[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
                                                                                  -2-

$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
                                                                                       -3-

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
                                                                                      -4-

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
                                                                                    -5-

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.
