MOHSEN FANOUS v. JAMES OCHS, ET AL.
No. 98649
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 21, 2013
[Cite as Fanous v. Ochs, 2013-Ohio-1034.]
Civil Appeal from the Berea Municipal Court Case No. 11 CVG 00920
BEFORE: Boyle, P.J., Celebrezze, J., and Keough, J.
RELEASED AND JOURNALIZED: March 21, 2013
Patrick Dichiro 4141 Rockside Road Suite 230 Seven Hills, Ohio 44131
ATTORNEY FOR APPELLEE
Dominic J. Vannucci 22649 Lorain Road Fairview Park, Ohio 44126
{1} Defendants-appellants, James Ochs and Kamio Kim (collectively “appellants“), appeal from the trial court‘s judgment awarding damages to plaintiff-appellee, Mohsen Fanous (“the landlord“). Appellants raise two assignments of error:
I. The trial court erred and abused its discretion when it affirmed the magistrate‘s decision where the magistrate considered the terms of the settlement of the first cause of action in making his decision on the second cause of action.
II. The trial court erred and abused its discretion when it affirmed the magistrate‘s decision where the magistrate placed the burden of proof on the appellants-defendants.
{2} Finding no merit to the appeal, we affirm.
Procedural History and Facts
{3} The landlord and Ochs entered into a four-year written lease agreement on November 27, 2002, for the commercial property located at 15275 Brookpark Road, which Ochs and Fanous both personally signed. According to the landlord, he entered into a month-to-month rental agreement for the premises with Ochs and Ochs‘s mother, Kim,1 after the expiration of the written lease agreement. The parties agreed to $2,000 per month in rent.
{5} Both Kim and the landlord testified that the agreed rent was $2,000 per month and that there were no problems with the payment of the rent through December 2008. According to Kim, however, the landlord agreed to reduce the rent to $1,500 to accommodate her slowing restaurant business, starting in May 2009. Conversely, the landlord testified that he never agreed to reduce the rent and that he only allowed appellants additional time to pay the full amount when their rent fell short.
{6} The documentation evidence presented at trial revealed rent payments made in the form of checks and cash for varying amounts. The parties, however, stipulated that between January 1, 2009, and May 30, 2011, appellants paid a total of $45,100 in rent. While the landlord sought to recover the full $2,000 amount of rent for each month, appellants defended the action on the basis that rent had been reduced to $1,500 and that they had fully complied with paying the reduced rent. According to appellants, the landlord was not entitled to any more rent. Although Kim admitted at trial that $700 was owed to the landlord for the water bill, appellants urged the court to offset the amount that they paid for trash disposal and snow plowing.
{8} Appellants filed objections to the magistrate‘s findings of fact and conclusions of law. The trial court overruled the objections and awarded judgment in favor of the landlord, for a total amount of $13,600 plus 3 percent interest per annum from February 15, 2012.
{9} Appellants now appeal.
Standard of Review
{10} “Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), at syllabus. Further, rulings on evidentiary matters are well within a trial court‘s discretion. McKay Machine Co. v. Rodman, 11 Ohio St.2d 77, 82, 228 N.E.2d 304 (1967).
{11} Moreover, in accordance with
Evid.R. 408 and Settlement Agreement
{12} In their first assignment of error, appellants argue that the trial court erred in adopting the magistrate‘s decision when the magistrate improperly considered the settlement agreement reached in connection with the first count of the complaint in determining the amount of rent owed with regard to the second count. In the magistrate‘s findings of facts and conclusions of law, the magistrate referenced that “at the conclusion of the First Cause of Action, the Defendant, Kim * * * agreed to ‘pay to the Plaintiff the sum of $4,000.00 on May 4, 2011 as agreed rent for April and May 2011.‘”
{13} Appellants argue that
{14}
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
{15} We find appellants’ reliance on
{16} Thus, contrary to appellants’ assertion, the evidence presented at trial revealed that the appellants had paid a total of $4,000 for the months of April and May 2011 as part of the court agreement. We therefore find no error in the magistrate relying on this evidence in support of his finding that the rent was never reduced.
{18} Here, the testimony was disputed. We must defer to the trier of fact when it comes to the weighing of credibility. The magistrate obviously found the landlord‘s testimony more credible than the testimony of Kim, who testified to the rent reduction. This finding is supported by the record, including appellants’ payment of $2,000 in rent in March 2011 - prior to filing the eviction action. The mere fact that the magistrate believed the landlord over the appellants does not render the decision erroneous. Indeed, in a bench trial, “the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). It follows that, “[i]f the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation
{19} We find that the landlord carried his burden of proof and demonstrated by a preponderance of the evidence that he was entitled to $2,000 per month during the appellants’ occupancy.
{20} We find no merit to the first assignment of error and overrule it.
Burden of Proof
{21} In their second assignment of error, appellants argue that the trial court erred in adopting the magistrate‘s decision when the magistrate wrongly placed the burden of proof on the appellants, instead of placing the burden of proof on the plaintiff-landlord. We disagree.
{22} The burden of proof in a civil action for past due rent under a lease agreement is preponderance of the evidence. See Bustillos v. Bell, 3d Dist. No. 5-11-44, 2012-Ohio-3320. The plaintiff carries the burden of persuasion and must demonstrate by a preponderance of the evidence that the defendant is liable for unpaid rent. Id. at ¶ 14.
{23} In this case, we find that the landlord carried his burden of proof and demonstrated by a preponderance of the evidence that he was entitled to unpaid rent. We cannot say that the verdict is against the manifest weight of the evidence. Although the landlord‘s and appellants’ recordkeeping in this case appeared very disorganized, the
{24} As for appellants’ claim of a rent reduction and their defense of “accord and satisfaction,” we note that they carried the burden of proof to establish this defense. See N. Olmsted v. Eliza Jennings, 91 Ohio App.3d 173, 181, 631 N.E.2d 1130 (8th Dist.1993) (“Accord and satisfaction is an affirmative defense to a claim for money damages. The burden of proof is upon the proponent of the defense.“) We therefore find no error in the magistrate‘s statement that appellants failed to prove that the rent had been reduced.
Ochs‘s Personal Liability
{25} As part of their second assignment of error, appellants further argue that the magistrate erred in finding Ochs personally liable for the unpaid rent when he only signed the original lease agreement and later moved out of state. We find appellants’ argument to lack merit.
{27} The second assignment of error is overruled.
{28} Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCUR