Stedson R. Mcintyre v. Thriftco, Inc.
| Decision Date | 17 May 2001 |
| Docket Number | 01-LW-1832,77767 |
| Parties | STEDSON R. McINTYRE, et al., Plaintiffs-appellants v. THRIFTCO, INC., et al., Defendants-appellees |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court Case No. CV-368164
For plaintiffs-appellants : PAUL W. FLOWERS, ESQ., Paul W Flowers Co., LPA, 1200 Illuminating Bldg., 55 Public Square Cleveland, Ohio 44113
For defendants-appellees : THOMAS J. CABRAL, ESQ., Gallagher, Sharp, Fulton, & Norman, 7th Floor, Bulkley Bldg., 1501 Euclid Avenue, Cleveland, Ohio 44115
CHARLES A. BOWERS, ESQ., Gallagher, Sharp, Fulton, & Norman, 7th Floor, Bulkley Bldg., 1501 Euclid Avenue, Cleveland, Ohio 44115
This is an appeal from an order of Judge Janet R. Burnside granting summary judgment in favor of appellees Thriftco, Inc., Ehle Morrison Group, Ltd., (EMG ), Bruce Morrison and Frank Schwartz on the trespass, breach of contract, civil conspiracy, and corrupt activity allegations of appellants Stedson R. McIntyre and the Bureau of Research, Inc. (BRI ). They contend that material issue of facts are in dispute on all four of their claims. We do not agree and affirm.
The record discloses the following undisputed facts. McIntyre, a private investigator, is the president of BRI, an investigative service firm that now leases space on the 11th floor of the 75 Public Square building in Cleveland, Ohio. On September 20, 1991, McIntyre, on behalf of BRI, executed a lease for space on the 13th floor which expired on October 30, 1996, after which BRI assumed a month-to-month tenancy.
Prior to the expiration of the 1991 lease, BRI began negotiating with the building owner for new office space on the 11th floor and, in a letter dated January 9, 1996, McIntyre was asked to review, sign, and notarize the addendum to the September 20, 1991 lease and return it with the signed proposed floor plans he had agreed upon. McIntyre claimed that he reviewed the addendum for the 11thfloor lease, made some changes, and returned the copy to the owner who indicated that it had to forward the lease to Charter One Bank, its parent company, before returning his copy. McIntyre admitted, however, that there had been no agreement with his proposed alterations. He also claimed that he kept his copy of the January 8, 1996 proposed floor plans, which he approved on January 18, 1996, in the office computer room.
On May 1, 1996, six months before the expiration of BRI's 1991 lease, Thriftco assumed ownership of the building, retained EMG to manage the property, and EMG retained Schwartz to act as building manager. BRI then began negotiations with EMG to lease the new office space on the 11th floor of the building and continued to occupy its original space on the 13th floor. McIntyre claimed he continually called Charter One and Morrison, a principal of EMG, to find out when the 11th floor space would be ready for occupancy, and finally met with Morrison and Schwartz in the BRI computer room three or four times in July and August 1997. Morrison allegedly promised to begin work on the new suite as soon as other work was completed in the building. McIntyre said, however, that sometime in August 1997 he discovered that another tenant was negotiating with Morrison for BRI's proposed 11th floor space and also possessed signed blueprints for that area.
On September 3, 1997, while standing outside of the BRI computer room door, McIntyre allegedly noticed wood chips on the floor and, upon inspecting the lock, found that it had been jimmied. He checked the inventory, found nothing missing, and made a verbal report of the suspected break-in to the building security guard. He claimed that later that day he learned from Morrison that Schwartz had used a slim jim to jimmy the door.
Rachel Lipovec, a window washer who had been hired in the fall of 1997 to clean the inside and outside windows of 75 Public Square, averred that she had left a pole inside BRI computer room, returned early one morning to retrieve it and, upon discovering no one in the BRI suite, asked Schwartz to get the pole for her. Schwartz retrieved the pole, but Lipovec did not recall how he got into the computer room or whether another person was present at the time. Schwartz agreed that while he had the key to BRI's exterior doors, he did not have a key to the computer room because, unknown to him, McIntyre had changed the lock. He denied using a slim jim on the computer room door to retrieve Lipovec's pole but said that Ms. Lester Scott, a BRI associate, arrived and unlocked it for him. Ms. Scott confirmed the event and indicated that Schwartz had met her in the hall outside the office where he told her he already had been in the office but found the door to the computer room locked.
With a letter dated September 11, 1997, Morrison forwarded the proposal to renew the BRI lease, as it applied to the 11th floor suite, and requested McIntyre to [m]ake sure you review the plan (I have attached both a full size and reduced copy) and the general specifications. The general specifications included six items labeled EXTRA for different sections of the suite. These extra items were included at an additional cost to BRI's of $6,319.00.
McIntyre claimed he was surprised by the extras because they had been included -- not marked as extras -- in the original blueprints that he had approved in January 1996. He claimed to have taken the original signed plans to his home and discovered an altered floor plan in the computer room. This second, altered set labeled some of the items contained in the blueprints as extra which corresponded with the general specifications included with the September 11, 1997 letter. On September 15, 1997, BRI's attorney sent a letter to Morrison pointing out that the items listed as extra in the September 11 proposal had previously been included at no cost in the January 1996 proposal and blueprints agreed upon and approved by McIntyre.
McIntyre stated that Morrison dropped his demand that BRI pay for the extra items and, shortly thereafter, the parties signed a lease and BRI moved into the 11th floor offices. McIntyre admitted that neither he nor his business suffered any out-of-pocket costs or lost business as a result of the negotiation process.
On October 19, 1998, McIntyre and BRI filed suit against Thriftco Inc., Ehle Morrison Group, Ltd. (EMG ), Bruce Morrison and Frank Schwartz claiming damages for trespass, conversion, fraud, beach of contract, civil conspiracy, and corrupt activity. On October 1, 1999, Thriftco, EMG, Morrison and Schwartz filed a joint motion for summary judgment which was opposed McIntyre and BRI. On December 28, 1999, McIntyre and BRI dismissed without prejudice their conversion and fraud claims. On March 2, 2000, the judge granted the motion for summary judgment with an opinion:
The factual event which underlies all of the Plaintiffs' claims against the Defendants is that Defendant Frank Schwartz wrongfully entered a locked room of Plaintiffs' lease premises in the 75 Public Square office building. Defendant Thriftco is the landlord under that lease and the remaining Defendants are the management company, its agents and its employees who work for that landlord managing that office building. There is no factual evidence before this Court to establish that Frank Schwartz entered the locked door in an inner office space of the Plaintiffs other than in a lawful manner permitted by the parties' written lease. There is specifically no evidence to show that he gained entry by way of a slim jim or by otherwise jimmying the lock. The only person to suggest that method of entry was one who had no firsthand knowledge of the event and/or whose firsthand knowledge of such fact was not before the Court on summary judgment. All other accounts provided in the evidence before this Court on summary judgment established Schwartz's entry as being accomplished with a key and/or with the knowledge and consent of an employee or agent of the Plaintiffs. The extant lease provision between the Plaintiffs and Defendants, who stand in relationship to each other [as] tenant and landlord, expressly gives broad rights to the landlord and its agents and employees to enter the leased premises of Plaintiffs. There is no evidence to establish that the purpose for this particular entry fell outside the permissible reasons for entry set forth in the parties' written lease. There being no breach of the lease and specifically no event occurring such as Plaintiffs describe, there is no actual basis to support the trespass cause of action, the breach of lease cause of action, or the alternative theories of civil conspiracy and pattern of corrupt activity.
McIntyre and BRI raise a single assignment of error:
THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY GRANTING SUMMARY JUDGMENT UPON THE COMPLAINT OF PLAINTIFF-APPELLANTS.
McIntyre and BRI contend that the question of whether Schwartz entered the computer room under false pretenses and with the intention of depositing altered blueprints that would have allowed EMG to charge extra for items previously included at no cost was a material fact in dispute. They also claim that Morrison immediately abandoned the claim for $6,319 because he knew he had been caught and could offer no reasonable explanation seeking payment for included items and never denied any discrepancy in the blueprints until after the law suit was filed. Moreover, they submit, it is apparent that all four defendants joined together in an effort to dupe McIntyre into believing that the blue prints he approved several months earlier required BRI to pay for the extra items and that all engaged in a pattern of corrupt activity.
In response, Thriftco, EMG, Morrison and Schwartz argue that any...
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