Tillimon v. Long

Decision Date13 January 2017
Docket NumberCourt of Appeals No. L-16-1055
Citation2017 Ohio 140
PartiesDuane Tillimon Appellant v. Victoria Richardson Long, et al. Appellees
CourtOhio Court of Appeals

DECISION AND JUDGMENT

Duane J. Tillimon, pro se.

PIETRYKOWSKI, J.

{¶ 1} This is an appeal of the judgment of the Toledo Municipal Court, Housing Division, awarding appellant, Duane Tillimon, $247.58 in damages against appellees, Victoria Richardson-Long and Mark Long, for breach of their lease agreement. For the reasons that follow, we affirm, in part, and reverse, in part.

I. Facts and Procedural Background

{¶ 2} Appellant and appellees entered into a two-year lease agreement on September 1, 2013, for residential property owned by appellant at 14 Van Buren Ave., Toledo, Ohio. On August 31, 2015, the lease automatically renewed for another year pursuant to the terms of the agreement. Appellees moved out in October 2015.

{¶ 3} On November 30, 2015, appellant filed a complaint for money damages against appellees. Appellant alleged that he was entitled to payment for the October 2015 rent, water and sewer charges from July 8, 2015, and for repairs to the property beyond normal wear and routine maintenance. Appellees did not assert any counterclaims or affirmative defenses.

{¶ 4} The matter proceeded to a trial on February 8, 2016, wherein all the parties testified. Thereafter, on February 18, 2016, the trial court entered its judgment awarding appellant $750 in rent for October 2015, $261.42 for an unpaid water bill, $91.16 for cleaning services, and $95.00 for damage to the garage door. The trial court then applied the security deposit of $650, and credited appellees $300 for a payment they made to repair a frozen pipe, to reach a total judgment amount of $247.58 plus court costs.

{¶ 5} On February 22, 2016, appellant filed a motion for a new trial pursuant to Civ.R. 59, and a motion for relief from judgment pursuant to Civ.R. 60(B). In those motions, appellant contested the trial court's failure to award an additional $1,629.16 in damages. The trial court denied those motions on March 15, 2016.

II. Assignments of Error

{¶ 6} Also on March 15, 2016, appellant appealed the trial court's February 18, 2016 judgment. Appellant later amended his appeal to include the trial court's March 15, 2016 judgment. Appellant now asserts the following six assignments of error for our review:

1. The trial court committed reversible error, and abused its discretion, by denying damages because a property street address was not listed on cash register receipts when, in fact, a property street address was on the cash register receipts and therefore the judgment was against the manifest weight of the evidence, and the appellant should have been granted relief from judgment.
2. The trial court committed reversible error, and abused its discretion, by requiring that a street address be written on the cash register receipts for materials and/or labor when the judgment denying damages was against the manifest weight of the evidence based upon the testimony of witnesses and documents introduced into evidence.
3. The trial court committed reversible error, and abused its discretion, by denying damages corroborated by invoices delivered by e-mail delivery, and therefore the judgment was against the manifest weight of the evidence.
4. The trial court committed reversible error, and abused its discretion, by not awarding damages (for) cleaning up the house, garage,and yard, and hauling the trash away, and such denial was against the manifest weight of the evidence.
5. The trial court committed reversible error, and abused its discretion, by denying the judgment for repairs to the waterline, and by not allowing the appellant to testify regarding his expertise regarding why the waterline froze, such denial being against the manifest weight of the evidence and the trial court erred, and abused its discretion, by awarding appellees a judgment for repairs when it froze a second time a year later when appellees filed no counterclaim and presented no testimony.
6. The court committed reversible error, and abused its discretion, by denying the appellant's motion for a new trial.
III. Analysis

{¶ 7} In his first five assignments of error, appellant challenges the findings of the trial court following a bench trial. "In a bench trial, the trial court assumes the fact-finding function of the jury." Davis v. Hawley Gen. Contr., Inc., 2015-Ohio-3798, 42 N.E.3d 276, ¶ 16 (6th Dist.), quoting Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863 N.E.2d 1125, ¶ 16 (8th Dist.). We review the trial court's findings under a manifest weight of the evidence standard. Id. The manifest weight standard is the same in a civil case as in a criminal case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. Thus, "[t]he [reviewing] court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and createdsuch a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered." Id. at ¶ 20. "In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact." Id. at ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3.

{¶ 8} In his first and second assignments of error, appellant contends that the trial court erred when it failed to award him additional damages for cleaning and repairs to the property. Specifically, appellant lists receipts for $145.00 for carpet cleaning, $61.59 for cleaning and repair supplies, $20.77 for film and photographs of the damage to the property, and $71.79 for replacement of personal property that was included in the lease. Notably, paragraph No. 19 of the lease agreement makes the tenant responsible for routine maintenance, defined as anything costing less than $100 for parts or materials.

{¶ 9} In its judgment entry, the trial court denied these charges on the grounds that the receipts provided by appellant did not list the property address, and therefore appellant did not prove that the receipts were for the residence at issue. Additionally, the court denied the claim for carpet cleaning, reasoning that it was attributable to normal wear and tear due to appellees having resided in the residence for two years.

{¶ 10} As to the trial court's finding regarding the claim for carpet cleaning, we find that it is not against the manifest weight of the evidence. "[A] landlord may not unilaterally deduct the cost of carpet cleaning from a tenant's security deposit, without an itemization setting forth the specific need for such a deduction." Chaney v. Breton Builder Co., 130 Ohio App.3d 602, 605, 720 N.E.2d 941 (6th Dist.1998). Here, appellant testified at trial that "The carpets needed cleaning after they vacated the house. I hiredElite Carpet Cleaning to do the carpet cleaning and linoleum cleaning in the kitchen. They charged me $145." Appellant did not, however, testify as to any abnormally dirty or stained carpet, and the photos he submitted do not clearly support such testimony. Therefore, we hold that the trial court's finding that the need for carpet cleaning was a result of normal wear and tear is not against the manifest weight of the evidence. See Chaney at 605-607 (upholding trial court's finding of normal wear and tear where tenants testified and submitted pictures demonstrating that the carpet was not dirty when they moved out, but where leasing agent testified that while the carpet had no unusual stains or marks, it was sufficiently dirty to justify a professional cleaning).

{¶ 11} As to the remaining items, we find that this is the exceptional case where the trial court's judgment is against the manifest weight of the evidence. Here, appellant testified that he purchased materials to repair the residence. Appellant further provided receipts in support of his testimony. Appellees did not cross-examine appellant on those charges, and did not provide any evidence to the contrary. In its decision, the trial court reasoned that the receipts did not have the property address on them. However, appellant's testimony is sufficient to establish that the receipts pertain to the residence at issue. Because there is no contradictory evidence in this case, we hold that the only reasonable conclusion is that the receipts pertain to the property at issue, and the trial court's failure to award $154.15 in damages based on those receipts is against the manifest weight of the evidence.

{¶ 12} Accordingly, appellant's first and second assignments of error are well-taken, in part.

{¶ 13} In his third assignment of error, appellant challenges the trial court's failure to award him $20 for having the lawn mowed, and $91.16 to have a tree branch trimmed.

{¶ 14} Regarding the $20 lawn mowing charge, the trial court found that appellant provided an email, not an invoice, and thus did not prove that the work was actually done. Here, the email from jon.hockenberry@----.com stated that the person "cut 14 Van buren. $20." Further, appellant testified that he had the grass mowed, and paid John Hockenberry $20 to mow the lawn. Appellees did not cross-examine appellant on this issue or provide any evidence in opposition. Therefore, we hold that the trial court's finding that appellant did not prove that he had the lawn mowed is against the manifest weight of the evidence.

{¶ 15} Turning to the charge for tree trimming, appellant testified that he first gave appellee, Victoria Richardson-Long, $75 to cut down a limb that was hitting the house and gutters. When she did not, he hired Great Lakes Gutter Filters to make the repair, and Great Lakes Gutter Filters charged him $91.16. On cross-examination, he was asked:

Q: Mr. Tillimon, the guy that cut down the
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