Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
2016 CV 000174.
Jeffrey W. Ruple, Deacon Cardenas & Ruple, LLC, For
A. Listati, and Joseph N. Cindric, Thrasher, Dinsmore &
Dolan, LPA, For Defendant-Appellee.
CYNTHIA WESTCOTT RICE, J.
Appellant, Parkhill Limited Liability Company
("Parkhill"), appeals the judgment of the Lake
County Court of Common Pleas, awarding it $854.80 in damages
as a result of the breach of a Subordination Agreement by
appellee, Economic and Community Development Institute, Inc.
("ECDI"). For the reasons discussed in this
opinion, we affirm the trial court's judgment.
In 2012, Parkhill, a commercial landlord, leased commercial
space to a tenant, non-party Merholz. Merholz's annual
rent for the years 2014 and 2015 was approximately $31, 200.
To assist with her finances, Merholz obtained a loan from
ECDI and used her office equipment in the rented space as
collateral. Parkhill and ECDI eventually entered into a
Subordination Agreement, which provided Parkhill would give
up its rights to Merholz's personal property in favor of
ECDI and, in turn, Parkhill would be entitled, upon default
by Merholz and a set grace period in which ECDI was entitled
to remove the property, to charge ECDI the rate of rent on a
per diem basis until the collateral is removed. The following
provisions of the Subordination Agreement are germane to this
Landlord [Parkhill] hereby consents to Lender's
[ECDI's] security interest (or other interest) in the
Collateral and hereby subordinates all interests, liens and
claims that Landlord has or may hereafter acquire in the
Collateral to the interests, liens and claims of Lender.
Landlord agrees that any subordinate lien or claim it may now
have or hereafter have in the Collateral will be subject to
the rights granted by Landlord to Lender in this agreement.
Landlord and Borrower grant to Lender the right to enter upon
the Premises for purpose of removing the Collateral from the
Premises * * * within twenty days from the notice of default
thereafter Lender will pay the rate of rent of borrower
calculated on a per diem basis until collateral is removed.
5. Miscellaneous Provisions.
The rights granted to Lender in this Agreement will continue
for thirty (30) days after lender receives notice in writing
from the Landlord that Borrower no longer is in lawful
possession of the Premises. * * * Lender shall not be deemed
to have waived any rights under this Agreement unless such
waiver is in writing and signed by Lender. * * * Without
notice to Landlord and without affecting the validity of this
Agreement, Lender may do or not do anything it deems
appropriate or necessary with respect to the Loan, any
obligors on the Loan, or any Collateral for the Loan;
including without limitation extending, renewing,
rearranging, or accelerating any of the Loan indebtedness.
Merholz failed to pay her rent and Parkhill notified ECDI of
the failure on October 1, 2014. Pursuant to its rights under
the agreement, ECDI sent its representative, Erin Fach, to
inspect the collateral. After the inspection, on October 29,
2014, Fach sent an email to Parkhill's representative,
Urban Cornacchione, that ECDI would have "something
finalized" for removal of the collateral within a
"few days." Cornacchione acknowledged the email and
requested the Fach let him know regarding the arrangements
because he "will need to have [Parkhill's] lease
administration department calculate the per diem rent based
on the date [Fach] provide[s]." No subsequent
communications occurred between the parties or their
representatives. Parkhill kept the collateral in the rental
unit until it was re-leased on October 21, 2015 (366 days
from the date ECDI was allegedly responsible for per diem
rental amount under the ...