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LRC Realty, Inc. v. B.E.B. Properties

Court of Appeals of Ohio, Eleventh District, Geauga

July 23, 2018

LRC REALTY, INC., Plaintiff-Appellee,
v.
B.E.B. PROPERTIES, Defendant, NEW PAR, d.b.a. VERIZON WIRELESS, et al., Defendants-Appellees,
v.
BRUCE BIRD, et al., Plaintiffs-Appellants.

          Civil Appeal from the Geauga County Court of Common Pleas. Case No. 2014 M 000690. Judgment: Affirmed in part; reversed in part; remanded.

          James F. Koehler and Timothy J. Fitzgerald, Koehler Fitzgerald LLC, (For Plaintiff-Appellee).

          James P. Schuck, Bricker & Eckler, LLP, and Christopher M. Ernst, Bricker & Eckler, LLP, For Defendant-Appellee New Par, d.b.a. Verizon Wireless).

          Robert T. Dove and Robert A. Franco, (For Defendant-Appellee 112 Parker Court LLC).

          James B. Rosenthal and Ellen M. Kramer, Cohen Rosenthal & Kramer LLP, (For Plaintiffs-Appellants).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellants, Bruce and Sheila Bird ("the Birds"), appeal the decision of the Geauga County Court of Common Pleas, granting summary judgment in favor of appellees, 112 Parker Court LLC ("Parker Court") and LRC Realty, Inc. ("LRC Realty"). The trial court's judgment is affirmed in part and reversed in part, and the matter is remanded.

         {¶2} On August 27, 2014, LRC Realty filed a complaint (case No. 14M000690) against B.E.B. Properties, Parker Court, and New Par d.b.a. Verizon Wireless ("New Par") "in order to settle and declare the legal rights of the parties hereto to the past and future rental payments owed and to be paid pursuant to the terms of a certain Option to Lease and Lease Agreement dated March 14, 1994 and recorded on April 21, 1994 * * * involving a portion of the real property located at 112 Parker Court, Chardon, OH 44024[.]" LRC Realty sought a declaratory judgment that it "is and will be entitled to be paid the annual installments of rental [sic] owed pursuant to the Lease Agreement for the time period following LRC Realty's acquisition of legal title to the Parker Court Property on January 18, 2013." LRC Realty also sought a money only judgment against B.E.B. Properties and New Par "to recover the annual rental payment to which Plaintiff was entitled in the amount of $23, 688.00 which was due and payable on April 1, 2013 pursuant to the Lease Agreement[.]"

         {¶3} On September 5, 2014, the Birds filed a complaint (case No. 14M000717) against New Par and LRC Realty. The Birds brought a claim for breach of contract against New Par, alleging the anticipatory breach of a lease agreement whereby New Par was required to make annual payments of rent for the use of a portion of the property located at 112 Parker Court to build and maintain a cellphone tower. The Birds brought a claim for tortious interference with contract against LRC Realty, alleging LRC Realty had "interfered with the contract between the Birds and New Par by instructing New Par to make the April 2014 lease payment, and future payments, to LRC." The Birds sought a declaratory judgment that, "as assignees of the original lessor, B.E.B. Properties," they "are entitled to receive the lease payments throughout the duration of the lease[.]"

         {¶4} New Par filed an answer, counterclaim, and cross-claim in both cases. In case No. 14M000690, New Par cross-claimed against the Birds for indemnification in the event New Par was found liable for rental payments made to the Birds. In case No. 14M000717, New Par cross-claimed against LRC Realty for indemnification in the event New Par was found liable for rental payments made to LRC Realty. In both cases, New Par made a counterclaim and cross-claim for interpleader, "so that the Court can fairly adjudicate the rights and obligations of the Birds and LRC and determine who among them is entitled to future rental payments from New Par."

         {¶5} The Birds filed answers to New Par's cross-claim and to LRC Realty's complaint. The Birds also raised a combined counterclaim against LRC Realty and cross-claim against Parker Court for reformation of deed, seeking to reform a warranty deed for the transfer of the subject property "to clarify that grantor [Parker Court] did not grant, and grantee [LRC Realty] did not receive, the right to receive the rental payments from the New Par Lease, which rights rest with Bruce and Sheila Bird, as assignees of B.E.B. Properties * * * until the termination of the lease."

         {¶6} Parker Court filed an answer to LRC Realty's complaint and an answer to the Birds' cross-claim. Parker Court also raised cross-claims against New Par and the Birds. The first claim was for a declaratory judgment that "112 Parker Court LLC [was] entitled to receive the annual rental payments owed pursuant to the Lease Agreement for the time period covering each full year 112 Parker Court LLC held title to the Parker Court Property, January 2004 until January 2013." The other claim was for a money only judgment in an amount of "no less than $170, 682, which was due and payable over the period of January 2004 until January 2013, pursuant to the Lease Agreement[.]"

         {¶7} The Birds and New Par each filed an answer to Parker Court's cross-claims.

         {¶8} LRC Realty filed an answer to the Birds' complaint, an answer to New Par's cross-claim, and a reply to New Par's and the Birds' counterclaims.

         {¶9} On December 23, 2014, both cases were consolidated under case No. 14M000690.

         {¶10} On March 6, 2015, the trial court granted New Par's unopposed motion to deposit funds in interpleader, representing the 2015 lease payment of $23, 688.00.[1]

         {¶11} New Par, Parker Court, and LRC Realty, each filed a motion for summary judgment, and the Birds filed a motion for partial summary judgment. All motions were duly opposed. The parties also filed a "Stipulation" with the trial court, by which they stipulated to the authenticity and admissibility of thirteen documents attached thereto, listed below in chronological order:

1.Warranty Deed from Geauga Properties, Ltd. to B.E.B. Properties (recorded July 23, 1980)
2. Option to Lease & Lease Agreement between B.E.B. Properties and Northern Ohio Cellular Telephone Company ["Northern"] (recorded April 21, 1994)
3. Letter from Northern to B.E.B. Properties accepting the option to lease (dated February 28, 1995)
4. Non-exclusive Easement Agreement between B.E.B. Properties and Northern (recorded March 3, 1995)
5. Memorandum of Lease between B.E.B. Properties and Northern (recorded March 3, 1995)
6. Warranty Deed from B.E.B. Properties to Keith R. Baker and Joseph E. Cyvas (recorded April 4, 1995)
7.Assignment from David J. Eardley and Robert Bosler to the Birds of their interest in the lease agreement between B.E.B. Properties and Northern (signed June 22, 1995)
8. Memorandum of Assignment from David J. Eardley and Robert Bosler of their "right, title and interest" in B.E.B. Properties to the Birds (recorded July 12, 1995)
9.Assignment of Lease and Easement Documents from Northern to New Par (recorded January 19, 1999)
10. Warranty Deed from Baker and Cyvas to Magnum Machine Co. (recorded June 7, 1999)
11. Warranty Deed from Magnum Machine Co. to Parker Court (recorded October 31, 2003)
12. Offer to Purchase and Acceptance Agreement between Parker Court and LRC Realty (signed December 14, 2012)
13. Warranty Deed from Parker Court to LRC Realty (recorded January 24, 2013)

         {¶12} On May 10, 2016, the trial court rendered its decision in summary judgment, making the following findings, which represent undisputed facts:

Under a recorded 35 year lease, New Par rents space at 112 Parker Court, Chardon, Ohio (the 'property'). The lease requires a single yearly rental payment, made to the property owner on or before the first of April. New Par has never missed a payment and has paid each installment as instructed or ordered. The Birds, LRC, and Parker Court LLC all claim entitlement to rent paid and payable by New Par.
On March 3, 1995, a lease and easement between defendant then property owner B.E.B. Properties ('BEB') and New Par's predecessor, Northern Ohio Cellular Telephone Company ('Northern') were recorded.
On March 22, 1995, BEB deeded the property to non-parties Keith Baker and Joseph Cyvas ('Baker and Cyvas') 'free from all encumbrances whatsoever excepting restrictions of record…zoning ordinances…and taxes.' The Northern easement and lease were described in the deed; the right to receive rent was not.
On April 1, 1995, the lease between BEB and Northern commenced.
In June, 1995, two of BEB's three partners assigned all of their partnership interests to the remaining partner and his wife, the Birds. Beginning in 1995 or 1996, Northern paid rent to the Birds. Baker and Cyvas did not complain.
Effective January 1, 1997, Northern assigned its rights to its affiliate, defendant ...

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