[Cite as Spinner v. Barger, 2017-Ohio-1489.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SHELBY COUNTY




SCOTT J. SPINNER, ET AL.,

        PLAINTIFFS-APPELLANTS,                           CASE NO. 17-16-27

        v.

GREGORY BARGER, ET AL.,                                  OPINION

        DEFENDANTS-APPELLEES.




                          Appeal from Sidney Municipal Court
                            Trial Court No. 15-CVF-01454

                                     Judgment Affirmed

                             Date of Decision: April 24, 2017



APPEARANCES:

        Cameron C. Downer for Appellants
Case No. 17-16-27


PRESTON, P.J.

       {¶1} Plaintiffs-appellants, Scott J. Spinner (“Spinner”) and Sandra S.

Lapadot, d.b.a. S and S Rentals (collectively “plaintiffs”), appeal the November 2,

2016 judgment of the Sidney Municipal Court awarding plaintiffs $1,451.02 in

damages against defendants-appellees, Gregory and Amanda Barger (collectively

“defendants”). We affirm.

       {¶2} In November 2013, defendants entered into a residential-lease

agreement with plaintiffs. (Doc. No. 1, Ex. A). In their complaint, plaintiffs alleged

that defendants “failed to pay rent, late fees and utilities to Plaintiff[s] per the terms

of the” lease. (Doc. No. 1). On May 15, 2015, plaintiffs served defendants “a

written Notice to Leave Premises on or before May 18, 2015.” (Id.). However,

plaintiffs alleged that defendants did not vacate the premises until May 31, 2015.

(Id.). Plaintiffs sought recovery of the “reasonable value of the use and occupancy

of the Premises during Defendants’ unlawful detention” of the premises and a

monetary award for the damage to the premises allegedly caused by defendants,

which totaled $2,385.10. (Id.).

       {¶3} On October 27, 2015, plaintiffs filed a complaint in the Sidney

Municipal Court seeking a judgment in the amount of $2,385.10 against defendants.

(Id.). On December 10, 2015, defendants filed their answer. (Doc. No. 10).

Defendants filed an amended answer on July 21, 2016. (Doc. No. 31). Plaintiffs


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filed an amended complaint on July 22, 2016 and a second amended complaint on

July 28, 2016. (Doc. Nos. 32, 37). On August 5, 2016, defendants filed their answer

to plaintiffs’ second amended complaint and a counterclaim against plaintiffs

alleging that plaintiffs: (1) “failed to maintain the furnace in good and safe working

order” resulting in “excessively higher heating bills” for defendants; (2) “entered

the leased premises while under the Defendants’ possession and control and without

notice as required” under R.C. 5321.04(A)(8); and (3) failed to comply with R.C.

5321.16 by providing defendants “with an itemized list of any damages to the

property.” (Doc. No. 40). Plaintiffs filed their answer to defendants’ counterclaim

on August 10, 2016. (Doc. No. 41).

         {¶4} The case proceeded to a bench trial on September 22, 2016. (Doc. No.

45). On November 2, 2016, the trial court awarded plaintiffs $1,451.02 plus interest

in damages and costs of this action. (Doc. No. 51).

         {¶5} On December 2, 2016, plaintiffs filed a notice of appeal.1 (Doc. No.

52). Plaintiffs raise two assignments of error for our review.

                                    Assignment of Error No. I

         The Trial Court Erred in Failing to Award Plaintiffs-Appellants
         Their Attorneys Fees Under R.C. 5321.05(C)(1).



1
  Defendants failed to file an appellee’s brief in this case. “Under those circumstances, App.R. 18(C) provides
that we “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.” Prater v. Mullins, 3d Dist. Auglaize No. 2-13-
04, 2013-Ohio-3981, ¶ 4, fn. 1, citing Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio-5133, ¶
16.

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       {¶6} In their first assignment of error, plaintiffs argue that the trial court

failed to award them attorney fees under R.C. 5321.05(C)(1). Plaintiffs further

argue under their first assignment of error that the trial court erred by denying their

claim for attorney fees because defendants did not have a competing claim for

attorney fees under R.C. 5321.16.

       {¶7} As an initial matter, we note that the trial court properly determined that

plaintiffs are entitled to attorney fees in this case after concluding that defendants

violated R.C. 5321.05. See Kinn v. Showe Mgt. Corp., 3d Dist. Hancock No. 5-01-

46, 2002 WL 462859, *3 (Mar. 27, 2002) (“Attorney fees are also mandatory where

a landlord recovers against a tenant under. R.C. 5321.05(C)(1).”). However, the

trial court “decline[d] to grant attorney’s fees to either party.” (Doc. No. 51).

Accordingly, plaintiffs’ argument is more properly framed as challenging the trial

court’s decision regarding the amount of attorney fees assessed despite its

conclusion that plaintiffs are entitled to attorney fees.

       {¶8} When it is determined that attorney fees are mandatory, the trial court

“shall determine the amount of reasonable attorney fees to be awarded on the basis

of the evidence presented.” Smith v. Padgett, 32 Ohio St.3d 344 (1987), paragraph

four of the syllabus. “[A] determination regarding the amount of attorney’s fees is

within the sound discretion of the trial court.” Kinn at *4, citing Drake v. Menczer,

67 Ohio App.3d 122 (8th Dist.1980), syllabus. See also Bittner v. Tri-County


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Toyota, Inc., 58 Ohio St.3d 143, 146 (1991). Accordingly, we review a trial court’s

decision regarding the amount of attorney fees under an abuse-of-discretion

standard. Timoneri v. North Steppe Realty, Inc., 10th Dist. Franklin No. 15AP-618,

2016-Ohio-5901, ¶ 51. See also Smith at paragraph four of the syllabus. An abuse

of discretion suggests the trial court’s decision is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶9} Plaintiffs failed to provide a transcript of the proceedings in this case or

a suitable alternative. See Neeley v. Rostoffer, 3d Dist. Auglaize No. 2-83-31, 1985

WL 9084, *2 (Mar. 1, 1985). See also Hayward v. Bellmann, 6th Dist. Williams

No. WM-09-007, 2010-Ohio-3438, ¶ 40; App.R. 9.               “‘When portions of the

transcript necessary for resolution of assigned errors are omitted from the record,

the reviewing court has nothing to pass upon and thus, as to those assigned errors,

the court has no choice but to presume the validity of the lower court’s proceedings,

and affirm.’” Hayward at ¶ 40, quoting Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 199 (1980). As such, because plaintiffs failed to provide a transcript of

the proceedings in this case, we presume that the trial court properly analyzed its

attorney-fee award. See Waggoner v. Gas Ent. Co., 4th Dist. Washington No. 97

CA 9, 1997 WL 740742, *4 (Dec. 3, 1997) (“Because Gas Enterprise did not file a

transcript of the attorney fees hearing, the record is incomplete as to the relevant

evidence presented to the trial court. Therefore, we must presume the trial court had


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adequate evidence before it to support its findings.”), citing Knapp at 199 and In re

Adoption of Foster, 22 Ohio App.3d 129, 131 (3d Dist.1985), overruled on other

grounds, In re Adoption of Sunderhaus, 63 Ohio St.3d 127 (1991). See also Tretola

v. Tretola, 3d Dist. Logan No. 8-14-12, 2014-Ohio-5484, ¶ 91, citing Hart v.

Cardinal Health 110, Inc., 3d Dist. Hancock No. 5-10-10, 2010-Ohio-3551, ¶ 9,

citing Knapp at 199. Therefore, we cannot conclude that the trial court abused its

discretion regarding the amount of attorney fees awarded to plaintiffs. See Hensley

v. Lott, 10th Dist. Franklin No. 90AP-604, 1991 WL 2024, *2 (“Moreover, since

appellants have failed to supply this court with those portions of the transcript which

support their claim regarding the amount of attorney fees assessed, this court is

unable to determine whether the trial court abused its discretion in awarding the

$600 fee.”), citing App.R. 9(B). See also Neeley at * 2 (“In the case at hand no

transcript of proceedings of the trial was filed. We thus must conclude, as the trial

court found, that there was no evidence as to attorney fees offered at trial.”).

       {¶10} Nevertheless, plaintiffs appear to contend that their attorney-fee award

was curtailed by the trial court’s erroneous conclusion that defendants were entitled

to attorney fees under R.C. 5321.16. While the trial court erred by concluding that

defendants are entitled to attorney fees under R.C. 5321.16, such error is harmless

because it would not have changed the outcome of the proceedings. See Hirsch v.

TRW, Inc., 8th Dist. Cuyahoga No. 83204, 2004-Ohio-1125, ¶ 15 (“Nevertheless,


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the error was harmless in light of the court’s refusal to grant Hirsch attorney fees

and costs.”); In re Estate of Greenbaum, 9th Dist. Summit No. 16442, 1994 WL

119156, *2 (Apr. 6, 1994) (concluding that the attorney-fee award was harmless

error because it “produced the same net result”); Rader v. Rader, 11th Dist. Lake

No. 90-L-15-147, 1991 WL 206681, *3 (Sept. 30, 1991) (“However, even though

this part of appellant’s second assignment has merit, it becomes harmless error in

light of the balance of the referee’s reasoning.”). See also Forman v. Forman, 3d

Dist. Marion No. 9-13-67, 2014-Ohio-3545, ¶ 59, citing Fada v. Information Sys. &

Networks Corp., 98 Ohio.App.3d 785, 792 (2d Dist.1994) (errors are not prejudicial

where their avoidance would not have changed the result of the proceedings) and

Civ.R. 61.

       {¶11} For the same reason we discussed above, the lack of a transcript or

suitable alternative is fatal to plaintiffs’ argument—that is, without a transcript of

the proceedings or a suitable alternative, we cannot say that the outcome of the

proceedings would have been different. See Crawford v. Ribbon Tech. Corp., 143

Ohio App.3d 510, 515 (10th Dist.2001) (“Likewise, without the transcript, the court

is unable to determine whether Ribtec was entitled to the full amount of attorney

fees requested.”); Rader at *3 (concluding that the trial court’s decision denying

attorney fees was harmless error because the appellant failed to submit a transcript,

which meant presuming the validity of “[t]he additional findings that $3,200 of the


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attorney fee was unnecessary and unreasonable, and, that appellant was at least

equally at fault for the stalemate are sufficient grounds for denying attorney fees.”).

Therefore, we cannot conclude that the trial court abused its discretion in its

attorney-fee assessment.

       {¶12} Plaintiffs’ first assignment of error is overruled.

                            Assignment of Error No. II

       The Trial Court Erred by Applying an Incorrect Standard to
       Determine the Compensable Amount of Damages Plaintiffs-
       Appellants Suffered as a Result of Defendants-Appellees’ Dogs.

       {¶13} In their second assignment of error, plaintiffs argue that the trial court

applied the wrong standard to determine that damage caused by defendants’ dogs is

not compensable. In particular, plaintiffs argue that they are entitled to recover

damages caused by defendants’ dogs under R.C. 5321.05(C)(1), and argue that there

is no exception to that statute preventing “landlords from recovering if [the landlord]

fail[s] to repair the damage prior to re-renting the premises.” (Appellant’s Brief at

7).

       {¶14} “‘When reviewing a civil appeal from a bench trial, we apply a

manifest weight standard of review.’” Lump v. Larson, 3d Dist. Logan No. 8-14-

14, 2015-Ohio-469, ¶ 9, quoting San Allen, Inc. v. Buehrer, 8th Dist. Cuyahoga No.

99786, 2014-Ohio-2071, ¶ 89, citing Revilo Tyluka, L.L.C. v. Simon Roofing &

Sheet Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, ¶ 5 (8th Dist.). See also


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Bibler v. Nash, 3d Dist. Hancock No. 5-05-09, 2005-Ohio-5036, ¶ 17 (applying a

manifest-weight standard of review to the trial court’s damage award in a landlord-

tenant case involving the application of R.C. 5321.05). “‘[A] civil judgment

“supported by some competent, credible evidence going to all the essential elements

of the case will not be reversed by a reviewing court as being against the manifest

weight of the evidence.”’” Lump at ¶ 9, quoting Warnecke v. Chaney, 194 Ohio

App.3d 459, 2011-Ohio-3007, ¶ 13 (3d Dist.), quoting C.E. Morris Co. v. Foley

Constr. Co., 54 Ohio St.2d 279 (1978), syllabus.

       {¶15} “‘“[W]hen reviewing a judgment under a manifest-weight-of-the-

evidence standard, a court has an obligation to presume that the findings of the trier

of fact are correct.”’” Id. at ¶ 10, quoting Warnecke at ¶ 13, quoting State v. Wilson,

113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24. “‘The rationale for this presumption is

that the trial court is in the best position to evaluate the evidence by viewing

witnesses and observing their demeanor, voice inflection, and gestures.’” Id.,

quoting Warnecke at ¶ 13, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,

80 (1984). “‘“A reviewing court should not reverse a decision simply because it

holds a different opinion concerning the credibility of the witnesses and evidence

submitted before the trial court.”’” Id., quoting Warnecke at ¶ 13, quoting Seasons

Coal Co. at 81. “‘“A finding of an error in law is a legitimate ground for reversal,




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but a difference of opinion on credibility of witnesses and evidence is not.”’” Id.,

quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81.

       {¶16} R.C. 5321.12 provides that ‘[i]n any action under Chapter 5321. of the

Revised Code, any party may recover damages for the breach of contract or a breach

of any duty that is imposed by law.’” “R.C. 5321.05 identifies a lengthy list of the

obligations tenants owe landlords.” Snyder v. Waldron, 4th Dist. Athens No.

12CA9, 2013-Ohio-3416, ¶ 28, citing Kelley v. Johnston, 4th Dist. Gallia No.

01CA5, 2001 WL 1479243, *3 (Nov. 14, 2001). “A landlord bears the burden of

submitting sufficient evidence linking any alleged damage to a tenant’s failure to

fulfill obligations under R.C. 5321.05 or a lease agreement.” Whitestone Co. v.

Stittsworth, 10th Dist. Franklin No. 06AP-371, 2007-Ohio-233, ¶ 27, citing Zilka v.

Asberry, 6th Dist. Huron No. H-04-022, 2005-Ohio-1881, ¶ 9 and Oakwood

Management Co. v. Young, 10th Dist. Franklin No. 92AP-207, 1992 WL 324338,

*5 (Oct. 27, 1992).

       {¶17} “[T]enants are liable for waste; however, they are generally not liable

to landlords for damages attributed to ordinary wear and tear.” Snyder at ¶ 28, citing

Kelley at *3. See also Bibler at ¶ 18 (“A landlord is not entitled to receive damages

for repairs made to an apartment where the damages to the apartment resulted from

reasonable wear and tear.”), citing Mentor Lagoons, Inc. v. Mayor, 11th Dist. Lake

No. 10180, 1985 WL 7807, *1 (Mar. 1, 1985). “‘[I]n cases * * * in which the party


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has been able to repair injury to a building, the proper measure of damages will

usually be the reasonable costs necessary to restore the structure.’” Whitestone Co.

at ¶ 28, quoting Arrow Concrete Co. v. Sheppard, 96 Ohio App.3d 747, 750 (4th

Dist.1994). See also Prawdzik v. II Enterprises, Inc., 10th Dist. Franklin No. 03AP-

1044, 2004-Ohio-3318, ¶ 12-14 (discussing the rule applied to cases in which

landlords seek damages for the cost of repairing rental property). “[I]f the trier of

fact believes the evidence regarding the cost of repair has been inflated, the trier of

fact always has the discretion to adjust the damages accordingly.’” Whitestone Co.

at ¶ 28, quoting Prawdzik at ¶ 14.

       {¶18} Plaintiffs argue on appeal that the trial court erred in its damage

calculation. That is, plaintiffs argue that the trial court erred in concluding that “‘the

damages sustained as a result of the dogs as claimed in Exhibit 53 apparently did

not make the premises in question [un]inhabitable [and because] those repairs were

not completed and Plaintiff was able to re-let the premises.’” (Appellant’s Brief at

8, quoting Doc. No. 51). Instead, plaintiffs argue that the trial court should have

awarded them “the $668.35 estimated cost to repair the damage caused by the

[defendants’] dogs.” (Id.).

       {¶19} Notwithstanding plaintiffs’ argument which purports to challenge the

standard that the trial court applied to its damages determination, our review of the

trial court’s decision necessarily requires a review of the transcript of the


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proceedings. As we discussed above, plaintiffs failed to provide this court with a

transcript of the proceedings or a suitable substitute. Although the record contains

the exhibits apparently admitted during trial, we cannot interpret their meaning or

speculate as to how the trial court weighed this evidence. See Tillimon v. Jones, 6th

Dist. Lucas No. L-04-1310, 2005-Ohio-3364, ¶ 6 (concluding that the appellate

court could not review the appellant’s assignment of error related to damages even

though “the record contains the exhibits apparently admitted during the assessment

of damages hearing” because “the record does not include a transcript”); DRX Corp.

v. Hill, 11th Dist. Trumbull No. 2005-T-0052, 2006-Ohio-1699, ¶ 20 (concluding

that, although several pictures were admitted into evidence, without a transcript, it

was not clear what the pictures represent).

       {¶20} As such, without the transcript or a suitable substitute, it is impossible

to determine whether the trial court erred in its damages determination. See Mentor

Lagoons, Inc. at *1 (concluding that the appellate court could not review the

appellant’s damages argument because, “[w]ithout such a transcript of proceedings

or statement of facts and relying only on th[e] Exhibit, it is impossible to determine

whether, factually, the[] repairs were the result of extraordinary damages or the

result of reasonable wear and tear”); DRX Corp. at ¶ 20. Stated differently, because

there are a number of considerations that factor into the trial court’s damages

determination, without the benefit of the transcript or a suitable alternative, we are


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unable to determine whether the trial court applied the wrong standard as plaintiffs

argue or whether the trial court made the appropriate landlord-tenant damages

considerations. Compare Smith v. Duran, 2d Dist. Montgomery No. 20827, 2005-

Ohio-4729, ¶ 14 (“The trial court’s decision and order furnishes no insight into how

it arrived at the judgment or amount thereof. We are hampered in our review of this

appeal by the absence of the trial transcript in any form, * * * and are constrained

to resort to the presumption of regularity, which essentially provides that in the

absence of an adequate record, a reviewing court will presume there was evidence

to support the trial court’s judgment.”). For these reasons, we cannot conclude that

the trial court’s damages determination is against the manifest weight of the

evidence. See DRX Corp. at ¶ 20 (“Thus, we are bound by the trial court’s

conclusions of law and its findings of fact that the damage was ‘beyond normal wear

and tear.’”); Krost v. Baltz, 8th Dist. Cuyahoga No. 80252, 2002-Ohio-3110, ¶ 11

(“In her assigned error, Baltz asks us to reverse the trial court’s decision on manifest

weight of the evidence grounds; however, Baltz has failed to file a transcript of the

proceedings or a suitable substitute. This failure is fatal to her appeal.”); Bowles v.

Singh, 12th Dist. Clermont No. CA99-10-094, 2000 WL 1051847, *3 (“Where an

appellant claims that a judgment is against the weight of the evidence, but provides

an incomplete trial transcript, the appellate court must presume that the trial court




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properly weighed the available evidence.”), citing Hartt v. Munobe, 67 Ohio St.3d

3, 7 (1993).

       {¶21} Plaintiffs’ second assignment of error is overruled.

       {¶22} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J, concur.




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