[Cite as Byrd v. Fields,
2012-Ohio-5257.]
STATE OF OHIO, CARROLL COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
RANDY L. BYRD ) CASE NO. 12 CA 878
)
PLAINTIFF-APPELLANT )
)
VS. ) OPINION
)
CATHY FIELDS, et al. )
)
DEFENDANTS-APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Municipal Court of
Carroll County, Ohio
Case No. CVG1100419
JUDGMENT: Modified.
APPEARANCES:
For Plaintiff-Appellant: Atty. Vincent L. Slabaugh
P.O. Box 836
Malvern, Ohio 44644
For Defendants-Appellees Pro se
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: November 6, 2012
[Cite as Byrd v. Fields, 2012-Ohio-5257.]
WAITE, P.J.
{¶1} Appellant Randy L. Byrd appeals the decision of the Carroll County
Municipal Court involving a breach of an oral month-to-month lease. Byrd rented the
property at 120 Bridge Street, Malvern, Ohio, to Appellees, Cathy and Jennifer
Fields. After a bench trial, the court awarded Appellant $400 in back rent. Appellant
claims that the court should have awarded an additional $650 for the last month of
rent before Appellees vacated the premises, and should have also awarded $1,400
for a bird bath that was missing from the property. Appellees have not filed a
responsive brief for this appeal. The record supports Appellant’s contention that he
should have been awarded an additional $650 in rent, as there is no dispute that the
rent was $650 per month, Appellees moved out in December, and no rent was paid in
December. The trial court concluded that Appellees were not liable for the missing
bird bath because Appellant testified that he did not own the item. The record
supports the trial court's decision regarding the bird bath. However, since we
partially sustain Appellant’s argument, the judgment is hereby modified to add $650
to Appellant's judgment for a total of $1,050.
{¶2} On November 10, 2011, Appellant filed a two-count complaint.
Appellant alleged that the parties had a month-to-month oral lease of an apartment
for $650 per month and that Appellees had only been paying $600 per month. The
first count sought eviction of the tenants and restitution of the property to the
landlord. The second count was for money damages. Appellant asked for damages
in the amount of $50 in underpaid rent for eight months, and the full rent amount of
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$650 for November 2011. Appellant also asked for additional damages yet to be
determined.
{¶3} The court awarded judgment to Appellant on count one, the eviction
claim, on November 30, 2011. Appellees were ordered to vacate the premises by
December 11, 2011. A bench trial was held on the damages claim on January 11,
2012. Appellant was represented by counsel, and the defendants represented
themselves pro se. The only witness at the hearing was Appellant. Appellees asked
a few questions as if on cross-examination at the hearing but declined to testify on
their own behalf. Appellant testified that the rent was $650 per month, and that
Appellees had only paid $600 from September of 2010 through May, 2011.
Appellant testified that Appellees moved out in December of 2011. He testified that
Appellees paid the partial rent for November, but did not pay any rent for December.
{¶4} Appellant further testified that his wife owned a bird bath that was
missing from the apartment after Appellees moved out. He testified that a similar
new bird bath would cost $1,700, but he thought the missing bird bath was worth
$1,400. Appellant gave contradictory testimony as to whether the bird bath had been
moved from Appellees’ apartment to the garage, and there was no testimony as to
who had control over the garage or who was liable for items stored in the garage.
The court awarded Appellant $400 in damages for underpaid rent. The court did not
discuss the issue of the unpaid rent for December of 2011. The court stated that it
could not award damages for the bird bath because Appellant did not testify that he
owned it. The court also stated that there was no basis for determining the value of
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the bird bath. This appeal followed. Appellees have not filed a brief on appeal.
Under App.R. 18(C), if the appellee has not filed a brief, “the court may accept the
appellant's statement of the facts and issues as correct and reverse the judgment if
appellant's brief reasonably appears to sustain such action.”
ASSIGNMENT OF ERROR NO. 1
The trial court erred when it failed to award Plaintiff-Appellant the sum
of $650.00 in rent charges due from Defendants-Appellees for
December, 2011. The court’s award of damages for rent due was
against the preponderance/manifest weight of the evidence presented
at the Second Cause/damages phase of the parties’ forcible entry and
detainer action.
{¶5} Appellant contends that the trial court should have awarded an
additional $650 in rent for December of 2011. Reviewing courts will not reverse a
judgment supported by some competent, credible evidence. Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St.3d 77, 81,
461 N.E.2d 1273 (1984). Credibility of witnesses
is determined by the trier of fact.
Id. The record indicates that the trial judge believed
Appellant that the rent was $650 per month, and believed that Appellees were only
paying him $600 per month. The judge awarded judgment to Appellant for underpaid
rent for eight months based on a rental amount of $650. The record indicates that
Appellees were ordered by the court to move out in December, that they moved out
in December, and that they did not pay rent for December. Appellees did not testify
at trial and have not filed a brief on appeal, thus, we have no conflicting evidence in
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this record. The record reasonably reflects that Appellant should have been awarded
an additional $650 in rent for the month of December. Appellant’s first assignment of
error is sustained.
ASSIGNMENT OF ERROR NO. 2
The trial court erred in not awarding Plaintiff-Appellant $1,400.00 as
and for the value of the Plaintiff-Appellant’s missing personal property
(waterfall) which was part of the rental property prior to the Defendants-
Appellees vacating of the premises. The court’s failure to grant
Plaintiff-Appellant the value of the waterfall was against the
preponderance/manifest weight of the evidence presented at the
Second Cause/damages phase of the parties’ forcible entry and
detainer action.
{¶6} Appellant argues that he also should have been awarded $1,400 for the
missing bird bath. The evidence regarding the bird bath is based entirely on the
credibility of Appellant, and the trial court did not find Appellant entirely credible on
this issue. Credibility of witnesses is determined by the trier of fact. Seasons Coal,
supra, at 81,
461 N.E.2d 1273. The testimony regarding the removal or relocation of
the bird bath was less than clear. Appellant testified that the bird bath was moved
from Appellees' apartment to the garage at some point during their tenancy, but there
was no testimony that Appellees had any control over the garage or responsibility for
items placed in the garage. Further, Appellant testified that the bird bath actually
belonged to his wife, but she is not a party to this action. (Tr., p. 10.) There was also
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testimony that the water in the birdbath had been stained with blue dye, staining the
item itself and negatively affecting its value. (Tr., p. 13.) Based on Appellant’s
confusing testimony and the fact that the bird bath was, admittedly, not owned by
Appellant, there is no reversible error in the trial court's decision.
{¶7} In conclusion, the record indicates that Appellant is owed $650 rent for
the month of December, 2011, and we agree that the judgment should be modified to
add this amount to the $400 awarded by the trial court, for a total damages award of
$1,050. There is no merit to Appellant's argument that he should also have been
awarded damages for a bird bath when his own testimony indicated that he did not
own the item. Appellant's first assignment of error is sustained, and the second
assignment of error is overruled.
{¶8} Judgment is granted to Plaintiff-Appellant Randy L. Byrd in the amount
of $1,050.00 plus court costs, at 3% statutory interest.
Vukovich, J., concurs.
DeGenaro, J., concurs.
