I live in an apartment building where at least two other units has someone living inside that smoke pot. I can smell it both when I walk into my apartment and inside the building. What can I do I've already spoken to the rental office but nothing has been done. Can I call the police, even if I don't know exactly which apartments they are living in?
1 Answer from Attorneys
Here is the wording from a ruling from Ohio's Tenth District Court of Appeals. The case is Liggins v. Westminster Arms, 1998 Ohio App. LEXIS 6247:
PRIOR HISTORY: [*1] APPEALS from the Franklin County Municipal Court.
DISPOSITION: Judgment affirmed.
COUNSEL: Angelia Liggins, pro se.
Harris, McClellan, Binau & Cox, Dan J. Binau and Mark S. Coco, for appellee.
JUDGES: BOWMAN, J. PETREE and LAZARUS, JJ., concur.
OPINION: (REGULAR CALENDAR)
Plaintiff-appellant, Angelia Liggins, appeals the decision of the Franklin County Municipal Court granting the application of defendant-appellee, Westminster Arms d.b.a. Mayfair Apartments, for release of rent from escrow and rejecting appellant's claim that appellee wrongfully withheld her security deposit. Appellant raises the following assignment of error:
"Did the court abuse its discretion when it: (1) granted judgment for defendants; (2) imposed personal beliefs of the use of illegal substances on the Plaintiff-Appellant[;] (3) made statements that decisions were made before reviewing the Plaintiff-Appellant's evidence[;] (4) ruled that a normal person would not have a problem with marijuana smoke, thereby labeling Plaintiff-Appellant and all citizens that are made ill by these substances as 'abnormal'; (5) whether the Court has the right to refuse the Plaintiff the right [*2] to testify about her medical conditions, yet use the same symptoms to label her as overly sensitivity; (6) whether the Court should have conducted a closed court trial without explaining to the Plaintiff-Appellant what her rights were in the matter; (7) failed to consider plaintiff's Pro Se status; (8) whether the court could deny damages provided by statute; (9) whether the court erred when it ignored laws passed by law makers to protect the public from substances identified as hazardous to our health and substances illegal to use and possess?"
The parties to the present appeal entered into a written lease agreement for the premises located at 3386 Broadmoor Avenue in Columbus. The term of the one-year lease was from April 1, 1996 through March 31, 1997.
On November 29, 1996, appellant filed an application to deposit rent with the Franklin County Municipal Court Clerk pursuant to R.C. 5321.07. Appellant's basis for escrowing her rent was her belief that appellee had not satisfactorily addressed her complaints concerning noise and marijuana smoke, and had violated its obligations as a landlord.
On January 8, 1997, appellee filed a complaint for release of rent, alleging [*3] it had violated no obligation to appellant and requesting the court to release the rent deposited in escrow.
On April 21, 1997, appellant also filed an application for release of rent deposited with the clerk. She requested that the court release to her all the rent she had deposited in escrow, on the grounds that appellee had breached its contractual obligations pursuant to the lease when it was notified by appellant that the tenants at 3388 Broadmoor were in violation of their lease provisions and R.C. 5321.04(8) and (9), yet failed to correct the violations.
Appellant moved out of 3386 Broadmoor around April 26, 1997. On June 18, 1997, appellant filed a separate action in the Small Claims Division of Franklin County Municipal Court, alleging that appellee was wrongfully withholding her security deposit. The court granted appellee's motion to consolidate appellant's complaint with appellee's action for release of rent.
The cases proceeded to a bench trial. The trial court issued written findings of fact and conclusions of law, ruling for appellee in the two cases.
The trial court reviewed appellant's complaints regarding marijuana smoke and noise appellee's response to the complaints. [*4] As to the alleged problem with marijuana smoke, appellee's representatives who visited appellant's apartment did not notice an odor of marijuana; appellant was the only witness who had detected an odor of marijuana in her apartment. There were no common open areas in the building; the apartments did not share a hallway but, instead, each apartment had an outside door; the court noted that appellant presented evidence that she had special medical problems that marijuana and tobacco smoke, and noise aggravated, but found appellant had not informed appellee of her special medical needs before entering the lease agreement. The court determined that, "assuming that the Plaintiff did smell marijuana or tobacco smoke, the Court does not believe that the marijuana or tobacco smoke was coming through the apartment walls at a rate with which a normal person would have a problem."
Regarding the noise problem, the court listened to the tapes of noise appellant had prepared and found no out of the ordinary noise. The court found that no landlord can guarantee that neighboring tenants will never make noise and that appellee had made all the attempts one could expect of a landlord to address appellant's [*5] concerns. The court concluded that appellee's attempts to address appellant's noise complaints had exceeded its legal obligations.
The court noted that appellee had offered many times to move appellant to another apartment or to allow her to vacate the premises and receive her full security deposit back, but appellant had rejected all such offers. The court characterized appellant as a very tense and nervous individual.
The court found no failure or interference by appellee with appellant's enjoyment of her leased premises and ruled that she did not prove by a preponderance of the evidence that appellee had violated the lease agreement.
The court then addressed appellant's complaint alleging that her security deposit had not been timely returned and alternatively that improper deductions had been withheld. After initially withholding appellant's entire security deposit, appellee eventually returned a portion, but retained $ 55 to cover cleaning fees for the freezer, refrigerator and stove. The court found that the deposit had been returned on time. As to the $ 55 deduction for cleaning, the court stated that it had reviewed photos taken by appellee and found the figure reasonable. [*6] Thus, the court ruled that appellant had not established by a preponderance of the evidence that appellee had wrongfully withheld her security deposit. The court ordered the amount held in escrow to be released to appellee less $ 383 (appellant's security deposit minus $ 55), which it ordered released directly to appellant.
No transcript of the trial proceedings, App.R. 9(C) statement of the evidence or proceedings, or App.R. 9(D) agreed statement has been filed with this court.
On appeal, appellant bears the burden of showing error in the record and, therefore, has a duty to provide a transcript for review. Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197, 199, 400 N.E.2d 384. When a transcript is necessary to resolve an assignment of error, but the record has no transcript, or other record of the proceedings identified in App.R. 9, the reviewing court has nothing to consider and must presume the validity of the trial court's determination and affirm. Id. at 199.
Appellant alleges that the transcript of a pre-trial hearing contained omissions and reworded text, and states that she did not file a trial transcript because she knew it would also be inaccurate. App.R. [*7] 9(B) requires the court reporter to certify the transcript as correct. If appellant had disputed any portion of the certified transcript, App.R. 9(E) would have provided her an avenue of relief.
Appellant's claims that the trial court abused its discretion when it stated that its decision was made before reviewing appellant's evidence and when it conducted a closed court trial without explaining her rights cannot be considered because there is no transcript. Additionally, appellant does not address these claims in her brief. A reviewing court may disregard an assigned error if the party raising the error fails to argue the assignment separately in its brief. App.R. 12(A)(2). Therefore, these claims are not well-taken.
Appellant's claim that the trial court abused its discretion when it refused to allow her to testify about her medical conditions cannot be addressed without a transcript. Nonetheless, in its findings, the court states that appellant put on evidence of her special medical problems. This claim is not well-taken.
Appellant's claim that the trial court abused its discretion when it failed to consider her pro se status is not well-taken. As the First District Court [*8] of Appeals stated in Meyers v. First Natl. Bank (1981), 3 Ohio App. 3d 209, 210, 444 N.E.2d 412:
"Appellants' argument that as pro se civil litigants they should receive special consideration and not be bound by the same rules as civil litigants represented by counsel is against the weight of Ohio as well as national authority. Pro se civil litigants are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept the results of their own mistakes and errors. *** "
Nonetheless, in its findings, the court expressly notes that, because of appellant's pro se status, it admitted evidence it would not have admitted in a jury trial.
Appellant disputes several findings of fact of the trial court. Although appellant does not expressly dispute the court's finding that the noise in her apartment was not a problem, in her brief she states that she slept and ate in her basement because of the noise problem. The trial court addressed appellant's complaints concerning noise and found that appellee had breached no obligation to appellant based on noise. Absent a transcript, this court must [*9] presume that the trial court did not abuse its discretion when it found the noise level in appellant's apartment was not too loud. Several other disputed facts are not outcome determinative and the trial court's findings are presumptively correct in the absence of a transcript.
Appellant alleges two errors by the trial court stemming from its finding that a "normal" person would not have a problem with the marijuana odor in appellant's apartment. The context of the court's statement is important. A fair reading of the trial court's findings indicates the word "normal" was used to mean average, not to suggest appellant was abnormal. The court was analyzing whether appellee was entitled to a release of the escrowed rent, pursuant to R.C. 5321.09, on the ground that appellee had violated no obligation imposed by law or the rental agreement.
In addition to the rights and obligations a rental agreement assigns to tenants and landlords, a covenant of quiet enjoyment is implied into every lease contract. Dworkin v. Paley (1994), 93 Ohio App. 3d 383, 386, 638 N.E.2d 636. R.C. Chapter 5321, Ohio's Landlord Tenant Act, also imposes statutory obligations on a landlord and tenant.
The covenant [*10] of quiet enjoyment protects a tenant's right to the peaceful and undisturbed enjoyment and possession of her leasehold. Glyco v. Schultz (1972), 35 Ohio Misc. 25, 33, 289 N.E.2d 919. "The covenant is breached when the landlord '" *** obstructs, interferes with, or takes away from the *** [tenant] in a substantial degree the beneficial use *** "' of the leasehold." Howard v. Simon (1984), 18 Ohio App. 3d 14, 16, 480 N.E.2d 99. Degree of impairment is a question of fact. Dworkin, at 386.
The lease agreement between the parties does not guarantee appellant a smoke-free environment. Nor is there a statutory obligation that a landlord must ensure that no marijuana smoke be detectable in a tenant's apartment. Therefore, whether appellant could pursue relief against the landlord for her discomfort caused by the marijuana smoke depends on whether her covenant of quiet enjoyment was breached.
Appellant cites no law that, because marijuana is an illegal substance, if she can smell it in her apartment, regardless of its strength, she has automatically suffered substantial impairment to the beneficial use of her apartment. The trial court's findings note that no witness at trial, [*11] other than appellant, noticed an odor of marijuana in her apartment. On this evidence, the court did not abuse its discretion when it found no interference by appellee with appellant's enjoyment of her apartment, and no violation of an obligation owed appellant.
Nor does the record indicate that appellee ignored its obligation under R.C. 5321.04(A)(9) to commence a forcible entry and detainer action pursuant to R.C. Chapter 1923 against a tenant if the landlord has actual knowledge of, or has reasonable cause to believe that, a tenant is engaged in a violation of a drug offense or controlled substance law. R.C. 1923.02(A)(6)(i) states that a landlord has "actual knowledge of" or has a "reasonable cause to believe" that a tenant has violated a law regarding the use of controlled substances if a search warrant was issued, the warrant was properly executed, any controlled substance described in the warrant's affidavit was found, and subsequent to the search and seizure the landlord is informed by a law enforcement officer that the tenant engaged in a drug offense or controlled substance violation and it involved the tenant's premises. There is no evidence in the record that any warrant [*12] was executed against appellant's neighbors due to their alleged use of marijuana.
Appellant's final claim alleges that the trial court abused its discretion when it denied her damages she was entitled to under R.C. 5231.16. Appellant asserts that appellee did not establish that she had damaged the premises. Appellant correctly notes that a landlord may not withhold money from a security deposit for normal wear and tear. However, paragraph six of appellant's lease expressly authorizes appellee to deduct from the security deposit monies to cover loss due to cleaning. Further, paragraph twenty-three of the lease obligates the tenant to turn over the leased premises in a clean state. Appellee deducted $ 55 from appellant's security deposit, not for damages but for cleaning. The trial court's findings indicate that appellee presented photographs as evidence as to the condition of the freezer, refrigerator and oven. Because this evidence is not in the record, this court presumes that the trial court properly found that the condition of the appliances warranted the $ 55 cleaning fee.
For the above reasons, appellant's assignment of error is overruled, and the judgment of the trial court [*13] affirmed.
PETREE and LAZARUS, JJ., concur.
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