Objections of Defendant Patricia Martin to Magistrate's Report, with Motion for Trial to the Court

Defendant Patricia Martin hereby makes the objections stated herein, with respect to the Magistrate's Report filed with the Clerk April 19, 2004. In support of these objections, an affidavit of the Defendant is attached as Exhibit "A" (the Martin Affidavit"). Defendant also hereby moves for a trial of this matter to the Court.

1. A Ten Month Gap Between the Hearing Date and the Date of the Report Exceeds the Time Limit Of Sup. Rule 40(A) and Creates a Question of Accuracy of Recall.

The oral hearing of this matter before the Magistrate took place on June 24, 2003 and the magistrate's report did not issue until April 19, 2003. Defendant respectfully submits that such a time gap creates a possibility of inaccurate recall on the part of the Magistrate of what was said at the hearing or of what the demeanor and bearing of the witnesses was. The Magistrate's opinion does not cite a transcript and the case docket as posted on the Clerk's website does not show a transcript was generated. Defendant therefore infers that only the Magistrate's notes and the documentary evidence were available for the Magistrate's reference in preparing the opinion. Notes taken are not evidence and there is simply too great a possibility that here they supplanted the function of evidence given the lapse of time and the non-use of a transcript. (Even if the Magistrate did have use of a transcript, it would be difficult to recall witness demeanor after so much time).

The possibility that there is error in the Magistrate's report due to the time lag makes it in the interest of justice for this Court to set a rehearing of the matter.

While the hearing was not a trial to the Court, Rule of Superintendence 40 (A), in the third sentence provides: "All cases submitted for determination after a court trial shall be decided within ninety days from the date the case was submitted". Since magistrate hearings are undertaken with the intent of being a substitute for trial to the Court, the ninety day rule should also be regarded as the norm for the date by which a Magistrate's opinion should issue.

The ninety day norm was exceeded by about 210 days in this instance. Plaintiff submits that this significant time lag amounts to grounds for the Magistrate's opinion to be set aside.

2. The Magistrate Was Mistaken in Imposing a Strict Requirement for Receipts fo Repairs, When There is No Such Requirement in the Statute.

The Magistrate asserts in his report that he could not award the Defendant any damages on her counterclaim, because the Defendant did not have receipts for repairs. The Magistrate said that in the absence of receipts the cost of repairs could not be measured and the only way damages could be quantified was to measure the diminution in market value.

The Magistrate was overly restrictive. The relevant statute, R.C. Section 5321.16, requires a landlord to itemize her "damages" which is not necessarily the same as an out of pocket "cost". The General Assembly would have specified in the statute that receipts were required, or would have used the word "expenses" or "costs", rather than "damages", if it had intended to be so strict.

The thirty days provided for in the statute for the rendering by a landlord of a security deposit report is not always enough time to gather estimates let alone perform the repairs on an rental unit, particularly where the damage to the unit is significant or the landlord is not engaged in the rental business full time, as is the case with Plaintiff. It can be inferred that the conscious choice by the General Assembly of the word "damages" rather than "expenses" reflects this knowledge and was intended to leave some room for good faith, reasonable estimation of the cost to repair.

Since the Legislature chose to use the word "damages", a Court needs to assess the reasonableness of damage items a landlord asserts, and the good faith with which they were claimed. Here, the Defendant testified that she is a Realtor and has experience in that capacity, and in her experience as a landlord, with what various types of repairs cost, and that she used this knowledge in estimating what to deduct from the Plaintiffs' security deposit. (Martin Affidavit, attached hereto as Exhibit "A", at 1 9). She submitted the security deposit report she issued to the Plaintiffs, which is a reasonable itemization of damages, being broken down into discrete line items. (Id., Attachment No. 4). She was testifying from a basis of experience and training, which made her testimony more than speculation.

Oak Hill Investment Co. v. Jablonski (6th Dist, 1992), 78 Ohio App.3d 643, was also a case involving the alleged wrongful withholding of a security deposit under R.C. Sec. 5321.16. The trial court, which was upheld, awarded the landlord $100.00 for damages to a carpet, even though the landlord had no receipt related to the carpet and the landlord's testimony was that it should be awarded $455.00. (i.e., that court did not decide that the landlord had forfeited all right to damages just because the court did not agree with the landlord's testimonial amount). The Oak Hill tnial court was also upheld in awarding $215.00 in miscellaneous damages to the landlord based on the uncontradicted testimony of the property manager, which testimony, it is inferable from the text of the opinion, was not supported by receipts. It can be seen therefore, from Oak Hill that it is not the law that a landlord's damages have to be supported by receipts and that the damages can even be a figure the landlord has not testified to.

Oak Hill illustrates that the Magistrate wrongly interpreted the statute as saying that without receipts he could not award anything. The Magistrate did not analyze the Defendant's testimony from the standpoint of reasonableness, good faith and Defendant's knowledge and experience. The testimony by a person on a matter on which such person has experience and knowledge is competent evidence. Defendant's testimony was competent evidence on what the repairs to the property would cost. As the Magistrate's methodology was incorrect, the Magistrate's report should be set aside.

3. The Magistrate was Incorrect in Stating There Was No Evidence of Diminution In Market Value of the Property.

The Magistrate states in his report that in the absence of receipts he cannot make a monetary award to defendant for property damage, unless there is evidence of the diminution in market value. This is written as though the Magistrate expected the Defendant to bring in a real estate appraiser to put on such testimony. This is overly restrictive. Property owners are regarded in our Courts as defacto experts on the value of their property and are thus automatically competent to testify on how they believe their property value has been diminished. In Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, the Supreme Court stated in the Syllabus at paragraph 2:

... [A]n owner is permitted to testify concerning the value of his property without being qualified as an expert, because he is presumed to be familiar with it from having purchased or dealt with it.

Here Defendant's estimation of damages given to the Plaintiffs in their security deposit report and introduced as evidence in this action was competent opinion evidence of the diminution in market value, and given its competence as such evidence the Magistrate should have analyzed it for its reasonableness. In undertaking such analysis he should have taken into account the fact that Defendant is a licensed Realtor with training in property appraisal and skills in estimating repair costs to property. (Martin Affidavit, 111, 9). 1 Besides being automatically a competent witness because she was the property owner, the Defendant is also professionally qualified to give expert opinion testimony on property values and the diminution thereof and her testimony was entitled to appropriate weight.

4. The Magistrate Could Have Found That Defendant Had Established Liability But Not The Amount And Set the Issue of Damaties For A Separate Hearing. His Failure To Do So Means Defendant Has Sustained a Wrong and Has No Remed

Defendant introduced pictures of the condition the property was left in, that one could argue meet a burden of proof that the Plaintiffs left it in a damaged condition. (Said photos reproduced here as Attachment 3 to the attached Martin Affidavit).

We interpret the Magistrate's report as saying that since there were no receipts to quantify the damages, there was no liability. However, it is not uncommon to bifurcate the issue of just how much the damages are, from the issue of whether some quantum of damages is owed. Here, the Magistrate mistakenly threw out the claim entirely, having confused the issue of liability with that of the amount of damage. The Magistrate could have ruled that Defendant had made out a case for liability and set a separate damages hearing or briefing date, as a less drastic alternative to throwing out Defendant's case entirely due to a simple lack of receipts.

5. The Magistrate Refused to Accept Relevant Proffered Evidence.

The gravamen of the Plaintiffs' case and testimony was that they had not breached the lease, that they had paid everything that was due under the Lease, and had turned the property back over in the condition that was required- by the Lease, or conversely, that any damage at the premises had preexisted their tenancy. A lot depended on how much credibility their testimony was to be given. It was therefore within proper practice for Defendant to attempt to impeach their credibility. Under the Rules of Evidence, extrinsic evidence of inconsistent prior conduct can be utilized to impeach testimony. (Evidence Rule 613 (Q.

In this case, Plaintiff desired to introduce and did proffer a tenant report she had lawfully obtained from Federal Adjustment Bureau, a reputable credit reporting and tenant screening service which indicated that the Plaintiffs had been the subject of eviction suits on at least two previous occasions. (Martin Affidavit, 1 5 (A), and Attachment I to Affidavit). Such document would have been relevant to impeach testimony that the Plaintiffs had fully complied with the terms of their rental agreement regarding payments and the condition in which the premises as to be returned The Magistrate refused to admit the report as evidence and rebuked Defendant for even having proffered it. (Martin Affidavit, 15 (A)). Defendant also desired to proffer a check the Plaintiffs had written to her and then stopped payment on, as evidence of conduct inconsistent with a habit of fulfilling contracts, and was similarly rebuffed by the Magistrate. (Martin Affidavit at T 5(B) and Attachment No. 2).

The Magistrate's hearing sheet, attached hereto as Exhibit "B", shows that these documents were not admitted into evidence. It was error on the Magistrate's part not to accept these documents into evidence and it was also error for the Magistrate to give no consideration to them in reaching a decision.

6. Statements Made by the Magistrate Impaired Defendant's Testimony.

At Paragraphs 5(A) and 10 in her attached Affidavit, Defendant indicates that she became rattled by comments she recalls the Magistrate having made during the hearing about her testimony. At Paragraph 6 of her Affidavit, Defendant states that she became nervous and fearful and her ability to testify effectively was impaired.

Defendant has no wish to criticize the Magistrate, who like all judicial officers has a difficult job in which it is impossible to satisfy everyone, but if it is even remotely possible that there was some sort of personality clash between Defendant and the Magistrate, it would be in the interest of justice for Defendant to have her cause reheard by the Court. It is, after all, in the interest of justice for a litigant to believe she was able to testify fully.

The standards of Civil Rule 53 are broad enough to allow a rehearing even if the grounds are simply that a rehearing would be in the interest of justice. Rule 53 (A) says a Court "may", not "shall", adopt a Magistrate's opinion, and Rule 53 (B) permits a Court to consider new evidence if it wants to. Construing the two provisions together, it is well within the power of the Court to order a rehearing even on the simple grounds that it would be in the interest of justice to do so.

7. The Decision Was Against The Weight Of The Evidence.

As argued above, the ten month gap between the hearing date and the date of the Magistrate's opinion was beyond the time limit suggested or provided under the Rules of Superintendence and created a risk of inaccurate recall. Defendant submits that the photographs attached at Attachment 3 to her Affidavit show various aspects of the property that were damaged beyond ordinary wear and tear, including: holes punched in walls and doors, chipped electrical face plate, wet ceiling tiles below bathroom (where water was allowed to overflow from the bath or sink), banister handrail separated from its wall connector, plant hangers inserted into and left in ceiling, dark liquid stain in carpet at entry way, wall paper torn above towel bar, screw holes drilled in a closet door and not patched, damage to wall finish in front of closet door not patched. The discrepancy between these photos and the Magistrate's conclusion there was only ordinary wear and tear, tends to suggest that the Magistrate did not recall the evidence thoroughly, and shows that the Plaintiffs did inflict more than ordinary wear and tear to the property. At the very least, this establishes that there is sufficient doubt that the weight of the evidence supported the Magistrate's opinion and demonstrates that a rehearing of this matter before the Court is merited.

CONCLUSION

Based on the foregoing, Defendant respectfully requests that the Court set aside the Magistrate's opinion and set this matter for a trial to the Court.

Michael J. O'Reilly (09~6892)
115 North Center Street
Pickerington, Ohio 43147
Phone: (614) 833-3777
Fax (614) 837-2235
Attorneyfor Defendant Patricia Martin

Affidavit of Patricia Martin

Patricia Martin, being duly sworn and cautioned, deposes and says as follows:

I . I am the Defendant in the current case. I have a real estate license and have been a full time real estate agent for I I years, a Notary Public for 20 years, and have done work with the County Board of Elections for ten years. My work in real estate led to my investing in rental units, including the one that is involved in this case.

2. The case concerns (a) a claim filed by Plaintiffs for return of a tenant security deposit, (b) my defense that I was entitled to retain the deposit under the Ohio Landlord-Tenant Act, due to damage for the property and unpaid sums owed me, and (c) my counterclaim for damages in excess of the amount of the retained deposit.

3. At the Magistrate's hearing in this matter, I through my attorney introduced and attempted to introduce various items of evidence. The evidence I proffered was intended to prove my case, and to contradict the Plaintiffs case or to give evidence relating to the credibility of testimony. Some of my evidence was accepted but the Magistrate rejected or criticized other items of evidence.

4. Credibility issues were important in this case since there was oral testimony from both sides as to what the terms of the transaction were and as to who or what was responsible for various items of damage to the property. Without limitation, the Defendants denied that they had caused certain items of damage or claimed that the items of damage had predated their occupancy, and denied that they had agreed to be responsible for certain utilities

5. 1 had relevant evidence to offer to the Magistrate which would tend to suggest that the Defendants do not in all circumstances fulfill their contracts and that the Defendants have in the past been untruthful or done fraudulent things. More specifically:

(a) I proffered a rental history credit report concerning the Defendants, which was legally obtained for a purpose permitted by law, indicating that the Defendants, or one of them, had previously been sued at least twice for eviction by other landlords, which I submitted went to the credibility of Plaintiffs' testimony. The Magistrate refused to accept the report as evidence and berated me saying that I should be ashamed of myself "as a Realtor" for attempting to introduce such a document into a public proceeding. This document as marked by my lawyer for introduction as evidence is Attachment No. I hereto.

(b) I proffered a copy of a check that the Defendants had written me and then stopped payment upon, not only as an item for proof of damages but also as proof of past duplicitious conduct, and to the best of my knowledge the Magistrate refused to consider it. This document as marked by my lawyer for introduction as evidence is Attachment No. 2 hereto.

6. After the Magistrate berated me as discussed in 5 (a) above, I became very nervous and fearful, and the quality of my remaining testimony suffered.

7. 1 took photographs of my property after the Plaintiffs moved out and copies are attached hereto as Attachment 3. Copies were given to the Magistrate. I believe the photos show that my property was extensively damaged by Plaintiffs, contrary to the conclusions of the Magistrate's report.

8. The photos at Attachment 3 hereto show various aspects of the property that were damaged beyond ordinary wear and tear, including, holes punched in walls and doors, chipped electrical face plate, wet ceiling tiles below bathroom (where water was allowed to overflow from the bath or sink), banister handrail separated from its wall connector, plant hangers inserted into and left in ceiling, dark liquid stain in carpet at entry way, wall paper torn above towel bar, screw holes drilled in a closet door and not patched, damage to wall finsh in Ernt of closet door not patched. Comparing these phots to the Magistrate's conclusion there was only ordinary wear and tear tends to suggest that the Magistrate did not necessarily review the evidence thoroughly, and shows that the Plaintiffs did inflict more than ordinary wear and tear to the property.

9. As a Realtor I have training in, and must take continuing education in, the field of property appraisal. I have I I years experience with the process of properly assigning a fair market asking price to real estate I list. I have helped many buyers determine what to offer to HUD for damaged properties, and in that regard had to analyze what the repairs to the property were going to cost. The valuation process necessarily includes assessing the cost of repairs and improvements a property needs to be likely to sell. Having owned several rental properties in my own right, I also have personal experience in purchasing repair work and materials for properties. I utilized all of my aforementioned knowledge and experience in preparing the itemization of damages I presented to the Plaintiffs in the statement I presented regarding disposition of their security deposit, which statement was part of the evidence provided to the Magistrate. (See Attachment 4 hereto). I continue to regard this to be a fair statement of the diminution in value the property suffered as a result of the Plaintiffs' malfeasance, in my professional opinion.

10. In my testimony I indicated that my receipts for repairs were with my tax records. (My attorneys had not told me to bring them). The Magistrate scolded me about this saying "Shame on you". This made me feel humiliated.

Further the afflant sayeth naught.

/s/Patricia Martin