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Anchor Realty Construction, Inc. et al v. New Albany Links Golf Course Company Ltd

December 23, 2010

ANCHOR REALTY CONSTRUCTION, INC. ET AL., PLAINTIFFS-APPELLEES,
v.
NEW ALBANY LINKS GOLF COURSE COMPANY LTD.,
DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT, NEW ALBANY LINKS DEVELOPMENT COMPANY LTD. ET AL., DEFENDANTS-APPELLEES,
v.
ITALIAN PUB GROUP, INC., THIRD-PARTY DEFENDANT- APPELLEE.



APPEAL from the Franklin County Court of Common Pleas. C.P.C. No. 08CVH02-2431

The opinion of the court was delivered by: Brown, J.

Cite as

Anchor Realty Constr., Inc. v. New Albany Links Golf Course Co., Ltd.,

REGULAR CALENDAR

DECISION

Law Offices of Daniel R. Mordarski LLC, Daniel R. Mordarski, and Paige C. Buffington, for Anchor Realty Construction. Gordon P. Schuler, Attorney At Law, LLC, and Gordon P. Shuler, for New Albany Links Golf Course Company, Ltd.

{¶1} This is an appeal by defendant/third-party plaintiff-appellant, New Albany Links Golf Course Company, from a judgment of the Franklin County Court of Common Pleas, finding in favor of plaintiff-appellee, Anchor Realty Construction, Inc. ("Anchor"), on Anchor's claim for unjust enrichment.

{¶2} On February 19, 2008, Anchor and VIP Express Ltd. filed a complaint, naming as defendants New Albany Links Golf Course Company ("New Albany Links"), New Albany Links Development Company, Ltd., Ciminello's Inc., Joseph Ciminello, and various "John Doe Defendants." The complaint alleged that Anchor had performed construction services for New Albany Links and its owner, Joseph Ciminello, with respect to the renovation of a restaurant at the New Albany Links Golf Course. The complaint further alleged that the restaurant subsequently opened under the name "Vito's Italian Pub," and that defendants had failed to compensate Anchor for the services rendered. Plaintiffs alleged various causes of action, including breach of contract, breach of implied contract, and unjust enrichment. On March 31, 2008, New Albany Links filed an answer and counterclaim, asserting in the counterclaim causes of action for abuse of process, frivolous conduct, and conduct lacking good faith.

{¶3} On June 26, 2008, New Albany Links filed a third-party complaint against Italian Pub Group, Inc. ("Italian Pub Group"). On September 10, 2008, New Albany Links filed a motion for default judgment against Italian Pub Group, alleging it had failed to answer or otherwise defend against the third-party complaint. On September 30, 2008, the trial court granted default judgment in favor of New Albany Links on its third-party complaint against Italian Pub Group.

{¶4} With respect to the claims between Anchor and New Albany Links, the trial court conducted a two-day bench trial beginning August 3, 2009. By agreement of the parties, Anchor's claims against New Albany Links Development Company, Ltd., Ciminello's Inc., and Joseph Ciminello were dismissed. Further, the counterclaims of New Albany Links against Anchor were also dismissed.

{¶5} The following facts are drawn primarily from the trial court's decision and entry filed August 6, 2009, finding in favor of Anchor on its claim for unjust enrichment. Larry Gunsorek is a part-owner of Anchor, a company that provides restaurant "build out" construction services. Gunsorek is also a part-owner of Vito's Italian Pub, which operates several restaurants in central Ohio.

{¶6} Joseph Ciminello is a developer, and has been involved in the development of several residential communities, including Pinnacle and New Albany Links. Ciminello and Gunsorek had previously entered into a joint venture to construct and operate a restaurant in the clubhouse of the golf course at Pinnacle. On that particular project, work was undertaken by Anchor prior to the execution of an agreement between the parties.

{¶7} Based in part on the previous venture at Pinnacle, representatives of Anchor and New Albany Links discussed the renovation and retrofitting of an existing restaurant at the clubhouse at New Albany Links, and plans were made to transform the restaurant into an Italian style eatery. Anchor started work on the renovation without executing a written agreement with New Albany Links.

{¶8} A lease agreement was drafted and modified between New Albany Links, as landlord, and Italian Pub Group, as tenant, with respect to the clubhouse restaurant at New Albany Links, but that document was never executed. Specifically, in April 2007, New Albany Links forwarded a draft lease agreement to Italian Pub Group. The draft agreement included a section titled "TENANT IMPROVEMENTS," in part: "Tenant is accepting the Premises 'AS-IS' and shall be fully responsible for all improvements and retrofits to the Premises. Tenant, at Tenant's sole cost and expense, shall furnish, replace, improve and retrofit the Premises in accordance with the requirements set forth in Section 15 regarding Alterations."

{ΒΆ9} In July 2007, Italian Pub Group made revisions to the draft lease agreement and retuned it to New Albany Links. Under the section titled "TENANT IMPROVEMENTS," the July 2007 version stated in part: "Tenant is accepting the Premises 'AS-IS' and shall share the responsible [sic] for all improvements and retrofits to the Premises. Tenant/Landlord, together, shall furnish, replace, improve and ...


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