and the keys, and the lack of specific information on the
contractor’s invoice regarding “what repairs were performed or on what lock,” the
magistrate found the evidence “woefully lacking concerning a damaged lock or its
repair.” The magistrate found Stowers more credible when she testified that there was
only one smoke detector, she removed it because it was making a noise, and she left the
detector in the unit. He noted that “[i]f there was more than one missing smoke detector,
one would expect a photograph of the second smoke detector as well.” Regarding the
light fixture, the magistrate found that Stowers credibly testified that she left the glass
globe of the fixture in the unit, the broken chandelier shade was in that condition upon
move-in, and the Calannis failed to provide a separate invoice that would accurately
reflect the cost of replacement for the glass globe and the shade. The magistrate stated
that he refused to speculate on damages.
{¶19} Regarding the plumbing, the magistrate stated that although the Calannis
claimed the toilet was clogged, Calanni offered a photograph of a toilet that did not
appear to be clogged, and he offered the contractor’s “nonspecific” invoice for
“plumbing” that failed to identify the work involved or the hours expended. The
magistrate found Stowers more credible when she testified that the toilet was not clogged
and she in fact had numerous problems with the toilet during her tenancy that her landlord
did not address. The magistrate further stated that the existence of “an older, defective
toilet in a rental unit is not the responsibility of a tenant, and a landlord cannot abdicate
his duties by attempting to assess damages for such a toilet and assign them to the tenant
upon move-out.”
{¶20} Addressing the windows and the blinds, the magistrate once again found
Stowers more credible than Calanni. The magistrate stated that while Calanni testified
that three or four windows were broken, he only offered one picture of a window that
Calanni claimed contained a bullet hole. The magistrate noted that from the “blanket
invoice” of the contractor, it was “unclear what repairs were performed, whether to the
glass or the window itself, or even how many windows and what window(s) he repaired.”
{¶21} Finding the Calannis’ claim for blind replacement equally unsupported, the
magistrate stated:
The plaintiff claims that the defendant damaged four (4) window mini
blinds and offered the invoice of Brian Livingston * * * as proof. That
invoice did not specify the number of blinds that were damaged/replaced,
the rooms the mini blinds were allegedly in, or the cost per blind. In
addition, * * * the plaintiff failed to provide a separate invoice for the cost
of each blind or any proof whatsoever as to the cost of the blind itself. A
blanket invoice from the contractor does not constitute sufficient proof of
damages in this instance. * * * Moreover, the plaintiff introduced Plaintiff’s
Exhibit 18, which depicted three separate photographs of what the plaintiff
claims to be three separate mini blinds, despite his claim that four mini
blinds were damaged and needed to be replaced. Even so, despite
plaintiff’s claim that the top left and top right photographs of [the exhibit]
are two different mini blinds from two different rooms, it is the finding of
this court that they are, in fact, the exact same window blind as evidenced
by the same slats being bent and the same marrings of the woodworking
under the window. The plaintiff did little to enhance his credibility by
insisting that they were two distinct mini blinds.
{¶22} Finally, the magistrate found that the Calannis failed to provide sufficient
evidence that the alleged damage to the drywall and the need for painting was beyond
ordinary wear and tear. Regarding the drywall, the magistrate found that the number of
nail holes was not excessive, “nor were the walls damaged by the placement of the nail
holes.” The magistrate found Stowers’s testimony more credible when she testified that
the marring of the plaster in Calanni’s photo (exhibit No. 3) was there when she moved
in. Further, the magistrate found Calanni not credible when he testified that Stowers
caused the water damage to the ceiling as depicted in another of Calanni’s photos (exhibit
No. 7).
{¶23} Regarding the Calannis’ claim for painting, the magistrate concluded as
follows:
The defendant resided in the premises for three years and eight months.
Such a duration would strongly suggest a need for repainting to “freshen”
the unit for the next tenant. Aside from that logic, however, the plaintiff
testified that the need for repainting flowed from the drywall repair which
he claims was necessitated partly by the placement of nail holes. In view
of the finding * * * that the number of nail holes was not excessive and that
the placement of the nail holes did not damage the surrounding drywall, an
award for repainting of the entire unit cannot be made. Moreover, a
review of those photographs introduced by the plaintiff, which depict the
walls, do not show them to be damaged or excessively dirty.
{¶24} The magistrate therefore found the Calannis failed to provide sufficient
evidence to establish that they incurred damages for drywall repair and painting beyond
ordinary wear and tear.
{¶25} On March 13, 2017, the Calannis filed preliminary objections to the
magistrate’s report, in which they objected to the magistrate’s finding regarding the date
Stowers vacated the premises and generally objected to the magistrate’s “reductions and
calculations” concerning the other alleged damages. The Calannis also requested leave
to file supplemental objections once a transcript of the hearing was completed. The
court granted the Calannis’ request, and the Calannis filed supplemental objections on
April 10, 2017.
{¶26} In their supplemental objections, the Calannis withdrew their initial
objection to the magistrate’s factual finding that Stowers vacated the premises on January
2, 2017, acknowledging that the date is irrelevant because the magistrate recommended
an award of rent for December and January. The Calannis did not further object to the
magistrate’s recommendation concerning back rent and late fees.
{¶27} In their supplemental objections, however, the Calannis objected specifically
to the magistrate’s recommendation concerning the amount of damages for carpet
replacement and the denial of damages for drywall repairs, painting, lock repairs and
replacement, smoke detectors, window repairs, light fixture replacements, and plumbing.
The court scheduled a hearing on the supplemental objections for September 13, 2017,
limiting the hearing to the issues raised in the Calannis’ supplemental objections to the
magistrate’s conclusions of law.
{¶28} During the hearing before the court, neither plaintiff-appellant Cynthia
Calanni nor defendant-appellee Stowers appeared. Calanni once again testified
concerning the alleged damages. Brian Livingston also testified. Livingston testified
that he provided Calanni with an estimate for the necessary repairs to the Lakewood
premises, he performed the work, and Calanni paid him or he expected Calanni to pay
him, in cash or in trade for services. Livingston confirmed that Calanni’s pictures
accurately depicted the condition of the apartment when he began his repair work. He
stated that the premises was in poor condition, the walls were “damaged pretty good,” the
entire apartment required painting in order to match the areas where holes were patched,
and the carpet was in “very poor shape,” requiring replacement. He also testified
generally about the remaining repair issues.
{¶29} On November 9, 2017, the trial court issued an order adopting the
magistrate’s recommendation in total and entered judgment in favor of the Calannis for
$2,262.32.
{¶30} In its entry, the court noted its obligation to make an independent review of
the case based upon the record before the court, while deferring to the magistrate the
resolution of the credibility of the witnesses. Indeed, the court determined that “[m]uch
of the case turned on the credibility of the witnesses.” The court also noted that both the
magistrate and the court had the opportunity to review Calanni’s testimony.
Additionally, the court noted that while it may accept additional evidence by an objecting
party, that evidence, pursuant to Civ.R. 53(D)(4)(d), must be evidence that “could not
with reasonable diligence have [been] produced * * * for consideration by the
magistrate.”
{¶31} In addressing the Calannis’ objections, the court found that the testimony
and evidence presented by Calanni to the court was repetitive of the evidence presented to
the magistrate; the objections were merely an expression of dissatisfaction with the
magistrate’s decision and an improper attempt to receive a new trial on damages; the
testimony of Brian Livingston was “beyond the scope of the issue before the court”; and
the evidence was contrary to the purposes of Civ.R. 53. The court explained that
Livingston was not produced as a witness at the magistrate’s hearing on damages; rather,
the Calannis produced only Livingston’s invoice. The court stated that only after the
magistrate raised concerns regarding the costs and scope of repairs made, as provided in
Livingston’s invoice at the hearing before the magistrate, did Calanni offer Livingston’s
testimony.
{¶32} The court found Calanni’s testimony was “vague and evasive” and “contrary
to his own witness.” The court questioned the “validity of the exhibits” and the overall
credibility of the evidence, specifically noting discrepancies between exhibits:
[I]n the hearing before the court on objections, the plaintiffs presented an
undated invoice signed by both Charles Calanni and Brian Livingston for
work performed (Plaintiffs Exhibit 24). The handwritten notes contained
on this exhibit are contrary to the identically signed exhibit that the
plaintiffs submitted to the magistrate (Plaintiffs Exhibit 6). No
explanation was offered by the plaintiffs regarding the discrepancies in
these exhibits. Comparison of these documents show material alterations
in light of findings set out in the magistrate’s report. In addition, while
Mr. Calanni testified that the notes on Plaintiffs’ Exhibit 6 were written by
Mr. Livingston, * * * the handwriting is distinctively different from the
notes on Plaintiffs’ Exhibit 24, which Mr. Livingston testified before the
court were his own personal notes.
{¶33} The court also concluded that the evidence does not support the Calannis’
claims for additional damages. The court stated that although the Calannis presented a
claim for 17½ hours for cleaning the apartment, including washing the walls to remove
smoke odors and damage, they also claimed damages for repainting the entire apartment.
Regarding the carpet, the court stated that although Calanni testified that the carpet was
installed just before Stowers took possession, neither Calanni nor Livingston, who
claimed to have installed the new carpet, could produce any records to support that the
purchase was made or produce any receipts for the carpet the Calannis claim was installed
after Stowers vacated the premises. The court noted that the Calannis failed to provide
evidence of depreciation, quality, or life expectancy of the carpet.
{¶34} The court further noted that the Calannis failed to provide receipts for
cleaning expenses, paint, or other supplies. And while they produced photographs of the
alleged damage to the premises, which were disputed by Stowers, the Calannis failed to
produce evidence to show that any of the work was actually performed. Regarding the
drywall and painting, the court stated:
In light of the plaintiffs’ claim that substantial plastering and repainting of
the apartment was required due to a few stickers on the wall and minor nail
holes for hanging pictures, the plaintiffs not only failed to prove that the
work was actually completed, but also that it was for damage beyond
normal wear and tear for the time occupied by the defendant and that the
costs claimed were fair and reasonable.
{¶35} Finally, the court concluded that the record showed evidence of some
damage for which the Calannis were entitled to compensation, and considering all of the
evidence as well as “serious issues concerning credibility of the plaintiffs’ evidence,” the
court found that the damages determined by the magistrate are supported by the record.
The court adopted the magistrate’s decision in its entirety.
{¶36} The Calannis now appeal the trial court’s order adopting the magistrate’s
decision, claiming the trial court erred in failing to award the requested damages.
Final Appealable Order
{¶37} We note initially that this court sua sponte ordered the Calannis to show
cause why the matter should not be dismissed for lack of a final, appealable order, noting
that the Calannis commenced the case in the municipal court against Stowers and “all
other occupants” of the premises, arguably John Doe defendants. If a case with John
Doe defendants is resolved in less than a year without service on the John Does, without
abandonment of those claims, or without Civ.R. 54(B) language, there may not be a final,
appealable order. Mosley v. 131 Foods, Inc., 8th Dist. Cuyahoga No. 87696,
2006-Ohio-5719; Militiev v. McGee, 8th Dist. Cuyahoga No. 91356, 2009-Ohio-142.
{¶38} In response, the Calannis filed a notice of compliance with the court’s order,
asserting that the magistrate’s decision explicitly stated that “Defendant All Other
Occupants [are] dismissed from [the] case.” The Calannis did not object to this
statement. Because the Calannis did not object and the trial court adopted the
magistrate’s decision in its entirety, “all other occupants” were in fact dismissed. The
Calannis contend that the trial court’s order is therefore final and appealable.
{¶39} In light of the above, we find that the Calannis have abandoned all claims
against “all other occupants.” The trial court’s judgment was therefore a final,
appealable order. See Harris v. Plain Dealer Publishing Co., 40 Ohio App. 3d 127, 129,
532 N.E.2d 192 (8th Dist.1988).
Law and Analysis
{¶40} The Calannis contend that the trial court erred in failing to award the
requested damages, stating that their evidence sufficiently supported their claim for
damages. The Calannis further claim that “the biggest issues” concerned the trial court’s
failure to award any damages for drywall repair and repainting, arguing that Stowers’s
use of nails constituted a breach of the rental agreement and resulted in damage to the
walls that necessitated these repairs, which were in fact made.
{¶41} When ruling upon objections to a magistrate’s decision, the trial court is
required to make an independent review of the case. Civ.R. 53(D)(4)(d). In so doing,
the trial court must decide “‘whether the [magistrate] has properly determined the factual
issues and appropriately applied the law, and where the [magistrate] has failed to do so,
the trial court must substitute its judgment for that of the [magistrate].’” Gobel v.
Rivers, 8th Dist. Cuyahoga No. 94148, 2010-Ohio-4493, ¶ 16, quoting Inman v. Inman,
101 Ohio App. 3d 115, 118, 655 N.E.2d 199 (2d Dist.1995). Upon its review, the trial
court may hear additional evidence if necessary. Vannucci v. Schneider, 8th Dist.
Cuyahoga No. 105577, 2018-Ohio-1294, ¶ 17; Civ.R. 53(D)(4)(d). Thus, the trial court
must conduct a de novo review of the case in order to reach its own conclusions. In re
A.S., 8th Dist. Cuyahoga No. 101339, 2014-Ohio-4936, ¶ 5.
{¶42} On appeal, our review is more limited. A trial court’s ruling on objections
to a magistrate’s decision will not be reversed absent an abuse of discretion. Hissa v.
Hissa, 8th Dist. Cuyahoga Nos. 99498 and 100229, 2014-Ohio-1508, ¶ 17. An abuse of
discretion implies that the court’s attitude was unreasonable, arbitrary, or unconscionable,
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217,
219, 450 N.E.2d 1140 (1983). An “abuse of discretion” therefore describes a judgment
“comporting neither with the record nor reason.” Hissa at ¶ 17.
{¶43} Moreover, a judgment that is supported by some competent credible
evidence going to all the essential elements of the case will not be reversed by an
appellate court as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Construction Co., 54 Ohio St. 2d 279, 376 N.E.2d 578 (1978); Seasons Coal Co. v.
Cleveland, 10 Ohio St. 3d 77, 461 N.E.2d 1273 (1984).
{¶44} We find the magistrate’s findings of fact and conclusions of law regarding
the Calannis’ claim for damages thoroughly detailed the Calannis’ claim and the evidence
and testimony presented, it discussed at length the repairs allegedly necessitated by
Stowers’s damage, and it considered the damage to the items as compared with expected
reasonable wear and tear. The magistrate repeatedly questioned Calanni’s credibility,
noting several inconsistencies and inaccuracies in his testimony and his evidence lacking
sufficient detail and support. The magistrate therefore ultimately found Stowers more
credible, and he found the majority of the Calannis’ claim for damages were either
unsupported or did not extend beyond reasonable wear and tear.
{¶45} The record demonstrates that the trial court then conducted an independent
review of the magistrate’s decision, which included addressing the Calannis’ claims
through a second hearing, in which the court heard the testimony of Calanni and his
subcontractor. The trial court engaged in an extensive evaluation of all of the evidence
submitted by the parties concerning each item in the Calannis’ claim for damages. It
deferred to the magistrate’s assessment regarding credibility and found the magistrate’s
decision to be supported by the evidence.
{¶46} As the trial court noted, much of the Calannis’ claim for damages turned on
the credibility of the witnesses, which both the magistrate and the trial court found
lacking in Calanni. And regarding the initial hearing, the trial court deferred to the
magistrate’s assessment of the credibility of both Calanni and his tenant. It is well
settled that when testimony is in dispute, we defer to the trier of fact’s credibility
determination. Calanni v. Kolodny, 8th Dist. Cuyahoga Nos. 105269 and 105271,
2018-Ohio-1289, ¶ 11, citing Fanous v. Ochs, 8th Dist. Cuyahoga No. 98649,
2013-Ohio-1034, ¶ 18. The trier of fact “is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Seasons Coal Co., 10 Ohio St. 3d at 80, 461
N.E.2d 1273. Consequently, the reviewing court is “guided by a presumption that the
findings of the trier of fact were indeed correct.” Id.
{¶47} The trial court also found the magistrate’s findings are supported by the
record. It noted that the Calannis’ evidence, some of which was questionable and/or did
not account for reasonable wear and tear, did show some damage to the premises for
which the Calannis were entitled compensation.
{¶48} Regarding the carpet, the magistrate found the Calannis’ cost for carpet
replacement lacked substantial detail and did not account for depreciation and normal
wear and tear, thus awarding only half of the requested amount. In adopting the
magistrate’s findings, the trial court noted the discrepancy in the witnesses’ testimony, the
lack of credible evidence in support of Calanni’s claim for replacement of the entire
carpet, and the Calannis’ failure to account for depreciation due to reasonable wear and
tear, quality, and life expectancy of the carpet. In a case between a landlord and a
tenant, a landlord is not entitled to damages for repairs to a rental property where the
damages resulted from reasonable wear and tear. Bibler v. Nash, 3d Dist. Hancock No.
5-05-09, 2005-Ohio-5036, ¶ 18. Moreover, “if the trier of fact believes the evidence
regarding the cost of repair has been inflated, the trier of fact always has the discretion to
adjust the damages accordingly.” Curtis v. Vazquez, 11th Dist. Ashtabula No.
2003-A-0027, 2003-Ohio-6224, ¶ 30. And a party’s disagreement with the trier of fact
as to the appropriate amount of damages is not grounds for reversal. Arendt v. Price, 8th
Dist. Cuyahoga No. 101710, 2015-Ohio-528, ¶ 16, citing Sotnyk v. Guillenno, 6th Dist.
Lucas No. L-13-1198, 2014-Ohio-3514, ¶ 11.
{¶49} Regarding the claim for drywall repairs and painting of the entire apartment,
the Calannis contend that Stowers violated the rental agreement by placing holes in the
walls for hanging pictures and decorations, and they incurred damage to the plaster and
paint as a result. In support, the Calannis produced photographs of nail holes in the
walls, and Stowers admitted to hanging certain pictures and other decorations on the
walls.
{¶50} The magistrate, in declining to award the Calannis any damages relating to
drywall repairs or painting, found that the damage caused by the nail holes did not exceed
reasonable wear and tear. The magistrate specifically concluded that “the number of
nail holes is not excessive, nor were the walls damaged by the placement of nail holes.”
The magistrate also determined that Stowers’s tenancy of three years and eight months
“strongly suggest[ed]” a need for repainting to “freshen the unit” for the next tenant.
The magistrate further stated that although the Calannis claimed the drywall repairs
flowed from the nail hole damage, and the drywall repairs necessitated the repainting,
because he found the nail holes were not excessive and the nails did not damage the
walls, “an award for repainting of the entire unit cannot be made.” The magistrate also
found that the Calannis’ photographs do not depict “damaged or excessively dirty” walls.
In adopting the magistrate’s decision, the trial court found that the Calannis failed to
produce evidence demonstrating that the plastering and repainting constituted damage
beyond ordinary wear and tear for the duration of the tenancy or that the work was
actually completed.
{¶51} Courts generally view the need for cleaning and repainting costs between
tenants, even for leases as short as one year, as the sole responsibility of the landlord.
See, e.g., Swartz v. Luker, 12th Dist. Clermont No. CA91-07-051, 1991 Ohio App.
LEXIS 6319 (Dec. 30, 1991) (finding cleaning and painting costs did not constitute
damage beyond ordinary wear and tear); see also Kelley v. Johnston, 4th Dist. Gallia No.
01CA5, 2001-Ohio-2622 (finding carpet cleaning and painting costs did not exceed
ordinary wear and tear after a three and one-half year tenancy). Landlords “cannot seek
to hold [their tenants] responsible for its own required maintenance of the premises.
This is a normal cost of doing business.” Kovac v. Whay, 8th Dist. Cuyahoga No.
65469, 1994 Ohio App. LEXIS 4720, 15 (Oct. 20, 1994).
{¶52} Normal nicks and other minor indentations in walls occur in the ordinary
course of occupancy of residential premises. And patching and other minor drywall
repairs are invariably part of the preparation for painting. Therefore, although the nail
holes admittedly made by Stowers were in violation of the lease, the Calannis had the
burden to show that the expenses they incurred relating to the plastering and painting
were for remedying only those prohibited nail holes, exclusively and apart from the
ordinary expenses of patching and/or painting between tenants. The record
demonstrates that the Calannis failed to sustain their burden.
{¶53} In light of the above, we cannot conclude that the trial court abused its
discretion in adopting the magistrate’s decision. The Calannis’ sole assignment of error
is overruled.
{¶54} Judgment affirmed.
[Cite as Calanni v. Stowers, 2018-Ohio-4025.]
It is ordered that appellee recover of appellants 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 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.
______________________________________________
TIM McCORMACK, JUDGE
MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR