Opinion
Case No. 14-13273
12-01-2015
In Re MARTY K. HUGHLEY SENITTA GRIFFIN-HUGHLEY Debtors
Chapter 7
ORDER DETERMINING DISCHARGEABILITY OF DEBT
While styled as an objection and motion to strike the debtors' amendment to schedules in this no-asset chapter 7 case, this action is in fact a proceeding to determine dischargeability of debt owed by the debtors/tenants to their creditor/landlord. The parties orally waived the need to adjudicate this matter in an adversary proceeding. This Court conducted an evidentiary hearing on this matter. The following are this Court's findings of fact and conclusions of law.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the general order of reference entered in this district. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I).
On April 15, 2014, Marty Hughley and Senitta Griffin-Hughley (the "Debtors") signed a one-year lease (the "Lease") with Jerry Katz (the "Landlord") for property located at 8739 Winton Road, Cincinnati, Ohio for a monthly rental of $995.00. The Lease also required a $995.00 security deposit, which the Debtors did pay. After this first month, the Debtors never made a timely, full monthly rental payment. The Debtors filed their chapter 7 petition on July 31, 2014. The Debtors did not list the Landlord on their Schedule F nor did they list the Lease on Schedule G. On or around September 8, 2014, without knowledge of the Debtors' bankruptcy, the Landlord initiated an eviction action against the Debtors, claiming rent owed in the amount of $2,387.16 and damages to the property beyond ordinary wear and tear in the amount of $8,000.00. The Debtors vacated the property around September 15, 2014. On October 30, 2014, the Debtors filed an Amended Schedule F listing a rental claim to the Landlord in the amount of $10,387.16. The Landlord moved to partially strike the Debtors' Amended Schedule F asserting that most, if not all of the debt owed to the Landlord was incurred after the petition date.
1. Rent
The parties stipulated that as of the petition date, the Debtors owed $1,350.87 in rent. The parties agreed that this pre-petition rent claim is DISCHARGEABLE.
The parties also stipulated that the Debtors owed $2,090.00 in rent for August and September of 2014 and that the Debtors remitted $1,025.00 to the Landlord in August 2014. The Landlord acknowledged that the $995.00 security deposit paid by the Debtors had not been returned to the Debtors. The Landlord's attorney stated that this security deposit should be offset against the post-petition rent. Therefore, this Court finds that the net post-petition rent claim in the amount of $70.00 is NOT DISCHARGEABLE.
2. Water Bill
Pursuant to the Lease, the Debtors were responsible for utility payments. The Landlord paid the Debtors' outstanding water bill in the amount of $411.66. At this Court's request, the parties supplemented the record to indicate the time period of the water usage that gave rise to the utility bill. The parties' filings each reflect the water bill was for the period of June 2, 2014 through September 25, 2014 and is broken down as follows:
| 06/02/2014 - 06/27/2014 | $118.81 |
| 06/27/2014 - 07/24/2014 | $ 99.93 |
| 07/24/2014 - 08/28/2014 | $107.55 |
| 08/28/2014 - 09/25/2014 | $ 85.37 |
Accordingly, this Court finds that the $237.18 portion of the water bill that was incurred pre-petition is DISCHARGEABLE and that the $174.48 portion of the water bill that was incurred post-petition is NOT DISCHARGEABLE.
3. Other Damages
Under Ohio law, a tenant who is a party to a rental agreement is obligated to:
(1) Keep that part of the premises that he occupies and uses safe and sanitary;
(2) Dispose of all rubbish, garbage and other waste in a clean, safe, and sanitary manner,
(3) Keep all plumbing fixtures in the dwelling unit or used by him as clean as their condition permits;
(4) Use and operate all electrical fixtures properly;
(5) Comply with the requirements imposed on tenants by all applicable state and local housing, health, and safety codes;
(6) Personally refrain and forbid any other person who is on the premises with his permission from intentionally or negligently
destroying, defacing, damaging, or removing any fixture, appliance, or other part of the premises;OHIO REV. CODE ANN. § 5321.05(A). "This statutory provision constitutes a codification of the tenant's long-standing common-law duty not to permit waste to be committed on the leased premises." OHIO LANDLORD TENANT L. § 5:15 (2015-2016 ed.)(specifically referencing Ohio Rev. Code § 5321.05(A)(6)). If a tenant violates any of these statutory obligations, the landlord may recover any actual damages that result from the violation together with reasonable attorney's fees. OHIO REV. CODE ANN. § 5321.05(C)(1). The landlord bears the burden of submitting sufficient evidence to link the damage to the tenant's violation of his or her obligations. Zilka v. Asberry, 2005 Ohio App. LEXIS 1774, at *5, 2005 WL 928158, at *2 (Ohio Ct. App. April 22, 2005)(citations omitted).
(7) Maintain in good working order and condition any range, refrigerator, washer, dryer, dishwasher, or other appliances supplied by the landlord had required to be maintained by the tenant under the terms and conditions of a written rental agreement;
(8) Conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the premises;
(9) Conduct himself, and require persons in his household and persons on the premises with his consent to conduct themselves, in connection with the premises so as not to violate the prohibitions contained in Chapters 2925. and 3719. of the Revised Code, or in municipal ordinances that are substantially similar to any section in either of those chapters, which relate to controlled substances.
While a tenant may be held liable for waste, a tenant generally is not liable for damages resulting from ordinary wear and tear. Snyder v. Waldron, 2013 Ohio App. LEXIS 3507, at *17; 2013 WL 3988775, at *7 (Ohio Ct. App. July 26, 2013)(citations omitted). The term "ordinary wear and tear" is difficult to define. OHIO LANDLORD TENANT L. § 7:5 (2015-2016 ed.). Whether damage to leased property is waste or ordinary wear and tear is largely based on the particular circumstances of each case. Id. (observing that "ordinary wear and tear" may be different for an elderly, single tenant as compared to a young family with children or pets).
The Landlord contends that the leased property was damaged beyond ordinary wear and tear as follows:
| Total Cost | Ordinary Wearand Tear | BeyondOrdinary Wearand Tear | Cost to Debtors | |
|---|---|---|---|---|
| Carpet andPadding | $3,343.80 | 25% | 75% | $2,507.85 |
| Repair of Wallsand Baseboards | $1,014.06supplies plus$1,500 labor | 10% | 90% | $2,262.65 |
| MenardsCabinets | $3,074.17 plus$500.00 labor | 70% | 30% | $1,072.25 |
| WalMart Blinds | $181.02 | 10% | 90% | $162.92 |
| MiscellaneousExpenses | $325 locks fordoors; $50 grasscutting; $180clerk of courts | 0% | 100% | $555 |
(A) Carpet
The Landlord testified that the carpet had a "totally obnoxious" smell of smoke, animal feces and "other smells" that he could not identify but which others also noticed when walking through the property. He noted that the Lease prohibited smoking and pets. The Landlord testified that there were ashtrays in the house after the Debtors vacated the property but he admitted that he never saw any pets at the property. The Landlord testified that he was unsuccessful in renting the property to prospective tenants after the Debtors vacated the premises because of the smell. After shampooing the carpet twice, he ultimately had to replace the carpet and padding to eliminate the smell. Debtor Marty Hughley testified that the Debtors never had a pet and generally denied that the carpet smelled. The parties testified that they walked through the property before entering into the Lease and no one noted any unusual carpet smells at that time.
Debtor Senitta Griffin-Hughley was present at the hearing but did not testify.
This Court finds the Landlord's testimony to be persuasive on this issue. Odors that cause irreparable damage to carpet are not ordinary wear and tear. Fornof-Lippencott v. Powell, 1995 Ohio App. LEXIS 149, 1995 WL 19127 (Ohio Ct. App. Jan. 18, 1995)(strong smells and stains to carpet not ordinary wear and tear). Accordingly, the Landlord sufficiently established that the Debtors failed to meet their obligations to keep the property in a sanitary condition and to prevent damage to the premises. OHIO REV. CODE ANN. § 5321.05(A)(1) and (6).
With respect to damages, the Landlord apportioned 75% of the damage to the Debtors because the carpet was only three years old at the time the Lease was entered into. This Court finds this apportionment to be appropriate. As a result, the Landlord is entitled to $2,507.85 for damage to the carpet.
(B) Walls and Baseboards
The Landlord testified that there were holes in the walls and that the baseboards were in "horrendous" condition. Debtor Marty Hughley's only response regarding the walls was that the walls were not newly painted when the Debtors moved into the property—a fact to which the Landlord had previously testified.
This Court finds the Landlord's testimony to be persuasive on this issue. This Court finds that damage of this nature is not ordinary wear and tear. Zilka, 2005 Ohio App. LEXIS 1774, at *6, 2005 WL 928158, at *2 (water damaged floor boards and holes in walls not ordinary wear and tear). Accordingly, the Landlord sufficiently established that the Debtors failed to meet their obligations to prevent damage to the premises. OHIO REV. CODE ANN. § 5321.05(A)(6).
With respect to damages, the Landlord apportioned only 90% (rather than 100%) of the damage to the Debtors and allocated 10% to ordinary wear and tear because the walls had not been newly painted at the time the Lease was entered into. This Court finds this apportionment to be appropriate. As a result, the Landlord is entitled to $2,262.65 for damage to the walls and baseboards.
(C) Cabinets
Both the Landlord and Debtor Marty Hughley gave similar testimony that a cabinet top (aka counter top) had been burned by a hot pot being placed on it by the Debtors as a result of a fire on the kitchen stove. Debtor Marty Hughley admitted that the damage to the cabinet top occurred post-petition. The Landlord testified that the cabinet tops were brand new at the time the Lease was entered into but that the cabinets themselves were older. Permanent damage to the cabinet top is not ordinary wear and tear. OHIO REV. CODE ANN. § 5321.05(A)(6)(a tenant shall not intentionally or negligently destroy, deface, or damage any part of the premises).
With respect to damages, the Landlord apportioned 70% of the cabinet cost to ordinary wear and tear (i.e., replacement of the old cabinets) and 30% to the Debtors (i.e., replacement of the burned cabinet top). This Court finds this apportionment to be appropriate. As a result, the Landlord is entitled to $1,072.25 for damage to the cabinet top.
(D) Blinds
The Landlord testified that the blinds were "ripped up" and "not working." He testified that the blinds were brand new at the time the Lease was entered into. The exact number of the blinds replaced was not stated. The Landlord incurred a nominal expense to replace the blinds. This Court assumes that the original blinds were of a similar quality. This Court considers blinds of this nature to be consumable products that are not intended to be durable. Accordingly, this Court finds that the replacement of the blinds is a result of ordinary wear and tear. The Landlord is not entitled to any damages for the blinds.
(E) Miscellaneous Expenses
The Landlord seeks $325 in damages for installing new locks on the property. The Landlord testified that he replaced the locks because the Debtors did not return the keys and that it was only fair to future tenants to ensure the property was secure by replacing the locks. Debtor Marty Hughley testified that he did return the keys and that he saw the Landlord installing a new type of lock that had buttons that would not require a key. Regardless, requiring a tenant to bear the cost of replacing the locks on a rental property is not contemplated by Ohio Revised Code § 5321.05 nor was it required by the Lease. Cf. Warner v. Evans, 2015 Ohio App. LEXIS 1953, at *11, 2015 WL 3398400, at *3 (Ohio Ct. App. May 27, 2015)(lease permitted "making of new keys" to be deducted from security deposit, but landlord failed to prove the tenant did not return the keys). Accordingly, the Landlord is not entitled to damages for replacing the locks.
The Landlord also seeks $50 in damages for cutting the grass. The Landlord testified that the grass was cut sometime after September 15, 2014. While the Debtor was required to provide lawn care under the Lease, it is the Landlord's duty to maintain the property when it is not occupied by a tenant. Accordingly, the Landlord is not entitled to damages for cutting the grass.
Lastly, the Landlord seeks $180.00 in costs for the filing fee associated with the eviction action. Under the "American Rule," each litigant pays their own attorney fees, however, the prevailing party is generally awarded their costs. State ex rel. Grosser v. Boy, 347 N.E.2d 539, 540 (Ohio 1976). The complaint filed in state court did include a request for "costs." Although the Debtors did vacate the premises, there was no evidence that the Landlord obtained a judgment or was the prevailing party in the eviction action. Therefore, this Court finds that the Landlord has failed to meet his burden of proof on this issue. Accordingly, the Landlord is not entitled to damages for the filing fee in the eviction action.
The amount of costs is not specified in the complaint. The request for costs appears to be part of the standard form "Complaint for Eviction and Money" used in the Hamilton County Municipal Court. --------
(F) When the Damage Occurred
There was much discussion at the hearing about when the alleged damage to the property occurred. The Debtors' failure to list the Landlord in their initial schedules placed the Landlord at a disadvantage in establishing whether the damage occurred pre- or post-petition. Because the Landlord was not aware of the Debtors' bankruptcy, the Landlord had no reason to examine the condition of the property on or about the petition date. Nonetheless, this Court is persuaded that the damages noted above are attributable to the Debtors' post-petition occupancy of the property. Debtor Marty Hughley's testimony on this issue appeared rehearsed and overall lacked credibility. He generally denied that there was any damage to the property; but when questioned about when any alleged damage may have occurred, Mr. Hughley gave inconsistent answers as to whether damage occurred pre- or post-petition.
In contrast to Debtor Marty Hughley's testimony, this Court found the Landlord to be very credible. The Landlord's recollections were clear and his answers were consistent. He was fair in his (admittedly subjective) apportionment of damages between ordinary wear and tear and what he believed to be recoverable damages based on waste committed on the property.
In addition to the credibility issue, the Debtors' stated intention with respect to their continued occupancy of the property is pertinent. The Debtors acknowledged in their briefs that it was their intent as of the petition date to continue to rent the property. This suggests that the Debtors maintained the property up to that point in time in an acceptable condition such that they wanted to continue to live there.
Accordingly, this Court finds that the damages to the carpet, walls and baseboards and the cabinet top occurred post-petition and, therefore, are NON-DISCHARGEABLE.
WHEREFORE, IT IS HEREBY ORDERED that:
(I) The pre-petition debts owed to the Landlord for rent in the amount of $1,350.87 and for the water bill in the amount of $237.18 are DISCHARGEABLE;
(II) The post-petition debts owed to the Landlord for rent in the amount of $70.00, the water bill in the amount of $174.48, damages to the carpet in the amount of $2,507.85, damages to the walls and baseboards in the amount of $2,262.65, and damages to the cabinet top in the amount of $1,072.25 are NON-DISCHARGEABLE; and,
(III) The Landlord is not entitled to damages for the new locks, cutting the grass or for the filing fee associated with the eviction action.
This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
/s/_________
Beth A. Buchanan
United States Bankruptcy Judge Dated: December 1, 2015 Distribution List:
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