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Damaged apartment case reversed by 11th District
TRACEY BLAIR
Legal News Reporter
Published: November 26, 2018
The 11th District Court of Appeals recently reversed a Lake County trial court’s judgment finding a Painesville man liable for damage to an apartment he leased.
Joshua Braff was sued by Estie Investment Co., an Ohio corporation owned by members of the appellant’s family, including his father, Robert Braff, seeking $7,320 in damages for failure to adequately care for the premises.
The appellant signed a written lease in 2010 for a first-floor unit at Edgewood Club Apartments, a single-building complex with 27 apartments. The annual rent was $6,000, to be paid in installments.
Case summary indicates that Joshua and his father had a separate oral agreement to pay partial rent and satisfy the remainder by completing work inside his apartment and throughout the building.
In addition, the lease had a clause that required him to take “due care” of the apartment and provide notice of any necessary repairs.
In early 2016, the appellant was evicted and his father sued. The case was tried before a magistrate.
Joshua Braff testified that the apartment was filthy and unlivable when he first moved in, and that he cleaned the entire apartment. His father did not present extensive evidence on the condition of the apartment when he moved in.
After he had lived in the apartment for more than a year, all nine bottom-floor units flooded due to a rain storm. The appellant testified that the water level in his apartment came up to his knees and that it took three days to pump out the water. After the flood, the appellee installed new carpet on the first floor, removed all wet drywall and replaced it with paneling.
The owner of the construction company that made the repairs, Dale Babic, testified Joshua’s apartment was in good condition after his work. However, Joshua testified that some of the flood damage was never repaired to the bathroom walls, bathroom vanity and kitchen walls, and that prior problems with the unit remained.
Robert Braff and his former wife testified as to the general condition of the apartment through the years.
The magistrate recommended judgment in favor of the appellee for the full $7,320, plus interest.
On appeal, Joshua Braff argued that Babic’s testimony was too vague to establish the nature of the damages or prove they were his fault. In addition, Babic’s testimony was inadmissible because he did not provide a breakdown of cost to repair each item, he added.
The appellate court found the trial court erred because the landlord failed to meet its burden of proof of damages.
The landlord sought to recover the estimated costs of either replacing or repairing 11 items in the apartment. For instance, Babic testified the carpeting was stained, the refrigerator and stove were too filthy to clean and the bathroom and kitchen vanities were damaged beyond repair.
However, Babic could not provide testimony identifying the nature of the damage to the bedroom walls, replacement of doors, the light fixtures and bathroom drywall.
“Because some of the claimed damage contained within the global estimate are not recoverable, and appellee only produced a global cost to repair, it failed to provide a reasonable estimate of recoverable damages,” 11th District Judge Thomas R. Wright wrote in his opinion. “As a result, appellant is entitled to judgment in his favor as to appellee’s entire claim.”
The panel also agreed with Joshua Braff’s argument that Babic’s testimony providing that the cost to replace the carpeting was $2,500 was inadmissible because the repairman got that figure from a previous carpet installer.
“Since Babic was quoting a statement of another person, the testimony in question is hearsay,” Judge Wright noted.
Appellate Judge Cynthia Westcott Rice concurred. Eleventh District Judge Diane V. Grendell concurred with the majority’s determination that there was a lack of evidence to prove four of the damaged items were due to something other than wear and tear.
However, she dissented with the conclusion that this finding warranted reversal of the entire award of damages in favor of the appellee.
“The more appropriate and fair course of action would be to remand for the trial court to recalculate a proper damages award while excluding the four items that this court finds unsupported by evidence,” Judge Grendell added. “… Reversing the trial court’s entire damages award provides no recourse for appellee, although this court acknowledges appellant was responsible for causing extensive damages to appellee’s apartment.”
The case is cited Estie Invest. Co. v. Braff, 2018-Ohio-4378.