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Tanglewood Shopping Center, L.L.C. v. Riser Foods Co.

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

TANGLEWOOD SHOPPING CENTER, L.L.C. PLAINTIFF-APPELLANT
v.
RISER FOODS COMPANY DEFENDANT-APPELLEE

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-808457

          ATTORNEY FOR APPELLANT Paul M. Greenberger Berns, Ockner & Greenberger, L.L.C.

          ATTORNEYS FOR APPELLEE David J. Tocco Vorys, Sater, Seymour & Pease, L.L.P. James S. Larrimer.

          BEFORE: McCormack, P.J., E.T. Gallagher, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, P.J.

         {¶1} Plaintiff-appellant Tanglewood Square Delaware, L.L.C., appeals from the decision of the trial court granting summary judgment for defendant-appellee Riser Foods Company. For the reasons that follow, we affirm.

         Factual and Procedural History

         {¶2} Plaintiff-appellant Tanglewood Square Delaware, L.L.C. is the successor-in-interest of plaintiff-appellant Tanglewood Square Shopping Center, L.L.C. ("Tanglewood") as the owner and landlord of the shopping center at which defendant-appellee Riser Foods Company ("Riser") is a tenant. Riser operates a Giant Eagle supermarket at Tanglewood's Geauga County, Ohio shopping center.

         {¶3} In 1996, Riser's predecessor-in-interest and Tanglewood entered into a 20-year commercial lease (the "lease") under which Riser's predecessor-in-interest rented a "certain store building" of "approximately 63, 733 square feet" to operate a supermarket.

         {¶4} Under the lease, Riser was obligated to pay rent in two components. Pursuant to section 3.1 of the lease, a "base rent" was calculated by multiplying a dollar amount by square foot, with the cost per square foot increasing periodically as follows:

Lease Years

Annual Base Rent

Cost Per Sq. Feet

Monthly Base Rent

Year 1

$446.131

$7.00

$37, 177.58

Year 2

$509, 864

$8.00

$42, 488.67

Years 3-5

$557, 664

$8.75

$46, 471.98

Years 6-10

$578, 696

$9.08

$48, 224.64

Years 11-15

$636, 055

$9.98

$53, 004.61

Years 16-20

$699, 788

$10.98

$58, 315.70

Years 21-25

$769, 895

$12.08

$64, 157.89

Years 26-30

$847, 012

$13.29

$70, 584.30

Years 31-35

$931, 776

$14.62

$77, 648.04

         These figures reflect a total square footage of 63, 733, in accordance with the description of the premises in section 1.1 of the lease.

         {¶5} Pursuant to section 3.2 of the lease, Riser was also obligated to pay "percentage rent, " which was determined based on a percentage of gross sales in excess of a determined annual break point. Additionally, section 4.1 of the lease required Riser to make additional payments based on its proportional share of real estate taxes and assessments, calculated using Riser's "square foot area."

         {¶6} The original lease was amended by a November 20, 2008 Amendment to Lease (the "amendment"). The dispute in this case revolves around Riser's expansion of their store pursuant to this amendment.

         {¶7} In its third recital, the amendment stated:

WHEREAS, the Original Premises is 66, 297 square feet and Tenant desires to expand the Original Premises to include an additional 12, 351 square feet, totaling 78, 648 square feet within the area defined herein and noted as the "Expansion ...

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