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Barker Investments, L.L.C. v. Cleveland Plating, L.L.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

BARKER INVESTMENTS, L.L.C., Plaintiff-Appellant,
v.
CLEVELAND PLATING, L.L.C., Defendant-Appellee.

          Appeal from the Cleveland Municipal Court Housing Division Case No. 2017 CVG 015219

          Roetzel & Andress, L.PA., Timothy B. Pettorini, and Lucas K. Palmer, for appellant.

          Koehler Fitzgerald, L.L.C., and Christine M. Cooper, for appellee.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, J.

         {¶ 1} Plaintiff-appellant Barker Investments, L.L.C. ("Barker"), appeals the judgment of the Cleveland Municipal Court, Housing Division, that entered judgment for defendant-appellee Cleveland Plating, L.L.C. ("Cleveland Plating"), on the plaintiffs complaint for forcible entry and detainer. Upon review, we affirm the decision of the trial court.

         {¶ 2} On October 19, 2017, Barker filed a complaint for forcible entry and detainer against Cleveland Plating. Barker claimed that Cleveland Plating had executed a sham lease for a commercial premises owned by Barker, that no person had authority to execute the lease on behalf of Barker, and that the lease was invalid. Barker also claimed that even if the lease were determined to be valid and enforceable, Cleveland Plating breached the lease by nonpayment of rent. Barker sought an order of restitution granting Barker possession of the premises and ordering Cleveland Plating to vacate the premises.

         {¶ 3} During the course of proceedings, J.P. Morgan Chase Bank, N.A. ("Chase"), filed a motion seeking to intervene in the action, claiming that it had filed a foreclosure action regarding the property. The trial court denied the motion as untimely.[1]

         {¶ 4} The case proceeded to trial. The magistrate issued a decision on May 31, 2018, that included detailed findings of fact and conclusions of law.

         {¶ 5} The magistrate found in favor of Cleveland Plating on the claim that the lease was invalid. Magistrate's decision ¶ 77. The magistrate found that Benjamin Dagley, the owner of Barker and Barker Products Company, which were referred to jointly as "Barker" and run together as one business operation, had clothed Elba Wade with authority to bind the companies by Dagley's words and his deeds. Magistrate's decision ¶ 68-75. The magistrate found that Dagley told Wade he was president and in charge of the "business," and that Dagley, who remained absent from the business, held Wade out as having authority to bind the companies as part of a resolution of the companies' debts to Chase. Magistrate's decision ¶ 72-75. The magistrate determined that the elements of apparent authority were satisfied, that Dagley had vested Wade with apparent authority to "do the deal," and that Wade had authority to sign the 2015 lease on behalf of Barker. Magistrate's decision ¶ 74-77.

         {¶ 6} The magistrate also found in favor of Cleveland Plating on the claim for possession for nonpayment of rent. Magistrate's decision ¶ 79. The magistrate determined that Dagley accepted a check for $5, 000 in March 2017, which was the exact amount due under the lease at the time the payment was made, and the magistrate rejected the argument that this was a settlement, as opposed to rent. Magistrate's decision ¶ 78. Additionally, the magistrate found that Dagley accepted a rent payment for April 2017 by holding a separate $200 rent check without communication to Cleveland Plating, and thereby waived the three-day notice served at the end of March 2017. Magistrate's decision ¶ 79.

         {¶ 7} The magistrate's decision included a notice that any objections were required to be filed within 14 days, even if the trial court provisionally adopted the decision before that time, and that a party may not assign an error on appeal unless timely and specific objections are made as required by Civ.R. 53(E)(3). The trial court approved the magistrate's decision and entered judgment in favor of Cleveland Plating on May 31, 2018. No objections to the magistrate's decision were filed.

         {¶ 8} Barker has appealed the judgment of the trial court.

         {¶ 9} Under its first assignment of error, Barker claims the trial court erred in finding Elba Wade had apparent authority to execute the lease because Barker derived no benefit from the lease. Barker argues that Wade acted for his own benefit and as an employee of Cleveland Plating in signing the lease. Barker states the terms of the lease provide for a rent of $200 per month with a ten-year term that can be extended another ten years without an increase in rent, which results in a loss to Barker when subtracting the rent from the real estate taxes Barker is obligated to pay. Barker takes issue with the trial court's determination that a variance in terms might be expected because "the Lease was intended to fill a gap until the foreclosure was completed." Nonetheless, the trial court determined that Wade was clothed with apparent authority to bind Barker and that "the Lease appears valid when taken in the context of the actors' ultimate work out of the debts of Dagley's companies."

         {¶ 10} Barker claims under its second assignment of error that the trial court's determination that Wade had authority to execute the lease and its decision to deny eviction is against the manifest weight of the evidence. The magistrate made numerous findings that supported its determination. Finally, under the third assignment of error, Barker claims that the trial court's finding that the $5, 000 payment constituted payment of rent is against the manifest weight of the evidence. Barker argues that this was intended to be a partial payment to temporarily cease Dagley's use of self-help actions, and that if the payment had been for rent, it would have been sent to ...


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