Magistrate's Decision and Report

This cause came on for hearing before Magistrate Hummer on November 12, 2003. Attorney Andrew Ruzicho represented plaintiff, Laura McElhaney. Defendant, Marilyn Talbott, represented herself. Based on the sworn testimony taken, the magistrate finds as follows:

Findings of Fact

1. Plaintiff is a former tenant at a property owned by defendant at 551 East Lincoln Avenue. The tenancy began in the spring of 2000 and ended in the spring of 2003.

2. Plaintiff paid a security deposit of $975.00 to defendant.

3. Prior to her move at the end of the tenancy, plaintiff gave verbal notice of her intention to terminate the tenancy. She did not provide defendant a forwarding address.

4. During the tenancy, plaintiff's cat caused damage to the carpet which necessitated cleaning at a cost to defendant of $75.00.

5. Plaintiff cracked a mirror in the bathroom medicine cabinet during the tenancy. The cost of replacement for defendant was $149.08.

6. When plaintiff burned candles during the tenancy, the heat from the fire ruined the mini-blinds underneath which the candles sat. Defendant's cost for replacing the mini-blinds was $75.00.

Conclusions of Law

The party who brings an action must prove the allegations in the complaint by a preponderance of the evidence. This is called the burden of proof. In a case brought pursuant to R.C. 5321.16 involving the disposition of a security deposit, the landlord bears the burden of proving the right to withhold any portion of the deposit.

Based on the evidence presented and after weighing the credibility and demeanor of the witnesses, the magistrate concludes that defendant properly withheld the following amounts from the security deposit:

Carpet Cleaning $75.00

Miniblind Damage 75.00

Medicine Chest Damage 149.08

Total: $ 299.08

The remainder of the security deposit, $675.92, was wrongfully withheld. The lease obligated the lessee to return the premises to the landlord "in the same condition as received, reasonable wear excepted." Although defendant argues she had the right to withhold the entire security deposit, the preponderance of the evidence failed to show that the rest of the security deductions were proper. On all of the remaining deductions itemized by defendant (Plaintiff s Exh. 1), the evidence either failed to establish that plaintiff caused the damage alleged or failed to show that the alleged damage was beyond reasonable wear.

Plaintiff also argues she provided a forwarding address to defendant pursuant to R.C. 5321.16 and therefore is entitled to recover her attorney fees and damages in an amount equal to the wrongfully withheld security deposit money. On this issue, plaintiff failed to carry her burden of proof that she provided a forwarding address as required by the statute. Defendant testified credibly that she never got a forwarding address until plaintiff called her in July of 2003 to inquire about the security deposit. The magistrate found defendant's testimony credible on this point and believes defendant did not possess a forwarding address until that telephone conversation. Because plaintiff did not provide a forwarding address as required by R.C. 5321.16(B), she may not recover the double damages or attorney fees pursuant to R.C. 5321.16(C).

Judgment against the defendant in the amount of $675.92 plus interest. Costs to defendant

Magistrate Mark A. Hummer 2/10/04

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