[Cite as Snyder v. Waldron, 2013-Ohio-3416.]


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

JOHN SNYDER, ET AL.,             :
                                 :
     Plaintiffs-Appellees,       : Case No. 12CA9
                                 :
     vs.                         :
                                 : DECISION AND JUDGMENT
NOAH WALDRON, ET AL.,            : ENTRY
                                 :
    Defendants-Appellants.       : Released: 07/26/13
_____________________________________________________________
                           APPEARANCES:

Lorene G. Johnston, Johnston Law Office, Jackson, Ohio, for Appellants
Noah Waldron and Holly Waldron.

Sierra Meek, Nolan & Meek Co., LPA, Nelsonville, Ohio, for Appellees
John and Patricia Snyder.

Matthew C. Workman, Smith, Rolfes, & Skavdahl Co., LPA, Columbus,
Ohio, for Appellee United Ohio Insurance Company.
_____________________________________________________________

McFarland, P.J.

        {¶1} Noah Waldron and Holly Waldron appeal the trial court’s

decision granting judgment against them in favor of John and Patricia

Snyder and United Ohio Insurance Company in the amount of $5,957.01,

plus court costs and interest. Appellants argue the trial court erred in (1) its

findings that the parties’ implicit agreement constituted a month-to-month

tenancy; (2) its calculation of damages; and (3) its denial of Appellants’
Athens App. No. 12CA9                                                           2


request to continue trial. Having reviewed the record, we find the trial

court’s judgment was not in error. We overrule Appellants’ three

assignments of error and affirm the judgment of the trial court.

                                           FACTS

           {¶2} The facts pertinent to this appeal are as follows. Appellants

Noah Waldron, Holly Waldron (hereinafter “Waldrons”),1 along with Eric

Krause and Paige Patterson, entered into a written lease agreement with

Appellee John Snyder on July 25, 2008, for rental of residential premises

located at 10646 S.R. 550 in Athens, Ohio. The terms of the lease provided

rent at $800.00 a month for a twelve-month period. The group paid a

security deposit of $800.00.

           {¶3} On September 1, 2009, the Appellants and Eric Krause entered

into a second written lease agreement for rent of the same residential

premises for seven months at $600.00 a month. The lease period was to be

over in April 2010. When the lease expired, Appellee and Appellants

discussed a new lease agreement which was contemplated at $700.00 per

month. During the course of the tenancy, Noah Waldron performed

miscellaneous maintenance and repairs. When this occurred, Appellee would




1
    The Waldrons are brother and sister.
Athens App. No. 12CA9                                                                                   3


adjust the monthly rent accordingly. No formal lease agreement was

executed by the parties after March 31, 2010.

        {¶4} On October 8, 2010, Appellee noticed Appellants appeared to be

removing furniture from the premises. On October 15, 2010, Appellee

noticed the door of the residence standing open and he entered to find a

“trashy abandoned mess.” Appellee placed a padlock on the back door,

sometime after October 15th. Appellants never gave Appellant a forwarding

address. Consequently, he retained their portion of the security deposit, a

total of $400.00.

        {¶5} On January 21, 2011, John Snyder filed a complaint for unpaid

rent, unpaid utilities, damages, and attorney fees against Eric Krause, Phillip

Buffington Timothy Moreland, and Appellants. 2 On February 24, 2011, the

Waldrons filed separate answers with counterclaims. The Appellants denied

all allegations in the complaint. In their counterclaims, Appellants asserted

the parties had a month to month oral agreement. They further alleged Noah

Waldron had informed Appellee of his intent to be married on September 25,

2010 and had provided notice that they would no longer be residing in the

premises after September 25, 2010. Appellants further alleged Appellee

changed the locks on the house on October 1, 2010 and seized various
2
  Eric Krause and Timothy Moreland were eventually dismissed from the suit and did not proceed to trial.
Phillip Buffington filed a timely answer and counterclaim and proceeded to trial. However, he was granted
a directed verdict and dismissed his counterclaim.
Athens App. No. 12CA9                                                                                    4


personal belongings in the amount of $2,170.00. They also alleged

Appellee owed Noah Waldron $2,165.00 for labor performed at the request

of Appellee.

         {¶6} On November 3, 2011, United Ohio Insurance Company filed a

motion to intervene as party plaintiff and demanded judgment for its

subrogated interest. On November 9, 2011, Appellants filed a motion to

continue trial and a memorandum contra the motion to intervene.

Appellants argued if the motion to intervene was granted, they would need

time to be served, respond, and pursue discovery with the intervening

plaintiff. The trial court granted the motion to intervene and denied the

motion to continue trial. 3

        {¶7} The testimony at trial is summarized as follows. Appellee

testified Eric Krause inspected the rental unit on several occasions prior to

moving in the rental premises pursuant to the first lease. To his knowledge,

Appellants did not do a prior inspection. However, after taking possession of

the rental premises, the Appellants did not voice complaints.

        {¶8} After the second lease expired on March 31, 2010, Appellants

paid $600.00 a monthly rent for April and May 2010. Appellee received


3
  On November 30, 2011, the Waldrons filed a motion to join Patricia Snyder, wife of John Snyder, as a
necessary party due to her joint ownership of the rental property. The motion was granted. However, Mrs.
Snyder did not execute the lease agreement or deal with the various tenants. She did not testify at trial.
Throughout this opinion, “Appellee’s” testimony refers to that of John Snyder.
Athens App. No. 12CA9                                                        5


rent of $700.00 a month for July and August, 2010. He did not receive rent

in June, September, October, or November 2010. He and Noah Waldron

agreed Noah’s performance of labor in June 2010 would be accepted in lieu

of rent. In August 2010, Noah Waldron indicated to Appellee he “might be

getting married and moving away.” To Appellee’s knowledge, the

Appellants were residing in the rental property in September 2010. Appellee

testified he was never given notice Appellants were leaving.

      {¶9} After Appellee discovered the rental premises abandoned on

October 15th, he contacted his insurance agency. Appellee identified copies

of 76 photographs he took of damage to the residence which, he testified,

was not present when Appellants took possession of the premises. An

adjuster on behalf of United Ohio Insurance also inspected the residence and

took additional photographs. Counsel stipulated United Ohio eventually

paid $2,108.51 to Appellee for purchase of materials and labor to make

repairs.

      {¶10} On cross-examination, Appellee testified he had a $500.00

deductible, pursuant to the United Ohio policy. He testified the total number

of hours spent on labor for repairs was 196. He admitted he did not have

pictures of the premises before Appellants took possession. He also

admitted he lives 100 yards or less from the property.
Athens App. No. 12CA9                                                            6


      {¶11} Ralph Sikorski, office manager of the Sunday Creek Valley

Water District, testified his file demonstrated that someone called the office

and indicated they were moving from the rental address on October 8, 2010.

A final bill was sent to Noah Waldron at an address he provided to the water

district office. The bill demonstrated the water bill had been calculated on

October 15th. Appellant sent a note with his final payment, explaining he

deducted twenty-one dollars from his bill because of the extra week between

October 8th and October 15th, included in the bill.

      {¶12} United Ohio Insurance Company’s claim representative Chris

Clapper identified Appellee Snyder’s policy of insurance and testified

vandalism was a covered peril. He testified United Ohio did not reimburse

Appellee Snyder for all the claims at issue because, based upon his

inspection, not all of the damage appeared to be vandalism. Mr. Clapper also

identified a damage loss report and photographs he compiled. He testified

the $2,108.51 paid to Appellee Snyder for damages was reasonable.

      {¶13} On cross-examination, Mr. Clapper testified the physical

damages he saw that were not covered by the policy included damage done

by dogs, damage due to opening the attic, flooring damage, gouges in a

stairwell, broken light sockets, broken front railing, damage to wall plates,
Athens App. No. 12CA9                                                           7


wiring and electrical damage, and damage to drywall. Mr. Clapper admitted

he had no way of knowing who or what caused the damages he viewed.

      {¶14} At the close of Appellants’ case, they withdrew their

counterclaims against Appellee. After reviewing the testimony and exhibits,

the trial court issued its findings on December 7, 2011. The trial court found

Appellees were entitled to judgment against Appellants in the amount of

$4,837.01 ($3,637.01 damages plus $1,200 rent) and attorney fees, pursuant

to R.C. 5321.05. The court further found United Ohio Insurance Company

was entitled to $2,108.51, and Appellee Snyder was entitled to the balance.

The court noted it was not yet a final appealable order as attorney fees were

remaining to be determined. On January 26, 2012, the trial court found in its

journal entry that $1,059.41 in attorney fees and $60.59 in court costs was

reasonably related to the R.C. 5321.05 damages. Therefore, judgment was

granted to Appellees for a total of $5,957.01. The trial court designated this

entry as its final appealable order. On February 21, 2012, Appellants herein

filed a timely notice of appeal.

                        ASSIGNMENTS OF ERROR

I.    THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS
      FINDINGS THAT THE CONTRACT PERIOD OF THE LEASE
      WAS A MONTH TO MONTH RATHER THAN A RENEWAL FOR
      AN ADDITIONAL SEVEN (7) MONTHS.
Athens App. No. 12CA9                                                            8


II.    THE TRIAL COURT ERRED AS A MATTER OF LAW AS TO
       THE AMOUNT OF DAMAGES IT AWARDED.

III.   THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
       TO CONTINUE THE BENCH TRIAL.

                        ASSIGNMENT OF ERROR I

       {¶15} Initially, Appellants assert the trial court erred as a matter of

       law in its findings that the contract period of the lease was on a

       month-to-month basis. Instead, Appellants argue they were holdover

       tenants. They assert in April 2010, when Appellants paid $600.00 and

       Appellee accepted it, a new lease based on the terms of the previous

       lease was created.

                        A. STANDARD OF REVIEW

       {¶16} “We review questions of law de novo.’” Mark v. Long, 4th

       Dist. No.07CA2981, 180 Ohio App.3d 832, 907 N.E.2d 759, ¶ 8,

       citing Porter v. Porter, 4th Dist. No. 07CA3178, 2008 Ohio-5566,

       2008 WL 4717164, ¶ 29, quoting Cuyahoga Cty. Bd. of Commrs. v.

       State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23.

       Determining whether a tenancy has become a tenancy at sufferance,

       i.e. “holdover” tenancy, versus a periodic month-to month tenancy is a

       question of law. As such, we analyze the issue without deference to

       the trial court’s decision. We remain mindful that the Supreme Court
Athens App. No. 12CA9                                                         9


      of Ohio recognizes appellate courts should not reverse judgments that

      are supported by some competent, credible evidence going to all

      essential elements of the claim. Seasons Coal Co. v. Cleveland, 10

      Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); C.E. Morris Co. v. Foley

      Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978); Leslie v.

      Marowitz, 4th Dist. No. 05CA1659, 1996 WL 312472 (June 5, 1996).

      Before we turn to analysis of the issue herein, we review Ohio’s law

      of landlord/tenant relationships.

      {¶17} In Ruble v. M & L Properties, Ltd., 5th Dist. No. 10-COA-006,

2010-Ohio 6356, 2010 WL 5452110, ¶ 36, the appellate court aptly noted

the two distinctions in tenancy law: a tenant in sufferance and a tenant at

will, as follows:

             “A party whose lease has been terminated is a tenant in
      sufferance. A tenant in sufferance can be a trespasser and
      implies that there is no agreement as to a continued tenancy. A
      holdover tenant and a tenant at sufferance are the same. Either
      may be treated as a trespasser. See, Steiner v. Minkowski, 72
      Ohio App.3d 754, 762, 596 N.E.2d 492 (1991).”

            “The characteristics of a tenancy at will, whether it is
      created by express contract or by implication of law, are
      ‘uncertainty respecting duration and the right of either party to
      terminate it by proper notice* * *.’ 3 Thompson on Real
      Property, 33 Section 1020 (1950);* * *” Myers v. East Ohio
      Gas Company, 51 Ohio St.2d 121, 124, 364 N.E.2d 1369
      (1977) (Additional citations omitted.) “The law provides that a
      tenancy at will is created when possession of the premises is
      taken under an invalid lease. Manifold v. Schuster, 67 Ohio
Athens App. No. 12CA9                                                       10


      App.3d 251, 586 N.E.2d 1142 (4th Dist.1990). Upon payment
      and acceptance of the rent, the tenancy at will converts to a
      periodic tenancy. Id.” Lewis v. Marcum, Licking App.No.
      2003CA00007, 2003 Ohio-3861, ¶ 16.

                          B. LEGAL ANALYSIS

      {¶18} We agree with the trial court’s finding that Appellants’

occupancy of the premises after March 31, 2010 was not a holdover tenancy,

but rather, by agreement and action, was a periodic tenancy for month to

month. The evidence and testimony presented at trial demonstrated

Appellants executed two leases with Appellee. Appellee testified and the

prior rental agreements show that rent was always paid on a monthly basis.

The first lease began July 25, 2008 and ended September 1, 2009, essentially

a one-year term. The second lease began September 1, 2009 and was to end

seven months later. The rent amount of the first lease was $800.00 a month.

The rent amount of the second lease was $600.00 a month. When the

second lease terminated, the parties discussed entering a new lease but never

did. Appellee testified he had discussions with Noah Waldron about a new

agreement at $700.00 a month, but Waldron kept postponing. The trial court

found in April and May 2010, Appellants continued to live in the rental

premises and presumably paid $600.00 a month as they had under the

second lease agreement. The court also found Noah Waldron performed

labor on the property for Appellee in lieu of rent in June 2010. However,
Athens App. No. 12CA9                                                        11


$600.00 monthly payments did not continue. The court noted beginning in

July 2010 and beyond, Appellants paid and Appellee accepted $700.00 a

month in rent. Because the record does not show a “meeting of the minds” as

to a specific duration for a lease, and because the parties agreed to monthly

rent payments, we find no error by the municipal court in determining that

the parties were engaged in a periodic month to month tenancy after March

31, 2010. Owens v. Corbett, 12th Dist. No. CA2006-09-214, 2007-Ohio-

2159, 2007 WL 1309577, ¶ 5.

      {¶19} We would further note neither Appellant testified at trial or

presented contradictory evidence regarding their discussions with Appellee

regarding their tenancy after March 31, 2010. In their respective

counterclaims, the Appellants both asserted the parties were operating under

a “month to month oral agreement.” In the absence of testimony or other

evidence in support of Appellants’ current theory regarding a “holdover

tenancy,” we cannot say the trial court’s decision in this regard was

erroneous. Prebcor, Inc. v. Fogel, 12th Dist. No. CA86-04-009, 1986 WL

12099 (Oct. 27, 1986); Felman v. Coleman, 2nd Dist. No. 15686, 1996 WL

325501, (June 14, 1996). As such, we affirm the trial court’s finding and

overrule Appellants’ first assignment of error.

                        ASSIGNMENT OF ERROR II
Athens App. No. 12CA9                                                         12


      {¶20} Next, Appellants argue the trial court erred as a matter of law

as to the amount of damages it awarded. Specifically, Appellants take issue

with: (1) the amount awarded for past due rent, $1,200.00; (2) the amount

awarded for damage to premises, $3,637.01; and, (3) the award for attorney

fees, $1,120.00. For the reasons which follow, we affirm the judgment of

the trial court as to these damage awards.

                        A. STANDARD OF REVIEW

      {¶21} It has been held “[a]n appellate court will not reverse a trial

court’s decision regarding its determination of damages absent an abuse of

discretion.” Gilbert v. Crosby, 4th Dist. No. 00CA020, 2001-Ohio-2864

(Jan. 22, 2001), citing Roberts v. U.S. fid. & Guar. Co., 75 Ohio St.3d 630,

634, 665 N.E.2d 664, citing Blakemore v. Blakmerore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983). 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; Howard v. Bond, 4th Dist. No. 11CA820, 2012-Ohio-254,

2010 WL 245634, ¶ 9.
Athens App. No. 12CA9                                                           13


      {¶22} In factual determinations, an appellate court should not

substitute its judgment for that of a trial court, which is in a better position to

observe the witnesses, view their demeanor, and use these observations to

weigh the credibility of witness testimony. Seasons Coal Co. v. Cleveland,

10 Ohio St.3d 77, 80; Cincinnati Insurance Co. v. Evans, 6th Dist. No. WD-

09-012, 2010-Ohio-2622, 2010 WL 2334795, ¶ 45.

                            B. LEGAL ANALYSIS

                            1. Past-due Rent Award

      {¶23} As discussed above, we agree with the trial court’s finding that

the parties were engaged in a month to month periodic tenancy after March

31, 2010. The testimony revealed Appellants paid $600.00 monthly rent for

April and May, 2010. The trial court made the following findings:

      “7. Thereafter [June 2010] rent was paid as follows:

      7/24/10                     $700                 (Exhibit 2)
      8/16/10                     $500                 (Exhibit 3)
      8/21/10                     $200                 (Exhibit 4)
      9/6/10                      $500                 (Exhibit 1)

      No late charge was paid or demanded. There was no testimony that
Snyder incurred any additional expense because of the late payments. No
rent was paid after September 6, 2010.”

      {¶24} The trial court also found Appellants never advised Snyders of

a date they were leaving or of their intention to terminate the tenancy.

Moreover, Noah Waldron’s payment of the water bill, prorated to October 8,
Athens App. No. 12CA9                                                         14


2010, was “confirming evidence” the Appellants’ occupancy ended October

8, 2010. Appellants never advised Snyders they had left the rental premises

nor returned the keys.

      {¶25} The trial court further found:

      “D. When month to month tenants vacate premises without
      providing the landlord the thirty day notice of termination
      required by R.C. 5321.17(B), and the landlord has neither
      terminated the tenancy nor asked the tenants to leave, the tenant
      is obligated to pay rent for the month in which they vacate and
      for the following month. Iskin, Ohio Eviction and Landlord
      Tenant Law (3rd Edition), Section XVII(A)(1) citing Bowman v
      Community Management Corp., 14 Ohio App. 3d 31 (1st Dist.
      1984). Furthermore, due to necessary damage repair and
      cleaning, the property was not available for new tenants during
      October and November 2010.”

      {¶26} We agree with the trial court’s conclusion that Appellants

owed Snyders a total of $1600.00 in rent and were entitled to a setoff of

$400.00 for their security deposit, leaving a subtotal of $1,200.00 due. The

trial court found Appellee’s testimony regarding his lack of notice of

termination from Appellants to be credible. The trial court also heard the

testimony of the water district representative regarding the payment of the

water bill by Noah Waldron through October 8th. Although counsel elicited

testimony from Mr. Sikorski that he could not say definitively that Noah

Waldron requested shut-off of service on October 8th, he testified the

relevant file note requesting shut-off (Exhibit M) was maintained in the
Athens App. No. 12CA9                                                         15


ordinary course of business. We further note Appellants’ counterclaim

alleging “lockout” does not also allege that Appellee unfairly terminated

their water service. We agree with the trial court’s determination that

Appellants failed to properly notify Appellee of their leaving and maintained

occupancy through October 8th, 2010. Based on the evidence contained in

the record, we affirm the trial court’s finding that past due rent in the amount

of $1,200.00 is owed to Appellee.

                           2. Damages to Premises

      {¶27} Appellants argue Appellee failed to meet his burden of proof as

to Appellees’ liability for damage to the rental premises herein. Appellants

contend the trial court relied solely on Appellee’s opinion as to the condition

of the premises and point out Appellee never conducted a “walk-though”

with the Waldrons prior to their occupancy. Appellants also assert there is

no link between their occupancy of the premises and the damage Appellee

discovered on October 15, 2010.

      {¶28} R.C. 5321.05 identifies a lengthy list of the obligations tenants

owe landlords. Kelley v. Johnston, 4th Dist. No. 01CA5, 2001-Ohio-262,

2001 WL 1479243 (Nov. 14, 2001). Accordingly, tenants are liable for

waste; however, they are generally not liable to landlords for damages

attributed to ordinary wear and tear. Id. If damage is not of the type
Athens App. No. 12CA9                                                         16


specified in R.C. 5321.05 or the lease, it will normally be considered wear

and tear. Id. See generally, White, Ohio Landlord Tenant Law (2001 Ed.)

Section 7.5. Furthermore, even in the instance of waste, the landlord bears

the burden of submitting sufficient evidence to link the damages to the

tenant. Kelley, supra, citing Cuzzort v. Rose, (Nov. 6, 1986), Montgomery

App. No. CA9791, unreported.

      {¶29} As to damages to the rental premises, the trial court made the

following findings of fact:

      “13. John Snyder testified as to certain expenses or estimates
      for repairs not covered by insurance: $800-$900 for
      flooring/carpeting, $88.50 breaker box, $20-$40 for carpet
      cleaning. He also testified that he paid for 196 hours of labor
      including that covered by insurance but no separate amount was
      designated for cleaning or non-covered expenses. Mr. Snyder
      also did not testify to the value of his own work regarding the
      correction of the electrical and ventilation systems. The Court
      finds that Mr. Snyder has proven non-insured damages of
      $1,028.50.”

      {¶30} In arriving at its findings of fact and conclusions of law, the

trial court found the testimony of Appellee, as to the condition of the house

prior to Appellants’ occupancy, to be credible. Although Appellee had no

“before” photographs, Appellee testified the house was in good condition.

Although Appellants and Appellee did not do a “walk through,” Appellee

testified Appellants moved in and made no initial complaints. We do not

find the trial court abused its discretion in finding Appellee’s testimony to be
Athens App. No. 12CA9                                                        17


credible, especially in the absence of contradictory testimony by either

Appellant.

      {¶31} Appellants also assert that Appellee obviously saw them

leaving on October 8th and failed to secure the premises until October 15th.

They argue Appellant failed to link them with the alleged damages.

Appellants contend Appellee presented no proof as to who actually damaged

the floor covering, no proof that the carpet was ever cleaned, and no proof as

to who damaged the breaker box. In making this argument, Appellants rely

on Kelley, cited above. However, in Kelley, the record contained no

evidence of the condition of the premises at the time appellants’ took

possession. Here, the record contained Appellee’s testimony that the

premises was in good condition and he had no initial complaints from the

tenants. Also, the Kelley court noted the record contained no evidence

concerning the condition or occupation of the premises during a 3 ½ month

period after appellant vacated and, therefore, the need for repainting and

cleaning could not be properly attributed to appellant. Here, Appellee

testified he was given no notice of termination of the tenancy on or about

October 8th, although he did see furniture being removed. He discovered

the premises abandoned on October 15th, when he found a door standing

wide open.
Athens App. No. 12CA9                                                           18


      {¶32} Landlords have a duty to mitigate their damages caused by a

breach. Dennis v. Morgan, 89 Ohio St.3d 417, 732 N.E.2d 391 (2000).

Appellants argue Appellee failed to mitigate any damages by not securing

the property on October 8th. Because Appellees failed to give proper notice

of their termination of the tenancy, we do not view his failure to secure the

premises on the 8th to be problematic. The inference could have been made

that Appellants were simply moving furniture or in the process of moving,

still intending to timely notify Appellee. At trial, Appellee described

Appellants, at least twice, as “good tenants.” He may have reasonably

expected them to give him notice of termination. Moreover, the delay in

securing the premises in Kelley was 3 ½ months, not one week, as here. The

trial court found Appellee’s testimony as to these facts credible and again,

Appellants failed to provide by way of testimony or other evidence an

alternative version of the events. We find the trial court’s judgment that

Appellants were in control of the premises and responsible for the damages

Appellee discovered, violations of 5321.05(A), to be supported by the

evidence.

      {¶33} Appellants also argue that Appellee failed to provide proof of

the actual costs expended for floor coverings or carpet cleaning. At trial,

Appellee testified to an extensive list of damages, including the projected
Athens App. No. 12CA9                                                            19


cost of replacing the floor covering and cleaning the carpets. He provided

photographs of the damage. The insurance company representative also

testified to the extensive damage he saw and noted in his report. Appellee

testified to the damage to electrical and the need for rewiring. Specifically,

Appellee testified the attic was sealed-off and insulated before Appellants

moved in. When he found the premises abandoned, the wiring had been

“messed with” and “short-circuited.” An inference can be made that the

damage to the electrical necessitated the need for a new breaker box. Based

upon the record before us, we find the trial court’s judgment as to the

Appellants’ violations of R.C. 5321.05(A) and Appellants’ liability for

damages to premises was supported by the evidence.

                               3. Attorney fees

      {¶34} Appellants also contend Appellees are not entitled to an award

for attorney fees, arguing that Appellees failed to prove violations pursuant

to R.C.5321.05. As discussed above, R.C. 5321.05(A) sets forth tenant

obligations. In particular, R.C. 5321.05(C)(1) provides as follows:

      If the tenant violates any provision of this section, other than
      division (A)(9) of this section, the landlord may recover any
      actual damages that result from the violation together with
      reasonable attorney’s fees.

      In this matter, the trial court found:
Athens App. No. 12CA9                                                         20


      “Among the R.C. 5321.05 obligations of tenants are the
      following applicable to this case:

      (2) Dispose of all rubbish, garbage and other waste in a clean,
      safe and sanitary manner.

      (6) Personally refrain and forbid any other person who is on
      the premises with his permission from intentionally or
      negligently destroying, defacing, damaging, or removing any
      fixture, appliance, or other part of the premises….”

      {¶35} The trial court went on to find the parties indicated no change,

during the periodic tenancy, from the terms of the two written leases, except

to the amount of monthly rent. The trial court concluded the following

provisions of the written leases remained in effect:

      “(6) Tenant shall be liable for and shall hold landlord harmless
      on account of any theft, loss, or damage to property or injury to
      any other person…

      (7) …Tenant agrees to leave the premises thoroughly clean and
      in as good as condition as when Tenant first occupied them…”

      {¶36} Finally, the trial court concluded that Appellees were entitled

to reasonable attorney fees for Appellants’ violations of R.C. 5321.05,

noting that attorney fees are recoverable only as reasonable and necessary as

to damages and time spent regarding pursuit of rent or defense of

counterclaims was not included.

      {¶37} In its January 26, 2012 journal entry, the trial court awarded

attorney fees and costs at $1,120.00. The trial court stated:
Athens App. No. 12CA9                                                                                       21


         “Attorney fees are authorized only for R.C.5321.05(C)
         damages, which the Court previously found to be $3,637.01.
         Such fees are not authorized for time spent on the collection of
         rent or in defending against the counterclaim. The itemized
         billing of Plaintiffs’ counsel does not distinguish between these
         three areas. The Court accepts Attorney Meek’s time as
         accurate and her and her hourly rate [$150.00] as reasonable,
         but will award fees only related to the recovery of R.C.5321.05
         damages.”

         The Court arrives at its conclusion of appropriate fees by two
         methods. First, in the absence of contrary evidence, the Court
         finds that one third of the time was spent on 5321.05 damages.
         One third of the claimed $2,719.50 in fees would be $906.50.
         Second, a reasonable contingency fee would be one third of the
         $3,637.01 awarded, which would be $1,212.33. The average of
         these two methods yields $1,059.41. The court finds $1.059.41
         in fees, plus $60.59 in costs to be reasonably related to
         R.C.5321.05 damages.

         {¶38} We agree with the trial court’s find that Appellee proved

violations of R.C. 5321.05 damages to premises. As such, an award of

attorney fees is authorized under R.C. 5321.05(C). The trial court explained

its reasoning and its calculation of damages. Our review demonstrates the

trial court’s award of attorney fees is supported by the record. 4

         {¶39} For the foregoing reasons, we affirm the trial court’s

rulings as to the damage awards for past due rent, damage to premises,



4
  Plaintiff-Appellee Snyder’s brief urges this court to find Appellee Snyder is entitled to attorney fees for
frivolous conduct and bad faith in this appellate action under R.C. 2323.51 and Civil Rule 11. We decline
to address this new argument raised by Appellee. The proper method for pursuit of attorney fees for
frivolous conduct is described in R.C. 2323.51(B)(1).
Athens App. No. 12CA9                                                            22


and attorney fees. As such, we overrule the second assignment of

error.

                      ASSIGNMENT OF ERROR III

         {¶40} Lastly, Appellants contend that the trial court abused its

discretion in denying a continuance of the bench trial. Appellants argue the

denial of their motion for continuance was unreasonable, arbitrary, and

unconscionable because when United Ohio Insurance Company was

permitted to intervene, Appellants had no time to investigate the insurance

company’s claims and engage in discovery to prepare for trial. For the

reasons which follow, we disagree.

                          A. STANDARD OF REVIEW

         {¶41} It is well-settled law in Ohio that the granting or denial of a

continuance of a matter is entrusted to the sound discretion of the trial court.

State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981), syllabus.

Appellate courts may not reverse the denial of a continuance unless there has

been an abuse of that discretion. Id. at 67, 423 N.E.2d 1078. An abuse of

discretion connotes more than a mere error or judgment; rather, it implies an

arbitrary, unreasonable or unconscionable attitude. State v. Montgomery, 61

Ohio St.3d 410, 413, 575 N.E.2d 167 (1991).
Athens App. No. 12CA9                                                          23


      {¶42} “Because there is no bright line test for determining when an

abuse of discretion occurs in the context of the denial of a motion for

continuance, the Supreme Court has adopted a balancing approach.” In re

Shepherd, 4th Dist. No. 97CA941, 1998 WL 254032, (May 11, 1998). This

test requires the trial court to weigh any potential prejudice to the defendant

against the court’s right to control its docket and the public’s interest in the

prompt and efficient dispatch of justice. Unger, supra at 67, 423 N.E.2d

1078. Specifically, the Unger court stated:

      “In evaluating a motion for a continuance, a court should note,
      inter alia: the length of the delay requested; whether other
      continuances have been requested and received; the
      inconvenience to litigants, witnesses, opposing counsel and the
      court; whether the requested delay is for legitimate reasons or
      whether it is dilatory, purposeful, or contrived; whether the
      defendant contributed to the circumstances which gives rise to
      the request for a continuance; and other relevant facts,
      depending on the unique facts of each case. “ Unger, supra, at
      67-68, 423 N.E.2d 1078.

                           B. LEGAL ANALYSIS

      {¶43} To Appellants’ argument they had only three weeks remaining

prior to trial when United Ohio was added as a plaintiff, Appellee United

Ohio counters its intervention did not create an exigent circumstance as to

the Waldrons’ opportunity to investigate further the claims of damage at the

rental premises. United Ohio points out Appellants were aware at all times

the insurance company had conducted its own investigation. We agree,
Athens App. No. 12CA9                                                         24


pointing out in Appellants’ memorandum contra to motion to intervene,

Appellants state “[o]n or about August 31, 2011, [they] received a demand

for subrogation of payment of damages from the attorney on behalf of the

insurance company.” Further, in its motion to intervene, United Ohio asserts

its claim is essentially that of subrogation and intervention was necessary to

protect that interest. That the insurance company would assert a claim as to

its subrogated interest cannot have been surprising. United Ohio also notes

that during the three remaining weeks prior to trial, Appellants did not make

any effort to depose the company’s investigator or request copies of

documentation.

      {¶44} Furthermore, our review of the transcript reveals the substance

of the insurance company representative’s testimony was to establish that

United Ohio had paid $2,108.51 to Appellee and had a subrogated interest.

The insurance representative’s testimony as to the damage he saw, the report

he prepared, and the photographs introduced as exhibits echoed Appellee’s

testimony regarding his observations. Appellants’ brief does not point to

any testimony or other evidence which was unfairly surprising or prejudicial

to them. As such, we find the trial court properly considered any potential

prejudice to the Appellants against its own right to control its docket and the

public’s interest in the prompt and efficient dispatch of justice.
Athens App. No. 12CA9                                                           25


      {¶45} In this matter, we find the trial court’s decision to deny

Appellants’ continuance was not an abuse of discretion. Therefore, we

affirm the trial court’s decision and also overrule this assignment of error.

                                                 JUDGMENT AFFIRMED.
Athens App. No. 12CA9                                                          26


                           JUDGMENT ENTRY


     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellees recover of Appellants 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 Athens County Municipal 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, J. & Abele, J.: Concur in Judgment and Opinion.


                                For the Court,

                                BY: _________________________
                                    Matthew W. McFarland
                                    Presiding 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.
