Court of Appeals of Ohio, Eleventh District, Geauga
Appeal from the Geauga County Court of Common Pleas. Case No.
2014 M 000690. Judgment: Affirmed in part; reversed in part;
F. Koehler and Timothy J. Fitzgerald, Koehler Fitzgerald LLC,
P. Schuck, Bricker & Eckler, LLP, and Christopher M.
Ernst, Bricker & Eckler, LLP, For Defendant-Appellee New
Par, d.b.a. Verizon Wireless).
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
TIMOTHY P. CANNON, J.
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
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[.]"
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[.]"
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."
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
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[.]"
The Birds and New Par each filed an answer to Parker
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.
On December 23, 2014, both cases were consolidated under case
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,
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)
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
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 ...