Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cleveland Municipal Court Housing Division
Case Nos. 2016-CVG-04908 and 2017-CVG-16064
Zukerman, Daiker & Lear Co., L.P A., Larry W. Zukerman,
and Brian A. Murray for appellant.
M. Coyne, and Wargo Law, L.L.C., and Leslie E. Wargo, for
JOURNAL ENTRY AND OPINION
A JONES, SR., J.:
1} This appeal arises out of a dispute between
plaintiff-appellant, 5106 Franklin, Inc. ("5106
Franklin" or "landlord") and
defendant-appellee, A & A, Inc., ("A & A")
with respect to a commercial lease agreement that contained
an option to purchase property located at 5106 Franklin
Boulevard in Cleveland. For the reasons that follow, we
History and Facts
2} On September 1, 2014, 5106 Franklin and A & A
entered into a lease agreement for the premises located at
5106 Franklin Boulevard, that included a business, Ohio City
Deli. Pursuant to the lease, the parties agreed that A &
A had the right to exercise an option to purchase the
property in the first five-year term of the lease.
Specifically, section 3(c) of the lease provided:
Lessor agrees to sell and Lessee agrees to buy the premises
for four hundred thousand dollars ($400, 000.00) during the
first five years of the Lease only, at the option of the
Lessee. If Lessee opts to purchase the [p]remises in the
first 5-year term, Lessor agrees to finance said purchase for
a 15 year term with $100, 000.00 down payment at reasonable
commercial lending rates.
3} 5106 Franklin alleges that it started having
problems with A & A as soon as the parties entered into
the lease agreement. According to 5106 Franklin, A & A
demanded that it reduce the previously agreed upon purchase
price for the business, inventory, and assets of Ohio City
Deli. 5106 Franklin alleges that A & A stopped paying
monthly payments that were due under an asset agreement the
two parties had previously executed. 5106 Franklin also
alleges that A & A failed to pay the full amount of rent
for July 2015, shorting the landlord $250.
4} On August 11, 2015, A & A sent a certified
letter to 5106 Franklin notifying it that A & A was
exercising its option to purchase the property. In response,
5106 Franklin informed A & A that it was in breach of its
lease. According to 5106 Franklin, A & A violated the
lease by renting the store premises to a movie production
company to shoot a movie scene without permission. 5106
Franklin further alleges that when its representatives
arrived at Ohio City Deli the day of the movie shoot, A &
A representatives and employees shouted vulgarities at them.
5106 Franklin subsequently served a three-day notice to A
& A to vacate the premises.
5} In August 2015, A & A filed a complaint for
specific performance in Cuyahoga County Common Pleas Court.
5106 Franklin filed an answer and counterclaim, asserting a
claim for forcible entry and detainer. A & A moved to
dismiss 5106 Franklin's counterclaim based on
jurisdiction, which the trial court granted, agreeing with A
& A that Cleveland Municipal Court, Housing Division, had
exclusive jurisdiction over 5106 Franklin's
counterclaims. In June 2016, A & A moved to dismiss its
claims without prejudice and that case was dismissed.
2016 Forcible Entry and Detainer Case -
6} On April 12, 2016, 5106 Franklin, represented by
Attorney #1, filed a complaint for forcible entry and
detainer and money damages in Cleveland Municipal Court,
Housing Division, Case No. 2016-CVG-04908. A & A filed an
answer and initial and amended counterclaims, asserting
counterclaims for declaratory judgment, retaliation, tortious
interference, and specific performance.
7} In July 2016, 5106 Franklin retained Attorney #2
and Attorney #1 withdrew from the case. In December 2016, A
& A moved for summary judgment, which 5106 Franklin did
not oppose. In March 2017, the trial court granted summary
judgment in favor of A & A with respect to 5106
Franklin's claims and A & A's counterclaims for
specific performance and declaratory judgment. The trial
court set A & A's counterclaims for retaliation and
tortious interference for trial.
8} In its order granting summary judgment, the trial
court ordered 5106 Franklin to convey the property to A &
A for the previously agreed upon purchase price of $400, 000.
The court determined that, pursuant to the lease, 5106
Franklin was obliged to finance the purchase for a 15-year
term with $100, 000 as a down payment at reasonable
commercial lending rates.
9} In April 2017, A & A moved for sanctions
against 5106 Franklin. 5106 Franklin, through Attorney #2,
opposed the motion. In August 2017, the trial court issued an
entry reflecting that the parties had reached a settlement, A
& A was withdrawing its motion for sanctions, and A &
As remaining counterclaims were dismissed without prejudice.
10} In October 2017, A & A filed a motion with
the court seeking a monetary offset to the $400, 000 purchase
price for the property, alleging that it had discovered that
a portion of the premises needed $56, 125.00 in repairs and
for its alleged loss of use of that portion of the property.
5106 Franklin opposed A & As motion and A & A
eventually withdrew its motion.
11} In December 2017, 5106 Franklin, who had fired
Attorney #2 and re-retained Attorney #1, moved for relief
from judgment. The trial court denied the motion.
12} In February 2018, A & A filed a motion to
show cause and for sanctions, alleging that 5106 Franklin was
delaying the sale of the property. A hearing was held, but no
transcript from the hearing exists (the hearing was
apparently not recorded). The magistrate overseeing the
hearing issued a decision setting forth detailed terms for
the closing on the property. 5106 Franklin objected to the
magistrate's decision. The court overruled the objections
and specifically noted that the deadline for A & A to
deposit $100, 000 into escrow was the date of
closing. 2017 Eviction Case -
13} On October 31, 2017, 5106 Franklin, through
Attorney #2, filed a complaint for eviction against A & A
and its president, Lina Sadeq,  in Cleveland Municipal Court,
Case No. 2017-CVG-16064. In its complaint, 5106 Franklin
alleged that it had served a notice of eviction on October
10, 2017, because A & A refused to pay rent pursuant to
the lease agreement or close on the purchase of the premises.
14} In November 2017, A & A filed a motion to
dismiss, which the trial court converted into a motion for
summary judgment. 5106 Franklin, who was now represented by
Attorney #1, opposed the motion. In January 2018, the ...