Levine v. Kellogg

[Cite as Levine v. Kellogg, 2022-Ohio-3440.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Steve Levine et al., :
Plaintiffs-Appellees, :
v. : No. 21AP-338
(M.C. No. 2016CVF-27321)
Ken Kellogg, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 29, 2022
On brief: Law Office of Thomas Tootle Co., LPA, Thomas
Tootle for appellees, Steve and Sharon Levine. Argued:
Thomas Tootle.
On brief: Law Office of James P. Connors, James P.
Connors, for appellant. Argued: James P. Connors.
APPEAL from the Franklin County Municipal Court
MENTEL, J.
{¶ 1} Defendant-appellant, Ken Kellogg, appeals from the June 9, 2021 decision of
the Franklin County Municipal Court finding for plaintiffs-appellees, Steve and Sharon
Levine, on their action to recover a security deposit and against appellant on his
counterclaim for breach of contract. For the reasons that follow, we affirm in part, and
reverse in part.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This court set forth the facts and procedural history of this case in Levine, v.
Kellogg, 10th Dist. No. 18AP-694, 2020-Ohio-1246 ("Levine I"). In Levine I, we wrote:
On August 29, 2016, appellees filed a complaint against
appellant alleging they had entered into a rental agreement
with appellant for the residential premises located at 6764
No. 21AP-338 2
Brampton Court, Dublin. Per the terms of the agreement,
appellees gave appellant a security deposit in the amount of
$1,570. It was alleged that appellees terminated the rental
agreement on July 5, 2016, returning the premises to
appellant "in the same or better condition as when the Rental
Agreement began but for reasonable wear." (Compl. at ¶ 3.)
According to the complaint, appellant failed to return the
security deposit as required by the rental agreement.
Appellees alleged a violation of R.C. 5321.16 and sought
damages in the amount of $1,570, as well as an additional
"statutory penalty" award of $1,570; appellees further sought
the payment of reasonable attorney fees.
On November 29, 2016, appellant filed an answer and
counterclaim. In the counterclaim, appellant alleged that pets
belonging to appellees had "urinat[ed] and defecat[ed] in and
around the indoors of the premises," and that appellees "were
unable to completely remove the stains and odors."
(Counterclaim at ¶ 15.) Appellant alleged he had presented a
bill to appellees "demonstrating that he incurred damages in
the total amount of $3,489," but that appellees "failed and
refused to pay the damages which exceed the security deposit."
(Counterclaim at ¶ 16.) It was further alleged appellees had
failed to disclose damage to the garage door "caused by their
Honda CRV or some other automobile striking the garage
door while they were tenants in the premises." (Counterclaim
at ¶ 17.) The counterclaim alleged causes of action for breach
of contract and misrepresentation.
The matter came for a bench trial beginning March 1, 2018.
Appellees presented the testimony of three witnesses, Kathie
Underwood, and appellees Sharon and Steve Levine.
Underwood, who manages residential rental properties,
testified she had reviewed [p]laintiff's [e]xhibits B, E, and F,
consisting of photographs and a video depicting the interior of
6764 Brampton Court. Underwood stated the wear and tear
depicted in those exhibits was not unusual for carpeting of
seven years or greater. When asked her opinion as to how
often carpet is replaced in a leased premise, Underwood
responded: "As a general rule, every seven to nine years." (Tr.
at 23.)
From 2009 through 2016, appellee Sharon Levine (individually
"Ms. Levine") and her husband resided at 6764 Brampton
Court, renting the premises from appellant under a series of
one-year lease agreements. At trial, Ms. Levine identified
[p]laintiff's [e]xhibit A as a copy of the last lease agreement she
and her husband signed (dated May 1, 2015) regarding the
No. 21AP-338 3
property. In 2016, Ms. Levine and her husband notified
appellant they would be vacating the residence at the end of the
current lease. Appellant subsequently informed appellees he
was "going to sell the home," and that "he wanted to bring in a
realtor to discuss the proceedings for selling the home and what
would happen as they were bringing people in to show the
property." (Tr. at 60.) On April 30, 2016, appellant brought a
realtor to the residence for a walk-through.
Appellees moved out of the residence on July 5, 2016. Appellees
hired Stanley Steamer to clean the carpeting and the company
provided carpet cleaning services on July 6, 2016. Ms. Levine
denied any recollection of damage to the garage door and
stated the door was functioning when they moved out.
On cross-examination, Ms. Levine testified she allowed her pet
cats to roam freely around the house. When asked whether the
pets urinated and defecated inside the property, she
responded: "In the litter box, not on the carpet." (Tr. at 91.) Ms.
Levine acknowledged the pets had vomited on the carpet. She
denied attempting to remove cat urine and feces from the
carpeting.
Appellee Steve Levine (individually "Levine") testified
regarding his tenancy at 6764 Brampton Court, including the
events surrounding the move out in 2016. Levine identified
[p]laintiff's [e]xhibit D as photographs taken by a realtor,
Carolyn Redinger, during a walk-through of the house in 2016.
On the date appellees moved out of the residence (July 5,
2016), Levine did a walk-through of the premises with
appellant. Levine testified that appellant indicated some areas
were dirty. Levine patched a hole in the drywall caused by
movers; he spackled over the work but did not paint over it.
Levine subsequently received a letter from appellant, identified
at trial as [p]laintiff's [e]xhibit K, citing several repairs
appellant "wanted us to make after we moved out." (Tr. at 186.)
Levine stated "[w]e had no idea there was a ding of any kind or
dent or anything in that garage door." (Tr. at 183-84.)
On cross-examination, Levine testified that he "never saw the
cats urinate in the home unless in the litter box," and "never
saw them defecate in the home unless in the litter box." (Tr. at
192.) Levine agreed that it was his decision to have the carpets
professionally cleaned prior to moving out.
Brian Deyo, the owner of Deyo Overhead Door Service, testified
on behalf of appellant. Deyo identified [d]efendant's [e]xhibit
Nos. 17 and 18 as photographs depicting the garage door of the
residence he had "looked at last year." He noted damage to the
No. 21AP-338 4
door, stating that "something * * * hit it from the inside because
it was bowed out." (Tr. at 127.) According to Deyo, the damage
reflected in the photographs was not normal wear and tear. On
March 15, 2017, Deyo provided an estimate to appellant
regarding the replacement of door panels in the amount of
$899. On cross-examination, Deyo stated he had not
performed any work on the garage door.
Edgar Ramirez, the owner of Ramirez Flooring, LLC, testified
as to the condition of carpeting depicted in a series of
photographs admitted as [d]efendant's [e]xhibit 15. He stated
the carpet was "[v]ery dirty. It appeared to have pee from a dog
or cat." (Tr. at 144.) Ramirez opined the condition of the carpet
did not constitute reasonable wear and tear. He stated it is not
possible to fully clean and return carpeting to its normal
condition where stains from animal urine or defecation has
remained on the carpet for a period of time, and that such
carpet "should be replaced." (Tr. at 145.)
Ramirez identified an affidavit he signed providing an estimate
to appellant for the installation of carpet and padding in two
rooms of appellant's rental property. The estimate, prepared on
March 14, 2017, was for the installation of "Mohawk berber"
carpeting in the amount of $2,041.53. (Tr. at 142.) According
to Ramirez, the typical life expectancy of a high-grade berber
carpet from Mohawk is "30 years." (Tr. at 146.)
Redinger, a realtor with "[t]hirty plus years" experience, was
involved in the sale of appellant's property. (Tr. at 222.) In
April 2016, Redinger did a walk-through of the property with
appellant, and took photographs at that time. Redinger
testified that the carpeting "was heavily pet stained in the
family room area." (Tr. at 226.) At trial, Redinger identified pet
stains depicted in the photographs. Redinger expressed
concern to the owners that "[p]et staining could affect the sale
of the home." (Tr. at 227.) The carpet "was cleaned upon move-
out," and Redinger took more photographs on July 7, 2016. (Tr.
at 240.) She testified the photographs depicted stains
remaining on the carpet. Redinger opined that "stains such as
this do not come out, whether [or not] its professionally
cleaned." (Tr. at 242.)
Redinger discussed three options with appellant and his wife
for addressing the condition of the carpet relative to a house
sale. The first option involved installing new carpet while the
current tenants still occupied the premises, which involved the
risk of "the pets * * * stain[ing] * * * all over again." A second
option was to replace the carpeting after the tenants moved out,
with the risk of uncertainty as to "how the market would be." A
No. 21AP-338 5
final option was to "do a compensation for the carpet situation
in pricing." (Tr. at 228.)
Redinger recommended reducing the listing price of the home
by $3,000 (from $197,900 to $194,900) "to compensate for the
carpeting." (Tr. at 229.) She stated the $3,000 figure
represented "the amount of damage to reflect in the purchase
price." (Tr. at 230.) According to Redinger, appellant received
$3,000 less on the sale price of the property due to the staining
on the carpet. Redinger obtained a buyer for the premises, and
the buyers arranged to have the carpeting replaced prior to
moving into the house.
Redinger testified the homeowners made concessions to the
buyer on the sale with respect to foundation work in the
basement, whereby appellant and his wife agreed to pay for
repairs to the I-beams. During redirect examination, when
asked whether the amount paid for repairs "would have been
monies [the owners] had to pay in order to sell the house at the
price that it sold for," Redinger responded "[y]es." (Tr. at 256.)
On cross-examination, Redinger did not recall "any problem
with the garage door." (Tr. at 251.) According to Redinger, no
one knew about an issue with the garage door at the time of the
offer and acceptance in May 2016.
Amy Nagel resides on Brampton Court and when appellees
were out of town she "would watch their cats and get their
mail." (Tr. at 281.) She watched the cats approximately "[t]en
times or more." (Tr. at 282.) According to Nagel, the cats "had
free roam of the house." (Tr. at 288.) She testified that "[o]n an
occasion or two when I would watch them I would have to clean
up poop or puke." (Tr. at 290.) Nagel observed stains
downstairs, which she described as "[s]taining from a pet," and
which she did not consider to be normal wear and tear. (Tr. at
289.) Nagel subsequently noticed "[d]ark spots * * * in the
family room" when she would "go down to clean the kitty litter
box." (Tr. at 290-91.)
Molly Kellogg, appellant's wife, testified she and her husband
lived at the Brampton Court residence from 1992 until 2009.
In 2001, Kellogg and appellant installed "Mohawk berber * * *
high grade carpet" with "a 25-year warranty." (Tr. at 301.) In
2009, Kellogg and appellant decided to rent out the house and
appellees began tenancy that year. Kellogg identified
photographs taken of the residence in 2009 and described the
condition as "immaculate" when they moved out. (Tr. at 304.)
Kellogg went to the house on July 7, 2016 and observed the
carpet "was very well-stained." (Tr. at 309.) Kellogg "was quite
No. 21AP-338 6
upset" because she "thought the carpets had been cleaned. It
looked * * * like there was still heavy staining for having the
carpets being cleaned." (Tr. at 311.) Kellogg prepared a letter to
appellees outlining damages, including a cleaning charge of
$100 and a charge of $75 to repair drywall damage. Kellogg
testified the total damages exceeded the amount of the security
deposit.
Kellogg and appellant met with Redinger in April 2016 to begin
the process of selling the residence. Redinger "mentioned to us
that the carpet in the middle bedroom and, in particular, the
family room was heavily stained. And when we were discussing
the listing price of the home, she mentioned that we could
either ask a listing price and replace the carpet or we could
lower the price of the home by $3,000 and allow the buyer to
put their own carpet in." Kellogg and appellant "decided to
lower the asking price of the home so a buyer could replace the
carpet or flooring as they needed." (Tr. at 315.)
Kellogg and appellant listed the home for $194,900. The buyers
requested Kellogg and appellant remedy a structural issue in
the basement as "some I-beams needed to be replaced." They
paid a contractor "just over $3,000" to remedy the issue. (Tr.
at 316.) Kellogg and appellant also paid to remedy a radon
issue, and "then increase[d] the * * * listing price of the home
to accommodate for that." (Tr. at 316-17.) Kellogg testified they
suffered a $3,000 loss as a result of the carpeting, and that they
would have otherwise listed the house for $197,900.
On cross-examination, Kellogg testified the carpet was
installed in 2001, and that the carpeting was 15 years old when
appellees moved out. Kellogg did not have an invoice for the
Mohawk carpet that was originally installed.
Appellant, who testified on his own behalf, stated the carpeting
he and his wife installed in the Brampton Court residence was
made by Mohawk and carried "a 25-year guarantee." (Tr. at
329.) According to appellant, there were no problems with the
carpeting in 2009, and the house was in "immaculate, excellent
condition" at that time. (Tr. at 328.)
In April 2016, after appellant and his wife made the decision to
sell the residence, he was surprised to see dark stains in the
family room. On two occasions, appellant observed "poop right
outside of the litter box on the family room carpet." Appellant
also observed that someone had placed tea bags on the carpet,
and his realtor explained the purpose of using tea bags in such
a manner was "to pull odors and potential stains out of the
carpet." (Tr. at 345.)
No. 21AP-338 7
Redinger, recommended three options to address the condition
of the carpet; replace the carpeting while the tenants were still
there, install new carpeting after the tenants vacated, or "have
the buyer make their own decision what they want to do and *
* * just devalue by $3,000." (Tr. at 347.) Based on Redinger's
advice, appellant and his wife reduced the price of the house by
$3,000 due to the condition of the carpet. Appellant testified
that the selling price of the home eventually increased by
approximately $3,000 after he paid for remedies related to a
radon system and the installation of I-beams on a basement
wall. []
Appellant prepared a list of items that needed repair at the time
appellees moved out. Appellant discussed the carpet stains
with Levine during the walk-through on July 5, 2016.
According to appellant, the stains did not come out even after
the professional cleaning. He further testified there was a dent
on the left side of the garage door.
On cross-examination, appellant testified he did not have a
copy of the Mohawk carpet warranty or the original invoice.
Appellant did not replace damaged tiles in the kitchen, nor did
he replace the garage door; he stated the damaged garage door
did not affect the sale price of the residence. Appellant testified
the buyer made an offer of $194,900, but the house sold for
$197,900 because "there was a seller concession of closing
costs." (Tr. at 402.) According to appellant, the buyer was
unaware of a foundation issue when they made their initial
offer. Appellant acknowledged he never provided appellees 72-
hour written notice concerning landscaping issues.
By entry filed September 10, 2018, the trial court found in favor
of appellees on their claim appellant wrongfully withheld the
security deposit, and the court further found against appellant
on his counterclaim. By separate entry also filed on September
10, 2018, the trial court awarded appellees attorney fees in the
amount of $12,957.
Levine I at ¶ 2-29.
{¶ 3} On September 10, 2018, appellant filed a timely appeal of the trial court's
decision asserting seven assignments of error. On September 20, 2018, appellees filed a
cross-appeal asserting a single assignment of error regarding the trial court's reduction of
attorney fees. On March 31, 2020, this court sustained in part, and overruled in part,
appellant's first assignment of error; sustained appellant's second and third assignments of
error; overruled appellant's fifth and sixth assignments of error; and rendered appellant's
No. 21AP-338 8
fourth and seventh assignments of error, as well as appellees' single assignment of error,
moot. Relevant to the instant appeal, we found that the trial court erred by applying the
improper measure of damages as the fact that appellant failed to replace the damaged
carpeting was not dispositive of whether he could prove actual damages. We wrote, "the
proper measure of damages would be the lesser of the cost of repair and the difference in
market value caused by the damage." Levine I at ¶ 50. We concluded, therefore, that the
case must be remanded for the trial court to determine "upon consideration of a 'reasonable
wear and tear standard,' Bibler at ¶ 20, whether the tenants may be subject to liability for
extraordinary damages under R.C. 5321.05, and in the event the evidence supports such a
determination, for application of the appropriate measure of damages for temporary injury
to property." Levine I at ¶ 57.
{¶ 4} On June 9, 2021, the trial court rendered a decision in this case. The trial
court found in favor of appellees on their complaint to recover the security deposit and
against appellant as to his counterclaim. The trial court concluded that while the stained
carpet exceeded reasonable wear and tear, "[g]iven the advanced age of the carpet when
Plaintiffs moved out (15 years) and the expected life span of carpet in a rental property
(approximately 8 years), the Court finds that the difference in market value caused by
Plaintiffs' damage is $0." (June 9, 2021 Decision at 3.) As for the other alleged damages,
the trial court found, "Defendant failed to prove a reduction in the market value of the
property caused by Plaintiffs, nor did Defendant actually show the cost of repair for the
drywall, screens, and kitchen tile." (June 9, 2021 Decision at 4.) As such, the trial court
concluded that defendant did not meet his burden in submitting evidence of reasonable
cost of repair or replacement to abate the alleged damages to the premises. Id.{¶ 5} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant assigns the following as trial court error:
1. The trial court erred by again granting judgment in favor of
appellees on their claim for return of a security deposit and on
appellant's counterclaim for damages under the lease
agreement and R.C. 5321.05.
2. The trial court erred by again finding, as a matter of law, that
appellant, as landlord, did not incur any damages, and further,
No. 21AP-338 9
by failing to grant appellant any damages arising from the lease
agreement and R.C. 5321.05.
3. The trial court erred on remand by again failing to apply the
correct measure of damages.
4. The trial court's judgment on remand for appellees on their
security deposit claim and against the landlord appellant on his
counterclaim for damages under the lease and R.C. 5321.05
was against the manifest weight of the evidence and this Court's
instructions for further proceedings on remand.
5. The trial court erred by again finding as a matter of law on
remand that "The reasonable life of this carpet was
approximately eight years," because this finding is
unsupported by any admissible evidence or Ohio law.
6. The trial court erred by granting attorney fees to appellees.
III. LEGAL ANALYSIS
A. Appellant's First, Second, Third, and Fourth Assignments of Error
{¶ 7} For harmony of analysis, we will address appellant's first four assignments of
error together. Appellant argues (1) the trial court erred granting judgment in favor of
appellees on their claim for the return of a security deposit and on appellant's counterclaim
for damages under the lease agreement and R.C. 5321.05; (2) the trial court erred by finding
appellant did not incur any damages; (3) the trial court erred by again failing to apply the
correct measure of damages; and (4) the trial court's judgment on remand was against the
manifest weight of the evidence.
{¶ 8} As an initial matter, we note that appellant's brief fails to comply with App.R.
16 as it did not separately argue his first three assignments of error. Pursuant to App.R.
16(A)(7), each assignment of error must include "[a]n argument containing the contention
of the appellant with respect to each assignment of error presented for review." While an
appellate court may address assignments of error together, the parties do not have this
choice and are required to argue each assignment of error separately in their brief.
Maiorana v. Walt Disney Co., 10th Dist. No. 20AP-207, 2021-Ohio-4530, ¶ 17, citing
Fiorilli Constr., Inc., v. A. Bonamase Contracting, Inc., 8th Dist. No. 94719, 2011-Ohio-
107, ¶ 30. While App.R. 12(A) permits this court to disregard an assignment of error not
separately argued in the brief, in the interests of justice, we will address appellant's
No. 21AP-338 10
arguments as to the trial court's determination regarding the measure and amount of
damages.
{¶ 9} Disputes between a landlord and tenant are governed by R.C. 5321, which is
commonly referred to as the Ohio Landlord-Tenant Act. Whitestone Co. v. Stittsworth,
10th Dist. No. 06AP-371, 2007-Ohio-233, ¶ 7, citing Vardeman v. Llewellyn, 17 Ohio St.3d
24, 26 (1985). The statute sets forth the law concerning rental agreements for residential
properties, as well as the rights and responsibilities of landlords and tenants. Id.{¶ 10} In relevant part, R.C. 5321.16 provides:
(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.
***
(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 attorney fees.
{¶ 11} Pursuant to R.C. 5321.16(B), a landlord must return a security deposit unless
those funds are utilized for past due rent or reduced by damages from the landlord based
on a tenant's failure to maintain the property. Levine I at ¶ 37, quoting Warner v. Evans,
9th Dist. No. 27536, 2015-Ohio-2022, ¶ 7. R.C. 5321.05 governs the tenant's obligation
regarding upkeep and maintenance of the premises.
{¶ 12} R.C. 5321.05 states in part:
(A) A tenant who is a party to a rental agreement shall do all
of the following:
***
(6) Personally refrain and forbid any other person who is on the
premises with his permission from intentionally or negligently
destroying, defacing, damaging, or removing any fixture,
appliance, or other part of the premises;
***
No. 21AP-338 11
(C)(1) If the tenant violates any provision of this section, other
than division (A)(9) of this section, the landlord may recover
any actual damages that result from the violation together with
reasonable attorney's fees.
{¶ 13} Under Ohio law, a tenant must return the premises to the landlord in
substantially as good a condition as when it was received. Hensel v. Childress, 1st Dist. No.
C-180100, 2019-Ohio-3934, ¶ 26, citing Bibler v. Nash, 3rd Dist. No 5-05-09, 2005-Ohio-
5036, ¶ 18. A landlord can only recover damages from a tenant for violations of R.C.
5321.05 or based on violations of the lease. Levine I at ¶ 40, citing Kelley v. Johnston, 4th
Dist. No. 01CA5 (Nov. 14, 2001). A tenant is liable for extraordinary damages that exceed
ordinary wear and tear. Hensel at ¶ 26, citing Bibler, at ¶ 18. Moreover, the landlord bears
the burden of demonstrating sufficient evidence to link any of the alleged damages to the
tenant's failure to meet their obligations under R.C. 5321.05 or the lease agreement.
Whitestone ¶ 27, citing Zilka v. Asberry, 6th Dist. No. H-04-022, 2005-Ohio-1881, ¶ 9. In
order to meet this burden, " 'the landlord must generally present evidence regarding the
condition of the premises both before the tenant moves in and after he moves out.' " Levine
I at ¶ 40, quoting Estie Invest. Co. v. Braff, 11th Dist. No. 2017-L-172, 2018-Ohio-4378,
¶ 26.
1. Measure of Damages
{¶ 14} Preliminarily, we will address appellant's argument in his third assignment
of error contending the trial court applied the incorrect measure of damages. "An appellate
court reviews a question of law challenging the trial court's measure of damages de novo."
MacDonald v. Authentic Invs., LLC, 10th Dist. No. 15AP-801, 2016-Ohio-4640, ¶ 40. In a
landlord-tenant dispute the measure of damages, "would be the lesser of the cost of repair
and the difference in market value caused by the damage." Levine I at ¶ 50. A landlord,
however, is not entitled to recover damages for repairs to property when the damage was
the result of ordinary wear and tear. Whitestone at ¶ 27, citing Bibler at ¶ 18. Upon review,
we find the trial court, remedied its initial error—discussed at length in Levine I—by
applying the correct measure of damages. See June 9, 2021 Decision at 2. ("[T]he proper
measure of damages would be the lesser of the cost of repair and the difference in market
No. 21AP-338 12
value caused by the damage.") Because the trial court applied the correct measure of
damages in this case, we find appellant's argument without merit.1
{¶ 15} Accordingly, appellant's third assignment of error is overruled.
2. Amount of Damages
{¶ 16} Appellant argues in his first, second, and fourth assignments of error that the
trial court erred in the amount of damages awarded to the parties concerning alleged
damages to various areas of the property.
{¶ 17} The award of damages in a landlord-tenant matter is reviewed under a
manifest weight of the evidence analysis. Levine I at ¶ 33, quoting Hensel, at ¶ 24. While a
challenge to the sufficiency of the evidence is a question of law, a challenge to manifest
weight of the evidence raises a question of fact. Timoneri v. NorthSteppe Realty, Inc., 10th
Dist. No. 15AP-618, 2016-Ohio-5901, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380,
386-87 (1997). When a reviewing court considers whether a civil judgment is against the
manifest weight of the evidence, we presume the findings of the trier of fact are accurate.
Schultz v. Wurdlow, 10th Dist. No. 11AP-62, 2012-Ohio-3163, ¶ 15, citing Seasons Coal Co.,
Inc. v. Cleveland, 10 Ohio St.3d 77, 79-80 (1984). " 'Civil "[j]udgments supported by some
competent, credible evidence going to all the essential elements of the case will not be
reversed by a reviewing court as being against the manifest weight of the evidence." ' "
Schultz at ¶ 15, quoting Cunningham v. Ohio Dept. of Transp., 10th Dist. No. 08AP-330,
2008-Ohio-6911, ¶ 20, quoting C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279(1978), syllabus.
{¶ 18} When evidence is susceptible to more than one construction, a reviewing
court is bound to give it that interpretation which is most favorable to sustaining the
judgment. Schultz at ¶ 15, citing Seasons Coal Co. at fn. 3, quoting 5 Ohio Jurisprudence
3d, Appellate Review, Section 603, at 191-92 (1978). "[E]very reasonable intendment and
every reasonable presumption must be made in favor of the judgment and the finding of
facts." (Further citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, ¶ 21. A reviewing court may not substitute its judgment for that of the trial court.
1Appellant argues that the trial court erred in its measure of damages because it found he was not entitled to
any damages. Appellant conflates the measure of damages with the amount of damages at issue. We address
the trial court's determination of the amount of damages regarding each alleged area of the home that was
damaged in the subsequent section.
No. 21AP-338 13
McGreevy v. Bassler, 10th Dist. No. 09AP-381, 2010-Ohio-126, ¶ 8; see also Myers v.
Garson, 66 Ohio St.3d 610, 616 (1993) ("hold[ing] that an appellate court must not
substitute its judgment for that of the trial court where there exists some competent and
credible evidence supporting the findings of fact and conclusions of law rendered by the
trial court").
{¶ 19} In the case sub judice, the lease agreement between the parties provided for
a security deposit of $1,570. Addendum C to the lease agreement, titled "PET
AGREEMENT," required an additional deposit of $150 with respect to two cats and
included language stating that "resident agrees to immediately pay for any damage, loss or
expense caused by their pet." Appellant has asserted at various stages in this case damages
to the following areas of the property: stains in carpeting; a dent in the garage door; a
cleaning fee; cracks in the kitchen tiles; drywall repair; window screen replacement;
landscape costs; a cost of replacement for the washing machine; and costs of replacement
for the dishwasher. We will address each part of the home that was allegedly damaged in
turn.
a. Carpeting
{¶ 20} We will first consider the trial court's award of $0 to appellant for damage to
the carpet. In its June 9, 2021 decision, the trial court found that the stains on the living
room carpet exceeded ordinary wear and tear while appellees were in possession of the
property. When determining the amount of damages, the trial court concluded that given
the expected life span of the carpet at issue, approximately 8 years, and the age of the carpet
when appellees moved out, 15 years, the value of the carpet was $0. The trial court
explained that, regardless of the stains, the carpet would have needed to be replaced when
appellees moved out of the property and that the amount appellant claimed was owed for
the carpet was not reasonable. (June 9, 2021 Decision at 3, citing Martin v. Design Constr.
Servs., 121 Ohio St.3d 66, 2009-Ohio-1, ¶ 25.)
{¶ 21} As it is inconsequential to the ultimate resolution of this case, we will operate
with the assumption that the trial court's determination that the pet stains in the carpet
exceeded ordinary wear and tear was based on competent, credible evidence.
Consequently, the first question we must consider is what is the maximum amount of
potential damages, prior to a determination of any depreciation in value, for the carpet. At
No. 21AP-338 14
trial, appellant's realtor, Carolyn Redinger, testified to recommending a reduction of the
listing price of the home by $3,000 to account for the stained carpeting. Edgar Ramirez,
appellant's carpet expert, testified that the estimate, prepared on March 14, 2017, for the
installation of "Mohawk berber" carpeting totaled $2,041.53. (Tr. at 142.) As set forth
previously, "the proper measure of damages would be the lesser of the cost of repair and
the difference in market value caused by the damage." Levine I at ¶ 50. Upon review, and
as acknowledged in appellant's reply brief, the maximum amount of potential damages for
the carpet would be "$2,041.53 in damages related to the carpet as the lesser of the cost of
repair and the difference in market value, $3,000." (Appellant's Reply Brief at 9.)
{¶ 22} Taking the maximum potential damages of $2,041.53 for the carpet into
account, we now consider the trial court's determination concerning the pro-rated value of
the carpet based on depreciation. Appellant appears to argue that he is entitled to the full
value of the carpet as it was "undisputedly in excellent and immaculate condition when
initially rented to the appellees." (Appellant's Brief at 11.) At trial, appellant identified
photographs taken of the residence in 2009 and described the carpet's condition as
"immaculate" when he moved out. (Tr. at 304.) Appellant presented expert testimony by
Mr. Ramirez that when appellees moved out, the carpet was "[v]ery dirty" and "appeared
to have pee from a dog or cat." (Tr. at 144.) Ramirez stated the stains in the carpet did not
constitute reasonable wear and tear, and it "should be replaced." (Tr. at 145.) Ramirez
testified that the typical life expectancy of a high-grade berber carpet from Mohawk, is "30
years." (Tr. at 146-47.) Conversely, Mr. Levine described the carpet when they moved in
as "fine" and noted that in one of the pictures "the carpeting was coming up a little there, a
little wear and tear." (Tr. at 189.) Appellees' expert witness, Ms. Underwood, as reflected
in the initial pictures, also characterized the carpet, as "fine." (Tr. at 38.) Underwood
testified the reasonable life of carpet was 7-9 years. (Tr. at 23.) Underwood also testified
that it is customary to charge tenants, if there is damage that exceeds ordinary wear and
tear, a "pro-rated" amount based on the "life expectancy of the carpet" accounting for
depreciation. (Tr. at 26.)
{¶ 23} After review of the evidence, it is clear from the facts of the case, even if
accepting the carpet initially carried thousands of dollars in value when it was purchased,
given the age of the carpet, appellees would be entitled to some reduction in the amount of
No. 21AP-338 15
damages based on depreciation in value of the carpet. As noted in Levine I, "Courts have
held, however, that claims for damages such as replacement carpet should account for
" 'depreciation due to reasonable wear and tear, quality, and life expectancy of the carpet.' "
Levine I at ¶ 57, fn. 3, quoting, Calanni v. Stowers, 8th Dist. No. 106618, 2018-Ohio-4025,
¶ 48. Moreover, it is also clear that the trial court's conclusion that appellant was entitled
to $0 was based on Underwood's pro-rated methodology in her calculation of the amount
of damages. The trial court is well within its authority to find Underwood's testimony was
credible and rely on her expert opinion in its decision. "It is settled law that the finder of
fact is free to believe all, part, or none of the testimony of the witnesses who appear before
it." Whitestone at ¶ 32, quoting State v. Wiley, 10th Dist. No. 03AP-340, 2004-Ohio-1008,
¶ 48. The trial court's conclusion that the reasonable life of the carpet was 8 years falls
squarely within Underwood's testimony that the reasonable life of the carpet was 7-9 years.
While Ramirez testified that carpet had a reasonable life expectancy of 30 years, the trial
court elected to give Underwood's testimony on this issue more weight. Taking this all into
account, we find that the trial court's conclusion was based on competent, credible evidence
as the age of the carpet was nearly double its reasonable life expectancy.
{¶ 24} Appellant argues "[t]here was no evidence presented that the Mohawk carpet
at issue in this case needed to be replaced due to its age." (Appellant's Reply Brief at 5.) We
disagree. At trial, Underwood testified to this very question:
Q: And is it your testimony that this carpeting would have
needed to be replaced at seven years notwithstanding the
existence of any pet stains or carpeting?
A: Yes
(Emphasis added.) (Tr. at 26.)
{¶ 25} Appellant also argues that the life expectancy of the carpet could not be 7-9
years because he had a 25-year warranty. We find this argument unpersuasive. Appellant
provided no documentation to substantiate this claim, and the trial court gave no weight to
appellant's testimony as to the warranty. As a reviewing court, we must not substitute our
judgments for that of the trial court and are limited to determining whether the amount of
damages is against the manifest weight of the evidence. Furthermore, it is well established
law that if the trial court in a bench trial finds appellant's estimation of damages inflated it
has the discretion to adjust the damages. "[I]f the trier of fact believes the evidence
No. 21AP-338 16
regarding the cost of repair has been inflated, the trier of fact always has the discretion to
adjust the damages accordingly." Whitestone at ¶ 28, citing Prawdzik v. II Enterprises,
Inc., 10th Dist. No. 03AP-1044, 2004-Ohio-3318, ¶ 14. As there is some competent,
credible evidence going to the essential elements of the case, we cannot say that any part of
the trial court's judgment as to the amount of damages for the carpet is against the manifest
weight of the evidence. C.E. Morris Co., 54 Ohio St.2d 279 (1978).
b. Garage Door and Floor Tiles
{¶ 26} We turn now to alleged damages to the garage door. The trial court concluded
that there was no "external visible damage to the garage door and that the garage door
operates." (June 9, 2021 Decision at 3.) The trial court alternatively found that, even if
there was damage to the garage door, the damage was reasonable wear and tear.
{¶ 27} The parties presented two distinct positions concerning the state of the
garage door when appellees vacated the property. Appellant argues that there was
significant damage to the garage door. Appellant's expert, Brian Deyo, identified
photographs depicting the garage door of the residence. Deyo testified that "something * * *
hit [the garage door] from the inside because it was bowed out." (Tr. at 127.) According to
Deyo, the damage to the garage door was not normal wear and tear and provided an
estimate to appellant regarding the replacement of the door panels. On cross-examination,
Deyo acknowledged that he had not performed any work on the garage door.
{¶ 28} Conversely, Ms. Levine testified that the garage door worked when she moved
out. When asked if Ms. Levine noticed "any visible damage from the exterior" of the garage
door, she responded "No." (Tr. at 73.) Mr. Levine testified that he was not aware of a "ding"
or damage to the garage door when he moved out. (Tr. at 182.) Mr. Levine stated that
appellant made no mention of a "ding" during the walk-through. (Tr. at 182-83.) "We had
no idea there was a ding or any kind of dent or anything in that garage door. When we left,
[w]e -- remote we actually received when we moved in, we pressed it, went up, we pressed
it and it went down; nobody noticed any ding with that garage door. We didn't notice it.
My wife didn't notice it. The property owner didn't notice it. The realtor didn't notice it.
No one noticed it." (Tr. at 183-84.) Mr. Levine later noted that "if they did notice it, we
would have heard about it." (Tr. at 210.) Here, the trial court believed appellees' testimony
and found there was no external visible damage to the garage door. Under a manifest
No. 21AP-338 17
weight analysis, when evidence is susceptible to more than one construction, a reviewing
court is bound to give it that interpretation which is most favorable to sustaining the
judgment. Schultz at ¶ 15, quoting Seasons Coal Co. at fn. 3, quoting 5 Ohio Jurisprudence
3d, Appellate Review, Section 603, at 191-92 (1978). Given these facts, the trial court's
decision that there was no external visible damage to the garage was based on competent,
credible evidence and was not against the manifest weight of the evidence.
{¶ 29} Regardless of the trial court's conclusion that there was no visible damage to
the garage door, appellant has failed to demonstrate that it incurred any actual monetary
damages. In Levine I, this court wrote "while appellant presented testimony that the
condition of the carpet resulted in a decision to reduce the sale price of the residence, the
evidence does not indicate that purported damage to the garage door resulted in a reduction
of the sale price. Rather, appellant's realtor testified that no one was aware of an issue with
the garage door at the time of the acceptance of the offer to purchase the home. Appellant,
who stated he did not replace the garage door, similarly testified that any damage to the
garage door did not affect the sale of the residence." Levine I at ¶ 48, fn. 2. When asked if
the allegedly damaged garage door provided any basis for the reduction in the sales price
of the home, appellant responded, "Your Honor, it did not." (Tr. at 397.) While appellant
repeatedly cites "the repair cost for the damaged panels was $899" and the replacement
cost "for the entire garage door was $1,249," appellant never incurred any costs from the
repair or replacement of the garage door. (Appellant's Brief at 23.) Because appellant did
not repair or replace the garage door or suffer a diminution in the market value of the home
from the garage door, he has failed to demonstrate that he is entitled to any damages.
{¶ 30} Appellant's argument concerning the floor tiles fails on similar grounds. The
trial court determined that appellant wrongfully withheld $165 of appellees' deposit for
damage to kitchen tiles as the evidence indicated that the minor cracks in the tiles
constituted reasonable wear and tear. The trial court alternatively found that, even if the
cracks exceeded reasonable wear and tear, appellant "produced no evidence as to the
replacement cost or the difference in market value caused by the damage." (June 9, 2021
Decision at 4.)
{¶ 31} After careful review of the evidence, we find the trial court's decision to award
no damage for the floor tiles was based on competent, credible evidence. First, Mr. Levine
No. 21AP-338 18
disputed any meaningful damage to the floor tiles stating "there was like a little chip but I
don’t know how that happened, not the cats. They have paws. It doesn't work for them."
(Tr. at 212.) Appellant, however, believed that these floor tiles were damaged beyond
ordinary wear and tear. "There were three tiles, Your Honor, that when the Levines
accepted the property, there was no damage to the tile. There was one cracked tile and then
two others had chips in them." (Tr. at 351.) Thus, the parties presented the trial court with
competing evidence as to the condition of the kitchen tiles. The trial court, in its assessment
of the evidence, found appellees more credible than appellant. As there is credible,
competent evidence in the record to support the trial court's conclusion, we are not
persuaded that the trial court's decision was against the manifest weight of the evidence.
Arguendo, even if appellant is correct that the damage to the floor tile exceeded ordinary
wear and tear, appellant incurred no actual damages as he did not replace the tiles or suffer
a diminution in market value as the price of the property was only reduced based on the
carpet.
{¶ 32} Appellant argues that the lease specifically calls for replacement of tiles, at
$55 per tile, if they are damaged during the tenancy. However, liquidated damages in a
landlord-tenant lease for predetermined monetary damages provisions, outside actual
damages to the property, are generally not enforceable. Riding Club Apts. v. Sargent, 2
Ohio App.3d 146 (10th Dist.1981)2; see also Oldendick v. Crocker, 8th Dist. No. 103384,
2016-Ohio-5621, ¶ 35-37, quoting Ritter v. Fairway Park Props., L.L.C., 9th Dist. No.
21509, 2004-Ohio-2518, ¶ 12 (finding a liquidated damages clause stating predetermined
money damages, independent of any actual damage to the rental property, "is violative of
R.C. 5321.16(B) which requires a list of actual damages"). Accordingly, we find the trial
2 In Riding Club, this court wrote:
A liquidated damages clause permitting the landlord to retain a security
deposit without itemization of actual damages caused by reason of the
tenant's noncompliance with R.C. 5321.05 or the rental agreement is
inconsistent with R.C. 5321.16(B), which requires itemization of damages
after breach by the tenant of the rental agreement. Since the provision is
inconsistent with R.C. 5321.16(B), it may not be included in a rental
agreement and is not enforceable. R.C. 5321.06. It is immaterial that the
liquidated damages clause might otherwise be enforceable as such rather
than being found to be a penalty.
Riding Club at 147.
No. 21AP-338 19
court's determination to award no damages to appellant for the garage door and floor tiles
was not against the manifest weight of the evidence.
c. Cleaning Fee and Drywall
{¶ 33} Next, we address appellant's claim for damages incurred from drywall repairs
and cleaning of the property. The trial court found that appellant was not entitled to
damages as to the cleaning fee because appellees hired a professional cleaning company to
clean the home upon moving out and left the residence in acceptable condition. The trial
court also found appellant was not entitled to withhold $75 of appellees' deposit as he failed
to meet his burden in demonstrating that there was damage to the drywall. The trial court
found Mr. Levine's testimony that he repaired the drywall more credible than appellant's
testimony that he spent three hours repairing the wall.
{¶ 34} Appellant repeatedly stated—in large bold font—that the trial court erred as
these charges were undisputed, and "appellees admitted they did not seek to recover this
part of the security deposit and admitted that appellant's charges for these items was (sic)
reasonable." (Bold removed.) (Appellant's Brief at 24.)
{¶ 35} Appellant's interpretation of the testimony misconstrues the facts of the case
and ignores common sense. Appellant's contention originates from testimony concerning
an email between the parties, admitted at trial as Exhibit E, when appellees were in the
process of vacating the property. The email indicates that appellant contacted appellees
regarding a hole in the wall that needed repair. Ms. Levine explained her prior "concession"
stating:
Yes, because the movers were going to repair the wall and he
would not allow it in the time frame since they were selling the
house so it was either fix it and you don't charge us the $75 but
the movers could not fix it that day. So he said then he was
going to charge us $75 so I am responding after I had talked to
the movers when they would be able to fix the wall because they
were taking responsibility of the hole in the wall.
So you -- Ken gave us a choice: Either you fix it that day or we're
taking $75 out of the security deposit.
(Tr. at 103.)
{¶ 36} Mr. Levine testified that, prior to vacating the property, he completed the
drywall repairs. While it appears appellees initially indicated they would not dispute these
No. 21AP-338 20
charges, it is clear that they later decided to challenge the entirety of the withholding of the
security deposit, including fees for drywall repairs and cleaning. This was evident in the
language employed in the complaint. See Compl. at ¶ 2,6 ("As provided by the terms of the
Rental Agreement, the Plaintiffs deposited with the Defendant the amount of $1,570.00 as
a security deposit." "[P]laintiffs request a judgment against the Defendant awarding actual
damages of $1,570."). At trial, Mr. Levine testified to performing drywall repairs on the
wall. While appellant contended that he had to redo the drywall work, which he stated was
the reason for the $75 fee, he did not dispute that Mr. Levine attempted the drywall repairs.
It would be illogical to perform drywall repairs then concede damages for said repairs.
Based on the language employed in the complaint and testimony at trial, there is no doubt
appellees challenged appellant's withholding of the entire security deposit, including fees
associated with the drywall repair and cleaning fees. The purported concession of those
damages would, at most, go to credibility at trial.
{¶ 37} As to the evidence regarding the drywall repairs and cleaning fee, the parties,
again, present very different accounts as to the state of the home when appellees vacated
the property. Ms. Levine testified that they "hired the maids to clean the house top to
bottom before we moved out on July 5th, so they -- after we had moved out all of the
furniture they came and cleaned the house." (Tr. at 69.) Mr. Levine testified, "[appellant]
said the basement needed to be swept and this was literally just several hours after we had
it professionally cleaned." (Tr. at 179.) When asked if he agreed the drywall and cleaning
charges were reasonable or unreasonable, Mr. Levine responded "unreasonable." (Tr. at
212.)
{¶ 38} Appellant painted a far different picture. Regarding the cleaning fee,
appellant testified that "the home had been cleaned; however, there was still a lot of things
that had not been cleaned. The garage needed to be cleaned out. The laundry room needed
to be cleaned out. The appliances were not pulled out and cleaned out. So all those things
had not been taken care of." (Tr. at 312.) Appellant testified that he spent four hours
cleaning and charged appellees $100 for his work. (Tr. at 312.) When asked how he arrived
at $100, appellant testified, "I figured that most cleaning companies are, I guess, 20, 25
dollars an hour." (Tr. at 392.) When counsel for appellees noted that Addendum B stated
No. 21AP-338 21
he would charge $20 an hour for labor, appellant responded," It could have been five or six
hours. I was there until close to midnight." (Tr. at 392-93.)
{¶ 39} As for the drywall repair, Mr. Levine testified that the movers put a hole in
the wall. Prior to vacating the property, he "patched it up, I sanded it down, I did whatever
I could." (Tr. at 180-81.) Mr. Levine stated that while he spackled and sanded the area, he
was not able to paint it as he could not locate the paint anywhere in the house. (Tr. at 181.)
When asked if he was an "expert drywall person," Mr. Levine stated that his "father-in-law's
a mason so I've been trained so, yes, I did a good job." (Tr. at 212-13.)3 Conversely,
appellant testified, "Steve had attempted to patch it up with some spackling. It was a pretty
rough spackle job, but maybe it's just the tools he had at that time. So I -- I sanded it down
and made sure it was flush with the wall and didn't have a bunch of bubbles hanging out."
(Tr. at 351.) Appellant stated he charged $75 for three hours of work, which included
services for "sanding, prepping, primer, paint, trip to the hardware store." (Tr. at 393.)
When asked how he arrived at $75 dollars at an hourly rate of $20, appellant stated, "I
mean, it looks like it could have been off by a few bucks, Your Honor." (Tr. at 394.)
{¶ 40} Upon review, we find there was competent credible evidence to support the
trial court's determination that appellant was not entitled to damages for the drywall repair
and cleaning fee. As the trial court is best positioned to consider the credibility of witnesses
and observe their demeanor at trial, there is a presumption that the findings of fact by a
judge during a bench trial is correct. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80
(1984). "The weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of fact." Whitestone at ¶ 14, citing State v. DeHass, 10 Ohio St.2d
230 (1967), paragraph one of the syllabus. Here, the trial court found appellees' testimony
more credible. It is well-established law that the credibility of the witnesses are the primary
determination of the trier of fact. "[T]he trial judge 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., at 80. Based on the
foregoing, we find the trial court's determination as to the amount of damages for the
drywall repair and cleaning was not against the manifest weight of the evidence.
3 The record is unclear as to appellant's drywall repair qualifications or whether he has any prior masonry
training.
No. 21AP-338 22
d. Window Screens
{¶ 41} We next turn to the trial court's determination that appellant was not entitled
to withhold $50 of appellees' deposit as appellant failed to meet his burden in
demonstrating damages to two window screens. The trial court reasoned that appellant
failed to establish replacement costs or difference in market value caused by the damage.
{¶ 42} Appellant contends that the trial court erred as he presented the only
testimony concerning the window screens at trial.4 We disagree. While the matter of
damages to the window screens were one of the least discussed topics during the trial,
Mr. Levine testified as to the letter he received from appellant citing all the allegedly
damaged areas to the property. When asked if he "fe[lt] that any of [the charges in the
letter, marked as Exhibit K] are legitimate?" Mr. Levine testified "No." (Tr. at 186.) As
window screens were included in the letter, it is logical to conclude that appellees contested
the legitimacy of the window screen charge. Moreover, on cross-examination Mr. Levine
was asked whether he agreed or disagreed that there were repairs needed for the front
window screens for $50, he responded, "I don't believe that they needed to be repaired, no."
(Tr. at 213.) While appellant testified to replacing the window screens, he provided no
receipts for the purchase testifying, "Other than my own time and labor, I don’t have any
receipts." (Tr. at 407.) Again, the trial court is best positioned to make determinations on
credibility of witnesses. Under a manifest weight analysis, we must give every reasonable
intendment and presumption in favor of the trial court's judgment and finding of facts.
(Further citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21.
We cannot substitute our judgment for that of the trial court. McGreevy, at ¶ 8. Given these
facts, we find the trial court's decision was based on competent, credible evidence and was
against the manifest weight of the evidence.
e. Landscaping, Washing Machine, and Dishwasher
{¶ 43} In the interests of providing a complete analysis of all of appellant's alleged
damages, we also note that appellant has previously alleged damages associated with the
landscaping, washing machine, and dishwasher at the property. As set forth in Levine I,
"[d]uring oral argument, counsel for appellant acknowledged that several damage issues
4Appellant testified, "The front room screens needed to be -- two front room screens needed to be repaired
and, again those were listed in the lease contract at $25 each." (Tr. at 313.)
No. 21AP-338 23
raised in appellate briefing are no longer contested. Specifically, while the fourth
assignment of error asserts the lease agreement required the tenants to maintain the
landscaping, counsel acknowledged there was no evidence indicating appellant provided
72-hour notice to appellees as required by the terms of that agreement. Counsel also
represented during oral argument that appellant was no longer seeking damages with
respect to appliances (i.e., dishwasher and washing machine)." Levine I at ¶ 60. We also
wrote that "the trial court, in addressing appellant's counterclaim, determined the evidence
failed to show appellant provided appellees with 72-hour notice 'to correct any defects
regarding the landscaping.' The court also found appellant failed to present any evidence
that appellees 'caused an unreasonable amount of damage to both the dishwasher and the
washing machine that exceeded normal wear and tear.' " Levine I at ¶ 60, fn. 4, quoting
September 10, 2018 Decision at 4. Accordingly, as the alleged damages associated with the
landscaping, washing machine, and dishwasher were no longer contested, we decline to
address these issues.
3. Manifest Weight
{¶ 44} In appellant's fourth assignment of error, he argues that the trial court's
decision was against the manifest weight of the evidence "since it is based solely upon its
legal error by again failing to apply the correct measure of damages." (Appellant's Brief at
32.) Appellant goes on to argue that it is "undisputed" that appellant "proved and
established his damages to which he was entitled under both the lease and R.C. 5321.05."
(Appellant's Brief at 32.) We disagree. Appellant presents no new issues in this assignment
of error reasserting many of his prior arguments. Because we have provided an extensive
examination of each award or denial of damages in the previous section, we decline to
repeat our analysis in this section.
{¶ 45} Appellant also presents a more general argument that, notwithstanding any
of the award at issue, the trial court's general ruling in favor of appellees and against
appellant was against the manifest weight of the evidence. After careful review of the entire
record, we find the trial court did not clearly lose its way and create such a manifest
miscarriage of justice by ruling in favor of appellees and against appellant.
{¶ 46} For the foregoing reasons, appellant's first, second, third, and fourth
assignments of error are overruled.
No. 21AP-338 24
B. Appellant's Fifth Assignment of Error
{¶ 47} In appellant's fifth assignment of error, he argues that the trial court erred
concluding that he incurred no damages with respect to the carpet. Appellant argues that
the trial court's decision that the carpet's reasonable life was approximately eight years was
erroneous because appellees' expert, who testified that the reasonable life expectancy of the
carpet was seven-nine years, was not credible based on her testimony at trial and lack of
experience in single family residential homes.
{¶ 48} The law-of-the-case doctrine is well established in Ohio law. Giancola v.
Azem, 153 Ohio St.3d 594, 2018-Ohio-1694, ¶ 14. " 'The doctrine of law of the case comes
into play only with respect to issues previously determined.' " Id. at ¶ 16, quoting Quern v.
Jordan, 440 U.S. 332, 347 (1979), fn. 18. The doctrine provides that legal questions and
issues resolved by a reviewing court in a prior appeal continue as the law of that case for
any succeeding proceeding at both the trial and appellate levels. Giancola at ¶ 1, citing
Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). The law of the case doctrine " 'is rooted in
principles of res judicata and issue preclusion [and] ensures consistent results in a case,
avoids endless litigation by settling the issues, and preserves the constitutional structure of
superior and inferior courts.' " (Internal quotations and citations omitted.) State v. Prater,
10th Dist. No. 20AP-308, 2021-Ohio-3988, ¶ 17, quoting State v. Norman, 10th Dist. No.
20AP-427, 2021-Ohio-2389, ¶ 14. The doctrine ensures consistency of results in a case to
avoid repetitive, endless litigation on settled issues. (Further citations omitted.) Giancola
at ¶ 14.
{¶ 49} In Levine I, this court rejected a nearly identical5 assignment of error writing:
Here, the record indicates Underwood was licensed by the
Columbus Board of Realtors, had 30 years of experience in real
estate, and had participated in approximately "5,000 plus"
move-out procedures involving tenants. (Tr. at 20.)
Underwood, who reviewed photographic exhibits and a video
of the Brampton Court residence prior to her testimony, stated
she has dealt with issues involving unreasonable damage to
carpeting "[a] thousand times." (Tr. at 25.) Under Ohio law, in
5 Compare appellant's current fifth assignment of error ("The trial court erred by again finding as a matter of
law on remand that 'The reasonable life of this carpet was approximately eight years,' because this finding is
unsupported by any admissible evidence or Ohio law.") with Levine I at ¶ 30 ("The trial court erred by
concluding as a matter of law that 'The average life of carpet is 8 years,' because this conclusion is unsupported
by any admissible evidence or Ohio law.")
No. 21AP-338 25
order to "qualify as an expert witness, a potential witness does
not have to be the most knowledgeable or the best witness
regarding the topic at hand." In re B.D.T.K., 9th Dist. No.
24792, 2009-Ohio-6079, ¶ 25, citing Scott v. Yates, 71 Ohio St.
3d 219, 221, 1994-Ohio-462, 643 N.E.2d 105 (1994). In this
respect " '[t]he individual offered as an expert need not have
complete knowledge of the field in question, as long as the
knowledge he or she possesses will aid the trier of fact in
performing its fact-finding function.' " Id., quoting State v.
Hartman, 93 Ohio St.3d 274, 285, 2001-Ohio-1580, 754
N.E.2d 1150 (2001). Upon review, we find no abuse of
discretion by the trial court in denying appellant's motion to
preclude the testimony at issue.
***
Based on the foregoing, appellant's fifth and sixth assignments
of error are not well-taken and are overruled.
Levine I at ¶ 68, 70.
{¶ 50} Following Levine I, the trial court was instructed on remand "to determine,
upon consideration of a "reasonable wear and tear standard," Bibler at ¶ 20, whether the
tenants may be subject to liability for extraordinary damages under R.C. 5321.05 and, in
the event the evidence supports such a determination, for application of the appropriate
measure of damages for temporary injury to property" Levine I at ¶ 57. We did not,
however, ask the trial court to re-examine its credibility determinations from Underwood's
testimony. Accordingly, to the extent appellant asserts the same assignment of error as his
previous appeal, the law of the case doctrine precludes the relitigation of this issue
previously asserted, and rejected, in Levine I.
{¶ 51} We note, however, our prior decision in Levine I could be read to leave open
the question of the reasonable life of the carpet to the extent it informed any potential
damages for the carpet. In Levine I this court wrote, "Further, to the extent this issue may
arise on remand (depending on the trial court's resolution of whether the claimed damage
exceeded normal wear and tear), we would simply note that the relevant consideration with
respect to useful life would appear to be evidence before the court as to the reasonable life
expectancy of the carpet at issue (i.e., evidence as to the useful life of the type of carpeting
in appellant's residence)." Levine I at ¶ 69. In the interest of clarity, we will consider
whether the trial court abused its discretion relying on Underwood's testimony regarding
No. 21AP-338 26
the reasonable life expectancy of the carpet and applying a pro-rated damages analysis
based on depreciation. In Levine I, we summarized Underwood's qualifications and
testimony as follows:
At trial, Underwood testified that she is employed by the
Wooden Companies and is responsible for "the leases and the
management of their boutique collection of properties." (Tr. at
18.) Underwood, who is licensed by the Columbus Board of
Realtors, was previously employed for 25 years by Bellows and
Associates, a property management company, as well as for five
years with DeSantis Property Management.
As noted under the facts, in preparation for her testimony,
Underwood reviewed photographs offered as exhibits by
appellees depicting the residence at 6764 Brampton Court, as
well as a video taken during a walk-through of the residence. At
trial, Underwood testified the wear and tear depicted in
[p]laintiff's [e]xhibits B, E, and F was not unusual for carpeting
of 7 years or greater. She stated, in her experience, tenants are
charged for damage on a "pro-rated" basis (i.e., not based on
replacement cost). She defined pro-rated as meaning the "life
expectancy of the carpet, how many years they lived there." (Tr.
at 26.) Underwood also opined that, as a general rule, carpeting
is replaced "every seven to nine years." (Tr. at 23.)
Levine I at ¶ 64-65.
{¶ 52} In its June 9, 2021 decision, the trial court relied on Underwood's testimony
to conclude that the reasonable life of the carpet was eight years, within the seven-nine
range espoused by Underwood. The trial court then engaged in a damages analysis,
consistent with Underwood's testimony at trial, to find appellant was entitled to $0 as the
reasonable life of the carpet had nearly doubled when appellees vacated the property, the
carpet was nearly twice as old as its reasonable life expectancy. "[I]n the context of a bench
trial, reviewing courts 'afford broad leeway to the trial court in deciding the reliability of
particular expert testimony' under Evid.R. 702." Levine I at ¶ 67, quoting Knott v.
Revolution Software, Inc., 181 Ohio App.3d 519, 2009-Ohio-1191, ¶ 46 (5th Dist.). There
is no requirement that an expert possess complete knowledge of the field in question but
must possess enough knowledge that he or she will aid the trier of fact in performing its
fact-finding function. State v. Hartman, 93 Ohio St.3d 274, 285, 2001-Ohio-1580. As
Underwood possessed the requisite qualifications to testify as an expert in this case, the
No. 21AP-338 27
trial court was free to rely on her testimony. As such, to the extent that Levine I did not
completely resolve this issue, we find the trial court did not abuse its discretion in the
relying on Underwood's expert testimony regarding the life expectancy of the carpet and its
calculation of damages.
{¶ 53} Appellant's fifth assignment of error is overruled.
C. Appellant's Sixth Assignment of Error
{¶ 54} In appellant's sixth assignment of error, he argues that the trial court erred
in awarding attorney fees in this case. The amount of the attorney fees award falls within
the trial court's sound discretion. Timoneri, at ¶ 51, citing Bittner v. Tri-County Toyota,
Inc., 58 Ohio St.3d 143, 146 (1991). A reviewing court will not reverse the trial court's award
of attorney fees absent an abuse of discretion and that " ' "the amount of fees determined is
so high or so low as to shock the conscience." ' " Timoneri at ¶ 51, quoting Bittner at 146,
quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc., 23 Ohio App.3d 85, 91 (12th
Dist.1985).
{¶ 55} When a trial court is making a determination as to the reasonableness of
attorney fees under R.C. 5321.16(C), it " 'must first determine the number of hours
reasonably expended on the case times a reasonable hourly rate; this provides a useful
"objective basis on which to make an initial estimate of the value of a lawyer's services." ' "
Whitestone Co., at ¶ 60, quoting Ridenour v. Dunn, 10th Dist. No. 03AP-611, 2004-Ohio-
3375, ¶ 9, quoting Bittner, at 145. The trial court may then modify the amount by applying
any relevant factors listed in Prof.Cond.R. 1.5(a). Timoneri, at ¶ 52, citing Bittner at 145.6
Prof.Cond.R. 1.5(a) provides the following factors:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance
of the particular employment will preclude other employment
by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
6 In Bittner, the Supreme Court of Ohio applied the predecessor to Prof.Cond.R. 1.5(a). Timoneri at ¶ 52.
No. 21AP-338 28
(4) the amount involved and results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with
the client;
(7) the experience, reputation, and ability of the lawyer
performing the services;
(8) whether the fee is fixed or contingent.
Prof.Cond.R. 1.5(a)(1)-(8). While not all factors may apply to every case, the trial court has
the discretion to decide which factors are applicable and in what manner it will alter the
calculation. Ridenour at ¶ 9, citing Bittner at 145-46. "A trial court must state the basis for
the fee determination. An explanation of the trial court's reasoning is particularly
important where the amount recovered is small compared to the attorney fees assessed."
(Internal citation omitted.) Timoneri at ¶ 55, citing Schultz, at ¶ 25; Whitestone Co., at ¶ 61.
{¶ 56} Here, appellant first argues that appellees are not entitled to attorney fees
because the underlying judgment on the merits of the case was fatally flawed. As discussed
in Section A of this decision, we found that the trial court determination regarding the
amount of damages was not against the manifest weight of the evidence.
{¶ 57} Next, appellant argues that the award of attorney fees itself was improper as
the trial court failed to provide the requisite explanation supporting the decision. We agree.
{¶ 58} On June 8, 2018, the trial court held a hearing as to the issue of attorney fees.
On July 19, 2018, the trial court entered judgment for appellees for $3,140 in damages and
$12,957 in attorney fees. The trial court wrote that appellees' counsel testified to expending
59 hours at a rate of $225 per hour as well as his staff expending 5.6 hours at a reduced rate
of $40 per hour for a total award of $13,500. The trial court reduced the total award by
three hours ($675) as it "will not award fees associated with witness testimony and in
defending the counterclaim presented by Defendant." (July 19, 2018 Entry at 2.)
{¶ 59} After careful review of the evidence, we cannot find, on its face, the attorney
fees award was an abuse of the trial court's discretion. We do, however, find that the award
was sufficiently disproportionate to the damages obtained to raise the issue of
reasonableness under R.C. 5321.16(C). While the trial court identified the Prof.Cond.R. 1.5
No. 21AP-338 29
factors, it failed to address which, if any, it applied. Moreover, the trial court failed to
provide any reasoning as to the disproportionality between the damages and the attorney
fees. We note that the trial court's analysis is not required to be extensive. Our prior
decision in Timoneri is instructive on this issue. In Timoneri, we examined the trial court's
award of attorney fees of $10,505 in a landlord-tenant matter that resulted in an award of
$695 in damages to the plaintiff. The trial court explained that the award of attorney fees
was not lowered in light of the disproportionality between the damages and lodestar
amount as:
This case presents a classic example of why the [L]andlord[-
][T]enant [A]ct included a provision for attorney fees. The
amount of the initial claim is relatively small, though not
insignificant. Through her attorney, Plaintiff demanded return
of her wrongfully withheld security deposit and nothing more,
although it was noted in that demand letter that failure to
timely refund her money would result in litigation, with the risk
of double damages and attorney fees. Defendant chose to
ignore the letter and force litigation, although the actual facts
of the case, as presented in the stipulations[,] have not been in
issue for some time.
Timoneri at ¶ 56. On appeal, the landlord challenged whether the trial court erred in failing
to provide an adequate explanation for the disproportionality between the damages and the
attorney fees. This court found that the trial court's explanation regarding the
disproportionality between the damages and lodestar amount was sufficient to justify the
award of attorney fees. Id. at ¶ 57. Here, we conclude that the trial court should have
provided a more specific and detailed explanation of the manner in which it arrived at the
$12,957 in attorney fees and how that figure was reasonable in light of the
disproportionality between the total damages and attorney fees.
{¶ 60} Accordingly, we find appellant's sixth assignment of error well-taken and
remand this matter for the trial court to provide further findings as to the $12,957 award
regarding the Prof.Cond.R. 1.5 factors and the disproportionality between the damages and
lodestar amount. If, upon further consideration of the current record, the trial court
decides to modify the amount of the award, the trial court must provide some explanation
for doing so. See Whitestone Co., at ¶ 60-62.
No. 21AP-338 30
IV. CONCLUSION
{¶ 61} For the foregoing reasons, appellant's first, second, third, fourth, and fifth
assignments of error are overruled, and the sixth assignment of error is overruled in part
and sustained in part. The judgment of the Franklin County Municipal Court is affirmed in
part and reversed in part. This matter is remanded for further proceedings in accordance
with the law and consistent with this decision.
Judgment affirmed in part;
reversed in part;
and remanded.
KLATT and DORRIAN, JJ., concur.
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