Arvil Lee, L.L.C. v. MAGG MSCC, Ltd.

2012 Ohio 2160

Ohio Court of Appeals·Decided May 14, 2012·No. 2011-CA-00218·Published·Cited by 1 cases

Opinion

[Cite as Arvil Lee, L.L.C. v. MAGG MSCC, Ltd., 2012-Ohio-2160.]

[Please see nunc pro tunc opinion at 2012-Ohio-2891.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: ARVIL LEE, LLC, ET AL : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiffs-Appellees : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2011-CA-00218 MAGG MSCC, LTD, ET AL : : Defendants-Appellants : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2010CV03969

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: May 14, 2012

APPEARANCES:

For Plaintiffs-Appellees For Defendants-Appellants

JOHN L. JUERGENSEN CO., LPA RALPH F. DUBLIKAR 6545 Market Avenue North BAKER DUBLIKAR, BECK, WILEY & MATHEWS Washington Square Office Park 400 South Main Street North Canton, OH 44721 North Canton, OH 44720 [Cite as Arvil Lee, L.L.C. v. MAGG MSCC, Ltd., 2012-Ohio-2160.]

Gwin, P.J.

{¶1} Plaintiffs-Appellees, Bud Buxton and Arvil Lee, LLC ("Buxton"), filed their

Complaint against Defendants-Appellants, MAGG MSCC, Ltd., Sports Page Group,

LLC, Robert McLain and Christopher Maggiore ("McLain") on October 29, 2010,

alleging breach of contract, fraud, misrepresentation, unjust enrichment and promissory

estoppel. In response, McClain filed a counterclaim against Buxton for breach of

contract, fraud and misrepresentation, conspiracy to commit fraud, and punitive

damages. Subsequently, Buxton voluntarily dismissed his breach of contract claim.

{¶2} On or about June 13, 2011, all outstanding issues were tried to a

magistrate. Following the submission of proposed Findings of Facts and Conclusions of

Law, the magistrate issued her decision on July 26, 2011. The magistrate's decision

totaled twenty-six pages of findings of fact and conclusions of law. The magistrate

concluded that Buxton was entitled to recover $35,168.00 in damages, which included

$25,168.00 under his unjust enrichment claim and $10,000.00 from an initial down

payment. The magistrate further concluded that McLain was entitled to a set-off of

$19,125.00 representing the fair rental value of the property while in possession of

Buxton. The magistrate dismissed the remaining claims of the parties.

{¶3} On August 9, 2011, McLain objected to the magistrate's decision. On

August 23, 2011, Buxton filed his own objections as well as a response to McLain's

objections. Lastly, McLain filed his response to Buxton's objections on September 1,

2011. Neither party requested that a transcript of the proceedings be prepared.

{¶4} On September 13, 2011, the trial court affirmed the decision of the

magistrate and overruled the objections of all parties. Stark County, Case No. 2011-CA-00218 3

ASSIGNMENTS OF ERROR

{¶5} McLain timely appealed, raising three assignments of error,

{¶6} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANTS-APPELLANTS IN HOLDING THAT THERE WERE NO ERRORS OF

LAW WITH RESPECT TO THE MAGISTRATE'S DECISION AND THAT THE

FINDINGS OF FACT SET FORTH IN THE DECISION SUPPORTED THE

CONCLUSIONS OF LAW.

{¶7} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANTS-APPELLANTS IN CONCLUDING, AS A MATTER OF LAW, THAT THE

DEFENDANTS-APPELLANTS WERE ENTITLED TO RECOVER UNPAID RENT

FROM THE PLAINTIFFS-APPELLEES FOR A PERIOD OF ONLY FOUR MONTHS

AND SEVEN DAYS WHERE THE COURT HAD PREVIOUSLY FOUND THAT THE

PLAINTIFFS-APPELLEES HAD POSSESSION OF THE PREMISES FOR SEVEN

MONTHS AND HAD NOT PAID ANY RENT.

{¶8} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANTS-APPELLANTS IN CONCLUDING THAT THE DEFENDANTS-

APPELLANTS WERE ONLY ENTITLED TO A SETOFF FOR UNPAID RENT IN THE

AMOUNT OF $19,125.00, WHERE THE COURT HAD SPECIFICALLY FOUND THAT

THE PLAINTIFFS-APPELLEES HAD POSSESSION OF THE PREMISES FOR SEVEN

MONTHS AND THAT THE PLAINTIFFS-APPELLEES HAD AGREED TO PAY RENT

IN THE AMOUNT OF $4,500.00 PER MONTH, THEREBY OWING THE

DEFENDANTS-APPELLANTS THE SUM OF $32,625.00.” Stark County, Case No. 2011-CA-00218 4

ANALYSIS

I., II. & III.

{¶9} The parties agree that the only issue on appeal is the amount of the set-off

for unpaid rent to which McLain is entitled. Buxton agrees with the magistrate that the

set-off should be the fair rental value of the property while in possession of Buxton.

{¶10} The magistrate noted that Buxton was in possession of the property for

seven months; however, the magistrate only held Buxton liable for rent beginning

February 1, 2010. The magistrate determined that the fair rental value of the property

was $4,500.00 per month until Buxton vacated the property or $19,125.00 total.

{¶11} McLain argues that this amount should be calculated from November 1,

2009 through June 7, 2010. McLain argues that rent should have been paid since

Buxton first took possession of the property and before any improvements were made.

We agree.

{¶12} In Finding of Fact No. 11 the trial court found,

Several meetings were held between Buxton, McLain and Maggiore

regarding this transaction, but there is no dispute that nothing was put in

writing as between the parties. However, there is no dispute as to the

general terms of the agreement between the parties, which can be

summarized as follows:

Buxton agreed to pay $25,000 to the defendants up front. This was

to represent the cost of the liquor license and certain equipment that

would come with the property. Stark County, Case No. 2011-CA-00218 5

There is no dispute that the defendants were interested in selling the

property, not leasing, and that Buxton was interested in purchasing the

property as opposed to leasing. However, the parties agreed to enter into

a short-term lease with an option to buy due to the economic conditions at

the time and due to Buxton's inability to obtain financing at that time.

Plaintiff testified that the rent would be $4,500 per month; and

McLain testified that the rent would be $4,500 plus expenses.

***

{¶13} In Finding of Fact No. 13, the trial court found as follows:

There is no dispute that Buxton did not pay any rent from November

of 2009 until June 7, 2010, when he voluntarily left the premises and

abandoned the project. Defendants did not demand rent from Buxton at

any time. Buxton began work on the premises in November of 2009 with

the intent to open his sports bar/restaurant to be known as Buddy's Sports

Bar in early February of 2010 based upon his statement to the Canton

Repository. There is no dispute that the improvements, although started,

were not completed, and Buxton decided on his own to abandon the

project by letter of June 7, 2010, which he delivered to McLain's place of

business.

{¶14} In Conclusion of Law No. 9, the trial court concluded as follows:

In Peoples v. Holley, supra, the parties did not dispute the existence

of an agreement to pay monthly rent. The claim for rent is not based upon

the enforceability of a lease, but rather on the enforceability of an implied- Stark County, Case No. 2011-CA-00218 6

in-law tenancy. In Peoples, supra, the court determined that there was a

month-to-month tenancy; that the tenant failed to pay the rent; and that the

month-to-month tenancy should be enforced according to the agreement

of the parties. This Court adopts the reasoning of Peoples v. Holley and

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