Craig Wrecking Co. v. S.G. Loewendick & Sons, Inc.
Decision Date | 07 April 1987 |
Docket Number | No. 86AP-679,86AP-679 |
Citation | 38 Ohio App.3d 79,526 N.E.2d 321 |
Parties | CRAIG WRECKING COMPANY; Craig, Appellant, v. S.G. LOEWENDICK & SONS, INC., Appellee. * |
Court | Ohio Court of Appeals |
Syllabus by the Court
1. Implicit in an action in trespass is the notion that plaintiff was either actually or constructively in possession.
2. Although the forcible entry and detainer provisions of R.C. Chapter 1923 are applicable to commercial premises, R.C. Chapter 1923 does not provide the exclusive remedy available to commercial lessors who seek to repossess their property upon default of the tenant. Thus, absent a breach of the peace and pursuant to a valid lease provision, a commercial lessor may resort to self-help repossession upon default by the tenant. (R.C. 5321.15[A], construed and applied.)
3. Where a commercial lessor asserts its right of reentry, pursuant to a lease provision, upon lessee's breach of the agreement, the lessee is thereafter not entitled to possession.
4. Although a commercial lessor is entitled to peacefully repossess the demised premises, liability may arise for injury to plaintiff's personal property resulting from the repossession.
Wasserstrom, Kirkwood & Soltis and Hugh E. Kirkwood, Jr., Columbus, for appellant.
Hamilton, Kramer, Myers & Cheek and Austin P. Wildman, Columbus, for appellee.
Defendant, at the close of trial, moved the common pleas court to direct a verdict in its favor regarding plaintiffs' suit in trespass. The court granted defendant's motion on the issues of liability and damage to the realty. Plaintiff John E. Craig appeals. 1
On March 23, 1973, plaintiffs entered into a lease agreement with the heirs of Miller H. Pringle for certain property to be used as a landfill. The term of the lease was five years and terminated on March 31, 1978. An option to renew for an additional five years was included in the lease.
During the lease period, plaintiffs frequently failed to make the lease rent payments and during the term of the original lease never satisfied the full amount. At the expiration of the original term, no written option to renew for the additional five years was exercised. Plaintiffs, however, remained in possession.
On March 7, 1983, plaintiffs were advised that the Pringle heirs had engaged defendant as the new landfill manager and defendant was to take charge of the landfill operation. No notice to vacate was received by plaintiffs. On March 11, 1983, defendant entered the property with three pieces of equipment and dumped certain items contained on the property into a lake which abutted the landfill. The contour of the dump was altered as a result of defendant's acts. Plaintiffs remained in possession despite defendant's entry and subsequently purchased the property in October 1983.
On March 8, 1985, plaintiffs filed a complaint alleging trespass to both real and personal property; plaintiffs also sought damages against defendant. The trial court overruled motions for summary judgment and the case was tried to a jury. Following the directed verdict in defendant's favor on the real property claims, the jury determined that plaintiffs had not suffered any damage to their personalty as a result of defendant's entry.
Plaintiffs on appeal raise two assignments of error:
In their first assignment of error, plaintiffs assert that the trial court erred in holding that defendant had not trespassed. The court found that plaintiffs were holdover tenants and, as such, were governed by the terms of the original lease. Since that lease allowed the Pringle heirs to peacefully repossess the land, then defendant, as the agent of the lessors, was authorized to enter onto the property.
Plaintiffs maintain, however, that they were not holdover tenants, but were instead either agents of the lessor or mere trespassers. Accordingly, the terms of the lease do not govern this action. This argument must fail for the following reasons.
Clearly, plaintiffs were not the agents of the Pringle heirs, at least insofar as an agency relationship could exist as to defendant. In order for such relationship to arise, the heirs must have held plaintiffs out to defendant as having authority to act and defendant must have believed that plaintiffs had such authority. Ammerman v. Avis Rent A Car System (1982), 7 Ohio App.3d 338, 7 OBR 436, 455 N.E.2d 1041; Logsdon v. ABCO Constr. Co. (1956), 103 Ohio App. 233, 74 Ohio Law Abs. 467, 3 O.O.2d 289, 141 N.E.2d 216. Here, defendant was well aware that plaintiffs had no authority to act as the lessors' agent. If anything, it was defendant which was acting as the Pringle heirs' agent.
Plaintiffs maintain that if they were not agents of the lessors, then they were trespassers. Were we to accept this contention, then the instant suit could not be maintained in the first instance. Implicit in an action in trespass is the notion that plaintiffs were either actually or constructively in possession. Beggs v. Thompson (1825), 2 Ohio 95; Rowland v. Rowland (1837), 8 Ohio 40. If plaintiffs were trespassers, it follows that they were not in possession. Otherwise, a trespasser could maintain an action in trespass against the one already in possession. The law cannot allow so absurd a result.
Plaintiffs next argue that even if they were not trespassers or the lessors' agents, the court below was nevertheless incorrect in finding that they were holdover tenants. In their view, a tenant who remains in possession of the demised premises is not a holdover tenant if the landlord did not expressly consent to the holdover tenancy.
In Ohio, a tenant who holds over after the term of his lease expires is a tenant at sufferance. Anderson v. Brewster (1886), 44 Ohio St. 576, 580, 9 N.E. 683, 685. As such, the landlord may elect to treat the tenant as a trespasser, or hold him to a new lease term. Gladwell v. Holcomb (1899), 60 Ohio St. 427, 54 N.E. 473, paragraph two of the syllabus. When a tenant holds over beyond the lease term and pays rent according to the former terms, the law implies a contract on the tenant's part to hold over for an additional term under the same conditions which governed the prior term. Bumiller v. Walker (1917), 95 Ohio St. 344, 348-349, 116 N.E. 797, 799. Although such presumption is rebuttable, the new term may arise from the conduct of the parties regardless of the intentions of the tenant alone. Id. at 348-354, 116 N.E. at 799-801. The election to hold the tenant to a new term lies with the landlord and his acceptance of rent implies an election to treat the tenant as a holdover. Baltimore & Ohio RR. Co. v. West (1897), 57 Ohio St. 161, 165-166, 49 N.E. 344, 345. Absent any agreement to the contrary, the new lease term is governed by the provisions of the original lease. iBumiller, supra, 95 Ohio St. at 348-349, 116 N.E. at 799.
Given the facts on the record before us, it is quite apparent that the court below was correct in finding that plaintiffs were holdover tenants. The Pringle heirs continued to accept rent from plaintiffs, albeit in untimely installments. The heirs never gave plaintiffs notice to vacate or quit the premises until the second five-year term had nearly expired. From these facts we believe the court properly concluded plaintiffs were tenants at sufferance.
Accordingly, the terms of plaintiffs' original lease with the Pringle heirs provided that the heirs could reenter and possess the premises in the event plaintiffs failed to make monthly rental payments. As such, the very terms of the lease vested in the lessors the right to peacefully reenter. Defendant, as the agent of the heirs, was therefore privileged to enter and take possession under the terms of the lease.
Plaintiffs argue, however, that whether the terms of the lease governed their tenancy or not, the court erred when it held that R.C. Chapter 1923 did not supersede those provisions.
R.C. 1923.01 (see 138 Ohio Laws, Part II, 2754, 2757-2758) provided in part:
R.C. 1923.02 (see 138 Ohio Laws, supra, at 2758-2759) provided in part:
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