This matter came on for trial before Magistrate David S. Jump on the Order of Reference from Judge H. William Pollitt, Jr. Both parties were very well represented by excellent counsel. Attorney Eric E. Willison represented the plaintiffs, Stephen Miller, et al. Attorney John T. Conroy represented the defendants, Mary Ann Tittel, et al. The parties waived a jury. Based on the evidence and arguments presented, after weighing the credibility of the witnesses, the magistrate issues the following interlocutory decision.

The plaintiffs rented from the defendants the residential premises located at 935 Thomas Road in Grandview Heights, Franklin County, Ohio. At all times relevant to this action, the defendant Tittel owned the property and her son, the defendant Kiener, managed the property. Throughout most of the tenancy, one or both of the plaintiffs shared the property with a third occupant, Jeff Pallante, with the knowledge and consent of the defendants. Mr. Pallante moved into the apartment in.May 2001.

The tenancy lasted for more than two years, from July 2000 until August 2002. The tenancy was pursuant to an oral agreement, as neither party presented an executed written lease at trial. At the outset of the tenancy, the plaintiffs paid the defendants a security deposit of $690.00 and an additional pet deposit of $100.00. Defendant's Exhibit A is a copy of the plaintiffs' rental application showing a receipt for the security deposit and pet deposit. Although that document refers to the $690.00 payment as a non-refundable application fee, the evidence is clear that the $690.00 figure was written on the wrong line of the form. Both parties treated the payment as a security deposit and they tried the case on the basis that this payment was a security deposit, pursuant to ORC §5321.16.

The plaintiff Stephen Miller moved out of the premises in July 2001, leaving the plaintiff Matt Miller and Mr. Pallante as the occupants of the property. The plaintiff Matt Miller moved out of the property at the end of July 2002 and Mr. Pallante moved out the middle of August, 2002. After the plaintiffs and Mr. Pallante moved out, the defendants rented the property to the plaintiffs' friend, Chris Shilling, beginning September 1, 2002.

The plaintiffs paid rent as agreed each month of the tenancy. Because the plaintiffs and Mr. Pallante were to vacate the property by the middle of August, 2002, the parties agreed that the rent for that month would be $400.00. The plaintiffs paid the defendants the agreed $400.00 for that month. The plaintiffs had previously given the defendants notice of their intent to terminate the tenancy and to move out by the middle of August.

The plaintiffs did not give the defendants written notice of their forwarding address. However, the defendants had actual knowledge of the forwarding address for the plaintiff Matt Miller. The defendant Kiener acknowledged in a telephone conversation with the plaintiff Stephen Miller, on September 6, 2002 (Plaintiff's Exhibit A), that he had a forwarding address for Matt Miller and that the defendant Mener would send the security deposit disposition to the plaintiff Matt Miller. In reliance on that statement by the defendant Kiener, the plaintiffs did not give the defendants any additional notice of their forwarding address.

After the plaintiffs and Mr. Pallante vacated the property, the defendants cleaned the apartment and readied it for Mr. Shilling's tenancy. The defendants withheld the plaintiffs' entire security deposit. The defendants did not send the plaintiffs an itemization of the security deposit deductions.

The plaintiffs have filed this lawsuit seeking the return of their security deposit, together with statutory damages and attorney fees. The defendants have filed a Counterclaim seeking unpaid rent and damages in excess of the security deposit.

It is a fundamental principle of law that the party alleging facts has the burden of proving those allegations. Ohio Fuel Supply Co. v. Shilling (1920), 101 Ohio St. 106. That proof must be by a preponderance of the evidence. Re Walker's Estate (1954), 161 Ohio St. 564, In a case involving the withholding of a security deposit, it is the landlord's burden to prove that it was justified in withholding the security deposit. Zeallear v. F & WProperties (July 25, 2000), Franklin App. No. 99AP-1215, unreported.

The defendants have not proved by the preponderance of the evidence that the plaintiff s owe any amount of rent. The defendants claim that the plaintiffs failed to pay full rent for the month of August, 2002. However, the evidence is clear that the parties agreed that the plaintiffs would pay only $400.00 for that last month of the tenancy because the plaintiffs and Mr. Pallante would be out of the property by the middle of the month. After agreeing to a reduced amount of rent for that month, the defendants cannot now claim unpaid rent in order to justify the security deposit

The defendants also have not proved by the preponderance of the evidence that they were justified in withholding any portion of the security deposit for damage to the unit beyond ordinary wear and tear. The parties presented disputing testimony as to the condition of the property at the time the plaintiffs and Mr. Pallante vacated the unit. The defendants did not present any pictures, bills, receipts or any other documentary evidence to support their claims that the plaintiffs caused damage to the apartment beyond ordinary wear and tear. The plaintiff Stephen Miller and his witnesses were just as credible as or more credible than the defendants and their witness. As a result, the defendants have not proved that they were entitled to withhold any portion of the security deposit because of damage to the unit beyond ordinary wear and tear after a two year tenancy.

This finding is supported by a statement the defendant Kiener made to Mr. Shilling at the time Mr. Shilling signed his lease with the defendants. The defendant Kiener told Mr. Shilling that if he was as good a tenant as the Millers had been, then they would have a good landlord and tenant relationship. The defendant Kiener made that statement to Mr. Shilling after the plaintiffs and Mr. Pallante had vacated the apartment and after he had inspected the property for damage. That statement is not consistent with the defendants' later claims of unpaid rent and damage.

The only item of claimed damages that the parties agree existed is candle wax on the carpet. That item might be beyond ordinary wear and tear. However, the defendants did not present sufficient evidence to support a claim for that item of damage. The defendants did not present evidence of the cost of repairing or replacing the portion of the carpet stained by candle wax. The defendants did not present any evidence other than their testimony as to the overall cleaning costs in the apartment. The defendants presented nothing to allow this Court to determine an award for that specific item of damage.

Further, the defendants did not present any evidence as to the age of the carpet or the value of the carpet with and without candle wax damage. In order to determine an award for that item of damage it is necessary to have some evidence as to the value of the carpet before and after the alleged damage. Warner v. Zuccola (December 24, 1987), Cuyahoga App. No. 53070, unreported.

The defendants have not proved that they were justified in withholding any portion of the plaintiffs' security deposit. Further, because they have not proved that the plaintiffs owe any amount for rent or damages, the defendants have not proved by the preponderance of the evidence that they are entitled to recover on their Counterclaim.

The plaintiffs have proved by the preponderance of the evidence that the defendants wrongfully withheld the plaintiffs' entire security deposit in the amount of $690.00. Pursuant to ORC §5321.16, the defendants are liable for the amount wrongfully withheld together with statutory damages in an equal amount and reasonable attorney fees. The award of double damages and attorney fees are mandatory. Smith v. Padgett (1987), 32 Ohio St.3d 344,

The defendants argue that the plaintiffs are not entitled to receive the statutory damages and attorney fees because the plaintiffs did not give their forwarding address in writing to the defendants, as required by,GRC §5321.16(B). The defendants' argument is not persuasive.

The defendants had actual knowledge of the plaintiffs' forwarding address. The defendant Kiener acknowledged that in a telephone conversation with the plaintiff Stephen Miller. Although the defendant Kiener ultimately denied such actual knowledge at trial, his testimony was not credible. On cross-examination, the defendant Kiener was very evasive when asked about his actual knowledge of the plaintiffs' forwarding, address. The defendant Kiener repeatedly tried to change each question about actual notice into a question that he preferred to answer. The defendant Kiener repeatedly answered that he did not have written notice of the forwarding address, trying to avoid the questions as to actual notice. In being so deliberately evasive, the defendant Kiener cast serious doubt on the overall credibility of his testimony.

Because the defendants had actual knowledge of a forwarding address for the plaintiffs, the defendants are liable for the statutory damages and attorney fees provided in ORC §5321.16. Prescott v. Makowski (1983), 9 Ohio App.3d 155, Smitson v. Zeches (August 17, 1993), Franklin App. No. 92AP-1773, unreported.

The plaintiffs have proved by the preponderance of the evidence that the defendants are liable for twice the amount of the wrongfully withheld security deposit, totaling $1,380.00. In addition, the defendants are liable for the plaintiffs' reasonable attorney fees in an amount to be determined at a later hearing.

The parties and counsel are reminded that this is not a final decision for purposes of Civil Rule 53(E)(3). This magistrate will issue a final decision after the attorney fee hearing, unless the parties settle this matter before then.

NOTICE OF ATTORNEY FEE HEARING

This matter is scheduled for hearing on the issue of attorney fees on Wednesday, May 26, 2004, at 1:30 p.m., in Courtroom 11-C.

Magistrate David S. Jump