Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas Judgment
Appealed From Is: Affirmed in Part, Reversed in Part, and
Cause TRIAL NO. A-1504589
Keating, Meuthing & Klekamp, Daniel E. Izenson and
Meaghan K. FitzGerald, for Plaintiff-Appellee,
Kimberly A. Kyle, for Defendant-Appellant.
Defendant-appellant 2NDS in Building Materials, Inc., d.b.a.
Home Emporium ("2NDS") appeals from the decision of
the Hamilton County Court of Common Pleas granting summary
judgment in favor of plaintiff-appellee Wal-Mart Realty
Company ("Wal-Mart"). We find merit in 2NDS's
sole assignment of error. Consequently, we reverse that part
of the trial court's judgment granting Wal-Mart's
motion for summary judgment, and we remand the cause for
The record shows that Wal-Mart filed a complaint for breach
of contract seeking reimbursement for repairs to and/or
replacement of 28 vandalized rooftop HVAC units on commercial
property it had leased from defendant Tri-County Commons
Associates, Inc., ("TCCA"). The property was
actually occupied by 2NDS, which had subleased the property
from Wal-Mart. The trial court dismissed all of
Wal-Mart's claims against TCCA for failure to state a
claim upon which relief could be granted.
In the sublease, Wal-Mart was the sublessor and 2NDS was the
sublessee. TCCA was referred to as the "Prime
Landlord." Both Wal-Mart and 2NDS filed motions for
summary judgment based on the language of the sublease.
Section 11.2 of the sublease, entitled "Repairs by Prime
Landlord, " provided:
Except for repairs or maintenance necessitated by
Sublessee's alterations, changes or modifications, * * *
Sublessor and Sublessee agree that it is Prime Landlord's
responsibility at all times to maintain and keep in good
repair the roof and all structural portions of the building,
the exterior of the building, to make such interior repairs
and replacements that may be necessary as a result of damage
or destruction by fire, the elements, or casualty and for
HVAC unit replacement.
The trial court found this provision to be unenforceable. It
stated: The parties also agreed in Section 11.2 that the
Prime Lessor, Tri-County Commons Associates, LLC is
responsible for damage or destruction of the HVAC system.
This is unenforceable. Two parties simply cannot bind a 3rd
party to responsibilities for which the 3rd party does not
expressly agree. Tri-County is not a party to the sublease
nor is there any writing indicating it agreed to be bound by
In granting summary judgment in favor of Wal-Mart, the trial
court relied on section 11.1 of the sublease, entitled
"Repairs by Sublessee." That section provided in
pertinent part: "Sublessee shall maintain and replace
the component parts of the heating, ventilation and air
conditioning system (HVAC), including but not limited to
compressors, and equipment serving the Subleased
Premises." It further provided that "[i]n
particular, from the Delivery Date, Sublessee shall institute
and diligently follow the HVAC maintenance regimen[.]"
It then set forth 20 items that 2NDS was to perform either
quarterly or annually, including replacing filters,
inspecting belts and sleeves, inspecting various pieces of
equipment, and checking pressure and temperatures. The court
stated that "Section 11.1 of the Sublease mandates that
[2NDS] complete the work related to the vandalism of the HVAC
The court found that 2NDS was in breach of the sublease and
that Walmart was entitled to summary judgment on the issue of
liability. It ordered 2NDS to reimburse Walmart for the
repair and replacement costs of the HVAC units, plus
prejudgment and post-judgment interest. This appeal followed.
In its sole assignment of error, 2NDs contends that the trial
court erred in granting summary judgment in favor of Wal-Mart
and in denying its motion for summary judgment. It argues
that under the plain language of the sublease, it was not
responsible for replacing the HVAC system. We agree that the
trial court erred in granting summary judgment in favor of
Wal-Mart, although not precisely for the reasons argued by
An appellate court reviews a trial court's ruling on a
motion for summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241
(1996); Riverhills Healthcare, Inc. v. Guo, 1st
Dist. Hamilton No. C-100781, 2011-Ohio-4359, ¶ 12.
Summary judgment is appropriate if (1) no genuine issue of
material fact exists for trial, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable
minds can come to but one conclusion and that conclusion is
adverse to the nonmoving party, who is entitled to have the
evidence construed most strongly in his or her favor.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327,
364 N.E.2d 267 (1977); Alexander v. Motorists Mut. Ins.
Co., 1st Dist. Hamilton No. C-110836, 2012-Ohio-3911,
¶ 16. The trial court has an absolute duty to consider
all pleadings and evidentiary material when ruling on a
motion for summary judgment. It should not grant summary
judgment unless the entire record shows that summary judgment
is appropriate. Alexander at ¶ 16.
A lease is a contract to be interpreted like any other
contract. Stephen Bus. Ent., Inc. v. Lamar Outdoor
Advertising Co., 1st Dist. Hamilton No. C-070373,
2008-Ohio-954, ¶ 13. The interpretation of a written
instrument is, in the first instance, a matter of law for the
court. If it is clear and unambiguous, the court need not go
beyond the plain language of the agreement to determine the
parties' rights and obligations. Instead, the court must
give effect to the contractual language. Aultman Hosp.
Assn. v. Community Mut. Ins. Co.,46 Ohio St.3d 51, 53,
544 N.E.2d 920 (1989); Fifth Third Bank v. Ducru Ltd.
Partnership, 1st Dist. Hamilton No. C-050564,
2006-Ohio-3944, ¶ 14. But if the provisions of a
contract are ambiguous, an ...