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Al Hashash v. Food Mart Plus, Inc.

Supreme Court of Ohio

June 1, 2017

AMMAR AL HASHASH, ET AL Plaintiffs-Appellees
v.
FOOD MART PLUS, INC. Defendant-Appellant

Cuyahoga App. No. 104552, 2017-Ohio-1158.

         On Appeal for the Cuyahoga County Court of Appeals, Eighth Judicial District Supreme Court Case No. 2017-0581

          Mark E. Porter (0072952) Law Office of Mark E. Porter, LLC COUNSEL FOR APPELLANT FOOD MART PLUS, INC.

          Barry Goloboff (0020299) COUNSEL FOR APPELLEES AMMAR AND TOURIA AL HASHASH

          APPELLEES' MOTION TO INCREASE BOND

         MOTION TO INCREASE BOND

         Appellees, AMMAR AL HASHASH and TOURIA AL HASHASH, move this Honorable Court for an Order Increasing the bond for the reasons set forth in the Memorandum annexed hereto, The damages Appellees have sustained in the event that this Court finds no error at the Court of Appeals exceed the amount of the current bond, at this time, let alone after these proceedings have concluded. Appellees urge that the underlying purposes of Rule S.Ct. Prac. R. 4.01. Motions; Responses supports this proposition.

         MEMORANDUM OF SUPPORT OF MOTION TO INCREASE BOND

         Appellees, Ammar Al Hashash and Touria Al Hashash, hereby move this Honorable Court to increase the amount of supersedeas bond from $30, 000.00 to a larger amount proper to the amount of damages in the event that this appeal be denied for the foregoing reasons.

         The original lease herein commencing August 1, 1995 for 10 years with two successive 5 year terms terminated July 31, 2015. Appellees approached the Appellant's president in May of 2015 regarding the proposed terms. Said terms were discussed again September and November, 2015. At each instance the primary monthly rental rate was agreed to at $4, 500.00, as were the remaining terms. Appellees had the lease prepared by its undersigned counsel, and executed by the Appellees along with another lease for an additional store at the same strip center, and both leases were given to undersigned counsel to be executed by the tenants at both sites. The other lease was signed by that tenant, and the Appellant requested time for review by their attorney. Time was granted. From the end of the lease prior rental amount was paid monthly for the premises. After the lease was delivered an attempt was made for payment by Appellant for the old monthly lease amount of $1, 900.00. That sum was returned.

         No response was heard for several weeks, finally one firm, contacted undersigned counsel followed shortly by another. Principal questions involved lease rental amounts. Much of January passed with no word from Appellant, and Appellees requested documents be prepared for forcible entry and appeal, leading to the litigation herein.

         No rental was paid from May 23, 2016 through vacation of the premises through the time of this filing. At $4, 500.00 per month there is $49, 500.00 plus $145.33 per diem. In addition, there is due monthly the sum of $628.17 for real estate taxes and $137.47 for insurance, both included in each lease. In addition Appellees have had to employ counsel, for work from the start of the appellate process onward to conclusion hereof, exceed an additional sum of $30, 000.00.

         The Appellant having deprived Appellees of their real estate the damages due flow in excess of the value of the Surety from the Appeals Court. In fact the $30, 000.00 is inadequate to pay damages if the initial rental is considered to be the value of damages.

         Therefor, Appellees request that Bond be increased in the premises to an amount to protect the Appellees' interest in the event that they prevail. See S.Ct. Prac. R. 4.01. Motions; Responses.

         Respectfully submitted.

         STATE OF OHIO CUYAHOGA COUNTY

         AFFIDAVIT

         AMMAR AL HASHASH, being first duly sworn, deposes and says that Affiant is an Appellee along with TOURIA AL HASHASH in the appeal by Appellant Food Mart Plus, Inc. from the Eighth

         Judicial District of the Court of Appeals decision of March 28, 2017 in its Case No. 16 AC 104552 to the

         Supreme Court in this Case No. 2017-0581; further Affiant avers that said Court of Appeals decision affirmed the Garfield Heights Municipal Court enforcing an in court settlement agreement fully performed by the parties, requiring the Appellant to remove itself from the lease premises by May 22, 2016; proceedings were stayed upon the original appeal upon posting of a supersedeas bond in the sum of $30, 000.00; further Affiant avers that from May 22, 2016 through April 28, 2017, when Appellant vacated the premises, left they keys therein and locked the doors Appellant paid no sums towards rental, nor real estate taxes and insurance, which amounts were required under the original lease and the new lease proposed for September 13, 2015; further Affiant avers that subsequent to the call of the eviction matter's first cause of action, on February 29, 2016 Appellant's agent stated that rental had been paid into escrow with the Court, which statement was not true, as the Clerk had not funds at that time from

         Appellant; further Affiant says that the Appellant showed a signed copy of the new lease, that Appellees had previously executed in anticipation of Appellant executing same on or about November 28, 2015, but through a couple of legal firms representing estate in December through early January, negotiations stalled; that upon no further word from anyone from Appellant's behalf, eviction proceedings were commenced resulting in the Magistrate hearing related above; further Affiant says that counsel for Appellant appeared surprised to hear that Appellant had executed the new lease; further Affiant avers that when the

         Magistrate inquired of Appellees as to whether they desired to accept the new lease dated two or three days prior to that hearing Appellees deferred, and the Magistrate ruled in favor of Appellees; further

         Affiant says that Appellant filed Objections to said Decision, which came to be heard by the Trial Court in March, the Decision having been over-ruled upon March 15; further Affiant says that the matter was settled in open court upon an agreed settlement prepared by the Judge, and agreed in open court before the Court with both parties given an opportunity to accept or reject; further Affiant says that a week prior to the agreed moveout, a hearing was called by the Court in May of 2016, upon Motions of Appellant to stay proceedings and for the filing of a declaratory judgment; further Affiant says that no one testified at that hearing, and the Court from the bench ruled that since all funds had been paid per the agreement; that also in accordance with the in court settlement, Appellees were entitled to have the real estate and that the second cause of action for damages was dismissed with prejudice; further Affiant avers that due to the bond ordered by the Court of Appeals and posted by Appellant, Appellant remained in the premises commencing May 23, 2016; further Affiant says that the reasonable rate of monthly rental was $4, 500.00, and that the terms of the of the prior and suggested leases also required real estate taxes and property insurance payments, and no such payments were made by Appellant from May 23, 2016; further Affiant avers that there is due the monthly rental sum of $4, 500.00 or the sum of $49, 500.00 through April 23, 2017 and $145.33 per diem thereafter; further Affiant avers that the monthly real estate tax is due in the sum or $628.17 of the sum of $6, 909.87 and $20.26 per diem thereafter; further Affiant says that the monthly property insurance is due in the sum of $ 137.47 or the sum of $ 1, 512.17 and $4.34 per diem thereafter; further Affiant says that reasonable attorney fees and other expenses have been incurred for the prior appeal, and legal proceedings below in the Trial Court since the affirmative ruling below, and in this appeal and more will be required going forward, adding to the damages set forth above; further Affiant avers that the amount set forth in the current bond is inadequate to pay damages in the even that this Honorable Court should rule in favor of Appellees.

         Further Affiant sayeth naught.

         (IMAGE OMITTED)

         COMMERCIAL LEASE

         THIS LEASE AGREEMENT, made and entered into this 13th day of September, 2015 at Cleveland, Ohio by and between AMMAR ALHASHASH, and TOURIA AL HASHASH hereinafter referred to as "Lessors" and FOOD MART PLUS, INC., an Ohio Corporation, dba FOOD MART PLUS, hereinafter referred to as "Lessee".

         SECTION 1. Demised of Premises:

         For and in consideration of the rents herein reserved to be paid by Lessee, and for and in consideration of the covenants and agreements to be kept and performed by Lessee, Lessor does hereby lease, let and demise unto Lessee the store premises known for street numbering purposes as 16477 Broadway Avenue, Maple Heights, Ohio 44137, together with the nonexclusive, and disproportionate right to use the adjoining parking area, driveways, sidewalks, roads, alleys and means of ingress and egress. The demised store premises comprises a part of the land and building area of the shopping strip as shown on Exhibit "A", which is attached hereto and made a part hereof.

         SECTION 2. Term:

         The term ad duration of this Lease shall be for a period often (10) years, commencing on the 16th day of September, ...


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