COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70955 JEFFRY C. GERBER : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JACQUELINE E. LEWIS, ET AL. : OPINION : : PER CURIAM DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1996 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Heights Municipal Court, No. CVG-951412. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Robert C. Wentz, Esq. 1420 Standard Building 1370 Ontario Street Cleveland, OH 44113 For Defendants-Appellants: Michael A. Robusto, Esq. UAW Legal Services Plan 707 Brookpark Road Brooklyn Heights, OH 44109 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cleveland Heights Municipal Court, oral argument and the briefs of counsel. Jacqueline and Jaconya Lewis, defendants-appellants, appeal from the decision of the Cleveland Heights Municipal Court which found in favor of Jeffry Gerber, plaintiff-appellee, in the amount of $6,907.73 on a residential lease. Defendants-appellants assign one error for this court's review . Defendants-appellants' appeal is not well taken. On August 13, 1994, Jeffry Gerber, plaintiff-appellee, agreed to lease a single-family, three-bedroom home located at 848 Montford Road, Cleveland Heights, Ohio, to Jacqueline and Jaconya Lewis, defendants-appellants. The lease term was from August 13, 1994 through July 31, 1996. Rent under the lease was $650.00 per month through August, 1995 and $680.00 per month thereafter. Defendants- appellants were responsible for all utility payments under the lease. All rental payments were paid through July, 1995. In August, 1995, plaintiff-appellee received $550.00 in rent from defendants- appellants. Similarly, plaintiff-appellee received $550.00 in rent from defendants-appellants for the month of September. No further rental payments were made by defendants-appellants under the subject lease. Consequently, on October 16, 1995, plaintiff-appellee filed a complaint in Cleveland Heights Municipal Court for forcible entry -3- and detainer and for damages. On November 1, 1995, plaintiff- appellee was granted a judgment on his cause of action and a writ of restitution was issued. Defendants-appellants vacated the residence on November 1, 1995, returned to make a video tape illustrating the condition of the home on November 2, 1995 and did not return thereafter. The damages portion of plaintiff-appellee's complaint came on for trial on June 12, 1996. At trial, plaintiff-appellee sought damages for unpaid rent during the months of August, September and October, destruction of property and the balance due on the unpaid lease term which ended July, 1996. Plaintiff-appellee also sought payment for two unpaid utility bills. Defendants-appellants maintained at trial that they had re- negotiated their lease with plaintiff-appellee allowing for the reduced rental payments for the months of August and September. Defendants-appellants admitted that no rent was paid for October, 1995 but contended that their $650.00 security deposit was sufficient to cover the rental obligation for that month. Defendants-appellants maintained further that they were not liable for the balance of the lease term since they re-negotiated the lease to allow for early termination and/or because plaintiff- appellee failed to make reasonable efforts to mitigate his damages by re-renting the property. Lastly, defendants-appellants claimed that the property was surrendered to plaintiff-appellee in good condition. -4- The trial court determined that defendants-appellants had agreed to lease the subject property from August, 1994 to July, 1996. The trial court determined further that defendants-appellants were obligated to pay $650.00 per month for rent through August, 1995 and $680.00 per month thereafter. The evidence demonstrated that re-negotiation of the lease terms was, in fact, discussed. However, the lease was never formally changed. Accordingly, the trial court determined that defendants-appellants were liable for the full sum of rent for the months in question minus the $650.00 security deposit. The trial court also determined that, although plaintiff- appellee did not re-rent the subject premises, plaintiff-appellee did take reasonable steps to mitigate his damages by listing the subject property for sale immediately after defendants-appellants vacated the residence. Plaintiff-appellee entered into a sales agreement fairly soon after, however, the sale was not completed as of trial and did not close until July 12, 1996. Based upon the evidence adduced at trial, the trial court found in favor of plaintiff-appellee in the amount of $6,380.00 for rent ($100.00 for August, 1995, $130.00 for September, 1995 and $680.00 per month from October, 1995 to July, 1996, less the $650.00 security deposit); $320.73 for unpaid utilities and $202.00 for kitchen carpet replacement. The trial court found that defendants- appellants were not responsible for any other repairs done to the home. Judgment was rendered against defendants-appellants in the -5- amount of $6,902.73 plus interest at a rate of 10 percent per annum from the date of the judgment. On July 10, 1996, Jacqueline and Jaconya Lewis, defendants- appellants, filed a timely notice of appeal from the judgment of the trial court. On appeal, defendants-appellants raise the following assignment of error: THE TRIAL COURT ERRED IN GRANTING THE APPELLEE LANDLORD A JUDGMENT AGAINST THE APPELLANT TENANT FOR RENT DUE FOR THE ENTIRE BALANCE OF A RESIDENTIAL LEASE BREACHED BY THE TENANT, WHERE THE LANDLORD TESTIFIED THAT HE MADE NO ATTEMPT TO MITIGATE HIS DAMAGES BY ATTEMPTING TO RE-RENT THE PREMISES AFTER THEY WERE VACATED BY THE TENANT. Defendants-appellants maintain, through their sole assignment of error, that judgment was improperly entered in favor of plaintiff-appellee on the remaining balance due under the terms of the lease. It is defendants-appellants' position that plaintiff-appellee did not make any reasonable effort to mitigate his damages by re-renting the subject property after defendants- appellants vacated the home. Rather, defendants-appellants maintain that plaintiff-appellee made "only a very lackadaisical attempt to sell the property in a timely manner." Defendants- appellants contend that, under the facts of this case, plaintiff- appellee's alleged "lackadaisical attempt" to sell the residence did not discharge plaintiff-appellee's duty to mitigate his damages. -6- Ohio courts have held that a landlord has a duty to mitigate its damages when the lessee vacates the property before the end of the lease term. Stern v. Taft (1976), 49 Ohio App.2d 405, 408; Montrose Centre v. Pacific Waterbeds, Inc., et al. (May 26, 1993), Summit App. No. 15906, unreported. R.C. 1923.081 provides that in a forcible entry and detainer action concerning residential premises, the plaintiff-landlord may recover past due rent and other damages under a rental agreement. Other damages under the rental agreement include damages caused by the tenant's failure to pay the rent set forth in the rental agreement subject to mitigation of those damages by the landlord. Briggs v. McSwain (1986), 31 Ohio App.3d 85, 86. Ordinarily, a lessor must make reasonable efforts to mitigate damages sustained by the breach of its lease. Master Lease of Ohio v. Andrews (1984), 20 Ohio App.3d 217, 220. The term "reasonable efforts" does not require a lessor to make extraordinary efforts or attempt the unreasonable or impracticable. Foust v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164, 168; Endersbey v. Schneppe (1994), 73 Ohio App.3d 212. In the present case, a review of the record demonstrates that defendants-appellants clearly breached their lease with plaintiff-appellee. The evidence further demonstrates that plaintiff-appellee listed the subject property for sale soon after taking possession on November 1, 1995. Initially plaintiff-appellee attempted to sell the property by-owner but, -7- after a brief period of inactivity, listed the house with a real estate broker who eventually entered into a sales contract with a buyer. The sale of the subject residence took approximately eight months to complete. At trial, plaintiff-appellee, who is an experienced landlord in the Cleveland Heights area, testified that it would not be feasible or practical to attempt to re-rent the property during the month of November, the implication being that no one would be looking for a home during the middle of the school year. (Tr. 27.) Plaintiff-appellee's testimony was not contradicted by defendants-appellants. Defendants-appellants maintain that, under the facts of this case, the only acceptable way for plaintiff-appellee to have properly mitigated his damages under the lease was to have immediately attempted to re-rent the premises to any tenant willing to accept the lease terms. Defendants-appellants ignore plaintiff-appellee's uncontroverted testimony and the fact that, had the residence sold within the first months during which it was listed, the extent of defendants-appellants' liability would have been greatly diminished. It is apparent from the trial court record that plaintiff-appellee did, in fact, take reasonable steps to mitigate his damages by listing the home for sale immediately after regaining possession from defendants-appellants. The fact that plaintiff-appellee's attempted mitigation was not completely successful does not deter from the reasonableness of the attempt. For the foregoing reasons, defendants-appellants' sole assignment of error is not well taken. -8- Judgment of the trial court is affirmed. -9- 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 Heights 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, CHIEF JUSTICE DAVID T. MATIA, JUDGE TIMOTHY E. MCMONAGLE, JUDGE N.B. This entry 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(E) 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(E). See, also S.Ct. Prac.R. II, Section 2(A)(1). .