Lewis Potts, Ltd. v. Zordich
| Decision Date | 31 December 2018 |
| Docket Number | CASE NO. 2018-T-0028 |
| Parties | LEWIS POTTS, LTD., Plaintiff-Appellee, v. GEORGE ZORDICH, et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Civil Appeal from the Trumbull County Court of Common Pleas.
Judgment: Affirmed in part and reversed in part; remanded.
Thomas C. Nader, Nader & Nader, 5000 East Market Street, Suite 33, Warren, OH 44484 (For Plaintiff-Appellee).
Albert A. Palombaro, 4822 Market Street, Suite 301, Boardman, OH 44512 (For Defendants-Appellants).
{¶1} Appellants, George Zordich and Michael Durkin, appeal from the February 26, 2018 judgment entry of the Trumbull County Court of Common Pleas, granting summary judgment in favor of appellee, Lewis Potts, Ltd. The trial court's judgment, for the reasons that follow, is affirmed in part and reversed in part, and the matter is remanded.
{¶2} On July 18, 2016, appellee filed a complaint against appellants for breach of contract. Appellee alleged it had entered into a lease agreement with appellants on September 11, 2007, for certain premises in Youngstown, Ohio; the lease agreement had been twice amended; and the lease term, as amended, was until November 30, 2017. Appellee alleged appellants failed to pay the monthly rent due of $3,051.00, which included common area and maintenance charges ("CAM charges"), and had abandoned the premises. Appellee demanded approximately $21,344.101 in delinquent rental payments and CAM charges that accrued prior to appellants abandoning the premises, and $42,800.00 for the balance of rental payments and CAM charges under the remaining term of the lease, plus attorney fees.
{¶3} A document titled "Tenant Ledger" was attached to the complaint, which describes the Tenant as "BELLASOLE Bella Sole, LLC." Appellants' names are not stated anywhere on the document. A copy of the lease agreement and amendments was not attached to the complaint; appellee stated, by way of explanation, that "[e]ach party has a copy of the Lease Agreement and Amendments which are voluminous and therefore not attached to this complaint."2
{¶4} Appellants jointly answered the complaint on April 7, 2017. They admitted appellee is a limited liability company with its principal office in Warren, Ohio, and that"[t]he lease term, as amended, was until November 30, 2017." All other allegations were denied.
{¶5} A status conference was held on July 11, 2017. By notice sent on August 7, 2017, the magistrate ordered any motion for summary judgment to be filed by September 15, 2017, and any replies to be filed by October 13, 2017. The motion(s) would be heard by the court, by memorandum only, on November 3, 2017. Neither party moved for summary judgment within that time. Another status conference was held on November 16, 2017. The case was set for trial to the magistrate with a trial date of April 10, 2018.
{¶6} On November 29, 2017, appellee filed a motion for summary judgment, requesting judgment against appellants, jointly and severally, in the amount of $68,123.83. The entirety of appellee's motion reads as follows:
{¶7} A copy of the lease was not, in fact, attached to the motion as an exhibit. The attached affidavit of Dennis Lewis, Jr. averred, in its entirety, the following:
{¶8} The "Open Item Statement" attached to the affidavit does not reference Appellant George Zordich, Appellee Lewis Potts, Ltd., or Affiant Dennis Lewis, Jr. It identifies the account as "BELLASOLE"; it provides that the statement, dated "11-27-2017," is for "Bella Sole, Lease Charges for Suite 7, 945 Boardman Canfield Road, Youngstown OH 44512"; it is addressed to "Bella Sole, Mike Durkin, 945 Boardman-Canfield Rd, Suite 7, Boardman, OH 44512"; and it instructs that checks be made payable to "945 Parkside, Ltd., 8031 East Market Street, Warren, OH 44484." Thereafter is a list of monthly rent charges, CAM charges, and property tax charges for "Unit 7" from and including January 2016 through and including November 2017, resulting in a balance of $68,123.83.
{¶9} On January 8, 2018, appellants filed a motion to strike the summary judgment motion as untimely under Civ.R. 56(A). In the alternative, appellants requested the court grant them ten additional days to respond to appellee's motion. In the meantime, on January 11, 2018, appellants filed an initial response.
{¶10} The trial court denied the motion to strike on January 12, 2018, and granted appellants until January 26, 2018, to file a response in opposition to the summary judgment motion. This entry is the subject of appellants' first assignment of error on appeal:
{¶11} "The court erred when it denied defendant's motion to strike plaintiff's motion for summary judgment."
{¶12} We review a trial court's decision to deny a motion to strike for an abuse of discretion, i.e., a judgment that "fails to comport with either reason or the record." Johnsonite, Inc. v. Welch, 11th Dist. Geauga No. 2011-G-3012, 2011-Ohio-6858, ¶21 (citations omitted). See also State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black's Law Dictionary 11 (8th Ed.2004) (defining abuse of discretion as "'[a]n adjudicator's failure to exercise sound, reasonable, and legal decision-making'").
{¶13} Civ.R. 56(A) provides, in part: "If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court." Appellee asserts it was granted leave of court at the November 16, 2017 status conference. Appellants disagree, and there is no court order or docket entry in the record that reflects such leave was granted. "But a court may, in its sound discretion, consider a motion for summary judgment that has been filed, without express leave of the court, after the action has been set for trial." Lachman v. Wietmarschen, 1st Dist. Hamilton No. C-020208, 2002-Ohio-6656, ¶6 (footnote omitted); see also Indermill v. United Sav., 5 Ohio App.3d 243, 244 (9th Dist.1982). "Furthermore, where the acceptance of a motion occurs by the grace of the court, the decision to accept is itself 'by leave of court.'" Lachman, supra, at ¶6 (footnote omitted). Accordingly, even if appellee did not obtain leave prior to filing its motion, the trial court's decision not to strike the motion impliedly granted such leave. We cannot conclude that doing so was an abuse of the trial court's discretion. Appellee moved for summary judgment well in advance of the scheduled trial date, and appellants responded; appellants were also permitted additional time to file a more complete response in opposition. See, e.g., Stewart v. Cleveland Clinic Found., 136 Ohio App.3d 244, 254 (8th Dist.1999).
{¶14} Appellants' first assignment of error is not well taken.
{¶15} In their initial January 11, 2018 response, appellants argued summary judgment cannot be granted in favor of appellee, as it had not produced a copy of the lease agreement and amendments upon which its complaint was based. Appellants asserted:
The Defendants denied the allegations as alleged in Paragraph 2 denying that each party has a lease agreement. No signed lease agreement has been attached to the Complaint or Plaintiff's Motion for Summary Judgment or furnished to the undersigned counsel after repeated request made of the Defendant for an executed copy of the agreement and amendments. Clearly, there remains issues of material fact as to whether or not an executed and valid lease agreement and amendments exists and whether or not the damages sought are legitimate and result of a breach of an agreement. [sic.]
{¶16} This argument was restated in appellants' amended response, which was filed on January 25, 2018. Appellants also argued that summary judgment is precluded by appellee's failure to comply with Ohio's Statute of Frauds (R.C. 1335.04) and Statute of Conveyances (R.C. 5301.01 and R.C. 5301.08), which together require commercial leases for greater than three years to be in writing, signed by the parties, and acknowledged before a notary public or other specified official. They argued that without a properly executed and written lease, which appellee had failed to produce, "a periodic tenancy will be implied to exist regardless of the stated duration."
{¶17} Appellants stated they took possession of the premises; paid rent monthly, including CAM charges and property taxes; and vacated the...
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