Estie Inv. Co. v. Braff

2018 Ohio 4378

ESTIE INVESTMENT CO., d.b.a. EDGEWOOD CLUB APARTMENTS, Plaintiff-Appellee, v. JOSHUA BRAFF, Defendant-Appellant.

CASE NO. 2017-L-172

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

October 29, 2018

OPINION

Civil Appeal from the Painesville Municipal Court, Case No. CVF 1600941.

Judgment: Reversed and judgment entered for appellant.

Michael C. Lucas, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094 (For Plaintiff-Appellee).

Michael A. Heller, Mike Heller Law Firm, 333 Babbitt Road, Suite 233, Euclid, OH 44123 (For Defendant-Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, Joshua Braff, appeals the judgment finding him liable to appellee, Estie Investment Company, for damage to an apartment he leased. Appellant argues he did not damage the apartment, and appellee's cost to repair evidence is insufficient. We reverse and enter judgment for appellant.

{¶2} Appellee is an Ohio corporation, owned by members of appellant's family, including his father, Robert Braff. Appellee owns and manages the Edgewood Club Apartments, a single-building complex located in Painesville, Ohio. The building has 27 apartments, nine on each of three floors.

{¶3} In February 2010, appellant signed a written lease for first floor apartment #106 with annual rent of $6,000, to be paid in installments. According to appellant, he and his father had a separate oral agreement under which he would pay "partial rent" and satisfy the remainder of his obligation by completing work inside his apartment and throughout the building. The lease has a clause requiring appellant to take "due care" of the apartment and provide notice of any necessary repairs.

{¶4} At trial, appellee did not present extensive evidence as to the condition of the apartment at the time appellant took possession in 2010. On the other hand, appellant testified that the apartment was filthy and unlivable when he first moved in, and that he cleaned the entire apartment.

{¶5} After appellant lived in the apartment for more than a year, all nine units on the first floor flooded due to a rain storm. Appellant testified that at the height of the flood, the water level in his apartment came up to his knees and that it took three days to pump out the water. After the flood, appellee installed new carpet on the entire first floor, including appellant's apartment, and removed all drywall saturated by the water and replaced it with paneling.

{¶6} Appellee hired Babic Construction to make the repairs to all nine first-floor units. The owner of the construction company, Dale Babic, testified that appellant's apartment was in good shape after the repairs were completed. However, appellant testified that some of the flood damage was never repaired, including damage to the bathroom walls, bathroom vanity, and kitchen walls. He further testified that some of theproblems existing when he first moved into the apartment were not remedied.

{¶7} In early 2016, appellant was evicted. Within two months of regaining possession of the apartment, appellee filed this action against appellant seeking damages in the amount of $7,320 for failure to adequately care for the premises.

{¶8} The case was tried to a magistrate. Dale Babic testified as to both the repairs completed after the flood and the repairs necessary in light of the damage caused after the flood repairs were completed. In response, appellant and his ex-wife testified concerning the general condition of the apartment through the years.

{¶9} At the close of trial, both parties submitted proposed findings of facts and conclusions of law. The magistrate adopted appellee's findings of fact and conclusions of law in its entirety and recommended judgment in favor of appellee in the amount of $7,320.

{¶10} Appellant's objections to the magistrate's decision focus primarily upon the credibility and insufficiency of Babic's testimony. Appellant argues that his testimony is too vague to establish the nature of the damages or that they are attributable to appellant. He also argues a failure of proof because Babic testified as to a global dollar amount of repairs, without specifying the amount of each individual repair.

{¶11} Appellee did not file a response. Nevertheless, after the trial transcript was submitted for review, the trial court overruled appellant's objections and entered judgment in appellee's favor for $7,320, plus interest.

{¶12} On appeal, appellant raises eight assignments of error:

{¶13} "[1.] The trial court erred by adopting [appellee's] findings of fact and conclusions of law.

{¶14} "[2.] The trial court erred in that appellee lacked sufficiency of the evidence.

{¶15} "[3.] The trial court erred in that the decision was against the manifest weight of the evidence.

{¶16} "[4.] The trial court erred in holding that the damages alleged were beyond 'normal wear and tear.'

{¶17} "[5.] The trial court erred as the appellee failed to meet [its] burden of proof that the damages alleged were caused by or allowed to be caused by appellant.

{¶18} "[6.] The trial court erred in that there were 11 alleged items that were allegedly damaged, wherein, the trial court's decision made a blanket finding as to all items in toto, even though there was different and independent testimony and evidence as to each of the 11 items, leading to a different factual and/or legal conclusion as to each item.

{¶19} "[7.] The trial court erred in that appellee failed to meet [its] burden of proof of damages. Appellee provided a broad overall total of alleged damages, and failed to identify which item(s) would cost how much.

{¶20} "[8.] The trial court erred in holding that [appellant] was liable for the replacement of the carpeting, because the party who was supposedly going to replace the carpet was not present to testify and did not submit a proposal or estimate. The trial court further erred by including the cost of the carpet into [appellee's] total estimated amount of damages, without knowing how much the cost of the carpeting was, nor knowing how much the other cost(s) of any of the other individual stuff was."

{¶21} Under his first assignment, appellant maintains that the verbatim adoption of appellee's findings of fact and conclusion of law is an abuse of discretion.

{¶22} "It is not per se error for a trial court to adopt, verbatim, a party's proposed findings of fact and conclusions of law. Chardon Park, Inc. v. Great Lakes Crushing, Ltd., 11th Dist. Geauga No. 2003-G-2524, 2004-Ohio-7221, ¶39. Error can only be found in such a case when the findings of fact and/or conclusions of law adopted by the trial court are against the manifest weight of the evidence. Id." Gerston v. Parma VTA, L.L.C., 8th Dist. Cuyahoga No. 105572, 2018-Ohio-2185, ¶68. See also McGlumphy v. Cty. Fire Protection, Inc., 2016-Ohio-8114, 74 N.E.3d 986, ¶36 (11th Dist.).

{¶23} Appellant's manifest weight arguments are presented elsewhere and will be addressed later. However, verbatim adoption, standing alone, does not constitute reversible error. Appellant's first assignment lacks merit.

{¶24} Under his second and fifth assignments, appellant contends that appellee failed to present sufficient evidence that he caused any damage due to the lack of evidence as to the apartment's condition before he took possession.

{¶25} "The landlord may only recover damages from the tenant for violations of R.C. 5321.05 or because of violations of the lease. R.C. 5321.05 identifies a lengthy list of obligations tenants owe landlords. Accordingly, tenants are liable for waste; however, they are generally not liable to landlords for damages attributed to ordinary wear and tear. If damage is not the type specified in R.C. 5321.05 or the lease, it will normally be considered ordinary wear and tear. See generally, White, Ohio Landlord Tenant Law (2001 Ed.) Section 7.5. Furthermore, * * * the landlord bears the burden of submitting sufficient evidence to link the damages to the tenant. Cuzzort v. Rose (Nov. 6, 1986), Montgomery App. No. CA9791, unreported." Kelley v. Johnston, 4th Dist. Gallia No. 01CA5, 2001 WL 1479243, *3 (Nov. 14, 2001).

{¶26} To establish the 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. Dupal v. Reindle, 8th Dist. Cuyahoga No. 79413, 2002 WL 450128, *2 (Mar. 14, 2002). This burden is usually satisfied by the testimony of a witness with knowledge of the conditions, such as a landlord's testimony that the premises were in good condition at the outset of the tenancy and the tenant made no initial complaints. Id.; Snyder v. Waldron, 4th Dist. Athens No. 12CA9, 2013-Ohio-3416, ¶30.

{¶27} Appellant notes that neither of appellee's witnesses testified about the condition of the apartment at the outset. While true, in this case, that is not fatal. Babic testified that the apartment was in good condition after he completed the flood repairs. This constitutes some evidence that any problems with the premises before the flood had been remedied, thereby linking any post-flood damage to appellant.

{¶28} Furthermore, appellee presented evidence that the apartment sustained post-flood repair damage including animal feces on the carpet and black marks on the walls.

{¶29} As a separate argument under his second assignment, appellant contends that appellee's evidence is insufficient to establish the amount of damages because, instead of testifying as to the exact cost for each of the 11 repairs, Babic did not provide an itemized cost of repair for each, but rather estimated the total cost to repair. Given that this argument is also raised under appellant's seventh assignment, it will not be addressed here.

{¶30} As the trial court did not err in finding that the damages to the apartment were sustained after the flood repairs and during his occupancy, his second and fifthassignments are without merit.

{¶31} Appellant's third assignment is framed in terms of...