[Cite as AGZ Properties, L.L.C. v. Zdolshek, 2025-Ohio-5134.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
AGZ PROPERTIES, LLC, :
Plaintiff-Appellant, : No. 114580 v. :
DENNIS ZDOLSHEK, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 13, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-886225
Appearances:
Law Offices at Pinecrest and David A. Corrado, for appellant.
Roetzel & Andress, LPA, Demari W. Muff, and E. Mark Young; Thomas G. Lobe, for appellees.
WILLIAM A. KLATT, J.,
Plaintiff-appellant AGZ Properties, LLC (“AGZ”) appeals from the
trial court’s November 1, 2024 judgment entry denying its motion for summary
judgment and granting defendants-appellees’ Dennis Zdolshek (“Dennis”) and Dink’s II Company, Inc. (“Dink’s”) motion for summary judgment.1 For the
following reasons, we affirm.
I. Factual and Procedural History
This case stems from a dispute involving a family restaurant, Dink’s
(“the restaurant”), located in Chagrin Falls, Ohio. In 1982, sisters Hilda Zdolshek
(“Hilda”) and Gail Zdolshek (“Gail”) purchased the property housing the restaurant,
16 North Main Street, along with two adjacent properties: 18 North Main Street and
20 North Main Street in Chagrin Falls.2 Subsequently, Hilda and Gail entered into
three lease agreements — one for each property listed above — with their nephew,
Dennis, for all three properties. These lease agreements and the corresponding
properties are the subject of the underlying dispute.
A. The Relevant Lease Agreements
Hilda and Gail opened Dink’s at 16 North Main Street and operated
the restaurant for decades. According to Dennis, he entered into a seven-year lease
agreement with Hilda and Gail in 1982. Upon expiration of that lease, he entered
into another lease with Hilda and Gail in 1989 (“the 1989 lease”). The 1989 lease
was titled “Lease Agreement and Option to Purchase” and governed “the ground
floor storefront unit located at 16 North Main Street, Chagrin Falls, Ohio.” The 1989
lease contained an option to purchase the property.
1For ease of discussion, we will refer to defendants-appellees collectively as “Dennis.”
2 At various points in the record, it appears that Gail Angela Zdolshek is referred
to as Angela Gail Zdolshek. For ease of discussion, we shall refer to her here as “Gail.” On or about July 3, 2008, Dennis entered into a lease agreement (“the
16 North Main lease”) with Hilda and Gail for the restaurant. The 16 North Main
lease is titled “Lease Agreement and Option to Purchase” and was for a term of 20
years. The lease identified the premises as “the ground floor storefront unit located
at 16 North Main Street, Chagrin Falls, Ohio.” Section 8 of the lease, titled “Option
to Purchase,” provided:
Lessor [Hilda and Gail] grants by reference to Lessee [Dennis] his nominee or assigns an option to purchase all of Lessor’s ownership interests in the commercial building in which Lessee’s restaurant is presently located, inclusive of 16 – 18 – 20 North Main Street, Chagrin Falls, Ohio. This building bears Permanent Parcel Nos. 932-7-026A, 932-7-026B, and 932-7-027 upon the Records of the Cuyahoga County Auditor. . . .
This option to purchase shall remain in full force and effect during this Lease Agreement, shall survive its expiration and shall be exercisable by Lessee either (1) by the written notice of exercise by Lessee at any time during the twenty (20) year term of this Lease after the death of both Hilda Mathilda Zdolshek and Gail Angela Zdolshek, or (2) by written notice of exercise upon the death of either Hilda Mathilda Zdolshek or Gail Angela Zdolshek, the Lessee shall have the right to purchase the interest of either decedent in the property within ninety (90) days of the appointment of an executor or administrator for the estate of the decedent or from the Trustee of any Trust which becomes the owner of the decedent’s interest. This option to purchase entitles Lessee to purchase all of the above-described real estate for a purchase price which is: (1) Four Hundred Thousand Dollars ($400,000.00), increased by (2) the cost of the required capital improvements to the property which are not deducted as an immediate expense and are made by the Lessor to the property under a valid existing lease agreement with a tenant of the property after the date of this agreement. In the case of a purchase of less than all of Lessor’s interest in the property, the purchase price will be adjusted to reflect the percentage ownership of the property purchased by Lessee.
The 16 North Main lease was executed by Hilda, Gail, and Dennis;
attorney David Griffiths (“Griffiths”) notarized the lease. According to Dennis, the lease was drafted by Griffiths, who represented Hilda and Gail at the time the lease
was executed.
On or about January 14, 2009, Dennis entered into a lease agreement
(“the 20 North Main lease”) with Hilda and Gail for the property located at 20 North
Main Street. On or about December 1, 2009, Dennis entered into a lease agreement
(“the 18 North Main lease”) with Hilda and Gail for the property located at 18 North
Main Street. The lease identified the premises as “18 North Main Street, Chagrin
Falls, Ohio, which consists of the entire second floor of the building that contains 16
North Main Street, 18 North Main Street, and 20 North Main Street.” Both the 20
North Main lease and the 18 North Main lease were executed by Hilda, Gail, and
Dennis.3
On or about September 1, 2017, Gail’s interests in the 16 North Main
lease, the 18 North Main lease, and the 20 North Main lease were assigned to AGZ.
B. The Underlying Litigation
On September 20, 2017, AGZ filed a complaint against Dennis and
Dink’s. The complaint alleged three counts of breach of contract related to the
claimed breach of each lease agreement, along with claims of misdealing and
fraudulent conduct and a request for a declaration related to the Section 8 option.
Specifically, AGZ alleged that Dennis had breached all three lease agreements by
failing to pay rent for months and that Dennis further “falsely and fraudulently”
3 Hilda passed away at some point prior to the commencement of litigation in this
case. misrepresented the scope of one of the lease agreements to Gail and “forced” her to
sign it “without allowing” her to read it or have an attorney review it.
On November 14, 2017, Dennis filed a motion to dismiss the
complaint pursuant to Civ.R. 12(B)(6).
On November 27, 2017, AGZ and Gail filed an amended complaint.
The same day, AGZ filed a brief in opposition to the motion to dismiss. On
December 18, 2017, Dennis filed an answer to the amended complaint and a motion
to partially dismiss the amended complaint. On February 16, 2018, pursuant to a
joint request by the parties, the case was referred to business mediation.
On November 19, 2018, the court denied Dennis’s motion to partially
dismiss the amended complaint. In a corresponding journal entry, the court stated:
First Defendants move to dismiss Plaintiffs’ claim for fraud. Plaintiff’s fraud claim alleges that Defendant misrepresented the content of the written option and that the Defendant “forced [the Plaintiff] to sign without allowing [the Plaintiff] to read or have [it] reviewed by a lawyer[.]” Defendants contend that Plaintiff has not pleaded the element of reasonable reliance because “had [Plaintiff] made any effort to review the option to purchase, she would have immediately understood that. . .it contains an option to purchase real estate and other lease provisions.” (Motion p. 7).
“One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.” Restatement (Second) of Torts Section 550. Ohio courts have previously applied this rule. Kaye v. Buehrle, 8 Ohio App.3d 381, 383, 457 N.E.2d 373 (9th Dist. 1983); Hampton v. Dieter, 8th Dist. No. 64601, 1994 Ohio App. LEXIS 701, at *20 (Feb. 24, 1994). This means a defendant may be liable where he “reads a contract to the plaintiff and omits a portion of it[.]” Restatement (Second) of Torts Section 550 Comment A. Here, Plaintiff’s factual allegation that the Defendant misrepresented the terms of the contract and prevented Plaintiff from reading is sufficient to state a claim for fraud.
Defendants next context that the claim for fraud should be dismissed because Plaintiff failed to commence an action within the period of limitations. “The statute of limitations is an affirmative defense and is generally not properly raised in a motion to dismiss under Civ.R. 12(B)(6). The Ohio Supreme Court has held, however, that a court may dismiss a complaint pursuant to Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations where the complaint, on its face, conclusively indicates that the action is time barred.” Rutti v. Dobeck, 8th Dist. Cuyahoga No. 105634, 2017-Ohio-8737, ¶ 8 (citations omitted).
Plaintiff argues that under the discovery rule the period of limitations only began when Plaintiff discovered the fraud in 2016. “Under the discovery rule, the statute of limitations begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action.” Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, ¶ 21. The complaint alleges that Plaintiff only discovered the alleged fraud in 2016 based on the wrongful conduct of defendant. (Complaint ¶¶ 36-40). Accordingly, the complaint does not establish conclusively on its face that the action [is] time barred.
Second, Defendants next seek dismissal of Plaintiff’s claim for declaratory judgment. Plaintiff seeks a declaration that the options granted based on the alleged fraud are “no longer legally valid or enforceable.” (Complaint ¶ 46). Defendant contends that the claim is premature because “the option has not been exercised” and Defendant “does not have the right to exercise the option until the death of Hilda.” (Motion pp. 10-11). However, the option, exercised or not, is an encumbrance on the title of the land. The very existence of the option to purchase real estate may impair the marketability of title. Accordingly, the court does not find that Plaintiff’s complaint is seeking a mere advisory opinion. See e.g. Halley v. Ohio Co., 107 Ohio App.3d 518, 524 (8th Dist. 1995) (finding a trial court abused its discretion by dismissing a request for declaratory judgment based on an argument that the need for the declaration was speculative).
The court denies the Defendant’s partial motion to dismiss for the foregoing reasons. On July 5, 2022, AGZ filed a notice of suggestion of death that Gail
passed away on June 17, 2022.
On August 4, 2022, Dennis filed a “notice of service of exercise of
option” giving notice of his exercise of his option to purchase under Section 8 of the
16 North Main lease.
On September 30, 2022, AGZ filed a motion to substitute parties,
seeking to substitute Ed Marko (“Marko”), executor of Gail’s estate and president of
AGZ, for Gail.4 On June 15, 2023, the court granted the motion to substitute.
C. Related Litigation
While the instant case was pending in the trial court, two other cases
were initiated that are relevant to the issues in this appeal.
1. The Bedford Case
In October 2017, AGZ filed a forcible-entry-and-detainer action
against Dennis and Dink’s in Bedford Municipal Court for failure to pay rent and
insurance (“the Bedford case”). Because the amount that AGZ claimed Dennis owed
exceeded the Bedford Municipal Court’s jurisdictional limits, that case was stayed
until the underlying action in this case was resolved.
4 For ease of discussion, we will refer to plaintiffs-appellants as “AGZ” throughout
this opinion. In the meantime, the Bedford Municipal Court ordered Dennis to
make monthly rent payments with the court. A review of the docket in the Bedford
case shows that Dennis made monthly payments pursuant to the court’s order.5
In November 2023, AGZ dismissed the Bedford case without
prejudice. The docket reflects that in December 2023, payment was issued to AGZ
in the amount of $283,800.6
2. Dennis’s 2023 Action
On May 18, 2023, Dennis filed a complaint in the Cuyahoga County
Court of Common Pleas against AGZ and Marko, seeking specific performance and
damages based on AGZ’s alleged refusal to comply with Dennis’s attempt to exercise
the Section 8 option.
In his complaint, Dennis alleged that on August 4, 2022, he timely
exercised his option and served AGZ and its counsel with a “notice of exercise of
option.” Dennis also submitted a case designation form in which he identified his
5 An appellate court may take judicial notice of publicly accessible online court
dockets. See, e.g., State v. McAlpin, 2023-Ohio-4794, ¶ 36 (8th Dist.); Fipps v. Day, 2022-Ohio-3434, ¶ 2 (8th Dist.); State v. Estridge, 2022-Ohio-208, ¶ 12 (2d Dist.) (noting that “it is a common practice for appellate courts to take judicial notice of publicly accessible online court dockets”). Accordingly, we do so here.
6 In their appellate brief, Dennis and Dink’s state that the rent payments they
deposited with the Bedford Municipal Court, and which were subsequently released to and fully accepted by AGZ, totaled $307,180. This discrepancy has no bearing on the instant appeal. complaint as being related to two other cases: the underlying litigation filed by AGZ
in 2017, and a second case filed by AGZ in 2019.7
On July 6, 2023, AGZ filed a motion to dismiss Dennis’s complaint as
being lis alibi pendens, arguing that Dennis was seeking the “same relief” in his
action that the parties were seeking in the instant case.
On September 8, 2023, the trial court granted AGZ’s motion to
dismiss Dennis’s complaint. Dennis appealed, and this court held that the trial court
erred in dismissing Dennis’s complaint based on lis alibi pendens. Zdolshek v. AGZ
Properties, LLC, 2024-Ohio-1284, ¶ 25 (8th Dist.). This court acknowledged the
potential waste of resources from allowing Dennis’s action and this action to
continue separately but stated that neither party had filed a motion to consolidate
and that Dennis’s claims were not compulsory counterclaims in the underlying
action.
Dennis’s case was remanded to the trial court and remains pending
as of the date of this opinion.
D. Summary Judgment
In the underlying case, on February 23, 2024, the parties filed
competing motions for summary judgment. In support of its motion for summary
judgment, AGZ submitted an affidavit from Gail; an affidavit from Marko; the
transcript from an October 13, 2017 hearing in the Bedford case; an affidavit and
7 The 2019 case was related to alleged damage caused to a portion of the building.
AGZ voluntarily dismissed the 2019 case, and it is not relevant to this appeal. report from forensic accountant Robert Ranallo (“Ranallo”); an affidavit from AGZ’s
accountant and lawyer Ronald Schickler (“Schickler”); excerpts from Dennis’s
deposition transcript; a sublease agreement between Dennis and Dink’s; and
excerpts from Gail’s deposition transcript. In support of Dennis’s motion for
summary judgment, he submitted an affidavit from himself; a notarized 1989 lease
agreement between Hilda, Gail, and Dennis for 16 North Main; a letter from Dennis
to Griffiths dated June 23, 2008; and a letter from attorney Rachael L. Russo to
attorney David A. Corrado, dated August 4, 2022, referencing Dennis’s written
notice of exercise of option pursuant to the 16 North Main lease.
On March 25, 2024, Dennis filed a brief in opposition to AGZ’s
motion for summary judgment. In addition to the evidentiary materials described
above, Dennis attached an affidavit from attorney Laura Gorretta (“Gorretta”) to his
brief in opposition. The same day, Dennis also filed a motion to strike Gail’s affidavit
in support of AGZ’s motion for summary judgment. Dennis argued that the affidavit
did not attempt to establish Gail’s competency as an affiant and moreover contained
conclusory statements that were clearly contradictory to statements contained in
her deposition testimony. Also on March 25, 2024, AGZ filed a brief in opposition
to Dennis’s motion for summary judgment and a motion to strike unauthenticated
exhibits filed in support thereof.
On November 1, 2024, the trial court denied AGZ’s motion for
summary judgment and granted Dennis’s motion for summary judgment without
opinion. The court also denied both parties’ motions to strike. On November 8, 2024, Dennis filed a request for findings of fact and
conclusions of law.
On November 21, 2024, AGZ filed a timely notice of appeal and now
raises six assignments of error for our review:
I. The trial court committed reversible error by overruling appellants’ motion to strike appellees’ improper affidavit and unauthenticated affidavits and considering appellees’ inadmissible evidence.
II. The trial court committed reversible error because it should have granted summary judgment to appellants on their breach of contract claims.
III. The trial court committed reversible error by failing to award summary judgment to appellants on their claim of fraud.
IV. The trial court committed reversible error by failing to find the Section 8 option to purchase provision of the 16 N. Main St. lease agreement ambiguous, invalid, and unenforceable.
V. The trial court committed reversible error by failing to award summary judgment on appellants’ unjust enrichment claim.
VI. The trial court’s obvious failure to consider appellants’ evidentiary quality material submitted on summary judgment is reversible error.
On March 21, 2025, AGZ filed a motion to strike evidence outside the
record from Dennis’s brief. On March 31, 2025, Dennis filed a brief in opposition to
AGZ’s motion to strike. On April 3, 2025, AGZ filed a reply brief in support of its
motion to strike. The same day, this court referred AGZ’s motion to strike to this
panel for review.
For ease of discussion, we will address the assignments of error out of
order. II. Law and Analysis
A. Summary Judgment Standard of Review
We review an appeal from summary judgment under a de novo
standard. Cleveland Elec. Illum. Co. v. Cleveland, 2020-Ohio-4469, ¶ 13-15 (8th
Dist.), citing Baiko v. Mays, 140 Ohio App.3d 1, 10 (8th Dist. 2000). As such, we
afford no deference to the trial court’s decision and independently review the record
to determine whether summary judgment is appropriate. Id., citing N.E. Ohio Apt.
Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192 (8th Dist. 1997).
A party is entitled to summary judgment pursuant to Civ.R. 56(C) if
“the pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed
in the action, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Summary judgment is
appropriately granted if the record provides
(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his or her favor.
Bohan v. McDonald Hopkins, L.L.C., 2021-Ohio-4131, ¶ 19 (8th Dist.), citing Horton
v. Harwick Chem. Corp., 73 Ohio St.3d 679 (1995), paragraph three of the syllabus.
“The party moving for summary judgment bears the burden of demonstrating that
no material issues of fact exist for trial.” Edvon v. Morales, 2018-Ohio-5171, ¶ 17
(8th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If that burden is met, then the nonmoving party has the burden to set forth facts that there remain
genuine issues of material fact precluding summary judgment. Id.
B. Motion to Strike
In AGZ’s first assignment of error, it argues that the trial court
committed reversible error when it denied its motion to strike Dennis’s improper
and unauthenticated affidavits and subsequently considered this allegedly
inadmissible evidence.
Specifically, AGZ argues that the affidavits from Dennis and Gorretta
were improper because they violated Civ.R. 56 and Evid.R. 802. AGZ argues that
both affidavits were improper because they were not properly incorporated into the
brief and contained several paragraphs they claim were not based on firsthand
knowledge and/or constituted hearsay.
Evidence permitted by Civ.R. 56(C) is limited to the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts
of evidence, and written stipulations of fact. Kiser v. United Dairy Farmers, 2023-
Ohio-2136, ¶ 14 (10th Dist.). Further, affidavits made in support of motions for
summary judgment are governed by Civ.R. 56(E), which provides that
“‘[s]upporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated in the affidavit.’” Id.,
quoting Civ.R. 56(E). In relevant part, Dennis’s affidavit contained averments that (1) the
16 North Main lease was drafted by Griffiths; (2) Hilda and Gail received a copy of
all three leases prior to signing them; (3) Hilda and Gail had the opportunity to
consult with Griffiths before signing the 16 North Main lease; (4) Hilda and Gail
treated Dennis’s repairs and payments to the property as “offsets” to his rental
obligations or would reimburse him with checks; and (5) this arrangement between
Hilda, Gail, and Dennis had been in place since 1982. AGZ moved to strike the
affidavit, arguing that these averments were improper because they were not based
on firsthand knowledge and/or constituted hearsay.
For purposes of Civ.R. 56(E), “““personal knowledge” is “knowledge
gained through firsthand observation or experience, as distinguished from a belief
based on what someone else has said.””” Davie v. Nationwide Mut. Ins. Co., 2015-
Ohio-4698, ¶ 17 (8th Dist.), quoting Bonacorsi v. Wheeling & Lake Erie Ry. Co.,
2002-Ohio-2220, ¶ 26 (8th Dist.), quoting Black’s Law Dictionary (7th Ed. 1999),
citing Weissenberger, Evidence, § 602.1, at 213 (2002). Further, a trial court has
wide discretion to determine whether a witness has sufficient personal knowledge
to testify competently. Id., citing Wholesale Builders Supply, Inc. v. Green-Source
Dev., L.L.C., 2013-Ohio-5129, ¶ 13 (8th Dist.), citing Starinchak v. Sapp, 2005-
Ohio-2715 (10th Dist.). The statements at issue here were clearly based on Dennis’s personal
knowledge. The statements pertain to Dennis’s business relationship with Hilda
and Gail, and specifically to lease agreements to which Dennis himself was a party.8
AGZ also argues that the trial court should have granted its motion to
strike as it related to Gorretta’s affidavit that was attached to Dennis’s brief in
opposition to AGZ’s motion for summary judgment. In her affidavit, Gorretta
averred that she was an attorney who practiced law with Griffiths until his death in
2011 and Gorretta currently maintained possession of Griffiths’ client files. Gorretta
also averred Griffiths represented Hilda and Gail.9 Gorretta attached several
documents from Griffiths’ files to her affidavit as exhibits. She attached a copy of
Griffiths’ billing card for Gail to the affidavit and averred that the card reflected that
Griffiths received payment for legal services from Gail. She also attached a copy of
a handwritten letter from Griffiths to Gail, dated July 3, 2008, stating that he was
enclosing a “fully executed original of [Gail’s] lease with Dennis.” Gorretta averred
that she was familiar with Griffiths’ handwriting and could identify his signature;
she further averred that these exhibits were located in Griffiths’ files for Gail.
AGZ argues that portions of Gorretta’s affidavit were not based on her
firsthand knowledge and, further, that the exhibits attached to her affidavit were not
properly authenticated.
8 We note that AGZ was not a party to any of the lease agreements at issue until
2017.
9 This is corroborated by Gail’s own deposition testimony. Gorretta’s averments that Griffiths — her law partner with whom she
shared a practice and office, and whose client files she currently possesses —
represented Gail were clearly based on her own personal knowledge. Moreover,
Gorretta’s averments related to Griffiths’ representation of Gail are limited to
describing the attached exhibits and stating that they are true and accurate copies.
The Ohio Supreme Court has consistently held that ““‘[t]he requirement of Civ.R.
56(E) that sworn or certified copies of all papers referred to in the affidavit be
attached is satisfied by attaching the papers to the affidavit, coupled with a
statement therein that such copies are true copies and reproductions.’”” Cleveland
Metro. Bar Assn. v. Carson, 2023-Ohio-4036, ¶ 11, quoting Cincinnati Bar Assn. v.
Newman, 2010-Ohio-928, ¶ 7, quoting State ex rel. Corrigan v. Seminatore, 66
Ohio St.2d 459, 467 (1981). That requirement is satisfied here.
For these reasons, the trial court did not abuse its discretion in
denying AGZ’s motion to strike evidence. AGZ’s first assignment of error is
overruled.
In its motion to strike filed in this court, AGZ largely presents the
same arguments that were addressed above related to its motion to strike filed in the
trial court. To the extent that AGZ’s motion is based on additional information not
addressed in its arguments to the trial court, we note that App.R. 9(A)(1) provides
that “the original papers and exhibits thereto filed in the trial court, the transcript of
the proceedings, if any, including exhibits, and a certified copy of the docket and
journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.” Further, “[t]his court cannot consider matters dehors the
record.” Lisboa v. Lisboa, 2011-Ohio-351, ¶ 10 (8th Dist.), citing State v. Ishmail,
54 Ohio St.2d 402 (1978). Therefore, to the extent that any party’s arguments are
premised on matters outside the record, we will disregard them. For the reasons
described above, we deny AGZ’s motion to strike.
C. Failure to Consider Evidence
In AGZ’s sixth assignment of error, it argues that the trial court’s
failure to consider the evidentiary materials submitted in support of its motion for
summary judgment constitutes reversible error. Specifically, AGZ argues that a
review of the trial court’s brief judgment entry reveals that it “could not have
considered” the evidentiary materials AGZ submitted in support of its motion for
summary judgment.
“‘Civ.R. 56(C) places a mandatory duty on a trial court to thoroughly
examine all appropriate materials filed by the parties before ruling on a motion for
summary judgment.’” Gibbs v. Mark Porter Autoplex, 2023-Ohio-3460, ¶ 15 (4th
Dist.), quoting Murphy v. Reynoldsburg, 65 Ohio St. 3d 356 (1992), paragraph one
of the syllabus. Failure to comply with this requirement constitutes reversible error.
Id.
“‘A general principle of appellate review is the presumption of
regularity; that is, a trial court is presumed to have followed the law unless the
contrary is made to appear in the record.’” Scott v. Green, 2025-Ohio-2669, ¶ 6 (9th
Dist.), quoting Werts v. Werts, 2007-Ohio-4279, ¶ 16 (9th Dist.). Therefore, a party asserting error bears the burden of affirmatively demonstrating the trial court’s
failure to follow the law. Id., citing Freeman v. Freeman, 2007-Ohio-6400, ¶ 53
(9th Dist.).
AGZ has not pointed to anything in the record supporting its assertion
that the trial court failed to review Civ.R. 56 evidence before ruling on the competing
motions for summary judgment. Further, the fact that the trial court denied both
parties’ motions to strike various pieces of evidence would seem to weigh against an
assumption that the trial court failed to review all of the evidence before it.
Because AGZ has not satisfied its burden of showing that the trial
court failed to consider evidence, we overrule its sixth assignment of error.
D. Summary Judgment — Breach of Contract
In AGZ’s second assignment of error, it argues that the trial court
erred by failing to grant summary judgment to AGZ on the breach-of-contract
claims. AGZ’s argument relates to its three breach-of-contract claims, pertaining to
each of the leases governing 16 North Main Street, 18 North Main Street, and 20
North Main Street. Specifically, AGZ argued that Dennis and Dink’s breached the
lease agreements by failing to pay the contractually required rent, failing to pay the
contractually required rent increases, and taking “offsets” for insurance, building
maintenance, and attorney fees.
With respect to AGZ’s claim that Dennis failed to pay the
contractually required rent, AGZ argues that Dennis’s claim that he would “settle
up” at the end of the year using a “true-up reconciliation” was one-sided and not in accordance with the parties’ lease agreements. AGZ also points to Dennis’s
admissions that he did not pay the Consumer Price Index (“CPI”) increase as
outlined in the 20 North Main lease, nor did he make a good-faith effort to calculate
the CPI increase.
Dennis argues that his longstanding arrangement with Hilda and Gail
was that his aunts treated expenses that Dennis incurred on their behalf — for
insurance, maintenance, and repairs — as offsets to his rent obligations. As a result
of this arrangement, Dennis typically did not pay rent in monthly installments, but
rather, the parties engaged in a “true-up” process on a yearly basis. Dennis argues
that this arrangement effectively waived the requirement of strict compliance with
the lease agreements.
Further, Dennis argues that it was his aunts’ obligation as lessors to
calculate and inform him of the CPI increase to rent. Dennis acknowledged that he
never paid a CPI increase but argues that this was because he was never informed of
such an increase. According to Dennis, the failure to comply with a condition
precedent in the lease agreement waived enforcement of the rent increases.
The record reflects that Gail never complained to Dennis about not
paying rent on time; she just took it for granted. (Gail Depo. 32).
The record also reflects that the 20 North Main lease provides for the
CPI increase and states:
As of each the first day of each new lease year where a Rent Increase exists, Sublessor shall calculate the Rent Increase by dividing the most recently available CPI as of the Commencement Date. Sublessor shall deliver the revised Rent Schedule to Sublessee no later than thirty (30) days after the Rent Adjustment Date. Thereafter, Sublessee shall make monthly Base Rent payments in accordance with the revised Rent Schedule.
A breach of contract is established when a party shows (1) the
existence of a contract; (2) that the nonbreaching party performed on the contract;
(3) that the breaching party failed to perform its contractual obligations without
legal excuse; and (4) the nonbreaching party suffered damages flowing from the
breach. Bielawski v. Fifth Third Bancorp, 2024-Ohio-828, ¶ 14 (8th Dist.), citing
Kertes Ents., L.L.C. v. Sanders, 2021-Ohio-4308, ¶ 11 (8th Dist.), citing Holliday v.
Calanni Ents., 2021-Ohio-2266, ¶ 20 (8th Dist.), citing Doner v. Snapp, 98 Ohio
App.3d 597, 600 (2d Dist. 1994).
“It is well-settled that ‘any of the terms of a contract’ may be waived
‘by the acts and conduct of the parties.’” Am. Bus. Invests., LLC v. Shaeena & Allos,
LLC, 2023-Ohio-739, ¶ 48 (6th Dist.), quoting Ohio Farmers’ Ins. Co. v. Cochran,
104 Ohio St. 427 (1922), paragraph three of the syllabus. Waiver can be express or
implied from the conduct of the parties, and it can occur when a party conducts itself
in a manner inconsistent with an intention to insist on that term. Id. Further, it is
well settled in Ohio and many other jurisdictions when the landlord has acquiesced
to payment of rents substantially after the actual due date thereof by accepting late
payments, the landlord has waived strict compliance with the precise terms of the
lease. Bates & Springer v. Nay, 1963 Ohio App. LEXIS 911, *2-3 (8th Dist. Jan. 24,
1963), citing Milburn v. Aska, 81 Ohio App. 79, 80 (3d Dist. 1946); accord Colombo
Ents. v. Convenient Food Mart, 2003-Ohio-154, ¶ 15 (8th Dist.), citing Sterling Health Care Group, Inc. v. Laughlin, 1993 Ohio App. LEXIS 2659 (6th Dist. 1993).
Specifically, “[t]he failure of a lessor to object in a timely manner to a breach of a
lease agreement constitutes a waiver, estopping the lessor from setting up the breach
as a basis for terminating the lease.” Hil-Roc Condo. Unit Owners Assoc. v. HWC
Realty, Inc., 2006-Ohio-4770, ¶ 36 (8th Dist.), citing Finkbeiner v. Lutz, 44 Ohio
App.2d 223, 226-227 (1st Dist. 1975).
Likewise, “a lessor can waive its right to collect holdover rent when it
continues to accept the original rental amount after expiration of the lease.” EAC
Properties, LLC v. Brightwell, 2011-Ohio-2373, ¶ 25 (10th Dist.), citing Galaxy Dev.
v. Quadax, Inc., 2000 Ohio App. LEXIS 4651 (8th Dist. Oct. 5, 2000) (finding no
error in the trial court’s conclusion the landlord waived its right to collect holdover
rent for the period of November 1, 1996, to April 18, 1998, when landlord without
objection accepted the original rental amount each month during that period).
Thus, AGZ’s acceptance of rent payments after 2019 — when the CPI increase was
to take effect pursuant to the lease — similarly waives its right to collect the CPI
increase.
The record reflects that the parties did not strictly comply with the
lease provisions; specifically, Dennis did not make monthly rent payments, and
Hilda and Gail accepted his irregular lump-sum payments. The record likewise
reflects that Hilda and Gail never made an issue of this process to Dennis or
otherwise prior to initiating the underlying action. Further, AGZ accepted years’
worth of rent without the CPI increase. Therefore, AGZ has waived strict compliance with the lease and its breach-of-contract claims could not survive summary
judgment.
For these reasons, AGZ’s second assignment of error is overruled.
E. Summary Judgment — Fraud
In its third assignment of error, AGZ argues that the trial court erred
by failing to grant summary judgment to AGZ on its fraud claim. Specifically, AGZ
argues that the trial court’s judgment was contrary to the unrebutted evidence that
Dennis committed fraud by failing to disclose the Section 8 option to purchase
provision of the 16 North Main lease and by forcing Gail to sign the lease without
having a lawyer review it.
To prevail on its fraud claim, AGZ needed to establish the following
elements: (1) a representation of fact (or concealment of a fact where there is a duty
to disclose); (2) that is material to the transaction at issue; (3) made falsely, with
knowledge of its falsity or with utter disregard and recklessness as to whether it is
true or false; (4) with the intent of misleading another into relying upon it; (5)
justifiable reliance upon the misrepresentation (or concealment); and (6) resulting
injury proximately caused by the reliance. Fowerbaugh v. Sliman, 2022-Ohio-1314,
¶ 48 (8th Dist.), citing Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169 (1984).
“Ohio law does not require that the terms of a written contract be read
or explained to a fully literate individual before he signs it, even if he has relatively
little formal education.” Cole v. Temple Israel, 2007-Ohio-245, ¶ 12 (9th Dist.),
citing ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 503 (1998). Further, “‘a party to a contract is presumed to have read what he or she signed and cannot defeat a
contract by claiming not to have read it.’” Id., quoting Preferred Capital, Inc. v.
Ferris Bros., Inc., 2005-Ohio-6221, ¶ 10 (9th Dist.). “[A] party who fails to read an
instrument before signing it can not escape its effect by any showing of fraudulent
misrepresentation of the contents.” Whelan v. E. F. Hutton Credit Corp., 1983 Ohio
App. LEXIS 15319, *4 (8th Dist. Dec. 15, 1983). Further, in the context of a fraud
claim, with respect to the necessary element of “justifiable reliance,” “a party’s
‘failure to read the contract negates the justifiable reliance element,’ because a
‘person cannot reasonably rely upon the statements of the other contracting party
when the person failed to read the contract.’” Fertilizer Storage Co., LLC v.
Heartland Bank, 2024-Ohio-4836, ¶ 15 (3d Dist.), quoting Trepp, LLC v.
Lighthouse Commercial Mtge., Inc., 2010-Ohio-1820, ¶ 21 (10th Dist.).
The record reflects that the 16 North Main lease is titled “Lease
Agreement and Option to Purchase.” This title appears on the first page of the
document in bolded all caps. Further, the record reflects that, by Gail’s own
admission in her deposition testimony, Dennis never forced her to sign any
documents or insist that she sign any documents. Gail also made the following
statement during her deposition testimony related to the 16 North Main lease:
I told [Dennis], I says, “Should I have Griffiths look at it?” He says, “No.” He says, “It’s just a 20-year lease on the space for the restaurant and that’s it.” So I figured, okay. I trusted him. That was my bad mistake.
(Gail Depo. 54-55.) Throughout her deposition, Gail repeatedly stated that she did
not remember ever signing a lease with Dennis. Gail’s deposition testimony is in many ways at odds with her affidavit, in which she makes numerous averments as
to details of all three leases, conversations with Dennis, and conversations with her
lawyer. Specifically, Gail’s affidavit states that she asked Dennis if she could have
her lawyer review it and he said no, and he “would not let [her] even try to read the
lease” and instead turned to the signature page and pressured her to sign.
At the time of Gail’s deposition, she was 102 years old and had
difficulty hearing and seeing; she was unable to answer many questions regarding
her and Hilda’s business relationship with Dennis. Her affidavit was dated
approximately three years later, when Gail was 105 years old, “could not understand
legal documents, cannot properly read and/or understand big words, and is
currently blind.”
““‘Where inconsistencies exist between statements in affidavits and
prior deposition testimony ‘and the affidavit neither suggests affiant was confused
at the deposition nor offers a reason for the contradictions * * * the affidavit does
not create a genuine issue of material fact which would preclude summary
judgment.’”” Basha v. Abdi Jama Ghalib, 2008-Ohio-3999, ¶ 37 (10th Dist.),
quoting McDaniels v. Sovereign Homes, 2006-Ohio-6149, ¶ 18 (10th Dist.), quoting
McDowell v. Target Corp., 2004-Ohio-7196, ¶ 12 (10th Dist.).
Following a thorough review of the record, we cannot conclude that
AGZ met its burden to prove that a genuine issue of material fact exists related to its
fraud claim. Therefore, AGZ’s third assignment of error is overruled. F. Summary Judgment — Unjust Enrichment
In its fifth assignment of error, AGZ argues that the trial court erred
by failing to grant summary judgment to AGZ on its unjust-enrichment claim.
Specifically, AGZ argues that it submitted unrebutted evidence showing that Dennis
was unjustly enriched by the use and sale of Gail’s restaurant equipment and assets
and consequently owes her $100,000 in damages. In response, Dennis argues that
an unjust-enrichment claim cannot be sustained where a valid contract exists that
governs the subject of the unjust enrichment.
“Unjust enrichment occurs where a person has and retains money or
benefits which in justice and equity belong to another.” (Citations omitted.) Motors,
L.L.C. v. Kaba, 2025-Ohio-640, ¶ 35 (8th Dist.). To establish unjust enrichment, a
plaintiff must show that (1) a benefit was conferred by the plaintiff on the defendant,
(2) the defendant had knowledge of the benefit and (3) the defendant retained the
benefit under circumstances that were unjust. Id., citing Johnson v. Microsoft
Corp., 2005-Ohio-4985, ¶ 6, citing Hambleton v. R.G. Barry Corp., 12 Ohio St.3d
179, 183 (1984). This court has consistently held that “when ‘there is a valid,
enforceable contract . . . the doctrine of unjust enrichment is not applicable.’”
Tanglewood Shopping Ctr., L.L.C. v. Riser Foods Co., 2018-Ohio-1183, ¶ 33 (8th
Dist.), quoting Benefit Options Agency, Inc. v. Med. Mut., 2010-Ohio-4495, ¶ 24
(8th Dist.). Unjust enrichment is an equitable remedy that is generally unavailable
where parties have entered into an express contract concerning the same subject
matter. Id., citing Bickham v. Standley, 2009-Ohio-3530 (3d Dist.). In support of its unjust-enrichment claim, AGZ points to deposition
testimony from Dennis in which he stated that he “took possession of and sold Gail’s
restaurant equipment/assets for approximately $100,000 to his former sublessee.”
This is a slight but critical mischaracterization of Dennis’s testimony; Dennis
testified that he purchased restaurant equipment from Hilda and Gail and
subsequently sold some of this equipment to a third party. AGZ further points to
Gail’s deposition testimony, in which she stated that she does not know what
happened to the equipment. There is no evidence disputing Dennis’s assertion that
he previously purchased the equipment from Gail and Hilda. AGZ does not point to
any additional evidence in support of its unjust-enrichment claim. Therefore, AGZ
has not presented any evidence creating a genuine issue of material fact that would
have entitled it to summary judgment on this claim.
As such, summary judgment in favor of Dennis on AGZ’s unjust-
enrichment claim was proper. For these reasons, AGZ’s fifth assignment of error is
F. The Option to Purchase
In its fourth assignment of error, AGZ argues that the trial court erred
by failing to find the Section 8 option to purchase contained in the 16 North Main
lease agreement was ambiguous, invalid, and unenforceable. In response, Dennis
argues that the trial court correctly found the Section 8 option to purchase valid and
enforceable when it granted Dennis’s motion for summary judgment.
We reiterate that the Section 8 option states: Lessor [Hilda and Gail] grants by reference to Lessee [Dennis] his nominee or assigns an option to purchase all of Lessor’s ownership interests in the commercial building in which Lessee’s restaurant is presently located, inclusive of 16 – 18 – 20 North Main Street, Chagrin Falls, Ohio. This building bears Permanent Parcel Nos. 932-7-026A, 932-7-026B, and 932-7-027 upon the Records of the Cuyahoga County Auditor. . .
This option to purchase shall remain in full force and effect during this Lease Agreement, shall survive its expiration and shall be exercisable by Lessee either (1) by the written notice of exercise by Lessee at any time during the twenty (20) year term of this Lease after the death of both Hilda Mathilda Zdolshek and Gail Angela Zdolshek, or (2) by written notice of exercise upon the death of either Hilda Mathilda Zdolshek or Gail Angela Zdolshek, the Lessee shall have the right to purchase the interest of either decedent in the property within ninety (90) days of the appointment of an executor or administrator for the estate of the decedent or from the Trustee of any Trust which becomes the owner of the decedent’s interest. This option to purchase entitles Lessee to purchase all of the above-described real estate for a purchase price which is: (1) Four Hundred Thousand Dollars ($400,000.00), increased by (2) the cost of the required capital improvements to the property which are not deducted as an immediate expense and are made by the Lessor to the property under a valid existing lease agreement with a tenant of the property after the date of this agreement. In the case of a purchase of less than all of Lessor’s interest in the property, the purchase price will be adjusted to reflect the percentage ownership of the property purchased by Lessee.
AGZ argues that the option is invalid and unenforceable primarily
because it contains a purchase price that is merely “an agreement to agree” on a price
in the future, and therefore a material term of the option is missing. We disagree.
The option clearly states that the purchase price is $400,000 plus “the cost of the
required capital improvements to the property which are not deducted as an
immediate expense and are made by the Lessor at the property. . . .” While the
purchase price does include a calculation, the calculation is to be based on definitive and objectively verifiable information. This does not render the option
unenforceable.
AGZ also argues that the option in unenforceable because it does not
clearly state what property is to be purchased. We disagree. The option clearly
refers to 16, 18, and 20 North Main, three parcels of property that collectively
constitute a single building. AGZ’s argument that this description is unclear or
confusing is unpersuasive.
We reiterate that AGZ bears the burden of demonstrating error on
appeal. Walsh v. Walsh, 2023-Ohio-1675, ¶ 11 (8th Dist.), citing App.R. 16(A)(7).
Further, unsupported legal conclusions do not demonstrate error. Toliver v.
Vectren Energy Delivery of Ohio, Inc., 2015-Ohio-5055, ¶ 30, citing Util. Serv.
Partners, Inc. v. Pub. Util. Comm., 2009-Ohio-6764, ¶ 39. Thus, AGZ’s assertions
that the Section 8 option to purchase is ambiguous and therefore unenforceable are
not persuasive.
The trial court did not err in denying AGZ’s motion for summary
judgment and declining to find the Section 8 option to purchase was unenforceable.
AGZ’s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
____________________ WILLIAM A. KLATT, JUDGE*
MARY J. BOYLE, P.J., and DEENA R. CALABRESE, J., CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.)