COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69758 RON AND DONNA ORBAS : : Plaintiffs-Appellees : : JOURNAL ENTRY -vs- : AND : OPINION BRET AND REBECCA WHITESIDE : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 26, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE BEREA MUNICIPAL COURT CASE NO. 95-CVI-01442 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: DAVID G. FAULKNER (#0033346) OF COUNSEL, FAULKNER & SACKETT 820 WEST SUPERIOR AVE., SUITE 300 CLEVELAND, OHIO 44113-1800 For Defendants-Appellants: JAMES L. MAJOR (#0041447) MAJOR & ASSOCIATES 1801 EAST 9TH STREET, SUITE 1710 CLEVELAND, OHIO 44114 - 2 - SPELLACY, C.J.: Defendants-appellants Rebecca and Bret Whiteside ("appellants") appeal the trial court judgment in favor of plaintiffs-appellees Ronald and Donna Orbas ("appellees") for damages caused to appellees' property and breach of lease agreement. Appellants set forth the following assignments of error for our review: I. THE LOWER COURT COMMITTED REVERSIBLE ERROR IN ITS METHODS OF DETERMINING THE AMOUNT OF DAMAGES TO BE AWARDED THE PLAINTIFFS. II. THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ADEQUATELY INQUIRE AS TO WHETHER THE PLAINTIFFS FULLY MITIGATED THEIR DAMAGES. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED THE DEFENDANTS' COUNTERCLAIM FOR THE PLAINTIFFS' FAILURE TO RETURN THEIR SECURITY DEPOSIT. Finding appellants' appeal to lack merit, we affirm the judgment of the trial court. I. On July 11, 1995, appellees filed an action against appellants in the Berea Municipal Court, Small Claims Division, for breach of a lease agreement and damages caused to appellees' property located at 7469 Pearl Road, Middleburg Heights, Ohio. On July 27, 1995, appellants filed a counterclaim against appellees for return of their security deposit. A bench trial was subsequently held by the trial court on September 6, 1995; and on September 19, 1995, the court entered a judgment in favor of appellees in the amount of one thousand two - 3 - hundred forty-two ($1,242.00) dollars. Subsequently, appellants filed a timely notice of appeal. On November 20, 1995, pursuant to App. R. 9(C), appellants filed with the trial court a statement of the evidence and proceedings. And on December 8, 1995, appellees filed their statement of the evidence and proceedings. Subsequently, the trial court, pursuant to App. R. 9, set forth its settlement and approval of the statement of the evidence and proceedings. In particular, the trial court approved appellees' Rule 9(C) statement in full, but only partially approved appellants' Rule 9(C) statement. In a nunc pro tunc journal entry dated November 30, 1995, the trial court ruled in favor of appellees and against appellants on the counterclaim for return of their security deposit. II. The facts as set forth in the record reveal the following. Appellees entered into a one year lease agreement with appellants which was to end July 31, 1995. Although appellant Rebecca Whiteside signed the lease agreement, both appellants' names were listed as "tenants" under the tenants signature lines. Furthermore, though appellant Bret Whiteside did not sign the lease agreement, he did occupy the leased residence. On April 24, 1995, appellant Rebecca Whiteside gave notice to appellees that she would be terminating her lease May 31, 1995. After appellants returned the keys to appellees, appellees conducted an inspection of the premises and discovered extensive - 4 - damage to the walls, floors, and other areas of the rented premises. Appellees' claimed damages to the premises totalled one thousand six hundred sixty-seven ($1,667.00) dollars. Appellees, however, offset the total amount of damages by eight hundred ($800.00) dollars, the amount of appellants' security deposit. Appellees proceeded to repair the premises in June, 1995; and subsequently re-let the apartment as of July 1, 1995. Appellants, however, failed to pay rent for June, 1995. III. In their first assignment of error, appellants contend that the trial court improperly determined the amount of damages which it awarded to appellees. In the case sub judice, the record reveals that the trial court approved appellees' App.R. 9(C) statement of the evidence and proceedings in full. (Judgment Entry, December 14, 1995). Appellees' App.R. 9(C) statement reveals the following facts with regard to the damage calculation by the trial court: (1) Judge Todia did reduce Plaintiffs damages for painting the ceilings of the rooms that needed painting, due to damage to the dry wall. (2) Judge Todia also ruled that the $5.00 per hole drywall repair charges seemed high, and adjusted the per hole charge down (3) Judge Todia ruled that the $17.00 per yard replacement cost was not excessive, since the replacement carpet was a match to the original damaged carpet, and was not a upgrade by the plaintiffs. (4) Judge Todia adjusted plaintiffs damages to $442.00, a reduction of $426.00 from the - 5 - $867.00 plaintiffs sued for, after reviewing the evidence and questioning the plaintiffs. (5) Judge Todia did rule in plaintiffs' favor on the damages of $800.00, for the June, '95 rent owed by the defendants, since the defendants did have a twelve month (12) lease, and broke this lease by moving out on May 31, 1995. (8) Judge Todia awarded a judgment for Plaintiffs for a total of $1,242.00, $800.00 for the June, '95 rent owed, and adjusted damages of $442.00. Furthermore, the trial court, in its statement of evidence stated the following: Sufficient testimony was allowed from all parties for the court to adequately evaluate the effect of Bret Whiteside not signing the lease; mitigation of damages by re-renting the premises one month following Defendants' vacating; the "depreciated value" of six month old carpet which was cut and patched by Defendants; the "repairs" inadequately made by Defendants; and the receipts testified to by Plaintiffs. (Journal Entry, December 14, 1995). The general rule regarding the measure of damages for injury to real property where restoration is feasible was set forth by the Ohio Supreme Court in Ohio Collieries Co. v. Cocke (1923), 107 Ohio St. 238 and states the following: 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. - 6 - See, also Cranfield v. Lauderdale (1994), 94 Ohio App.3d 426, 428. In order to determine the dimunition in value of the property, the party seeking restoration costs bears the burden of establishing the dimunition in the property's fair market value. Cranfield, at 429. Therefore, appellees were required to present evidence of the dimunition in the fair market value of their property after the injury. Id. Upon such proof, their recovery would nonetheless have been limited to an amount not in excess of the dimunition in the property's fair market value. Id. In the case before us, appellants contend that the trial court miscalculated the amount of damages appellees could recover. In particular, appellants assert that the trial court failed to take into consideration the difference between the pre-injury and post- injury fair market value of the real property. Furthermore, appellants contend that the trial court did not offset the amount awarded to appellees for their alleged carpet damage or take into consideration the dimunition in value of the carpeting. A close review of the record reveals that the trial court did, in fact, take into the consideration the "depreciated value" of the carpeting. (Journal Entry, December 14, 1995). The record further reveals that the court reduced appellees' damage request for re- painting the house and repairing the holes in the wall. Moreover, further confirming that the trial court did, in fact, take into consideration dimunition value is evidence which reveals that the receipts for the above repairs and replacement of the damaged - 7 - carpeting are far greater than the amount of damages awarded by the trial court. Thus, evidence presented in the record establishes that the trial court did allow sufficient testimony from both parties evidencing the "depreciated value" of the carpeting. The trial court was also presented with receipts evidencing the replacement cost of the carpet, as well as the cost associated with re- painting the apartment. Furthermore, the trial court reduced the amount of damages requested by appellants and evidenced by the said receipts. Moreover, appellants have failed to provide this court with any evidence that the trial court did not receive and therefore failed to take into consideration the dimunition in value of the injured property. It is the general rule that "a presumption of validity attends the trial court's action." Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313 at syllabus. Thus, in the absence of an adequate record, this court presumes that the action of the trial court was proper and affirms the award of damages. Accordingly, appellants' first assignment of error is overruled. IV. In their second assignment of error, appellants assert that the trial court failed to adequately inquire as to whether appellees fully mitigated their damages. Therefore, appellants contend, the trial court abused its discretion where its decision - 8 - regarding mitigation of damages is unsupported by facts and contrary to logic. The term "abuse of discretion" "* * * connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. * * *" State v. Montgomery (1991), 61 Ohio St.3d 410, 413, citing State v. Adams (1980), 62 Ohio St.2d 151, 157. We find, that the trial court did not "abuse its discretion" in reviewing evidence regarding mitigation of damages by appellees. A thorough review of the record indicates that the trial court did, in fact, hear testimony regarding the mitigation of damages. In particular, the trial court stated that "sufficient testimony was allowed from all parties for the court to adequately evaluate * * * mitigation of damages by re-renting the premises one month following Defendants' vacating * * * ." (Journal Entry, December 14, 1995). Furthermore, the trial court accepted appellees' statement of evidence which set forth that appellees mitigated their damages by re-renting the house as soon as possible after the repairs had been completed. (Plaintiffs' App.R. 9(C) Statement, December 8, 1995). The record further indicates that appellants failed to offer any evidence contradicting the findings of the trial court. App.R. 9(B) requires appellant to provide "a complete transcript or a transcript of the parts of the proceedings not already on file as the appellant considers necessary for inclusion - 9 - in the record and file a copy of the order with the clerk." If appellants plan to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, the appellant shall include in the record a transcript of all evidence relevant to the findings or conclusion." App.R. 9(B). Absent a transcript or record evidencing the contrary, we must presume regularity. Casalicchio, et al. v. Contippelli (April 4, 1996), Cuyahoga App. No. 68953, unreported. Accordingly, appellants' second assignment of error lacks merit. V. In their third assignment of error, appellants contend that the trial court erred in denying its counterclaim for appellees' failure to return their security deposit. In particular, appellants argue that it is impossible to know whether appellees wrongfully withheld the security deposit since it was impossible to know if proper offsets were made. Furthermore, appellants contend that the trial court lacked jurisdiction to issue a nunc pro tunc entry once a notice of appeal has been filed. In the present case, on November 29, 1995, the trial court, after appellants had filed their notice of appeal, set forth in the following nunc pro tunc journal entry its judgment regarding appellants' counterclaim for the return of their eight hundred ($800.00) dollar security deposit: NUNC PRO TUNC. THIS COURT FAILED TO RULE ON DEFENDANTS' COUNTERCLAIM IN ITS SEPTEMBER 6, - 10 - 1995 JOURNAL ENTRY. SINCE THE JUDGMENT WAS FOR PLAINTIFFS ON THE ISSUE OF DAMAGES AND SINCE THE COUNTERCLAIM WAS FOR FAILURE TO RETURN THE SECURITY DEPOSIT, IT IS CLEARLY IMPLIED IN THE JUDGMENT FOR PLAINTIFFS THAT DEFENDANTS' CLAIM FOR RETURN OF THE SECURITY DEPOSIT FAILED. THEREFORE, JUDGMENT IS ALSO RENDERED FOR PLAINTIFFS, RON ORBAS AND DONNA ORBAS, AGAINST DEFENDANTS, BRET WHITESIDE AND REBECCA WHITESIDE ON THE COUNTERCLAIM. (Journal Entry, November 30, 1995). Appellants contend that because they had previously appealed to this court, the trial court was without jurisdiction to correct its previous order entered September 6, 1995, which failed to resolve appellant's counterclaim. "Generally, the filing of a notice of appeal divests a trial court of jurisdiction to act inconsistently with an appellate court's jurisdiction to review, affirm, modify or reverse the appealed judgment." State v. Stevens (August 2, 1995), Summit App. No. 16998, unreported, citing State ex rel. Special Prosecutors v. Judges, Court of Common Pleas (1978), 55 Ohio St.2d 94, 97. In this case, the trial court's filing a nunc pro tunc entry was not inconsistent with this Court's authority to review the errors assigned by appellant. Furthermore, the trial court had continuing jurisdiction to modify the record to clearly reflect what actually had happened. Accordingly, we find appellants' third assignment of error not well taken. Judgment affirmed. - 11 - It is ordered that appellees recover of appellants their 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 Berea 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. ANN DYKE, J. CONCURS; DIANE KARPINSKI, J. CONCURS IN JUDGMENT ONLY (SEE OPINION ATTACHED). LEO M. SPELLACY CHIEF JUSTICE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69758 : RON AND DONNA ORBAS : : : Plaintiffs-Appellees : : CONCURRING v. : : OPINION BRET AND REBECCA WHITESIDE : : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 26, 1996 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I respectfully concur in judgment only on Assignment of Error I, because I believe the rule articulated in Ohio Collieries Co. v. Cocke (1923), 107 Ohio St. 238, and quoted by the majority states a formula too rigid for Small Claims Court. See discussion in Hines v. Somerville (Oct. 19, 1995), Cuyahoga App. No. 68040, unreported. .