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Wallen v. Cryder

Court of Appeals of Ohio, Second District, Montgomery

July 19, 2019

KELLI WALLEN, et al. Plaintiff-Appellant
RON CRYDER Defendant-Appellee

          Criminal Appeal from Municipal Court Case No. 2018-CVR-700

          KELLI WALLEN, Plaintiff-Appellant, Pro Se

          RON CRYDER, Defendant-Appellee, Pro Se


          DONOVAN, J.

         {¶ 1} Kelli Wallen and Donovan Baker ("the tenants") appeal from the November 1, 2018 order of the Municipal Court of Montgomery County, Western Division, which ordered rent money that had been held in escrow be returned to Ron Cryder, their landlord. For the following reasons, the judgment of the muicipal court will be affirmed.

         {¶ 2} On May 31, 2018, the tenants filed an application to deposit rent in escrow, which stated that the rent due under their rental agreement was current for their Denlinger Road address and that rent is due on the first of each month in the amount of $800. At the bottom of the application was a "Notice to Landlord or Agent" that a rental payment was deposited in the municipal court clerk's office on May 31, 2018. The record reflects that the tenants also deposited $800 in escrow on June 29, 2018.

         {¶ 3} A hearing on the application was scheduled for July 5, 2018. The record before us contains the exhibits from that hearing, but not the transcript. According to the municipal court's July 10, 2018 entry, both parties appeared pro se at the hearing. The municipal court granted the tenants' application to deposit rent in escrow, stating: "Rent is abated, per lease between parties, until repair work is accomplished."

         {¶ 4} On July 16, 2018, the municipal court clerk filed a copy of a July 12, 2018 email message sent by Cryder to the clerk. The email stated: "Repairs have been completed and I request a hearing to be set to review[.]"

         {¶ 5} A hearing was held on August 16, 2018, and the record contains a transcript of that hearing, at which the following exchange occurred:

THE COURT: * * * So we have a rent escrow case and we have an eviction. Mr. Cryder, have you talked to an attorney about this?
THE COURT: You know you can't evict somebody when you're in the middle of a rent escrow case?
MR. CRYDER: No, I did not know that.
** *
THE COURT: * * * But apparently part of why we're here, Mr. Cryder, is because you say you've repaired everything; is that right?
MR. CRYDER: Yes, sir.
** *
THE COURT: * * * Do you folks agree that he's fixed everything?
MS. WALLEN: No, we do not.
THE COURT: * * * Let's talk about that then. Yeah. So the, the forceful entry and detainer case set for today is going to be dismissed. I mean, you may be able to refile it, but you can't file this while there's a rent escrow in process. Okay?
MR. CRYDER: I thought the rent escrow ended at the first of the month.
THE COURT: No. The rent escrow continues until the Court's satisfied that the repairs have been made.
MR. CRYDER: But I understand they didn't put money in escrow this month.
THE COURT: Because you abated the rent. You gave up the rent until the repairs were accomplished. That was in your lease.
MR. CRYDER: * * * Well, the repairs were made. I don't know the exact date - -
** *
MR. CRYDER: - - but the repairs were made like right after we got out (unintelligible).
THE COURT: * * * So what do we have here? We have something from JFK Heating and Cooling. It's a bill for 1350. Install flue liner.
** *
THE COURT: * * * Do you folks dispute the fact that the flue liner was installed per this receipt?
MS. WALLEN: No, sir.
** *
MS. WALLEN: What I dispute is that the full repairs were completed.
THE COURT: * * * Now, let's go back then. Now we have a plumbing call here. Replace drain pipe in the basement at the bottom of the waste stack. Cut out, clean out tree tee fittings and replace new PVC fittings. Connect the cast iron with new mission bands. Was that accomplished?
MS. WALLEN: Yes, sir.
THE COURT: * * * Now, we have before pictures of the - - it looks like the bathroom and certain areas of the house. And now we have some after pictures. So they've - - you acknowledge that these pictures are accurate as to what's been done so far?
MS. WALLEN: As of the date that he was in our home, yes.
THE COURT: What date was that, ma'am?
MS. WALLEN: * * * July 7th.
THE COURT: * * * So those * * * things have been accomplished as far as we know?
MS. WALLEN: Yes, sir.

         {¶ 6} When the court asked Wallen what else needed to be repaired, she testified that she provided Cryder with a list of repairs and he "left it at my home and told me that it was too complex of a list." She stated that she had "photos as of this morning" to show that his attempted repairs were not complete. According to Wallen, there was still mold in the bathroom and paint cracking and falling through the bathroom "because he did not complete the repairs. All he did was scrape off what was already loose and hanging and then throw primer on top of it." Wallen further stated that, "[a]s far as the center wall over the fireplace chimney, all he did was, again, scrape off what was loose and then put primer over the top of it."

         {¶ 7} Wallen further stated that she had the estimate from the chimney sweeps that Cryder "sent out to estimate the damages originally way back in April"; the estimate, which was sent to Wallen because the chimney sweeps could not reach Cryder, stated "that there was water being held in the mortar around the chimney and also that there was moss growing." She testified that Cryder had "chosen not to remove that area that was contaminated by the water and the moss growing. He just put primer over top of it."

         {¶ 8} Cryder responded that "everything we talked about on the court date has been completed." He stated that the bathroom at issue has no windows and a ceiling fan. He stated that he told the tenants that they would "have to keep that area with the air circulating, let that stuff dry" after showering. As far as the mold and moss in the chimney, Cryder said that, when he had "that company come out and do the chimney repairs, they said that would * * * stop the moisture from growing in the chimney."

         {¶ 9} Wallen responded that there was still mold showing through Cryder's primer and still mold on the walls, and that "[t]here's now paint falling and cracking through the primer that he put on."

         {¶ 10} In response to a question from the court, Wallen indicated that the lease was month-to-month by the time of the hearing and that the tenants were trying to find another place to live. She stated that "it is difficult because I have three adults, one of which is a disabled child * * *." She testified as follows:

I have photos that are taken as of this morning where you can clearly see the mold. * * * [T]here's a picture in the dining room where he never even addressed where the water had been pouring through the ceiling above the closet in the dining room.
And then the center walls of the house where the furnace was you can still see where the moss and mold are growing and where he did not scrape off all the old paint nor remove the - - whatever liner ...

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