      [Cite as Howard v. Bond, 2012-Ohio-254.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                 PIKE COUNTY

KENNETH HOWARD, PRESIDENT                        :
HOWARD COMPANIES, INC.,                          :
                                                 :
      Plaintiff-Appellee,                        :   Case No. 11CA820
                                                 :
      vs.                                        :   Released: January 10, 2012
                                                 :
SHANNON L. BOND,                                 :   DECISION AND JUDGMENT
                                                 :   ENTRY
      Defendant-Appellant.                       :

                                       APPEARANCES:

Shannon L. Bond, Waverly, Ohio, Appellant, pro se.

Joseph P. Sulzer, Chillicothe, Ohio, for Appellee.


McFarland, J.:

      {¶1} Appellant Shannon L. Bond appeals the trial court’s decision granting

judgment against her for breaching a rental agreement. She argues the trial court

erred in calculating the amount of damages she owes Appellee Kenneth Howard,

President of Howard Companies, Inc. Having reviewed the record, we find the

trial court erred in calculating damages and sustain Appellant’s sole assignment of

error. As such, we reverse the trial court’s judgment.
Pike App. No. 11CA820                                                           2


                                                   FACTS

      {¶2} Appellant entered into a contract with Appellee to lease the premises

located at 412 East 5th Street, Waverly, Ohio. The lease began April 1, 2010 and

ended December 31, 2010, and Appellant had the option to buy the premises

afterward. Appellant was to pay $1,017 per month in rent, but would receive a

$100 discount if she postmarked her rent by the fifth of each month, making her

rent $917 each month if timely paid.1

      {¶3} Appellant made full and timely rental payments for April and May, but

for June, July, and August she only paid $750 each month. On August 1, 2010,

Appellant notified Appellee she would be vacating the premises by August 31,

2010, which she did. Appellant made no further payments under the lease.

Consequently, Appellee filed suit to recover the full amount due under the lease,

including rent for the remaining months of September through December, totaling

$4,866.

      {¶4} Following a trial to the court, the court entered judgment against

Appellant for $4,196. The trial court found Appellant owed a deficiency of $501

for the months of June through August, plus the full rental amount of $1,017 for

September through November and $1,014 for December. The trial court deducted

$400 from the amount due, accounting for Appellant’s security deposit, and

entered a final judgment against Appellant for $4,196. Appellant now appeals.
      1
          December’s rent was $1,014, or $914 if timely.
Pike App. No. 11CA820                                                             3


                             ASSIGNMENT OF ERROR

      {¶5} “The Trial Court [e]rred by not taking into consideration the Mitigation

of Damages Doctrine alleging that the Defendant-Appellant owed rent for the

months of November and December of 2010 as well as the entire month of October

2010.”

      {¶6} In her sole assignment of error, Appellant argues the trial court erred in

failing to reduce the amount she owed under the lease when the evidence

demonstrated Appellee had re-rented the premises. Specifically, Appellant

believes Appellee re-rented the premises as of October 25, 2010, and Appellee’s

damages ceased accruing on that date.

      {¶7} We note that while Appellant phrases her assignment of error as the

trial court failing to consider the “Mitigation of Damages Doctrine,” the thrust of

her objection concerns the trial court’s calculation of damages. Appellant’s

concern is not that Appellee failed to mitigate its damages, but rather Appellee did,

in fact, mitigate its damages, which the trial court failed to incorporate into its

damages calculation.

      {¶8} Appellee counters that Appellant did not raise this matter as an

affirmative defense before the trial court, and essentially waived such argument.

Appellee also notes Appellant bore the burden of proving this matter at trial.
Pike App. No. 11CA820                                                              4


                               STANDARD OF REVIEW

         {¶9} “An appellate court will not reverse a trial court’s decision regarding its

determination of damages absent an abuse of discretion.” Gilbert v. Crosby (Jan.

22, 2001), 4th Dist. No. 00CA020, 2001-Ohio-2864, citing Roberts v. U.S. Fid. &

Guar. Co. (1996), 75 Ohio St.3d 630, [634,] 665 N.E.2d 664, citing Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. See, also, Henry v.

Richardson, 12th Dist. Nos. CA2010–05–110, CA2010–05–127, 2011-Ohio-2098,

at ¶ 8; Mtge. Electronic Registration Sys., Inc. v. Lambert, 8th Dist. No. 94681,

2011-Ohio-461; Labonte v. Labonte, 4th Dist. No. 07CA15, 2008-Ohio-5086, at ¶

18; Ornemaa v. CTI Audio, Inc., 11th Dist. No. 2007-A-0088, 2008-Ohio-4299, at

¶ 137.

         {¶10} “Lessees are potentially liable for rents coming due under the

agreement as long as the property remains unrented. The important corollary to

that is that landlords have a duty, as all parties to contracts do, to mitigate their

damages caused by a breach. Landlords mitigate by attempting to rerent the

property. * * * If the lessor has acted reasonably in attempting to secure a new

tenant, the lessee is liable for the rent up to the point of the lessor’s finding a new

tenant, or the expiration of the lease, whichever is earlier.” Dennis v. Morgan, 89

Ohio St.3d 417, 419, 2000-Ohio-211, 732 N.E.2d 391. “[C]ontract law

acknowledges that mitigation, otherwise known as the doctrine of avoidable
Pike App. No. 11CA820                                                                                  5


consequences, may justly place an injured party ‘in as good a position had the

contract not been breached at the least cost to the defaulting party.’” Frenchtown

Square Partnership v. Lemstone, Inc., 99 Ohio St.3d 254, 2003-Ohio-3648, 791

N.E.2d 417, at ¶ 12, quoting F. Ent., Inc. v. Kentucky Fried Chicken Corp. (1976),

47 Ohio St.2d 154, 159-160, 351 N.E.2d 121.

                                         LEGAL ANALYSIS

        {¶11} During the trial to the court, Appellant explicitly raised the issue of

Appellee’s mitigation of damages. Appellant testified she was trick-or-treating

with her children on October 31, 2010 and observed new tenants residing at the

premises. (Tr. at 14.) She asked not to be held liable for two months’ rent because

Appellee had obtained a new tenant. (Id.) Appellee’s own witness confirmed new

tenants were leasing the premises as of October 25, 2010 or November 2010. (Tr.

at 7, 20.) Moreover, when explaining the extent of Appellee’s damages,

Appellee’s witness testified Appellee was only seeking to recover $2,835: $801 for

August,2 $1,017 for September, and $1,017 for October. (Tr. at 7.) This figure did

not include November or December. Yet the trial court entered judgment against

Appellant in the amount of $4,196, which included unpaid rent for November and

December.



        2
           We gather the $801.00 represented the difference between what Appellant paid the months of June
through August and what was actually due. Appellant only paid $750.00 for each of these months, yet her rent was
$1,017.00, leaving a deficiency of $267.00 for each month, or $801.00 total.
Pike App. No. 11CA820                                                                                       6


         {¶12} Having reviewed the record and the evidence therein, we find the trial

court erred when it calculated Appellee’s damages. While there was uncertainty

regarding the exact date Appellee re-rented the premises, it was undisputed, and

Appellee conceded, that as of November 1, 2010, Appellee had re-rented the

premises. Upon re-renting the premises, Appellee’s damages ceased to accrue and

Appellant was not wholly liable for unpaid rent for November or December.3

Thus, the trial court’s decision to include these months in its calculation of

Appellee’s damages was unreasonable and an abuse of discretion.

         {¶13} Accordingly, we affirm Appellant’s sole assignment of error. We

reverse the trial court’s judgment and remand the case for further proceedings

consistent with this opinion.

                  JUDGMENT REVERSED AND CAUSE REMANDED FOR
             FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Harsha, P.J., concurring:

         {¶14} I concur in judgment and opinion with the sole exception that I apply

a manifest weight of the evidence standard of review to conclude the trial court’s

calculation of damages was erroneous.

         {¶15} In applying the abuse of discretion standard, the principal opinion

cites several appellate cases, including two in which I concurred, and the Supreme

Court of Ohio’s decision in Roberts v. U.S. Fid. & Guar. Co. (1996), 75 Ohio St.3d

         3
           However, were Appellee to establish that the rent collected from the new tenant is less than Appellant was
obligated to pay for those two months, Appellee could recover the difference. See F. Ent., Inc. at 160.
Pike App. No. 11CA820                                                            7


630, at 634. Roberts in turn cites Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219, as authority for using the abuse of discretion standard to review a

damages award. Blakemore does espouse using an abuse of discretion standard of

review, but it dealt with the termination of an alimony award, not damages arising

from the breach of a lease. Because a trial court has broad discretion in domestic

relations actions, the abuse of discretion standard was appropriate in Blakemore.

Why the court in Roberts cited Blakemore for its application of the abuse of

discretion standard on the breach of contract/damages context, I do not know.

      {¶16} But I do know that Roberts did not carry that conclusion over to a

syllabus. Rather, Roberts concluded by holding, “Accordingly, we affirm the court

of appeals’ finding that the trial court’s determination of damages was not against

the manifest weight of the evidence.” Roberts at 634.

      {¶17} Upon reflection, I agree with the application of the manifest weight

standard to review damages arising from a broken lease because of the factual

character of that task. Determining the appropriateness of a damage award is

largely a question of whether the facts in evidence support the trial court’s

judgment. It is not one of those tasks where the trial court is afforded great

discretion because of the need for flexibility, e.g., the scheduling of a continuance;

or the decision involves facts that are endlessly variable so it becomes difficult to

devise a more rigid standard to cover all the possible array of decisions; or the
Pike App. No. 11CA820                                                           8


issues are novel or fleeting so the evolutionary process of rule making has not yet

run its course; or the need for on the scene presence, i.e., “you had to be there,”

because the ruling is based on circumstances that are critical to the decision but

cannot be conveyed effectively by the cold record. See, generally, Maurice

Rosenberg, “Judicial Discretion of the Trial Court, Viewed from Above” 22

Syracuse L.Rev. 635 (1971).

      {¶18} Thus, upon reflection I apply the Supreme Court of Ohio’s ultimate

conclusion in Roberts that appellate review of the appropriateness of the amount of

a damage award in a breach of contract action should be determined under a

manifest weight of the evidence standard.
Pike App. No. 11CA820                                                          9


                                 JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED AND THE CAUSE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION and that the Appellant recover of Appellee costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Pike
County Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date
of this entry.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
       Exceptions.

Harsha, P.J.: Concurs with Concurring Opinion.
Kline, J.: Concurs in Judgment and Opinion.



                                              For the Court,


                                              BY: _________________________
                                                  Matthew W. McFarland, Judge




                                NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
