Adlaka v. Lambrinos

[Cite as Adlaka v. Lambrinos, 2017-Ohio-8014.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

SAT ADLAKA, et al. ) CASE NO. 15 MA 0196
)
PLAINTIFFS-APPELLEES )
)
VS. ) OPINION
)
MARIA LAMBRINOS, et al. )
)
DEFENDANTS-APPELLANTS )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 13-CV-1754

JUDGMENT: Affirmed in part. Reversed in part.
Modified.

APPEARANCES:

For Plaintiffs-Appellees: Atty. James S. Gentile
The Liberty Building
42 N. Phelps Street
Youngstown, Ohio 44503

For Defendants-Appellants: Atty. Gregg A. Rossi
Rossi & Rossi
26 Market Street, 8th Floor
Huntington Bank Building
P.O. Box 6045
Youngstown, Ohio 44501

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: September 28, 2017
[Cite as Adlaka v. Lambrinos, 2017-Ohio-8014.]
WAITE, J.

{¶1} This case arises from an award of damages in a breach of contract

action regarding a lease. Appellee Sat Adlaka filed suit against Appellants Ted and

Maria Lambrinos for breach of a commercial lease agreement following Appellants’

vacation of the premises prior to the end of the lease term. Appellants were

operating the leased premises as an internet café. Appellants allege the trial court

erred in failing to grant a continuance when Appellant Ted Lambrinos was unable to

be present on the day of trial. Appellants also claim the trial court erred in the

calculation of damages under the lease agreement. Additionally, Appellants contend

the trial court erred in denying their claim for constructive eviction. Finally, Appellants

argue the trial court erred in failing to grant their motion to compel filed as a result of

Appellee’s alleged failure to comply with Appellants’ discovery request. A review of

the record reveals that Appellants breached the contract by vacating the premises

without notice and failing to pay rent according to the terms of the lease. The trial

court did not err in denying the motion for continuance requested the morning of trial

or in its decision on the discovery issue. Appellants’ counterclaims for constructive

eviction and commercial improvements are not supported by the record. The trial

court did not err in awarding damages. Appellants failed to present their own

calculation of damages and failed to object to the calculation Appellee presented at

trial. We note, however, that the trial court made a miscalculation in the damage

amount awarded. Appellants’ assignments of error one, three and four are without

merit. Assignment two has partial merit. The judgment of the trial court is affirmed in

part and reversed and modified in part as to the calculation of damages.
 -2-

Factual and Procedural Background

{¶2} On December 15, 2010, Appellants entered into a written agreement

with Appellee for a lease of premises in a plaza referred to as Suite No. 5 and 6

South of Deer Creek Plaza, in Boardman, Ohio. This lease term was scheduled to

commence January 15, 2011 and expire on November 30, 2012. Appellants were to

operate as an internet café during the lease term.

{¶3} Appellant Maria Lambrinos testified that adequate parking was a

continual issue during the lease term. She claims that she telephoned Appellee

approximately twenty times to complain about the issue but never informed him in

writing. On or about December 25, 2011, Appellants removed their personal property

and elected to vacate the premises for the remainder of the lease term without notice

to Appellee. Appellee subsequently sent a letter to Appellants, dated August 1,

2012, informing them of the lease default, rent monies due, and that the premises

was currently for lease. On June 26, 2013, after receiving no response from

Appellants, Appellee filed suit against Appellants seeking damages for breach of the

written lease agreement based on vacation of the premises and failure to pay rent.

{¶4} In response, Appellants filed a counterclaim alleging they were entitled

to damages for commercial improvements made to the premises and for constructive

eviction.

{¶5} On September 18, 2013, Appellants filed their first request for

production of documents. Appellee filed a reply to Appellants’ counterclaim on

September 30, 2013. On February 19, 2014, a magistrate’s order was issued
 -3-

requiring that all discovery in the matter be completed by August 1, 2014. On August

4, 2014, Appellants filed a motion to compel discovery based on previous attempts to

contact counsel for Appellee regarding the production of documents. On September

4, 2014, Appellee filed a notice of compliance regarding the production of

documents.

{¶6} On January 30, 2015, the parties attended mediation in an attempt to

resolve their issues, but to no avail. A jury trial was set for June 23, 2015. On the

morning of trial, counsel for Appellants orally moved for a continuance because

Appellant Ted Lambrinos was unavailable for medical reasons. Appellee did not

object to the motion for continuance. The trial court denied the motion, however,

noting the matter had been pending for two years and that both Appellants had

signed the lease so that the matter could proceed with only Appellant Maria

Lambrinos present. The parties then agreed to proceed with a bench trial before the

magistrate.

{¶7} On September 2, 2015, a magistrate’s decision was issued finding in

favor of Appellee on the complaint and awarding damages in the amount of

$29,216.00, denying Appellee’s request for legal fees, and finding in favor of

Appellee on Appellants’ counterclaim. On September 15, 2015, Appellants filed

objections to the magistrate’s decision. Appellee filed a response to Appellants’

objections on October 13, 2015. On October 22, 2015, the trial court issued a

judgment entry overruling Appellants’ objections and adopting the magistrate’s

decision. Appellants filed this timely appeal.
 -4-

ASSIGNMENT OF ERROR NO. 1

THE MAGISTRATE ERRED IN ABUSING HIS DISCRETION IN

REFUSING TO GRANT DEFENDANTS/APPELLANTS' MOTION FOR

CONTINUANCE OF TRIAL.

{¶8} In their first assignment of error Appellants contend the trial court erred

in failing to grant the oral motion for continuance requested on the morning the

matter was set for trial. Appellants argue that the motion should have been granted

because Appellant Ted Lambrinos was unavailable due to medical reasons,

discovery issues remained outstanding, and counsel for Appellee had not objected to

the continuance.

{¶9} Trial courts are granted wide discretion in managing their dockets.

State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-

5339, 855 N.E. 2d 444, ¶ 18. Similarly, it is within the discretion of the trial court

whether to grant a motion for continuance. Midland Steel Prods. Co. v. U.A.W. Local

486, 61 Ohio St.3d 121, 130-131, 573 N.E.2d 98 (1991). A reviewing court will not

disturb that ruling absent an abuse of discretion. Id. “An abuse of discretion is more

than an error of judgment; it requires a finding that the trial court's decision was

unreasonable, arbitrary, or unconscionable.” State v. Nuby, 7th Dist. No. 16 MA

0036, 2016-Ohio-8157, ¶ 10, citing State v. Adams, 62 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980).

{¶10} In determining whether to grant a motion for a continuance, the trial

court should consider a number of factors: (1) the length of delay requested; (2) if
 -5-

any prior continuances were requested and received; (3) the inconvenience to the

parties and the court; (4) if the continuance is for legitimate reasons; (5) if the party

requesting the continuance contributed to the circumstances giving rise to the

request; and (6) any other relevant factors. Youngstown Metro. Hous. Auth. v. Barry,

7th Dist. No. 94-CA-147, 1996 WL 734017, at *1.

{¶11} In the instant matter, Appellants had earlier sought one continuance

due to the unavailability of their counsel, which was granted. Their second motion for

a continuance was made orally on June 23, 2015, the morning the jury trial was to

commence. Counsel for Appellants stated that Appellant Ted Lambrinos was

unavailable due to medical reasons. There was no written motion or other

documentation offered in support of the motion. Counsel for Appellants stated that

he had learned of Mr. Lambrinos’ medical issue only the night before.

{¶12} The magistrate noted that since the complaint was filed June 26, 2013,

the matter had been pending for two years. The magistrate stated:

The Supreme Court of Ohio gives the trial courts of this county -- or this

state two years, 24 months, to determine and decide and resolve other

civil matters such as this. We’re at the end of that time period,

gentlemen. I’ve been trying diligently to have this case resolved during

the pendency of it, quite frankly.

(Trial Tr., p. 7.)

{¶13} After a review of this record, we can find no abuse of discretion. In

referring to the 24-month time period, the magistrate was presumably referring to
 -6-

Ohio Supreme Court Superintendence Rules regarding the administration of court

dockets. The superintendence rules are not rules of practice and procedure but are

for court administrative purposes only. State v. Lacy, 46 Ohio App.2d 215, 217, 348

N.E.2d 381(7th Dist.1975). While a breach of contract case that had been in the

court system for nearly two years with a counterclaim for constructive eviction could

potentially involve complex issues, this case does not present any complexity. The

trial court had granted a previous continuance and some six months earlier the

parties proceeded to mediation but reached an impasse. The date for a jury trial had

been pending for an extended period of time. The motion for continuance was not

made in writing in advance of the jury trial but, instead, was orally requested on the

morning jury trial was to commence. No support or documentation of Appellants’

claims regarding Mr. Lambrinos’ medical issue were offered to the court. Further,

Appellants made no proffer that Mr. Lambrinos’ testimony was necessary for the

matter to proceed. The evidence in the record indicates that, for all intents and

purposes, it was Mrs. Lambrinos who was actively engaged in running the business

and had conducted all communication with Appellee regarding the lease issues.

Although there was no objection by Appellee’s counsel, the record reveals Appellee

understood that both Appellants had signed the lease and that the trial could proceed

without Mr. Lambrinos present. The parties ultimately agreed to proceed to a bench

trial before the magistrate rather than empaneling a jury. Although this record shows

that the trial court could have granted the continuance, we find no abuse of discretion
 -7-

by the trial court in denying Appellants’ oral motion for a continuance under these

circumstances. Appellants’ first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE MAGISTRATE ERRED IN FINDING DAMAGES AGAINST

DEFENDANTS/APPELLANTS IN THE AMOUNT OF TWENTY-NINE

THOUSAND TWO HUNDRED SIXTEEN DOLLARS ($29,216.00) AS

BEING UNSUPPORTED BY THE EVIDENCE IN THE RECORD.

{¶14} Appellants contend the trial court erred in the award of damages to

Appellee. Appellants contend the award of $29,216.00 is not supported by the

evidence in the record. Appellants did not dispute liability in the trial court and

acknowledged that they left the premises prior to the expiration of the lease.

Similarly, Appellants do not dispute liability on appeal. Appellants argue only that the

trial court erred in its calculation of damages.

{¶15} Breach of contract claims are reviewed under a de novo standard.

Latina v. Woodpath Dev. Co., 51 Ohio St.3d 212, 214, 567 N.E.2d 262 (1991). In

order to prevail on a breach of contract claim, a plaintiff must prove the existence of a

contract; plaintiff’s performance under the contract; the opposing party’s breach; and

resulting damages. Doner v. Snapp, 98 Ohio App.3d 597, 600, 649 N.E.2d 42 (2d

Dist.1994).

{¶16} Generally, money damages in a breach of contract action, “are

designed to place the aggrieved party in the same position it would have been in had

the contract not been violated.” State ex rel. Stacy v. Batavia Local School Dist. Bd.
 -8-

of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298, ¶ 26. A damage

award for a breach of a commercial lease “is limited to only those damages arising

from the breach which could not, by reasonable effort on [the lessor’s] part without

undue risk or expense, have been averted or reduced.” F. Ent. Inc. v. Kentucky Fried

Chicken Corp., 47 Ohio St.2d 154, 160, 351 N.E.2d 121 (1976). Moreover,

commercial lessees can potentially be liable for rents due under the lease agreement

for as long as the property remains unrented. Dennis v. Morgan, 89 Ohio St.3d 417,

419, 732 N.E.2d 391 (2000). However, a commercial landlord’s right to that future

rent is not unfettered, as the landlord has a duty to mitigate damages caused by a

breaching lessor. Frenchtown Square Partnership v. Lemstone, Inc., 99 Ohio St.3d

254, 2003-Ohio-3648, 791 N.E.2d 417, ¶ 20.

{¶17} In the case sub judice, the issue of mitigation of damages is not before

us. Instead, Appellants urge that the amount of damages owed should be calculated

as follows: a monthly rental of $2,100 for the months of December 2011 through

November 2012 totaling $25,200.00, minus the security deposit ($2,100) and

previously paid last month’s rent ($2,100), for a final total owed under the lease of

$21,000.00. Interestingly, Appellants made no such argument and provided no such

calculation to the trial court.

{¶18} At trial, Appellee introduced as Plaintiff’s Exhibit 2 a statement of rent

due dated August 1, 2012, which shows a total calculated amount due under the

lease of $29,216.00. Appellee’s calculation is based on the monthly rent due for the

month of December of 2011 as well as January through November of 2012, along
 -9-

with late fees and 2% interest. The statement also indicated that the premises were

being advertised for lease for mitigation purposes, and, if leased, Appellants would

be credited accordingly.

{¶19} Appellee introduced this statement into evidence in order to prove

damages under the lease. Counsel for Appellants did not object at trial to its

admission into evidence. Appellants did not present any evidence at trial to

contradict the damage statement. The trial court concluded the amount of damages

set forth to be reasonable.

{¶20} Pursuant to the lease agreement, the monthly rental for the premises

was set at $2,000 per month with an additional $100 per month in rent for common

area maintenance (“CAM”) charges. The lease period commenced January 15, 2011

and was to expire November 30, 2012, for a total rent amount of $45,000.00 for the

entire lease period. The lease also contains a provision requiring a late fee of $100

per month as well as interest at 2% per month. Section 3 of the lease agreement

provides that Appellants were to pay a one month security deposit and the last

month’s rent at the time of signing the lease. (12/15/10 Lease Agreement, Sections

1 and 3.) The record shows Appellants owed rent for December of 2011 as well as

from January of 2012 through November of that year. Included in Appellee’s exhibit

are copies of two checks payable to Appellee for $2000. Each one is notated

“Security for 8414 Market St.” The second is marked “First Month Rent.” (Although

the lease refers to security deposit and last month’s rent, photocopies of checks

introduced into evidence and undisputed at trial indicate “security deposit” and “first
 -10-

month’s rent” respectively and together represent a total amount of $4000 not

credited to Appellants in the trial court’s damages calculation.) There is no provision

in the lease agreement which allows Appellee to retain these monies in the event of a

default. Therefore, $4,000 must be deducted from the balance owed. Additionally,

Appellee submitted his statement into evidence which included a monthly late fee of

$50.00. This contradicts the provision of the lease agreement, as the lease provides

that the monthly late fee is $100 per month. Lastly, Appellee’s statement includes a

2% interest fee of $336 for 2011, a 2% interest fee of $2058 for January through July

of 2012, and $672 for August through November of 2012. Appellee’s statement lists

the total interest amount as $3066. Regarding interest, the lease agreement reads,

“Late fee of $100.00 plus 2% interest per month will be charged for balance due.”

(12/15/10 Lease Agreement, Section 4.) From the language of the lease it appears

the parties agreed to a payment of 2% interest per month based upon the balance

due.

{¶21} As Appellants never objected to or challenged the damages calculation

admitted into evidence, they waive all but plain error. While permitted in civil cases,

the Ohio Supreme Court has made it clear that plain error claims are not favored and

are reserved for only the most exceptional circumstances “to prevent a manifest

miscarriage of justice, and where the error complained of, if left uncorrected, would

have a material adverse effect on the character of, and public confidence in, judicial

proceedings.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099

(1997).
 -11-

{¶22} Appellee presented a statement of damages based on the lease terms.

While this statement is based on an erroneous per month charge for late fees, this

document actually understated the amount required by lease. Appellants’ counsel

did not object to the admission of this evidence nor did Appellants introduce any

competent, contradictory evidence regarding damages at trial. On appeal, Appellants

have overlooked their requirement to pay late fees and interest.

{¶23} Aside from this error in their favor, based on our review of the record

and evidence submitted, the damages awarded by the court do not fully comply with

the language of the lease agreement in a more significant way. In calculating

damages, the trial court failed to credit Appellants for the two checks totaling $4000,

representing a security deposit and first month’s rent. There is no provision in the

lease permitting Appellee to retain these funds and to allow this retention is error.

{¶24} As such, the trial court committed plain error in calculating damages

under the lease. Appellants are entitled to be credited for the $2,000 security deposit

and $2,000 first month’s rent. Appellants’ second assignment of error is sustained in

part and the damages awarded to Appellee are hereby modified to reflect a credit of

$4,000 to Appellants.

ASSIGNMENT OF ERROR NO. 3

THE MAGISTRATE ERRED IN DENYING

DEFENDANTS/APPELLANTS' CLAIM OF CONSTRUCTIVE

EVICTION AND DENYING THE COUNTER-CLAIM OF

DEFENDANTS/APPELLANTS.
 -12-

{¶25} Appellants contend the trial court erred in granting their counterclaim for

constructive eviction based on the evidence presented. Specifically, Appellants claim

that the parking situation had become so intolerable as to prevent Appellants from

performing under the lease.

{¶26} At the outset, it should be noted that Appellants have not supported

their arguments on this issue with legal authority. This alone would be grounds for us

to disregard the assigned error. App.R. 12(A)(2) and 16(A)(7). In the interest of

justice, however, we will review Appellants’ allegation. Constructive eviction occurs

when “the acts of interference by the landlord compel the tenant to leave, and * * * he

is thus in effect dispossessed, though not forcibly deprived of possession.” Sciascia

v. Riverpark Apts., 3 Ohio App.3d 164, 166, 444 N.E.2d 40 (1981). Constructive

eviction occurs, then, when the landlord’s conduct is such that the tenant can no

longer perform under the lease.

{¶27} Appellants argue that the patrons of a nearby bar parked throughout the

common parking in such numbers they prevented Appellants’ patrons from parking

and entering the leased premises. Attempting to extend the behavior of an adjoining

tenant’s patrons to the landlord is already a somewhat tenuous position, and the

record reveals almost no evidence was presented by Appellants. Appellant Maria

Lambrinos testified that she called Appellee’s office “at least 20 times” about the

parking issue. (Trial Tr., p. 71.) Appellee testified that there was only one call. Id. at

27. Appellee testified that after he spoke to Mrs. Lambrinos about her parking

concerns he agreed that Appellants could place signs in front of their premises
 -13-

stating that the designated spots were for their patrons only. Appellants

acknowledged at trial that they never sent any written notice to Appellee about the

parking issue before electing to vacate the premises and stop paying rent.

{¶28} Although Appellants spend a great deal of time discussing the parking

issue both at trial and in their appellate brief, they have cited to no legal authority

which would hold the landlord liable, here. Appellants never submitted any written

notice to Appellee about their concerns, but phoned him to discuss the issue.

Appellee agreed to additional signage and to allow reserved parking spaces for

Appellants’ patrons. Appellee also presented testimony that the number of parking

spaces provided for the entire plaza met and, in fact, exceeded the number required

by the Boardman, Ohio zoning requirements. Based on the evidence presented at

trial and in the record, the trial court did not err in deciding Appellants did not meet

their burden for proving constructive eviction in their counterclaim. Appellants’ third

assignment of error is without merit and is overruled.
 -14-

ASSIGNMENT OF ERROR NO. 4

THE MAGISTRATE ERRED IN ABUSING HIS DISCRETION BY

FAILING TO PROPERLY MONITOR DISCOVERY AND FAILING TO

ORDER PLAINTIFFS/APPELLEES TO COMPLY WITH

DEFENDANTS/APPELLANTS' MOTION TO COMPEL.

{¶29} In their fourth assignment of error, Appellants assert the trial court erred

in failing to order Appellee to comply with their discovery request. As earlier noted,

the trial court has wide latitude in managing its docket. State ex rel. Davis, supra, at

¶ 18. Moreover, it is axiomatic that a court speaks only through its journal entries. In

re Bell, 7th Dist. No. 04 NO 321, 2005-Ohio-6603, ¶ 55. Outstanding motions on

which a trial court fails to explicitly rule are deemed denied once a final judgment is

entered by the court. State v. Kelso, 7th Dist. No 12 MA 188, 2015-Ohio-2091, ¶ 45.

The determination whether to grant discovery requests is also within the sound

discretion of the trial court. Brannon v. Troutman, 75 Ohio App.3d 233, 239-240, 598

N.E.2d 1333 (1992). Parties may request certain items, including documents, during

the discovery phase of the trial and, if a satisfactory response is not received the

parties may file a motion to compel as a final recourse on the issue. Id.

{¶30} In the instant matter, Appellants contend Appellee never complied with

their request for production of documents. This request, dated September 18, 2013,

included: (1) “any documents” pertaining to Appellants directly; (2) a copy of lease

agreements for the premises at issue between Appellee and any party from January

2010 to the present; (3) any document relating to the premises from any local
 -15-

government or county official from January 2010 to the present; and (4) any

documents relating to the premises from Appellee to any local or county government

official. Counsel for Appellants sent two letters to counsel for Appellee without

response. Appellants subsequently filed a motion to compel discovery with the trial

court on August 4, 2014. However, the record reveals Appellee filed a notice of

compliance with discovery on September 4, 2014.

{¶31} The issue was not raised by Appellants at trial during the discussion of

preliminary matters. Moreover, the trial court had set a discovery deadline early in

the case which was exceeded by Appellants in their discovery requests. As

Appellants did not raise the discovery matter at trial, we must utilize the plain error

standard. It appears from the record before us that, although somewhat tardy,

Appellee did comply with Appellants’ discovery request. Appellants did not raise the

issue again before the trial court. No reversible error exists where the discovery

issue was addressed by Appellee prior to the matter going to trial and Appellants

failed to raise the issue with the trial court before a final judgment was entered.

Appellants’ fourth assignment of error is without merit and is overruled.

{¶32} In conclusion, the trial court did not err in failing to grant Appellants’

counterclaim for constructive eviction based upon the record and evidence before us.

The trial court also did not err in denying Appellants’ motion for a continuance made

on the day of trial or in failing to rule on Appellants’ motion to compel regarding

discovery. Moreover, Appellants did not object to the damages award and have

waived all but plain error. Based on the language of the lease agreement, however,
 -16-

the trial court did miscalculate its damage award. Based on the foregoing, the

judgment of the trial court is affirmed in part and reversed in part, and the order of the

trial court is modified to reflect an award of damages consistent with this Opinion

crediting Appellants in the amount of $4,000, representing Appellants’ security

deposit and first month’s rent under the lease.

Donofrio, J., concurs.

Robb, P.J., concurs.