COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68040 : ACCELERATED DOCKET ASLEAN HINES : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION MARY SOMERVILLE, ET AL. : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 19, 1995 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court Case No. 93-CVI-26831 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: ROBERT M. DUNN, ESQ. DENNIS B. POLLARD, ESQ. 3130 Mayfield Road, E237 Legal Aid Society of Cleveland Cleveland Heights, Ohio 44118 5715 Woodland Avenue Cleveland, Ohio 44104-2795 LAVERNE NICHOLS BOYD 1441 W. 25th Street Cleveland, Ohio 44113 - 2 - PER CURIAM: Defendant-appellant Mary Somerville ("tenant") appeals from a judgment of the Cleveland Municipal Court, Small Claims Division awarding $714.28 in damages to plaintiff-appellee, Aslean Hines ("landlord"). On November 15, 1992, tenant entered into a lease agreement with the landlord at $350.00 a month. Tenant is a Section 8 Program participant. Almost one year later, on October 3, 1993, tenant gave landlord a 30-day notice that she was vacating the premises. Tenant also tried to obtain the landlord's signature on an Agreement for Mutual Rescission of Lease, which agreement is required by the Section 8 program. Landlord refused to sign this agreement. On November 1, 1993, tenant vacated the premises. On November 14, 1993, landlord filed an action in Cleveland Municipal Court, Small Claims Division, alleging that tenant owed lost rent of $950.00 for the first three months of 1994. Landlord also sought $1,256.75 in damages for the repair of a carpet and replacement of keys due to the alleged negligence of the tenant. Tenant denied that she owed any back rent and denied that she is responsible for any property damage that exceeds her security deposit. The matter was heard on May 11, 1994, before a referee. The parties agreed that Cuyahoga Metropolitan Housing Authority need not participate in the trial. In a report issued June 23, 1994, the referee awarded $714.28 in damages less the $50.00 security - 3 - deposit: $410.00 for carpet restoration, $350.00 for November 1993 rent, and $4.28 for key replacement. Tenant filed an objection to the referee's report with respect to the damages allowed for carpet restoration. On September 19, 1994, the trial court overruled the tenant's objections and entered judgment in favor of the landlord pursuant to the referee's report. The tenant timely filed a notice of appeal to this court. Tenant's sole assignment of error provides: THE TRIAL COURT ERRED BY FAILING TO PROPERLY APPLY THE RULE FOR MEASURING DAMAGES FOR TEMPORARY INJURY TO REAL PROPERTY, WHERE RESTORATION IS FEASIBLE. A. THE MEASURE OF DAMAGES FOR TEMPORARY INJURY TO REAL PROPERTY HELD FOR BUSINESS PURPOSES IS THE REASONABLE COST OF RESTORATION UNLESS SUCH COSTS EXCEEDS [sic] THE DIMINUTION IN VALUE, IN WHICH CASE THE RECOVERY MUST BE LIMITED TO THE AMOUNT OF DIMINUTION. B. AS A MATTER OF LAW, FAILURE TO PRESENT EVIDENCE OF THE DIFFERENCE IN THE MARKET VALUE OF THE PROPERTY BEFORE AND AFTER THE INJURY PRECLUDES RECOVERY BASED ON THE COST OF RESTORATION. This case concerns the proper rule of law to be applied for measuring damages to real property. The tenant argues that the general rule of law for measuring damages which requires the defendant to provide expert testimony on the pre-injury value and post-injury value controls this case. The referee, however, determined that such rigorous expert proof was not necessary for the landlord's recovery in small claims court. In Ohio Collieries Co. v. Cocke (1923), 107 Ohio St. 238, this court spelled out the general rule in Ohio for measuring damages for temporary injury to real property as follows: - 4 - If restoration can be made, the measure of damages is the reasonable cost of restoration, plus the reasonable value of the loss of the use of the property between the time of the injury and the restoration, unless such cost of restoration exceeds the difference in the market value of the property as a whole before and after the injury, in which case the difference in the market value before and after the injury becomes the measure. Ohio case law shows that this rule of law need not be rigidly applied, however. In Adcock v. Rollins Protective Services Co. (1981), 1 Ohio App.3d 160, the court noted that the cardinal rule of the law of damages is that the injured party shall be fully compensated. The court went on to hold that the failure to prove the difference between the value of the whole property just before the damage occurred and immediately thereafter is not fatal to an owner's lawsuit. In Arrow Concrete Co. v. Sheppard (1994), 96 Ohio App.3d 747 at 750, an owner was able to repair his property when a concrete truck backed into a partially constructed building. The appellate court, noting the general rule stated in Ohio Collieries, articulated a less demanding standard when repair is possible: *** Ohio courts have recognized that in cases such as this, in which the party has been able to repair injury to a building, the proper measure of damages will usually be the reasonable costs necessary to restore the structure. See, e.g. Platner v. Herwald (1984), 20 Ohio App.3d 341, 20 OBR 445, 486 N.E.2d 202; Adcock v. Rollins Protective Serv. Co. (1981), 1 Ohio App.3d 160, 1 OBR 471, 440 N.E.2d 548; Florea v. Nationwide Mut. Ins. Co. (Jan. 28, 1983), Montgomery App. No. 7908, unreported, 1983 WL 5030. Generally, damages are determined by adding the cost of restoration to the cost of losing the use of the property. The Ohio Collieries case, supra, made an exception when the restoration cost is greater than the change in the property's market value. It - 5 - is unreasonable to require proof of the change in market value, however, in small claims court cases where the restoration cost is a very small figure in relation to the market value. That is, it is unlikely that the changed market value of a house could be calibrated so finely that it would decline in units as small as $410. In an opinion written by then Judge Moyer, the Franklin County Court of Appeals held that while the usual measure of damages for a vehicle involved in an automobile accident is the difference between the fair market value of the vehicle before and after the accident, the cost of repairing the vehicle is an acceptable alternative method of measuring damages if the cost of repair does not exceed either the diminution in market value or the fair market value of the vehicle before the accident. Allstate Ins. Co. v. Reep (1982), 7 Ohio App.3d 90. Being flexible, this rule is preferable when the repair amount is small in proportion to the fair market value. Tenant contends that the case at bar is controlled by Cranfield v. Lauderdale (1994), 94 Ohio App.3d 426. Cranfield, however, was brought as a forcible entry and detainer action against the tenant in housing court. The case sub judice was brought in small claims court for damages and lost rent after the tenant had vacated the premises. These are different types of actions in different courts. Small claims court is a court of limited jurisdiction, hearing cases that involve dollar amounts of less than two thousand - 6 - dollars. R.C. 1925.02(A)(1). Ohio law has recognized that different rules need to be applied in small claims court. In fact, Evidence Rule 101(C)(8) specifically states that the Ohio Rules of Evidence do not apply in the small claims division of a county or municipal court. Additionally, the Staff Notes for Evidence Rule 101(C)(8) state as follows: The subsection excludes small claims proceedings from the rules of evidence although such proceedings are ordinarily adversary in nature. The Evidence Rules Advisory Committee did recognize that R.C. Ch. 1925, governing small claims divisions, does not actually by statute exclude proceedings from the formal rules of evidence although the chapter does provide for "conciliation procedures" (R.C. 1925.03), and on many occasions referees as "a practical matter" ignore rules of evidence in order to resolve a dispute. Referees obviously require some reliable evidence to prove a claim, but a referee, exercising some discretion, should not deny a layman justice through a formalistic application of the law of evidence. A small claims division is intended as a layman's forum. It would be unreasonable to require landlords to produce evidence of the fair market value of their damaged rental property before they can be awarded compensation for the cost of repairs under two thousand dollars. If strict adherence to the general rule is followed in small claims court, landlords will be required to obtain appraisals even when damages are minimal. In small claims court, therefore, the test is whether sufficient evidence has been presented that would support the award of damages for injury to real property. The court's jurisdictional limit of $2,000 provides the necessary cap the Ohio Collieries case would impose by rigid formula. In the case sub judice, the lower court was presented with - 7 - sufficient evidence to support an award of $410.00 in damages for the carpet. Generally, damage awards will not be overturned if supported by competent, credible evidence. Arrow Concrete Co., supra. The court had pictures of the damaged carpet and received estimates as to the costs of replacing the carpet. Additionally, the landlord presented evidence in the form of an affidavit stating that when the tenant moved in the apartment, the carpet was not stained and showed little signs of wear. The affidavit went on to state that the carpet was ruined, not by wear, but by cigarette stains and unremovable stains. After a hearing at which both parties testified, the referee found the landlord's allegations as to the carpet's prior condition to be credible. The court recognized, however, that awarding damages based on the price of a new carpet would be a windfall to the landlord. The lower court acted quite reasonably in awarding merely one-third the value of the lowest estimate to replace to carpet. This assignment of error is not well taken. Judgment affirmed. - 8 - It is ordered that appellee recover of appellants her 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. LEO M. SPELLACY, PRESIDING JUDGE DISSENTS (See Dissenting Opinion) TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and the time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68040 ASLEAN HINES : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION MARY SOMERVILLE, ET AL. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 19, 1995 LEO M. SPELLACY, P.J., DISSENTING: I respectfully dissent. I find Cranfield v. Lauderdale (1994), 94 Ohio App.3d 426, controlling. In Cranfield, this court held that a landlord must present evidence on the decrease in value of real property to recover the cost of repair from a tenant. This measure-of-damages requirement prevents a landlord from recovering more than the diminished value of the real property. I disagree with the .