BRADLEY CHASTEEN v. DIX ROAD PROPERTY MANAGEMENT L.L.C.
CASE NOS. CA2020-04-055, CA2020-04-056
IN THE COURT OF APPEALS, TWELFTH APPELLATE DISTRICT OF OHIO, BUTLER COUNTY
2/22/2021
[Cite as Chasteen v. Dix Road Property Mgt., L.L.C., 2021-Ohio-463.]
BYRNE, J.
Case No. 2019RE00004
John H. Flessa, 810 Sycamore Street, Cincinnati, Ohio 45202, for appellee
Joseph R. Matejkovic, 9078 Union Centre Boulevard, Suite 350, West Chester, Ohio 45069, for appellant
BYRNE, J.
{¶1} Appellant, Dix Road Property Management, LLC (“Dix Road“), appeals from the decision of the Fairfield Municipal Court releasing to appellee, Bradley Chasteen, rent monies he had placed in escrow with the trial court pursuant to
I. Procedural History
{¶2} Chasteen rented a home at 1148 Blackwell Drive in Fairfield, Ohio (“the
{¶3} In fact, Chasteen submitted not only his September rent payment to the clerk, but also his rent payments for October, November, and December 2019 and January 2020. In December, Chasteen provided notice to Dix Road that he was terminating his lease. Chasteen‘s lease terminated on January 31, 2020.
{¶4} On December 30, 2019, Dix Road filed an application pursuant to
{¶5} On February 10, 2020, the trial court held a hearing on the matter. Prior to the presentation of its case, Dix Road requested that the trial court dismiss the case and release the money held in escrоw to Dix Road. Dix Road argued that Chasteen had failed to document and file with the court evidence demonstrating that he provided Dix Road with the requisite notice under
{¶6} In March 2020, the trial court issued a judgment entry finding that “the [R]esidence at all times relevant was uninhabitable due to the raw sewage damage” and
II. Testimony at the Hearing
{¶7} The court‘s posthearing judgment entry noted that the court took testimony, received exhibits, and “carefully reviewed the evidеnce presented at the hearing as well as the applicable authority.” To facilitate our discussion of Dix Road‘s assignment of error, we will briefly describe the testimony offered at the hearing.1
A. Testimony Regarding Key Facts
{¶8} The following key facts were testified to by several witnesses and/or provide background for the testimony described below.
{¶9} Dix Road, Bed and Breakfast Property Management, and BB Rents are members of a family of companies that manage approximately 1,950 properties, including the Residence. Beginning in May 2015, Chasteen and his son lived as tenants at the Residence and Dix Road was their landlord. Beginning in 2016, Chasteen leased the Residence on а month-to-month basis.
{¶10} On August 13, 2019, Chasteen returned home from work to find the Residence‘s basement had flooded. Chasteen noticed an “overwhelming” smell of sewage and discovered the Residence‘s basement carpet was “covered” from the flood and that the basement bedroom had water “all the way up to the bed.” According to Chasteen, the sewage—including fecal matter—was in the shower, on the floors, and “everywhere” in the basement. It was later determined that the overflow of a drain in the basement caused the flood.
{¶11} After discovering the flooded basement, Chasteen notified Dix Road of the
{¶12} Chasteen insisted that Dix Road must also remove the basement carpet and have the furnace professionally inspected and cleaned due to fеcal matter contamination. Dix Road insisted these steps were not necessary and that it had sufficiently addressed the issues caused by the flood. Chasteen and his son, who had moved out of the Residence after the flood intending to return when the repairs were complete, never returned.
B. Testimony of Tabitha Buell
{¶13} Dix Road‘s property manager, Tabitha Buell, testified that pursuant to the lease, Chasteen was required to keep all plumbing fixtures clean and free of all foreign materials. The lease further indicated that Dix Road was not liable for any damage, injury, or loss caused by any acts or omissions of the resident. Buell also testified that in February of 2019, all residents, including Chasteen, were sent a notice regarding clogged pipes. That notice reminded residents not to flush any foreign items down the drain, including those labeled as “safe for drains and toilets,” and further indicated the resident would be charged for any service calls related to clogged pipes.
{¶14} According to Buell, Chasteen contacted Dix Road about the sewage backup on August 13, 2019. Through conversations related to the sewage backup, Buell learned that because Chasteen believed “the situation had not been taken care of,” Chasteen was no longer staying in the Residence, but his personal items remained in the homе. Buell
C. Testimony of Ralph Hammonds
{¶15} Dix Road‘s operation manager, Ralph Hammonds, testified that he oversaw Dix Road‘s maintenance department at the time of the flood. He became aware of the sewage backup at the Residence on August 14 or August 15, 2019, when Chasteen informed the maintenance department there had been no cleanup of the sewage in his basement.
{¶16} Hammonds explained various work orders relating to the Residence. According to the first work оrder, dated August 13, 2019, Dix Road had assigned a drain company to clean the drain at issue, identify why the drain was backing up, and to remediate the cause of the “backup.” Hammonds estimated the work was completed within 24 hours of the request. A second work order, dated August 16, 2019, assigned an individual to clean up the sewer “backup,” clean the floor, and to dry out the basement. According to Hammonds, the second work order took several days to complete. A third work order, dated August 21, 2019, directed four maintenance techs to remove drywall from part of the basement. Hammonds testified the drywall removal and repair took several days, and that Dix Road would normally have only cleaned the drywall with a bleach solution, but in this case removed the drywall because mold was discovered while conducting drywall removal and repair. The final work order, dated September 27, 2019, assigned additional work related to the basement bathroom, including replacing the tile, rebuilding the existing bathroom cabinets, and general clean up.
{¶17} Hammonds initially testified that, as of the end of August 2019, he believed
{¶18} Hammonds acknowledged that Chasteen had complaints regarding the cleanup and repairs. He testified Dix Road would “periodically get an e-mail or a text from Mr. Chasteen that mold is still growing or house still smells[.]” Hammonds testified that he and Chasteen disagreed regarding Dix Road‘s remediation techniques. For example, Chasteen turned the HVAC unit off, believing it wоuld spread fecal contaminants, while Hammonds believed the HVAC unit should remain on in an effort to dry out the home. Dix Road workers turned the HVAC unit back on, despite Chasteen‘s concerns. Hammonds acknowledged that Chasteen had an air scrubber installed to vent air out of the house. Hammonds also disagreed with Chasteen‘s assertion that the carpet and padding in the basement were not salvageable, testifying that Dix Road‘s policy was to simply steam clean the carpet, not to replace the carpet.
D. Testimony of Steve Metcalf
{¶19} Steve Metcalf testified he specializes in cleaning drains and sewers and has 41 years of experience in drain related work. Metcalf indicated he has done drain and sewer work for Dix Road for five years. Metcalf inspected the Residence‘s flooded basement at Dix Road‘s request.
{¶20} Metcalf testified that when he arrived at the Residence, the basement floor was covered with fresh sewage waste, as well as personal hygiene wipes and toilet paper.
{¶21} Dix Road did not move to qualify Metcalf as an expert witness. Metcalf testified as a lay witness.
E. Testimony of Daniel Hand
{¶22} Daniel Hand, the owner of FloodStar Restoration, testified on behalf of Chasteen. Hand indicated he is master certified in water, fire, and smoke restoration by the Institute of Inspeсtion, Restoration, and Cleaning Certifications, and that he has been in the restoration business since 2012. Hand explained that Chasteen called him on August 14, 2019, to assess the situation. After inspecting the Residence, Hand concluded there was sewage backup from the drain in the basement and that several walls needed to come out, as well as the carpet and the sides of the cabinets. Hand installed an air scrubber on the first floor of the Residence in an attempt to clean the air “because nothing was being done.” Hand indicated the air scrubber works by taking odors and contaminants out of the house through its vent and processing out cleаn air, and testified that the air in the home was potentially contaminated by sewage and mold.
{¶23} Hand testified that he located sewage in the Residence‘s furnace during his inspection. Hand testified that according to restoration industry standards, it would be unsafe to use a furnace contaminated with sewage, and that a contaminated furnace must
{¶24} Hand also testified regarding the proper standards for water and mold cleanup and indicated that any porous objects that come in contact with sewage, including carpet and carpet padding, must be disposed of, as there is no proper way to clean such objects. According to Hand, any attempt to “halfway clean” any porous items like carpet leaves a health risk to the tenants.
{¶25} Chasteen did not move to qualify Hand as an expert witness. Hand testified as a lay witness.
F. Testimony of Bradley Chasteen
{¶26} Chasteen testified that it rained a significant amount the night before he discovered the flooding. He believed the heavy rains caused the flood, and he pointed out that two other houses in the neighborhood floоded the same day. Chasteen also noted that while he and his son were away on vacation the week before, Dix Road had completed plumbing repairs in the Residence‘s bathroom on the main level due to a leak from the bathtub. In light of those repairs, Chasteen and his son had not used the bathrooms for two days before the incident.2
{¶27} Chasteen testified to multiple oral and written communications with Dix Road regarding the flood and remediation efforts. After discovering the sewage flood Chasteen began working with Buell, the property manager, who informed Chasteen that Dix Road would not be replacing the carpet. Chasteen alsо discussed the carpet replacement with
{¶28} Chasteen noted additional repairs he took issue with, including the cabinet repair. According to Chasteen, the bathroom cabinet was falling apart from being covered in sewage, however Dix Road merely stapled the cabinet back together and reinstalled it in the basement bathroom. Chasteen disagreed with Dix Road‘s decision to keep the cabinet while removing the drywall when both were affected by sewage.
{¶29} When asked why he continued to pay rent for several months, rather than terminating his lease as Buell suggested, Chasteen indicated he desired to return to the Residence for personal reasons—including its proximity to his son‘s school—and that he was hoping to move back in. According to Chasteen, Dix Road continued to make “little repairs” over time and the Residence “kept progressively getting better and better.” Each time Chasteen sent a “message” to Dix Road, Dix Road would respond that “somebody was coming out.” However, by the “end of it,” Chasteen remained dissatisfied with the cleanup, as he believed there was “still fecal matter by the furnace.” At that point, Dix Road “made it clear that they were done” and refused to do anything about the furnace, and Chasteen elected to terminate his lease and dispose of his remaining personal items in the Residence.
{¶30} Dix Road now appeals the trial court‘s decision releasing the escrowed rent to Chasteen, raising the following assignment of error for our review:
{¶31} THE TRIAL COURT ERRED TO THE PREJUDICE OF LANDLORD/APPELLANT BY ORDERING THE RELEASE OF TENANT/APPELLEE‘S ESCROWED RENT TO TENANT/APPELLEE.3
{¶32} In support of this assignment of error Dix Road presents two issues for review. First, Dix Road argues that the trial court erred when it denied Dix Road‘s verbal motion to dismiss at the beginning of the February 10, 2020 hearing because Chasteen did not provide notice to Dix Road of the basis for his rent escrow application until he filed the application on September 5, 2019, only one day before Chasteen filed his rent in escrow. Second, Dix Road claims the trial court‘s decision to release the escrowed funds to Chasteen was against the manifest weight of the evidence because the evidence establishes that Chasteen (or his son or a guest) caused the flood by flushing personal sanitary wipes in violation of his lease, and/or because Dix Road completed all necessary remediation work. We will address these arguments in turn.
A. Timeliness of
{¶33}
{¶34} If a tenant who is current with rent payments provides such notice to a landlord and the landlord “fails to remedy the condition within a reasonable time considering the severity of the condition and the time necessary to remedy it, or within thirty days, whichever is sooner,” then the tenant may “[d]eposit all rent that is due and thereafter becomes due the landlord with the clerk of the municipal or county court having jurisdiction in the territory in which the residential premises are located.”
{¶35} However, a landlord who receives notice of an
{¶36} As previously noted, Dix road moved to dismiss at the commencement of the hearing, arguing that Chasteen failed to provide notice in a timely manner under
{¶37} The grant or denial of a motion to dismiss is within the discretion of the trial
{¶38} Chasteen attached a letter to his rent escrow application which states, in part: “This letter is to notify you, again that your rent will be in escrow for 1148 Blackwell Drive Fairfield, OH 45014. I have sent this in an email and expressed it verbally several times.” (Emphasis added.) The letter details Chasteen‘s issues with the property, including his concerns about safety and habitability. Chasteen signed the application, certifying under penalty of perjury that the facts included in his application and its attached letter were true.4
{¶39} Chasteen‘s written certification under penalty of perjury of the truth of the letter—which stated that he had previously sent an e-mail to Dix Road about his concerns and his intent to pursue rent escrow—is sufficient evidence from which the trial court could have concluded that Chasteen had provided Dix Road with the written notice referenced by
{¶41} We pause to note that Dix Road‘s brief could be read as also arguing that the trial court‘s posthearing judgment entry implicitly found that Chasteen provided Dix Road with timely notice as required by
B. Causation and Habitability
{¶42} We nоw turn to Dix Road‘s argument that the trial court‘s decision was against the manifest weight of the evidence. Dix Road claims the evidence presented at trial clearly proves the sewage flood was solely Chasteen‘s fault, and therefore, Dix Road was entitled to the escrowed rent pursuant to
{¶43} The standard of review for a manifest weight challenge in a civil case is thе same as that applied to a criminal case. Dunn v. Clark, 12th Dist. Warren No. CA2015-06-055, 2016-Ohio-641, ¶ 8, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. In considering a manifest weight challenge, a reviewing court weighs the evidence
{¶44} Dix Road argues that the trial court‘s decision is contrary to “all” of the evidence. This is not the case. Dix Road‘s theory that Chasteen, his son, or a guest caused the flood by flushing personal hygiene wipes down the toilet is supported by Metcalf‘s testimony that he observed personal hygiene wipes in the sewage when he inspected the basement. But Dix Road offered no evidence or testimony establishing thаt the personal hygiene wipes were flushed by Chasteen, his son, or one of their guests; Dix Road simply assumed this to be the case.
{¶45} Chasteen offered evidence rebutting Dix Road‘s theory. Chasteen testified that he and his son had not flushed the toilet for two days before the backup because of unfinished upstairs bathroom repair work that had been performed by Dix Road, and that they had been away from the Residence on vacation for a period of time before the flooding occurred. Chasteen testified that there was heavy rain the night before the flooding in his
{¶46} Dix Road relies heavily on Metcalf‘s opinion testimony regarding his belief that the personal hygiene wipes were flushed by Chasteen, his son, or a guest and that those wipes caused the sewage flood, regarding his belief that rainfall would not cause a sewer to back up into a home given the type of sewer system in place in Fairfield, and regarding the significance of the color of the toilet paper and personal hygiеne wipes found in the basement after the flood. In its brief, Dix Road refers to Metcalf as a “sewer-line expert.” However, the record reflects that Dix Road offered Metcalf as a lay witness and did not seek to qualify him as an expert witness, nor did the trial court determine that Metcalf was an expert witness. Therefore, Metcalf‘s testimony is only due the weight appropriate to lay witness testimony. See Evid.R. 701 (“If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are [1] rationally based on the perception of the witness, and [2] helpful to a clear undеrstanding of the witness’ testimony or the determination of a fact in issue“).
{¶47} The trial court was not obligated to accept Metcalf‘s lay opinion testimony regarding the cause of the sewage flood or the meaning of the color of the wipes. Nor was the trial court obligated to believe Metcalf‘s testimony about how Fairfield‘s sewage system worked, particularly when Metcalf was not an employee of the city. The trial court was free to instead believe Chasteen‘s testimony that he and his son had not used the basement bathroom recently and that two other houses in the neighborhood flooded after the previous night‘s heavy rainfall, meaning the rain, not the wipes, caused the flood. See Myers, 66 Ohio St. 3d at 614 (“where the decision in a case turns upon credibility of testimony, and where there exists competent and credible evidence supporting the findings and conclusions of the trial court, deference to such findings and conclusions must be given by the reviewing court“). The trial court was in the best position to assess Metcalf, Chasteen, and the other witnesses who testified; to observe their demeanor, gestures, and voice inflections; and to use those observations in weighing the credibility of the testimony of the witnesses. Myers, 66 Ohio St. 3d at 615, citing Seasons Coal Co., 10 Ohio St.3d at 80. It is apparent from its decision that the trial court chose to believe Chasteen‘s testimony and to reject Dix Road‘s theory of causation. Others may have reached a conclusion different from the one reached by the trial court based on its assessment of the evidence, but we cannot say that the trial court clearly lost its way. See Hacker, 2015-Ohio-4741 at ¶ 21, citing Eastley at ¶ 20. If, as the trial court implicitly found, Chasteen did not cause the flood, then
{¶48} Dix Road also argues that it had repaired everything that needed to be repaired in the Residence after the flood “save some cosmetic finishes,” and states that Chasteen did not show a violation of the lease, a building code, or its statutory duties. The Ohio Revised Code provides that “[i]f the court finds that there was no violation of any obligation imposed upon the landlord by section 5321.04 of the Revised Code * * *the court shall order the release to the landlord of rent on deposit with the clerk, less costs.”
{¶49} While the record reflects Dix Road began remediating the damage caused by the sewage flood in mid-August, Hammonds testified he did not believe the Residence was habitable until late September, approximately three weeks after Chasteen filed his escrow application. Moreover, despite Hammonds’ testimony that the Residence was habitable at
{¶50} These facts constitute competent and credible evidence supporting the trial court‘s finding that the Residence “at all times relevant was uninhabitable due to the raw sewage damage.” In such situations we must defer to the trial court as the finder of fact. See Myers at 614. Because the trial court found that the Residence was uninhabitable, it implicitly found that Dix Road failed to meet its obligations under
{¶51} Finding no merit to any of Dix Road‘s arguments, we overrule its sole assignment of error.
{¶52} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.