COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72846 CHERYL MCNEILL : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : TOM AND CATHY WASSERBAUER : : Defendants-appellees: DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Lakewood Municipal Court Case No. 97-CVI-2332 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: CHERYL MCNEILL, PRO SE 3678 West Blvd. Cleveland, Ohio 44111 For Defendants-Appellees: TOM WASSERBAUER, PRO SE 19523 Coffinberry Blvd. Fairview Park, Ohio 44126 -2- DYKE, P.J.: Plaintiff Cheryl McNeill appeals from the judgement of the Lakewood Municipal Court which determined that various charges were properly deductible from her security deposit. For the reasons set forth below, we affirm. On November 21, 1996, plaintiff, a former tenant at 1422 Rosewood Avenue in Lakewood, filed this action against defendants Tom and Cathy Wasserbauer alleging that defendants had wrongfully withheld $125 from her security deposit after plaintiff vacated the premises. Defendants, the landlords of the premises, filed a counterclaim for $386 plus costs, for unmitigated lost rent and other expenses, alleging that plaintiff fraudulently asserted that she had been transferred by her employer to another city in order to terminate her lease. The matter proceeded to a hearing before a referee on January 27, 1997. With regard to plaintiff's complaint, the referee found that pursuant to the lease, plaintiff was required to return the premises in the same condition as the date of the lease signing except for normal wear and tear and that $100 of the lease would be forfeited if the appliances required cleaning after termination of the lease. Additionally, with regard to defendants' counterclaim, the referee found that plaintiff notified defendants that she had been transferred to Chicago on July 17, 1996, and terminated the tenancy pursuant to a job transfer clause in the lease. The referee further found that on July 24, 1996, plaintiff accepted a new position in Cleveland. -3- The referee then concluded, with regard to plaintiff's complaint, that $100 was properly deducted from plaintiff's security deposit because the appliances did require cleaning after plaintiff vacated the premises, and that an additional $25 was properly deducted from the security deposit due to damages to the premises. The referee also found that the amounts were properly itemized. Finally, in regard to defendants' counterclaim, the referee concluded that plaintiff was not entitled to terminate the lease but that defendants had mitigated all but $386 in lost rent and related expenses. Plaintiff filed objections to the report of the referee in which she asserted that she could not be charged for gas and electricity after she had vacated the premises, that defendants had not properly itemized the deductions from plaintiff's security deposit, and that defendants had failed to demonstrate that the charges were not incurred as the result of ordinary wear and tear. The trial court held a hearing on plaintiff's objections on May 7, 1997. The court ultimately entered judgment for defendants on both the plaintiff's complaint and the defendants' counterclaim in an entry which provided in relevant part as follows: With respect to the $125.00 withheld by the defendants, the record reflects that $25.00 was deducted due to a broken storm window. Based on the evidence presented at the hearing, the Court finds that the window was broken during the plaintiff's tenancy. The record also reflects that the plaintiff was aware that the window would fall out of its frame, but did not make any attempt other than to call the landlord. In light of this, the Court finds that the Magistrate properly assessed the damage to the window against the plaintiff. -4- With respect to the balance of the deduction from the security deposit in the amount of $100.00, evidence was presented that the plaintiff had painted the kitchen during her tenancy. Although the plaintiff had permission from the defendants to paint the kitchen, the record reflects that the paint job itself was not done in a professional manner. Specifically there were portions of the kitchen that were not painted or other areas that needed to be re-painted. While the plaintiff claims that painting is not the tenant's responsibility, the tenant in this case, having voluntarily undertaken to paint the kitchen of the lease premises, had an obligation to have it painted in a professional manner. Having failed to do so, the Court finds that the plaintiff/tenant is liable for the cost of repair of the damage caused by the insufficient paint job in this case. Upon review of all of the exhibits in the record as well as the testimony of the parties to this Court in the hearing on objections, the Court finds that the deduction of $100.00 for repair of the kitchen due to faulty painting job is not an unreasonable amount. In addition, the damage caused by the plaintiff by not properly painting the kitchen was beyond normal wear and tear. The plaintiff asserted that deductions were made from the security deposit not based upon time or effort or extent of damages but rather, due to a damage clause contained in the lease for cleaning appliances. As the plaintiff correctly asserts, such damage clauses are not enforce- able. While a landlord may assert a liquid damages clause in the lease, it does not remove the landlord of the obligation of showing that any deduction from the security deposit was fair and reasonable under the circumstances and that the damage caused by tenant was beyond normal wear and tear. In light of the fact that, as indicated earlier, the defendants set forth sufficient [sic] to show damage beyond normal wear and tear of the premises in an amount equal to or in excess of the amount withheld from the security deposit, there is no need to address this issue. Plaintiff now appeals and assigns four errors for our review. Plaintiff's first, third, and fourth assignments of error are interrelated and state: -5- THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THE PLAINTIFF'S VOLUNTARY PAINTING OF THE KITCHEN ALLOWED THE LANDLORD TO DEDUCT $100 FROM HER SECURITY DEPOSIT FOR DAMAGE BEYOND NORMAL WEAR AND TEAR. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT THE WINDOW WAS BROKEN BY THE TENANT AND THE TENANT MADE NO EFFORT TO INFORM THE TENANT OF THIS PROBLEM. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT THE APPELLEES PROPERLY ITEMIZED THE DEDUCTIONS FROM THE SECURITY DEPOSIT. Within these assignments of error, plaintiff asserts that the trial court erred in determining that defendants had properly deducted $125 from her security deposit for repainting the kitchen and for repairing a broken window. The return of security deposits is governed by R.C. 5123.16 which provides in relevant part as follows: (B) Upon termination of the rental agreement any property or money held by the landlord as a security deposit may be applied to the payment of past due rent and to the payment of the amount of damages that the landlord has suffered by reason of the tenant's noncompliance with 5321.05 of the Revised Code or the rental agreement. Any deduction from the security deposit shall be itemized by the landlord in a written notice delivered to the tenant together with the amount due, within thirty days after termination of the rental agreement and delivery of possession. ***. (C) If the landlord fails to comply with division (B) of this section, the tenant may recover the property and money due him, together with damages in an amount equal to the amount wrongfully withheld, and reasonable attorneys fees. Thus, all deductions from the security deposit must be itemized, and failure to comply with this section can subject the landlord to damages double the amount wrongfully withheld, plus reasonable attorney fees. Nolan v. Sutton (1994), 97 Ohio App.3d 616, 619. The purpose of this statute is to make landlords give -6- reasons to tenants why their security deposit is being withheld so that tenants may decide whether to pursue an action for recovery of that security deposit. Senz v. Onstott (1994), 71 Ohio Misc.2d 67, 69. Further, cleaning costs may not be recovered unless they are over and above ordinary wear and tear. Nolan v. Sutton, supra; Weingarden v. Eagle Ridge Condominiums (1995), 71 Ohio Misc.2d 7, 16. In this instance, plaintiff notified defendants on July 17, 1996 that she would be terminating the tenancy and vacating the premises as of September 17, 1996. Thereafter, on October 9, 1996, defendants notified plaintiff that $125 had been withheld for the following: 1. The back bedroom wall had paint and plaster damage due to the storm window not being secured into the window track, thereby allowing water to accumulate in the sill. This was the window that was broken and repaired at our expense. It was found up on the attic floor. 2. The kitchen wall behind the refrigerator and the back sides of the cupboard doors required a second coat of paint to completely cover the old color, as you indicated you would repaint with proper preparation in you letter of July 1, 1994. Also the floor required a thorough scrubbing to remove all of the blue paint splatters from the work, which you had completed. 3. The appliances needed additional cleaning. This is referenced in section 10 of your lease. We find that this document sufficiently itemizes the deduc- tions such that the tenant was properly notified of the precise reasons why the various sums were not returned, and thereby met the requirements of R.C. 5321.16. Further, as to the court's determination that $125 was pro- perly retained by the landlord, we note that the record as supplied -7- by plaintiff provides no basis from which we may reverse the trial court's conclusion. As supplied by plaintiff, the record on appeal provides no basis from which we may reject the trial court's determination that plaintiff did not paint the kitchen in a professional manner and that defendants would have to pay $100 to repaint. Further, there is no basis in the record upon which we may reject the trial court's conclusion that an additional $25 was properly deducted for a window which was broken during the plain- tiff's tenancy, resulting in water damage. That is, in the absence of a verbatim transcript of the proceedings, this court must presume regularity in the challenged judgment. See State v. Roberts (1991), 66 Ohio App.3d 654, 657. The first, third and fourth assignments of error are without merit. Plaintiff's second assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE DEFENDANTS TO CHARGE THE PLAINTIFF FOR THE GAS AND ELECTRICAL CHARGES WHEN THE PLAINTIFF HAD ALREADY VACATED THE PREMISES. Within this assignment of error, plaintiff challenges the trial court's award of approximately $25 to defendants on their counterclaim for the period of time immediately following plaintiff's vacation of the premises. Section 10 of the parties' lease authorizes the recovery of any damages suffered by the Lessor for any breach of any of the conditions or covenants of this agreement. In this matter, the trial court determined that plaintiff improperly terminated the -8- tenancy in reliance upon the job transfer clause in the addendum as she remained in Cleveland. This finding is not challenged herein. Accordingly, in light of contract language authorizing the recovery of any damages in the event that the tenant breaches the rental agreement, recovery of reasonable utility fees associated with re- renting the premises was proper. See Eleven Ten Corp. v. K. Amalia Enterprises, Inc. (December 23, 1997), Franklin App. No. 97APE03- 419, unreported. This assignment of error is overruled. -9- It is ordered that appellees recover of appellant 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 Lakewood 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. KARPINSKI, J., AND SPELLACY, J., CONCUR. ANN DYKE PRESIDING 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 .