Levine v. Kellogg

[Cite as Levine v. Kellogg, 2020-Ohio-1246.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Steve Levine et al., :
Plaintiffs-Appellees, :
Cross-Appellants, No. 18AP-694
: (M.C. No. 2016CVF-27321)
v.
: (REGULAR CALENDAR)
Ken Kellogg,
:
Defendant-Appellant,
Cross-Appellee. :
D E C I S I O N
Rendered on March 31, 2020
On brief: Law Offices of Thomas Tootle Co., LPA, and
Thomas Tootle, for plaintiffs-appellees/cross-appellants.
Argued: Thomas Tootle.
On brief: Law Offices of James P. Connors, and James P.
Connors, for defendant-appellant/cross-appellee. Argued:
James P. Connors.
APPEAL from the Franklin County Municipal Court
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Ken Kellogg, from a judgment of
the Franklin County Municipal Court finding in favor of plaintiffs-appellees, Steve and
Sharon Levine, on their action to recover a security deposit, and finding against appellant
on his counterclaim for breach of contract.
{¶ 2} On August 29, 2016, appellees filed a complaint against appellant alleging
they had entered into a rental agreement with appellant for the residential premises
No. 18AP-694 2
located at 6764 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.
{¶ 3} 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.
{¶ 4} 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.)
{¶ 5} 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
No. 18AP-694 3
(dated May 1, 2015) regarding the 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.
{¶ 6} 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.
{¶ 7} 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.
{¶ 8} 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.)
{¶ 9} 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.
No. 18AP-694 4
{¶ 10} 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
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.
{¶ 11} 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.)
{¶ 12} 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.)
{¶ 13} 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.)
No. 18AP-694 5
{¶ 14} 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 final option was to "do a compensation for the carpet situation in pricing."
(Tr. at 228.)
{¶ 15} 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.
{¶ 16} 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.)
{¶ 17} 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.
{¶ 18} 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
No. 18AP-694 6
spots * * * in the family room" when she would "go down to clean the kitty litter box." (Tr.
at 290-91.)
{¶ 19} 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.)
{¶ 20} Kellogg went to the house on July 7, 2016 and observed the carpet "was very
well-stained." (Tr. at 309.) Kellogg "was quite 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.
{¶ 21} 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.)
{¶ 22} 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.
{¶ 23} 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.
No. 18AP-694 7
{¶ 24} 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.)
{¶ 25} 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.)
{¶ 26} 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. (Amount correct? I-beams and radon)
{¶ 27} 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.
{¶ 28} 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
No. 18AP-694 8
foundation issue when they made their initial offer. Appellant acknowledged he never
provided appellees 72-hour written notice concerning landscaping issues.
{¶ 29} 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.
{¶ 30} On appeal, appellant sets forth the following seven assignments of error for
this court's review:
1. The trial court erred by granting judgment in favor of
plaintiffs Steve and Sharon Levine on their claim for return of
a security deposit and on defendant Ken Kellogg's
counterclaim for damages under the lease agreement and R.C.
5321.05.
2. The trial court erred by finding, as a matter of law, that
defendant Ken Kellogg, as landlord, did not incur any
damages because he did not pay "out of pocket" for repairs to
his property that was damaged by his tenants, and, further, by
failing to award him damages arising from the lease
agreement and R.C. 5321.05.
3. The trial court erred by holding that in order for a landlord
to establish compensable damages, he must pay "out of
pocket" for repairs necessitated by damage caused by his
tenants to his property.
4. The trial court's judgment, following a bench trial, for the
plaintiffs on their security deposit claim and against the
landlord defendant on his counterclaim for damages under
the lease and R.C. 5321.05 was against the manifest weight of
the evidence.
5. 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.
6. The trial court erred by denying defendant's motion to
preclude plaintiffs' expert witness from testifying, and by
allowing a "real estate manager," Kathie Underwood, to testify
on behalf of the plaintiffs as an expert on carpet even though
she was not qualified as an expert on any issue and offered no
material, relevant, or reliable opinions.
No. 18AP-694 9
7. The trial court erred by granting attorney fees to plaintiffs.
{¶ 31} Appellees have filed a cross-appeal, asserting the following cross-
assignment of error:
The Trial Court erred when it reduced Plaintiff-Appellees'
attorney fee in an action to recover a security deposit by $675
and refused to reimburse Plaintiff a $300 expert witness fee
for defending a meritless counterclaim.
{¶ 32} Appellant's first six assignments of error are interrelated and will be
considered together. Under these assignments of error, appellant contends the trial court
erred in: (1) granting judgment in favor of appellees on their claim for return of a security
deposit and denying appellant's counterclaim for damages under the lease agreement and
R.C. 5321.05, (2) finding appellant did not, as a matter of law, incur any damages because
he did not pay "out of pocket" for repairs to his property damaged by appellees,
(3) holding that, in order for a landlord to establish compensable damages, he must pay
"out of pocket" for repairs necessitated by damage caused by his tenants to his property,
(4) rendering a judgment that was against the manifest weight of the evidence,
(5) concluding that the average life of carpet is eight years, and (6) denying appellant's
motion to preclude appellees' expert witness from testifying as an expert on carpet.
{¶ 33} In general, "[a]n award of damages in a landlord-tenant dispute is governed
by a manifest-weight-of-the-evidence review." Hensel v. Childress, 1st Dist. No. C-
180100, 2019-Ohio-3934, ¶ 24. Under this standard, "[a] verdict supported by some
competent, credible evidence going to all the essential elements of the case must not be
reversed as being against the manifest weight of the evidence." Sonis v. Rasner, 8th Dist.
No. 101929, 2015-Ohio-3028, ¶ 52, citing Domaradzki v. Sliwinski, 8th Dist. No. 94975,
2011-Ohio-2259, ¶ 6; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279 (1978),
syllabus.
{¶ 34} By contrast, this court's review over "purely legal questions is de novo."
Williams v. McMillian, 8th Dist. No. 107570, 2019-Ohio-3275, ¶ 6. In this respect, "[a]n
appellate court reviews a question of law challenging the trial court's measure of damages
de novo." MacDonald v. Authentic Invests., LLC, 10th Dist. No. 15AP-801, 2016-Ohio-
4640, ¶ 40.
No. 18AP-694 10
{¶ 35} Conflicts between a landlord and tenant "are governed by R.C. Chapter
5321, which embodies what is commonly known 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). That Act "codifies Ohio law
regarding rental agreements for residential premises and governs the rights and duties of
both landlords and tenants." Id. The provisions of R.C. 5321.16(B) and (C) "address
termination of the tenancy, including the rights and duties of the landlord and tenant as
to the disposition of rental security deposits." Id.
{¶ 36} R.C. 5321.16 states in part:
(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.
{¶ 37} Thus, in accordance with R.C. 5321.16(B), "a landlord is obligated to return
funds held as a security deposit unless those funds are applied toward the payment of past
due rent or reduced by damages suffered by the landlord because of the tenant's failure to
maintain the premises." Warner v. Evans, 9th Dist. No. 27536, 2015-Ohio-2022, ¶ 7.
{¶ 38} R.C. 5321.05 sets forth "the obligations of the tenant with respect to upkeep
and maintenance of an apartment holding a tenant liable for extraordinary damages
which are not the result of normal wear and tear." Bibler v. Nash, 3d Dist. No. 5-05-09,
2005-Ohio-5036, ¶ 18.
No. 18AP-694 11
{¶ 39} 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;
***
(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.
{¶ 40} A landlord "may only recover damages from the tenant for violations of R.C.
5321.05 or because of violations of the lease." Kelley v. Johnston, 4th Dist. No. 01CA5
(Nov. 14, 2001). Under Ohio law, "tenants are liable for waste; however, they are
generally not liable to landlords for damages attributed to ordinary wear and tear," and
"[i]f damage is not of the type specified in R.C. 5321.05 or the lease, it will normally be
considered ordinary wear and tear." Id. See also Hensel at ¶ 26 ("A tenant is under a duty
to return the premises to the landlord in substantially as good a condition as when
received, but the landlord is not entitled to receive compensation for damages resulting
from reasonable wear and tear."). Further, "the landlord bears the burden of submitting
sufficient evidence to link the damages to the tenant." Johnston. In order to establish
this necessary link, "the landlord must generally present evidence regarding the condition
of the premises both before the tenant moves in and after he moves out." Estie Invest. Co.
v. Braff, 11th Dist. No. 2017-L-172, 2018-Ohio-4378, ¶ 26.
{¶ 41} In the instant case, the lease agreement between the parties provided for a
security deposit of $1,570 "to guarantee the return of the premises to the Owner * * * in
the same or better condition as when accepted by the Resident, reasonable wear
expected." The lease agreement further provided in part that the residents shall personally
refrain from "intentionally or negligently destroying, defacing, damaging, or removing
any fixture, appliance, or other part of the premises." (Plaintiff's Ex. A at 2.) Addendum
No. 18AP-694 12
C to the lease agreement, titled "pet agreement," required an additional deposit of $150
with respect to two cats and included language stating in part that "resident agrees to
immediately pay for any damage, loss or expense caused by their pet."
{¶ 42} On appeal, appellant's primary contention is that the trial court erred in
holding he failed to establish any right to damages because he did not pay out-of-pocket
for repairs to the property. Appellant points to language in the trial court's decision in
which the court, addressing appellant's argument that his residence was devalued for sale
due to the condition of the carpet, stated appellant "chose not to replace it prior to any
sale" and "is not out any monies." (Decision at 2.) The trial court made findings that,
upon advice of a real estate agent, appellant "listed his home for $3,000.00 less due to the
condition of the carpet," and "sold his home for $3,000.00 over list price." The court
concluded appellant "made the choice not to replace the carpet prior to the sale of his
home," and he "is not out any monies and is not entitled to keep any of the security
deposit." (Decision at 3.)1 Appellant argues that, contrary to the trial court's
determination, damages are not defined to require a party to pay out-of-pocket for repairs
in order to establish a right to damages.
{¶ 43} In Booth v. Duffy Homes, Inc., 10th Dist. No. 07AP-680, 2008-Ohio-5261,
¶ 20, modified 185 Ohio App. 3d 260, 2009-Ohio-6767, this court noted that an early Ohio
Supreme Court case, Ohio Collieries Co. v. Cocke, 107 Ohio St. 238 (1923), "established
the general rule for the measure of damages in cases involving injury to real property." In
Ohio Collieries, the Supreme Court held the measure of damages for an injury of a
permanent or irreparable nature is "the difference in the market value of the property as a
whole, including the improvements thereon, before and after the injury." Id. at 248. With
respect to actions involving temporary damage to property, i.e., "injury is susceptible of
repair," the Supreme Court held that the measure of damages is "the reasonable cost of
restoration, plus reasonable compensation for the loss of the use of the property between
the time of the injury and the restoration, unless such cost of restoration exceeds the
difference in the market value of the property before and after the injury, in which case
the difference in market value becomes the measure." Id. at 248-49.
1 With respect to appellant's claim of damage to the garage door, the trial court similarly held in its decision
that appellant "did not make any repairs, the home was sold 'as is' and [appellant] is not out any monies."
(Decision at 2.)
No. 18AP-694 13
{¶ 44} The holding in Ohio Collieries regarding the measure of temporary
damages "has since been limited." L.G. Harris Family Ltd. Partnership I v. 905 S. Main
St./Englewood, LLC, 2d Dist. No. 25871, 2014-Ohio-1906, ¶ 74. Specifically, " '[i]n an
action based on temporary injury * * *, a plaintiff need not prove diminution in the
market value of the property in order to recover the reasonable costs of restoration, but
either party may offer evidence of diminution of the market value of the property as a
factor bearing on the reasonableness of the cost of restoration.' " Id., quoting Martin v.
Design Constr. Servs., 121 Ohio St. 3d 66, 2009-Ohio-1, ¶ 24. Further, "[w]hile evidence
of loss in market value of the property may be relevant, the essential inquiry is whether
the damages sought are reasonable." Martin at ¶ 25.
{¶ 45} Ohio courts have addressed the issue of whether damage to leased premises
constitutes ordinary wear and tear (as opposed to waste) in the context of considering a
tenant's obligations under R.C. 5321.05. In Hensel, the First District Court of Appeals
held in part:
When determining ordinary wear and tear, the court must
look to the circumstances of each case. In Cincinnati Oakland
Motor Co. v. Meyer, [37 Ohio App. 90 (1st Dist.1930)],
decided prior to the adoption of R.C. 5321.05, this court
discussed ordinary wear and tear as it related to a heating
system. This court looked at the age of the heating system, its
expected life span, whether any repairs were conducted due to
normal deterioration, and whether the tenant had damaged
the heating system in any way which would be considered
waste.
Other districts have defined ordinary wear and tear in the
negative based on the tenant's statutory obligations under
R.C. 5321.05. If damage is not the kind specified in R.C.
5321.05 or the lease, then it is normally considered ordinary
wear and tear. * * * But, it is still the landlord's burden to link
any damage to a failure of the tenant to fulfill his statutory
obligation.
In Bibler [v. Nash, 3d Dist. No.] 5-05-09, 2005-Ohio-5036, at
¶ 18-21, the trial court went through each individual item of
damage claimed by the landlord and determined whether the
item exceeded ordinary wear and tear, and then held the
tenants responsible for the excess damage.
(Citations omitted.) Id. at ¶ 27-29.
No. 18AP-694 14
{¶ 46} Under the facts in Hensel, a landlord brought an action for damages against
the defendant-tenant after the tenant vacated the leased premises. During a bench trial, a
remodeling contractor, retained by the landlord to prepare an estimate for the cost to
restore the premises to a rentable condition after the tenant moved out, testified
regarding "all of the work which needed done on the house—including carpet, hardwood
flooring, wall, painting, and appliances." Id. at ¶ 30. The contractor "admitted that he did
not know what condition the house was in before [the tenant] moved in," and "[h]e also
admitted that a lot of the damages he noted on his estimate could not be seen in the
photographs." Id. at ¶ 31. The contractor further testified, however, "the damage was
beyond ordinary wear and tear." Id. The contractor "initially estimated the damages
would cost $28,000 to fix, but [the landlord] reduced the estimate to $15,625 after
accounting for wear and tear." Id. The trial court ultimately found in favor of the
landlord and awarded the landlord damages.
{¶ 47} On appeal, the tenant argued the trial court failed to account for ordinary
wear and tear in awarding damages to the landlord. The appellate court, finding ample
evidence that the damage was not ordinary wear and tear, noted the trial court considered
testimony from witnesses "of the expected 'life span' of the hardwood floors and the walls,
and whether the damage was the result of deterioration or [the tenant's] failure to fulfill
his R.C. 5321.05 duties." Id. at ¶ 36. The reviewing court also noted the trial court
"expressly considered what constituted ordinary wear and tear when deciding the amount
of damages," and that the trial court reduced the amount awarded to account for ordinary
wear and tear. Id. at ¶ 37. The court thus deemed it "clear from the trial court's entry that
it considered ordinary wear and tear in its award of damages, and in fact reduced the
amount owed based on ordinary wear and tear." Id. at ¶ 38.
{¶ 48} In the instant case, it is undisputed appellant chose not to replace the
carpet prior to the sale of the residence in 2016. Appellant did, however, present
testimony that the realtor recommended a reduction in the list price of the house due to
staining on the carpet, and witnesses for appellant testified that the list price reflected a
No. 18AP-694 15
reduction (in the amount of $3,000) as compensation to the buyer based on the condition
of the carpet.2
{¶ 49} While the trial court found appellant was not out any monies because he did
not replace the carpeting, we do not find such fact dispositive of whether appellant could
show any "actual damages," as contemplated by R.C. 5321.05(C), as a result of a violation
under R.C. 5321.05(A). Rather, even accepting a scenario in which a landlord fails to
make repairs, such party could still show entitlement to damages based on proof that
property damage (beyond normal wear and tear) resulted in a reduction in the market
value of the property. See, e.g., Cubbedge-Parker v. Dillard, 6th Dist. No. L-15-1245,
2016-Ohio-3367, ¶ 10 (rejecting appellant's argument that trial court erred in finding
appellee incurred cost to replace removed shrubbery where appellee acknowledged she
had not replaced shrubbery and was no longer owner of property; although "appellee will
not directly incur the cost of replacing the shrubbery * * * she has nonetheless suffered
from a reduction in the market value of the property and, by extension, a reduction in the
potential sale price of the property").
{¶ 50} Appellees argue, and we agree, that the proper measure of damages would
be the lesser of the cost of repair and the difference in market value caused by the damage.
See, e.g., Ohio Collieries at 239. See also Curtis v. Vazquez, 11th Dist. No. 2003-A-0027,
2003-Ohio-6224, ¶ 29 (noting "the general rule set forth in Ohio Collieries * * * that a
property owner is only entitled to the lesser of the cost of repair and the difference in
market value"). However, as argued by appellant, the trial court appears to have applied
an "out of pocket" measure of damages in concluding that appellant's choice to forego
replacing the carpet meant he was "not out any monies" (and therefore suffered no
damages).
{¶ 51} Again, the fact appellant failed to replace the carpeting is not dispositive of
whether he could prove actual damages; as noted, there was evidence presented by
appellant that, upon advice of the realtor regarding carpet stains, appellant and his wife
2 We note that, 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.
No. 18AP-694 16
made the decision to reduce the price of the house as compensation to account for the
condition of the carpet. On review, we conclude the trial court erred in applying an
improper measure of damages (i.e., based on whether appellant incurred out-of-pocket
costs for repairs).
{¶ 52} We also note the trial court's decision does not specifically address whether
the evidence presented by appellant supported a finding that appellees caused damage to
the carpet that exceeded normal wear and tear. On this issue, and as noted under the
facts, both parties presented evidence at trial as to the condition of the carpet at the time
appellees vacated the premises.
{¶ 53} Appellees both testified that their cats did not urinate or defecate outside
the litter box. Appellees' other witness, Underwood, an individual with residential lease
management experience, testified on direct examination that the wear and tear depicted
in [p]laintiff's [e]xhibits B, E, and F was usual for carpeting of at least seven years. On
cross-examination, Underwood agreed that the carpet depicted in some of the
photographs "is not in excellent condition." (Tr. at 37.) Underwood further stated she
would not consider pet stains from urine to constitute normal wear and tear. With
respect to one of the photographs (Defendant's Ex. No. 15 G), Underwood stated "[t]here
are stains on the carpet that need cleaned." When asked to assume, "hypothetically," that
the stains depicted on the photo were the result of pet urine and defecation, she agreed
such stains would not constitute normal wear and tear. (Tr. at 45.)
{¶ 54} Appellant's witness, Ramirez, the owner of Ramirez Flooring, testified that
the condition of the carpet as depicted in various photographs (Defendant's Exs. 15 A, B,
C, and D) was "[v]ery dirty," and it appeared to be the result of pet urine. (Tr. at 144.)
Ramirez stated the condition of the carpet would not constitute reasonable wear and tear,
and that it "should be replaced." (Tr. at 145.)
{¶ 55} Redinger testified that the carpeting in the family room area was "heavily
pet stained." (Tr. at 226.) According to Redinger, even after the carpeting was
professionally cleaned, it remained "severely stained." (Tr. at 244.) Redinger believed the
pet staining "would affect the sale of the home" and, as previously noted, she
recommended reducing the price of the home by $3,000 to reflect the amount of damage.
(Tr. at 228.)
No. 18AP-694 17
{¶ 56} Thus, the parties presented the trial court with competing evidence as to
whether the condition of the carpet represented normal wear and tear or exceeded the
reasonable wear and tear standard. We note that courts in general have held that odors
and damage caused by pet urine and/or defecation stains do not constitute ordinary wear
and tear. See, e.g., Fornof-Lippencott v. Powell, 2d Dist. No. 94-CA-11 (Jan. 18, 1995)
(urine stain caused by cats enclosed in basement not ordinary wear and tear); Clark v.
Craenen, 10th Dist. No. 89AP-416 (Nov. 28, 1989) (damage to property, including smell
in house emanating from soiled carpeting as a result of fecal matter and urine stains by
dogs, "does not represent ordinary wear and tear").
{¶ 57} Here, it is not clear if the trial court found credible evidence presented by
appellant that the stains were caused by cat urine and defecation. Further, whether the
condition of the carpet represented injury to appellant "in excess of normal wear and tear
was a question for the trial court, and one the court did not specifically answer." Fornof-
Lippencott. We conclude, therefore, that remand is necessary 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.3
{¶ 58} Accordingly, we find merit with arguments presented under appellant's
second and third assignments of error, and we sustain those assignments of error.
Further, having found the trial court applied an incorrect standard in determining the
issue of damages, thereby necessitating a remand to consider the issues addressed above
(including whether appellant has shown actual damages), appellant's first assignment of
error is sustained in part. However, to the extent appellant requests this court to enter
judgment in his favor as a matter of law, we overrule that portion of the first assignment
of error.
{¶ 59} Under the fourth assignment of error, appellant challenges the trial court's
judgment in favor of appellees as against the manifest weight of the evidence. In light of
3 As noted under the facts, appellant presented testimony at trial as to the replacement cost of new carpeting
based on an estimate ($2,041.53) provided by Ramirez. 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." Calanni v. Stowers, 8th Dist. No. 106618, 2018-Ohio-4025, ¶ 48.
No. 18AP-694 18
our disposition of the first three assignments of error, the question of whether the
judgment in favor of appellees is against the manifest weight of the evidence is rendered
moot.
{¶ 60} We do, however, address several issues raised on appeal that merit brief
discussion for remand purposes. During oral argument, counsel for appellant
acknowledged that several damage issues 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).4
{¶ 61} Appellant argues, under the fifth assignment of error, the trial court erred in
concluding the average life of carpet is eight years. Related to this assignment of error is
the primary issue raised under appellant's sixth assignment of error, in which he contends
the trial court erred in denying his pre-trial motion to preclude appellees' witness,
Underwood, from testifying as a witness.
{¶ 62} In its decision, the trial court stated in its conclusions of law that "[t]he
average life of carpet is 8 years." (Decision at 3.) While the trial court does not indicate
the evidence relied on for that conclusion, appellant suggests the court's finding was
based on the testimony of Underwood who, according to appellant, was not qualified
under Evid.R. 702 to render an opinion as to issues related to carpet, including an opinion
regarding the average life span for carpet.
{¶ 63} In order to testify as a witness under Evid.R. 702, the testimony of a
witness must meet three requirements: (1) the testimony "must relate to matters beyond
the knowledge or experience possessed by laypersons; (2) [the witness] must be qualified
as an expert by specialized knowledge regarding the subject matter of the testimony; and,
(3) [the] testimony must be based on reliable scientific, technical, or other specialized
4 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." (Decision at 4.)
No. 18AP-694 19
information." Laketran Bd. of Trustees v. Mentor, 11th Dist. No. 2001-L-027, 2002-
Ohio-3496, ¶ 54, citing Evid.R. 702. Expert testimony under Evid.R. 702 "is admissible in
the form of an opinion to aid the court in arriving at a correct determination." Copper &
Brass Sales, Inc. v. Plating Resources, Inc., 9th Dist. No. 15563 (Dec. 9, 1992). In general,
"[a] trial court's ruling as to the admission or exclusion of expert testimony is within its
broad discretion and will not be disturbed absent an abuse of discretion." Biro v. Biro,
11th Dist. No. 2006-L-068, 2007-Ohio-3191, ¶ 28.
{¶ 64} 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.
{¶ 65} 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.)
{¶ 66} Appellant argues the trial court failed to act in its key role as a gatekeeper to
determine not only whether Underwood was qualified as an expert, but also to determine
what opinions were to be elicited. According to appellant, the trial court permitted this
witness to testify as to irrelevant matters.
{¶ 67} With respect to appellant's gatekeeper argument, we would note that, in 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. Knott v.
Revolution Software, Inc., 181 Ohio App. 3d 519, 2009-Ohio-1191 (5th Dist.), ¶ 46.
Further, " '[w]hen a matter is tried before the court in a bench trial, there is a presumption
that the trial judge "considered only the relevant, material, and competent evidence in
No. 18AP-694 20
arriving at its judgment unless it affirmatively appears to the contrary." ' " In re Fair, 11th
Dist. No. 2007-L-166, 2009-Ohio-683, ¶ 66, quoting Jackson v. Herron, 11th Dist. No.
2003-L-145, 2005-Ohio-4046, ¶ 28, quoting State v. White, 15 Ohio St. 2d 146, 151 (1968).
{¶ 68} 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 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). 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). Upon review, we find no abuse of discretion by the trial court in denying
appellant's motion to preclude the testimony at issue.
{¶ 69} Appellant also seeks reversal based on the trial court finding the average
life of carpet is eight years. We note, however, the trial court's ruling in favor of appellees
on appellant's claim for damages was not dependent on that finding but, rather, based on
the court's determination that appellant was not out any monies because he chose not to
replace the carpet. 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).
{¶ 70} Based on the foregoing, appellant's fifth and sixth assignments of error are
not well-taken and are overruled.
{¶ 71} Under his seventh assignment of error, appellant asserts the trial court
erred in awarding attorney fees to appellees under R.C. 5321.05. In their single
No. 18AP-694 21
assignment of error on cross-appeal, appellees also raise a challenge to the trial court's
award of attorney fees, asserting the court erred in deducting a portion of their request for
attorney and expert witness fees. Both assignments of error, however, are rendered moot
by our disposition of appellant's first, second, and third assignments of error, requiring a
remand for the trial court to re-examine whether appellant suffered any actual damages
and, if so, to determine whether the evidence establishes damages in excess of the
unreturned deposit amount. Those determinations, in turn, go to the issue of whether
appellant wrongfully withheld any portion of the security deposit and whether he may be
liable for damages equal to twice the amount wrongfully withheld and for some
appropriately scrutinized amount of attorney fees. See, e.g., Vardeman at 29 (noting
"where the trial court finds that the landlord has properly withheld the portion of the
security deposit in question, it is reasonable to conclude that the tenant has not been
damaged and may claim neither * * * double damages * * * nor the attorney fees as set
forth in R.C. 5321.16(C) ").
{¶ 72} Based on the foregoing, appellant's first assignment of error is sustained in
part and overruled in part, appellant's second and third assignments of error are
sustained, appellant's fifth and sixth assignments of error are overruled, and appellant's
fourth and seventh assignments of error, as well as appellees' single assignment of error
on cross-appeal, are rendered moot. Accordingly, the judgment of the Franklin County
Municipal Court is reversed, and this matter is remanded for further proceedings in
accordance with law, consistent with the decision.
Judgment reversed and cause remanded.
BRUNNER and NELSON, JJ., concur.
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