This came before the court for trial on June 6, 2003. Attorney Andrew Ruzicho appeared for Plaintiff, Charles and Gemma McCuen; Attorney Dennis Pergram appeared for Defendant, Patricia Martin.

Plaintiffs rented a home from Defendant pursuant to written lease agreement. At the expiration of the written lease period, Plaintiffs held over on an agreed month to month basis. After Plaintiffs vacated the home, Defendant withheld their $800 security deposit and sent them detailed statement of charges against the deposit.

Defendant is an experienced real estate agent who buys and sells real estate on her own accord as well from time to time. Defendant wished to sell the home in question to Plaintiffs. Credit problems prevented Plaintiffs from financing the purchase, so Defendant negotiated a lease agreement with favorable terms (including free water and sewer) with the expectation that Plaintiffs would soon succeed in obtaining the financing required to purchase the home.

During the lease period, a plumbing problem damaged the kitchen floor and Defendant agreed to install a premium floor as further inducement to promote ultimate sale of the home to Plaintiffs. Defendant prepared the lease agreement and related documents herself.

At no time did the parties enter a written agreement for sale of the home, or include any such agreement in the written lease agreement. Instead, Defendant prepared an "addendum to lease" in which she included a provision that she "would consider an offer to purchase on a 'rent with option to buy basis.'" This agreement to "consider and offer falls well short of an enforceable agreement to buy.

Not only did Plaintiffs not extend an offer to buy, but toward the end of the one year lease term, they advised Defendant that they did not wish to purchase the home at all. This turn of events chagrined Defendant. She prepared a fill in the blank, preprinted "month to month" rent agreement that the parties executed which, more or less, simply continued the terms of the expired one year lease on a month to month basis. This agreement made no reference to Plaintiffs paying their water and sewer bills.

Plaintiffs submitted into to evidence a copy of the one page, month to month rental agreement which bore no indication of an attachment. Defendant offered into evidence a copy of the month to month agreement with a second page appended. In the top margin of Defendant's copy of the month to month agreement is hand inscribed "pg 1 of 2." In the top margin of the attachment is the notation "Attached to Month to Month."

The notation "pg 1 of 2" is not found on Plaintiffs' copy of the month to month agreement. It seems then, that this language was not on the original until after it was signed by Plaintiffs. Possibly, this notation is only found on Defendant's copy of the original, and not on the original at all. The court finds from the evidence that alleged attachment was not part of the month to month agreement, but a separate agreement, undated which was related but independent of the month to month agreement.

The alleged attachment is titled "agreement to vacate." It is undated and signed only by Mr. McCuen, not by Mrs. McCuen. It purports to raise the monthly rent by $10. This agreement purports to require the tenant-plaintiffs to vacate the home within 30 days of notice. In addition, it contains the following language:

As of this date, tenants have paid rent through the following date:___________

They owe owners a total of $______________ itemized as follows: water and sewer pd. by tenant

Defendant testified that she intended by this "agreement" to require Plaintiffs to pay their own water and sewer bills during the period of their month to month tenancy. She no longer wished to pay these utilities if Plaintiffs' were unwilling to buy the home.

The "agreement to vacate" is undated; the "month to month" agreement is dated "Sept. 30." The former raises the rent and contains the confusing language regarding sewer and water, the former extends the lower rent and free water and sewer found in the original one year lease. If the parties signed the "agreement to vacate later, its terms would prevail (at least as to Mr. McCuen). If the parties signed the "month to month" agreement later, then its terms, and thereby the original one year lease terms, would prevail.

The evidence did not establish Defendant's claim that the Agreement to vacate was signed at the same time as Month to Month agreement. Further, no evidence suggested that it was signed later. The court cannot conclude from the evidence that the terms of the "agreement to vacate" prevail over the terms of the month to month agreement.

Even if the Agreement to Vacate prevailed, the court finds that the language therein would not obligate Plaintiffs to pay their own water and sewer bills thereafter. The reference to said utilities is a nonsequitur, at best. The statement the tenants "owe owners a total of $_____, itemized as follows: water and sewer pd by tenant," simply does not make sense. The use of the present tense verb "owe" is not consistent with the use of the past tense form of the verb "pd." (This presumes that "pd." is an abbreviation for paid.). The statement seems to provide that the tenants owe utilities that they already paid. Absent from the statement is any form of the verb "to pay" that refers to a duty by the tenants to do anything in the future.

The language regarding payment of water and sewer is not clear. Defendant drafted the document. Hence, it must be interpreted to Plaintiffs' advantage. As such, the court could not construe this language to require Plaintiffs to pay water and sewer bills during the period of month to month occupancy even if it was part of the month to month agreement.

Even if the agreements did require Plaintiffs to pay these bills, Defendant's evidence was not sufficient for a finding. Defendant offered only an estimate of amount she believed would be owed for these utilities. Defendant admitted the alleged amount of these bills was merely her best estimate of the actual sewer and water bills for service during Plaintiffs' month to month occupancy of the home. Plaintiffs denied the amounts claimed by Defendant. The court cannot grant a judgment for an estimated amount.

For the many reasons above mentioned, the court cannot find in favor of Defendant on the issue of the water and sewer bills. This is significant for two reasons, Defendant's counterclaim to recover for the water and sewer bills must fail, in addition, these sum cannot be added to the charges shown on Defendant's itemized detail of charges submitted in lieu of return of Plaintiffs' $800 deposit.

Defendant counterclaimed for charges she incurred when two of Plaintiffs' rent checks bounced. The evidence showed her bank assessed $12 in fees for two bounced checks. Defendant also claimed she suffered an additional $200 fee due to these checks. The evidence proved that the bounced checks resulted in an overdraft to Defendants' checking account. The alleged $200 fee was merely a transfer of funds to Defendant's checking account by charging said amount to her credit card account with the same bank. While this created a debt on the credit card she formerly did not have, there was an offsetting credit to her checking account for the same amount. No fees beyond the $12 were assessed. Plaintiffs promptly repaid the checks and reimbursed the $12 fees. Defendant suffered no net economic loss.

Defendant submitted an extensive, itemized list of charges against Plaintiffs deposit. The first charge reads "your pet deposit of $400 is hereby forfeited" and alleges that Plaintiffs tied their dog to a metal fence causing it to bend, the dog scratched the back door and caused dead spots in the grass, and Plaintiffs left dog waste in the back yard. The parties'written "pet agreement" refers to a $400 pet deposit that Plaintiff's never actually submitted to Defendant. The agreement permits Defendant to use this deposit "for cleaning, repairs, ordelinquent rent." This is no provision in the agreement for mere "forfeiture" of the deposit.

Defendant tendered no evidence that she incurred any cost or loss correcting any of the complaints she had regarding Plaintiffs' dog. Her mere statement that her fence was bent, or that she found droppings in her yard is not sufficient to prove a compensable loss. She offered no evidence of cost of repair or diminution in value to her property. Absent evidence of damage or loss, Defendant cannot recover.

Defendant's list included several other items of alleged damage. However, Defendant offered no evidence on any single item that she incurred an expense to perform the alleged repair, or that she obtained an estimate of the cost of repair. In lieu of cost of repair, damage may be proven in the form of diminution to fair market value of the property. Yet, Defendant offered no such evidence.

All of the charges on Defendant's itemized list were nothing more than mere "charges" she wished to impose against Plaintiffs. Defendant offered no evidence that any of the charges bore any relation to the cost of repair or diminution in value. With such evidence, or complete lack thereof, the court cannot find in favor of Defendant on any of the charges in her list.

In addition to the above, the court finds that many of the items Defendant's list were to clean up or "repair" ordinary wear and tear including burned out light bulbs, small oil spots on the garage floor, grass growing through a crack in a concrete patio, and other similar items. In many cases, Defendant did not controvert Plaintiffs' claim that the item complained of by Defendant was a preexisting condition when they took possession.

Had Defendant tendered credible evidence that she incurred an actual expense, or of the reasonable cost of repair or replacement, or that the alleged damage diminished the value fo the property, some of the claims she raised may have been compensable. Absent any credible evidence, of the amount of an economic loss, the court cannot grant judgment on Defendant's counterclaim or permit herto withhold a claimed amount from hertenants'deposit.

Plaintiffs are entitled to recover their $800 deposit based upon the evidence adduced. Further, they are entitled to recover an amount equal to the wrongfully withheld deposit. R.C. § 5321.16.

Wherefore, Plaintiffs are granted judgment against Defendant for $1,600 together with interest from September 1, 2002 and court costs. The clerk shall serve the parties a copy hereof by regular mail per Civil Rule(s) 53 / 58. A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law in that decision unless the party timely and specifically objects to that finding or conclusion as required by Civil Rule 53(E)(3).

Magistrate Kevin Pelanda

This is adopted as the final order of the court subject to Civil Rule 53.

Judge David Sunderman

Andrew J. Ruzicho II attorney for plaintiff McCuen

Dennis Pergram attorney for defendant, Patricia Martin

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