COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60232 DAVID R. LAVERTY : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KEN COLLINS, ET AL. : : Defendant-appellants : : DATE OF ANNOUNCEMENT : MAY 21, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Cleveland Municipal Court : Case No. 89-CVF-30905 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellants: W. WILSON CALDWELL, ESQ. JAMES L. HAMILTON, ESQ. 140 Public Square, #512 Suite 1200 Cleveland, OH 44114 One Erieview Plaza Cleveland, OH 44114 - 2 - PATTON, P.J. Defendant-appellants Kenneth and Betty Collins ("defendants") appeal from the lower court's decision which 1 overruled their objections to the referee's report. The action arose as the result of unpaid rent allegedly due and owing from defendants to plaintiff-appellee David Laverty ("plaintiff"). For the reasons that follow, we affirm. Defendants were the owners of an appliance repair service, Kenscot Appliance. Plaintiff, owner of a manufacturers' repre- sentative business, ran his business next to Kenscot. The findings of fact indicate that in April of 1986, "[d]- efendants agreed to pay [p]laintiff two thirds [sic] of his rent in exchange for the use of [p]laintiff's basement space and the back half of [p]laintiff's store." (See Referee's Report, p. 1.) Pursuant to an agreement, defendants were to pay the sum of $65.00 per month to plaintiff for the calendar year 1986 and thereafter pay $100.00 per month. The record indicates defen- dants have not paid any of the amounts due and owing plaintiff from April 1986 through November 1989. On November 1, 1989, plaintiff filed his complaint in the Cleveland Municipal Court against defendants which alleged that, pursuant to an oral month-to-month rental agreement, defendants owed plaintiff the sum of $4,020.00, which reflected the unpaid 1 The referee's report was adopted in toto by the trial judge. Defendants' agreed statement of facts was rejected. - 3 - rent from April, 1986 through November, 1989. Defendants an- swered pro se. Kenneth's hand-written answer stated in relevant part he "had an agreement with D. Laverty to liquidate part of his office equipment, and supply him with various appliance parts in exchange for use of part of his *** store front." Kenneth's answer concluded by stating that Laverty "bounces back and forth between letting me use it and then telling me I have to move. I will have all my property off his premises by 1/30/90." Betty answered by stating that she has "nothing to do with any property 2 *** [and that] Kenscot Appliance is no longer in business." No defenses were asserted by defendants. The matter came before a referee. Defendants were still unrepresented by counsel. The referee found for plaintiff in the amount of $3,920.00, which sum represents the total amount of unpaid rent less $10.00 for a washing machine filter given by defendants to plaintiff, plus costs. Thereafter, defendants secured counsel and filed objections to the referee's report. The basis of the objections was that plaintiff's claim was barred by the doctrine of laches and the statute of frauds. It is from the overruling of these objections that defendants appeal, assigning four errors for review. I. THE TRIAL COURT ERRED IN GRANTING CUMULATIVE RENTAL DAMAGES IN THE AMOUNT OF THREE THOU- SAND NINE HUNDRED TEN DOLLARS ($3,910.00) 2 Apparently Kenscot Appliance was sold to Betty Collins' mother and has been operating under a different name since October, 1989. - 4 - BASED UPON ALLEGED ORAL LEASE OF COMMERCIAL SPACE IN THAT THE PLAINTIFF WAS GUILTY OF LACHES IN FAILING TO EVER ENFORCE THIS CLAIM PRIOR TO THE INSTANT ACTION. II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S DAMAGES IN THAT PLAINTIFF FAILED TO MITIGATE DAMAGES. III. THE TRIAL COURT ERRED IN ESTABLISHING PLAIN- TIFF'S CLAIM TO AN ORAL MONTH-TO-MONTH LEASE AND THAT SUCH IS CONTRARY TO THE STATUTES OF FRAUD. [sic] IV. THE TRIAL COURT ERRED IN PLACING THE BURDEN OF PROOF UPON THE DEFENDANTS IN THE INSTANT ACTION, CONTRARY TO LAW. I. AND III. In defendants' first and third assigned errors they contend that plaintiff is precluded from recovery based upon the doctrine of laches and the statute of frauds. These defenses were not pleaded below nor were they raised during the hearing of the within matter. The defense of laches must be pleaded. See, State, ex rel. Hattery, v. Columbus (1938), 28 Ohio Law Abs. 523, 532. More- over, the statute of frauds is a defense which, if not pleaded, is deemed waived. See, Schoenl v. Warner White Co. (1928), 6 Ohio Law Abs. 563, 564. Since these defenses were not pled in the lower court, nor were they even before the referee at the time of the hearing, defendants cannot raise these defenses here. See, Schaefer v. DeChant (1983), 11 Ohio App. 3d 281, 282-3; - 5 - Faber v. Faber (June 12, 1986), Cuyahoga App. No. 50767, unre- ported, at 4. Accordingly, the first and third assignments of error are overruled. III. In defendants' second assignment of error they argue the trial court erred in awarding plaintiff damages when he failed to mitigate said damages. Again, defendants did not argue this issue below and may not now raise this for the first time on appeal. Schaefer, supra. Accordingly, the second assignment of error is overruled. IV. In defendants' fourth assignment of error they argue the lower court incorrectly placed the burden of proof upon defen- dants. The record does not reflect that the referee improperly placed the burden of proof on defendants. A full reading of the report indicates that the referee considered the testimony, credibility of the parties and the lack of contrary evidence in order to reach a decision. Moreover, defendants have failed to support their argument by the record and the law. Accordingly, the fourth assigned error is overruled. Judgment affirmed. - 6 - It is ordered that appellee recover of appellants his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal 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. JAMES D. SWEENEY, J. BLACKMON, J., CONCUR PRESIDING JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .