Court of Appeals of Ohio, Eighth District, Cuyahoga
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
JOURNAL ENTRY AND OPINION
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
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.
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
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 ...