Statler Arms, Inc. v. APCOA, Inc., 310753

• Decision Date: 17 October 1997
• Docket Number: No. 310753,310753
• Citation: 92 Ohio Misc.2d 45,700 N.E.2d 415
• Parties: STATLER ARMS. INC. v. APCOA, INC. *
• Court: Ohio Court of Common Pleas

Page 45

92 Ohio Misc.2d 45

700 N.E.2d 415

STATLER ARMS. INC. v. APCOA, INC. ^*

No. 310753.

Court of Common Pleas of Ohio Cuyahoga County.

Decided Oct. 17, 1997.

Cavitch, Familo, Durkin & Frutkin, Michael C. Cohan, Cleveland and Ronald D. Holman II, Cleveland, for plaintiff.

Calfee, Halter & Griswold, Bruce J. Lowe and Thomas I. Michals, Cleveland, for defendant.

ANTHONY O. CALABRESE, Jr., Judge.

The claims in this action center around the interpretation and construction of a maintenance and repair clause in a commercial lease for a parking garage with a term of forty-two years.

I. PROCEDURAL FACTS

This case comes before the court upon the motion for summary judgment filed July 15, 1997, by plaintiff, Statler Arms. Inc. ("Statler"), the lessor of the subject property. ¹ Attached to said motion was the affidavit of Carl Milstein. ² On October 6, 1997, Statler filed a supplemental affidavit by Myron Charna. In its motion, Statler requests that this court enter summary judgment in Statler's favor and against defendant, APCOA, Inc. ("APCOA"), the lessee, based upon a finding that APCOA is liable to maintain and repair (without limitation) the Parking Garage pursuant to a commercial lease.

Also before the court is APCOA's cross-motion for partial summary judgment, which was filed October 2, 1997. In its motion, APCOA seeks summary judgment (on its counterclaim) declaring that (1) APCOA is required only to make repairs to maintain a safe parking facility, (2) Statler is obligated to undertake any substantial or structural repairs necessary to comply with certain building violations issued by the city of Cleveland, and which exceed APCOA's responsibilities, (3) APCOA has no duty to perform repairs and improvements which are not necessary to maintain the facility through the end of the lease term, and (4) at the termination of the lease, APCOA is required only to surrender a parking garage which is in the same general condition as when the lease was commenced, with exceptions for ordinary wear and tear. APCOA attaches the affidavits of Walter Stuelpe, Armand Gustaferro, and Jeffery Wetshtein, excerpts from the deposition transcript of Milstein, a lease document, and other exhibits to its motion.

In further support of their respective positions, the parties have filed with this court the deposition transcripts of Carl Milstein, Myron Charna, and Herbert Anderson, and copies of the relevant lease documents. Counsel for both parties also have presented oral arguments to the court.

Statler commenced this action against APCOA on June 21, 1996. In its complaint, Statler alleged that it was the owner and/or lessor of certain real property consisting in part of the Ballroom and Parking Garage at the Statler Office Tower and a portion of the Statler Office Tower in downtown Cleveland. ³ It was also alleged that APCOA leased from Statler certain space, namely the Statler Office Tower Parking Garage and other areas. In support of its allegations, Statler attached the following documents to the complaint:

A. Indenture of Lease, dated May 15, 1915, between Hotel Statler Company, Inc. ("Lessor") and the Stillman Amusement Company ("Lessee");

B. Amendment to Lease, dated September 4, 1963, between Hilton Hotels Corporation ("Lessor") and Airport Parking Company of America ("Lessee") (hereinafter, sometimes referred to as the "Parking Garage Lease"); and C. Modification to Amendment to Lease, dated August 5, 1964, between Hilton Hotels Corporation ("Lessor") and Airport Parking Company of America ("Lessee").

Statler attached to the affidavit of Myron Charna the Ballroom Lease dated August 5, 1964 between Airport Parking Company of America ("Lessor") and Hilton Hotels Corporation ("Lessee"). These various leases are sometimes hereafter referred to, collectively, as the "Lease Documents." In its amended complaint, Statler asserts two causes of action for money damages and a cause of action for forcible entry and detainer. The gravamen of Statler's action is that APCOA has failed to satisfy the terms and conditions of a maintenance and repair clause. Specifically, Statler relies upon Section 5 of the Amendment to Lease, which provides in full as follows:

"Maintenance and Repair. Lessee, at its own expense, will keep the leased premises and the improvements located on Parcel No. 1 and the basement and the first and second floors of the building located on Parcel No. 2 clean and in good order and condition at all times during the term of the Lease, and make all necessary or appropriate repairs, replacements and renewals thereto. All such repairs, replacements and renewals shall be of a quality at least equal to that of the original work. In case of any material part thereof, Lessee will promptly give written notice thereof to Lessor and will, at its expense, and whether or not the insurance proceeds, if any, shall be sufficient for the purpose, restore, repair or rebuild the same as nearly as possible to its prior condition and character immediately prior to such damage or destruction."

In its answer to amended complaint and counterclaim, which was filed on August 20, 1997, APCOA largely denied the allegations contained in the amended complaint, set forth various affirmative defenses, and asserted claims for money damages and declaratory judgment.

On July 15, 1997, Statler filed the motion for summary judgment, which is now before this court for consideration. On August 15, 1997, Statler filed its motion for accelerated briefing schedule and ruling on Statler's motion for summary judgment and/or for accelerated trial schedule, which APCOA opposed by brief. At a pretrial conference with counsel for Statler and APCOA on August 27, 1997, this court granted Statler's motion and ordered APCOA to file its brief in opposition to said motion on or before October 3, 1997. This court further set a hearing for oral arguments on the same date.

On September 23, 1997, APCOA sought leave to file a cross-motion for partial summary judgment, which was unopposed by Statler. ⁴ APCOA then filed its cross-motion for partial summary judgment on October 2, 1997. ⁵

II. SUBSTANTIVE FACTS

Statler and APCOA, the respective plaintiff and defendant in this action, are commercial parties. Statler is the lessor and APCOA is the lessee of the Parking Garage which lies at the center of this dispute. In order to appreciate fully the relationship between the parties and the language in dispute, it is necessary to review the background of four leases going back in time several decades.

The first relevant lease is the Indenture of Lease, which was executed on May 15, 1915 by predecessors to both Statler and APCOA. This lease created a ninety-nine-year tenancy for the real property that would later become known as the Statler Office Tower and Parking Garage--the subject matter of this litigation. It will expire in the year 2005. Thus, there are approximately eight more years left on this lease.

The second relevant lease is the Amendment to Lease, which was executed on September 4, 1963 by APCOA (as successor-in-interest to the lessee in the Indenture of Lease) and Hilton Hotels Corporation (as predecessor-in-interest to Statler). This document contains the operative clause which the parties have asked this court to interpret. In the Amendment to Lease, APCOA agreed to demolish an existing facility and to construct, at its sole expense, the parking facility which is the subject of this litigation. (APCOA also retained the option to build an exhibition hall.) The Lease is a triple net lease, meaning that APCOA was required to assume responsibility for such things as insurance, taxes, and repairs. The Lease did not impose any obligations for maintenance or repair upon the lessor. As outlined above, the Amendment to Lease contains the operative clause which surrounds this litigation--Section 5 of the Lease.

Pursuant to this section, the term "improvements" refers to the Parking Garage which APCOA agreed to build. This lease language does not provide for any exception for ordinary wear and tear. Similarly, there is no "surrender" clause in the document. The Amendment to Lease made clear that, with the exception of the foregoing modifications, all terms and provisions of the Indenture of Lease would remain in full force and effect.

The third relevant lease document is the Modification to Amendment to Lease, which was executed nearly one year later, on August 5, 1964, again by Hilton Hotels and APCOA. Apparently in the intervening year after the Amendment to Lease was signed, the parties decided to build a parking garage and ballroom facility, rather than a parking garage and exhibition hall facility. The Modification to Amendment to Lease indicates that, with the exception of modifying the facility, "all the terms and provisions of the Lease [which included the Indenture of Lease] shall remain in full force and effect."

The fourth lease document of relevance to this action is the Ballroom Lease, which was signed on the same day as the parties executed the foregoing Modification to Amendment to Lease. The lessor and lessee are reversed in the Ballroom Lease. As such, APCOA is the lessor and Statler's predecessor-in-interest is the lessee under the Ballroom Lease. In this agreement, APCOA leased the Ballroom to Statler's predecessor. The Ballroom Lease also sets forth the maintenance and repair obligations, some of which were assumed by APCOA and others by Statler's predecessor. These terms are very different from the repair and maintenance clause in the Amendment to Lease. Significantly, in the Ballroom Lease, Statler's predecessor agreed, at its sole cost and expense, to maintain and keep the interior of the Ballroom in a state of good repair and condition. By contrast, APCOA agreed, at its sole cost and expense, to make all necessary structural repairs to any supporting or bearing walls, floors, beams, or columns in the interior of the ballroom...