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Hashash v. Food Mart Plus, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 30, 2017

AMMAR AL HASHASH, ET AL. PLAINTIFFS-APPELLEES
v.
FOOD MART PLUS, INC. DEFENDANT-APPELLANT

         Civil Appeal from the Garfield Heights Municipal Court Case No. CVG 1600316

          ATTORNEY FOR APPELLANT Richard H. Drucker

          ATTORNEY FOR APPELLEE Barry Goloboff

          BEFORE: Boyle, J., Keough, A.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, J.

         {¶1} Defendant-appellant, Food Mart Plus, Inc. ("Food Mart"), appeals from the judgment of the Garfield Heights Municipal Court that granted a writ of restitution to plaintiffs-appellees, Ammar and Touria Al Hashash (the "Hashashes"), and denied Food Mart's motion for temporary restraining order and request for declaratory judgment. After reviewing the underlying proceedings and the law, we find no merit to the appeal and affirm the trial court's judgment.

         I. Factual Background and Procedural History

         {¶2} On February 8, 2016, the Hashashes filed a complaint against Food Mart for forcible entry and detainer of the premises located at 16477 Broadway Avenue, Maple Heights, Ohio (the "Premises") and money damages for breach of a commercial lease (the "Lease").

         {¶3} On February 29, 2016, a magistrate held a hearing on the first cause for forcible entry and detainer and ordered a writ of restitution of the Premises in favor of the Hashashes, with a move-out date of March 11, 2016.

         {¶4} On March 8, 2016, Food Mart filed objections to the magistrate's decision. Food Mart argued that the Hashashes failed to provide proper service of its notices. It also argued that equity demanded a continued relationship between the parties under a new lease that Food Mart signed after it received the notice to vacate the Premises. After a hearing, the trial court granted Food Mart's objections.

         {¶5} Subsequently, Food Mart and the Hashashes entered into a written settlement agreement. At a hearing on March 22, 2016, the trial court set forth the terms of the settlement agreement on the record with the parties present.

         {¶6} Pursuant to the settlement agreement, Food Mart agreed to make certain payments to the Hashashes and agreed to vacate the Premises on or before May 22, 2016. If these conditions were met, the Hashashes agreed to dismiss the case, retain the security deposit, and waive any known claims for monies owed other than the amount set forth in the settlement agreement. If Food Mart failed to timely deposit all monies when due or failed to vacate the Premises by May 22, 2016, then the Hashashes agreed to notify the trial court in writing of the default so that the court "shall issue a writ of restitution for the premises[.]"

         {¶7} On May 16, 2016, Food Mart filed its motion for temporary restraining order pursuant to Civ.R. 65(A) and request for declaratory judgment ("motion for temporary restraining order"). Food Mart argued that, pursuant to the Lease (which had expired), it had the right to sell its business and sublet or assign the Lease prior to the agreed upon move-out date of May 22, 2016. Food Mart contended that the Hashashes were interfering with this claimed right by refusing to allow a potential buyer to sublet or accept assignment of the Lease. On May 20, 2016, the Hashashes filed a motion to strike the motion for temporary restraining order, a motion for enforcement of the agreed settlement, and a motion for sanctions.

         {¶8} On May 23, 2016, the trial court held a hearing on the following: (1) Food Mart's motion for a temporary restraining order, (2) Hashashes' motion to strike, (3) the settlement agreement between the parties regarding the issuance of a writ of ...


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