Cumberland Lakefront B., L.L.C. v. Blackwing, L.L.C.

2025 Ohio 1263

• Court: Ohio Court of Appeals
• Decided: April 10, 2025
• Docket: 114311
• Status: Published

Opinion

[Cite as Cumberland Lakefront B., L.L.C. v. Blackwing, L.L.C., 2025-Ohio-1263.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CUMBERLAND LAKEFRONT B, LLC, :

Plaintiff-Appellee, : No. 114311 v. :

BLACKWING, LLC, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 10, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-21-953921 and CV-21-953922

Appearances:

Tucker Ellis LLP, Anthony R. Vacanti, and Danielle Easton, for appellee.

Byron Legal, LLC, and Evan T. Byron, for appellants.

MICHAEL JOHN RYAN, J.:

Defendants-appellants, Blackwing, LLC (“Blackwing”), Corey

Freeman, and Christopher Schramm (collectively “Blackwing”), appeal the trial court’s grant of summary judgment in favor of plaintiff-appellee, Cumberland

Lakefront B, LLC (“Cumberland”). For the reasons that follow, we affirm.

Blackwing, as tenant, and Cumberland, as landlord, entered into two

lease agreements for commercial spaces located at the North Coast Harbor in

downtown Cleveland for Blackwing to open two businesses: a restaurant,

“Sandrine,” and a coffee shop, “Cute for Coffee.” In 2021, Cumberland filed suit

against Blackwing based on an alleged failure to pay rent, which included claims for

forcible entry and detainer, breach of contract, and monetary damages. Blackwing

counterclaimed, setting forth claims for breach of contract, fraud, and declaratory

judgment.

In January 2023, Cumberland moved for summary judgment as to its

eviction claim and claim for breach of contract. The trial court granted

Cumberland’s motion for summary judgment, granted Cumberland immediate

possession of the two businesses, and found that Blackwing was liable for monetary

damages for breach of contract.

On March 20, 2023, Cumberland filed a praecipe for a writ of

execution, and thereafter, the court issued the writ and instructed the Cuyahoga

County Sheriff to oversee the eviction of Blackwing, which occurred on April 6, 2023.

Blackwing subsequently moved to vacate the court’s summary judgment decision

and writ of execution, which the court denied. The trial court held a damages

hearing and awarded Cumberland $444,055.13 in damages. In its order awarding

damages, the trial court gave Blackwing two weeks to arrange for the removal of any personal property from the two businesses and turn over keys. After the two-week

period had passed, Cumberland moved to deem Blackwing’s personal property

abandoned, which the trial court granted. Cumberland entered into a lease of the

premises with a new tenant.

Blackwing appealed. See Cumberland Lakefront LLC v. Blackwing

LLC, 8th Dist. Cuyahoga No. 112706 (July 17, 2023). In its appeal, Blackwing

claimed it was appealing from several trial court orders including the court’s March

2, 2023 order granting Cumberland’s motion for partial judgment on the pleadings;

the March 8, 2023 order denying Blackwing’s motion for extension of time to

respond to the motion for summary judgment; the March 16, 2023 order granting

Cumberland’s motion for partial summary judgment and granting it immediate

possession of the premises; the March 22, 2023 writ of execution; the May 2, 2023

order granting Cumberland’s motion to deem personal property abandoned; and

the May 3, 2023 order denying Blackwing’s motion to vacate reconsideration.

Cumberland moved to dismiss the appeal, arguing that the issue of

possession of the premises and removal and abandonment of Blackwing’s personal

property was moot. This court granted the motion to dismiss, finding the following:

Motion by appellee Cumberland Lakefront B, LLC to partially dismiss appeal as moot is granted; however, the portion of the appeal that is not moot, is dismissed for lack of a final appealable order. The appeal of the orders as to the eviction are moot. Once a tenant is removed from the property and the landlord restored to possession, appeal of the eviction is moot . . . . Additionally, an appeal of the order declaring the appellant’s property abandoned is moot because the property has been disposed of. The remaining portion of the appeal concerning the second cause of action of damages, is not a final appealable order due to the fact there is no ruling on the outstanding counterclaims. Appellee contends that the counterclaims are moot. However, due to the unusual circumstances of this appeal, we conclude they are not.

The trial court granted the appellee’s summary judgment for eviction and the second cause of action for damages. However, the appellee failed to address the counterclaims for breach of contract and declaratory judgment in the summary judgment motion; therefore, a clear pronouncement as to the counterclaims is necessary. The counterclaims are relevant to the amount of damages that are to be awarded. Where multiple claims are involved, an entry entering judgment as to one or more but fewer than all the claims or parties is not a final appealable order in the absence of Civ.R. 54(B) language stating that “there is no just reason for delay.” . . . Accordingly, appeal is dismissed.

(Cleaned up.) Id., Motion No. 564991 (July 17, 2023).

On remand, the trial court granted Cumberland leave to file a second

motion for summary judgment on the remaining counterclaims for breach of

contract and declaratory judgment. On July 29, 2024, the trial court granted

Cumberland’s motion for summary judgment as to the remaining counterclaims.

Blackwing filed the instant appeal. Blackwing attempted to appeal

several orders, including those that this court dismissed in the first appeal.

Cumberland moved to dismiss Blackwing’s appeal of those orders, which this court

granted finding that appeal of the trial court orders pertaining to the eviction and

disposal of personal property were moot. This court concluded that the trial court’s

July 29, 2024 order granting summary judgment as to Blackwing’s counterclaims

was the only order that remained pending on appeal.

Blackwing’s assignment of errors are as follows:

I. The trial court committed reversible error by awarding Appellee summary judgment on March 16, 2023. II. The trial court committed reversible error by awarding Appellee summary judgment on July 29, 2024.

III. The trial court’s failure to set forth any case-specific analysis in its summary judgment decisions constitutes reversible error.

IV. The appeal of the trial court’s summary judgment ruling Cumberland’s first cause and on the ruling regarding Appellants’ personal property is not moot.

V. All judgment entries set forth in Appellants’ notice of appeal should be reversed save for the March 2, 2023 entry.

The first and fourth assignments are rendered moot based on this

court’s decision to grant Cumberland’s motion to dismiss. The fifth assignment of

error is not in conformance with App.R. 12 and 16 and is hereby summarily

overruled.1 We combine the second and third assignments of error for ease of

review.

Appellate review of summary judgments is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary

judgment is appropriate when (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, the party being entitled to have the evidence construed most strongly in his

1 App.R. 16(A)(7) requires an appellant to provide “[a]n argument containing the

contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.” App.R. 12(A)(2) provides that an appellate court “may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A).” or her favor. 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

showing that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).

Once the moving party satisfies its burden, the nonmoving party

“may not rest upon the mere allegations or denials of the party’s pleadings, but the

party’s response, by affidavit or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.” Civ.R. 56(E);

Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996).

Civ.R. 52 states that “[f]indings of fact and conclusions of law

required by this rule and by Rule 41(B)(2) are unnecessary upon all other motions

including those pursuant to Rule 12, Rule 55 and Rule 56.” “‘[I]t is well settled in

Ohio that a trial court is not required to issue a written opinion containing findings

of fact and conclusions of law when ruling on a motion for summary judgment.’”

Priore v. State Farm Fire & Cas. Co., 2014-Ohio-696, ¶ 11 (8th Dist.), quoting

Solomon v. Harwood, 2011-Ohio-5268, ¶ 61 (8th Dist.); Maddox v. E. Cleveland,

2012-Ohio-9, ¶ 23 (8th Dist.). Blackwing argues that the trial court erred by not

issuing a factual basis for summary judgment. The trial court did not err in this case

by using Civ.R. 56 language in its entry granting summary judgment; including a

factual basis for its decision was unnecessary. Blackwing also argues that the trial court erred when it granted

summary judgment in favor of Cumberland on its counterclaims for breach of

contract and declaratory judgment. Blackwing contends there are genuine issues of

material fact that preclude an order granting summary judgment in favor of

Cumberland on the issues of both liability and damages.

We note that Blackwing has attempted to incorporate by reference the

arguments made in its first assignment of error into this assignment of error.

App.R. 12(A)(2) and 16(A)(7) require an appellant to set forth a separate argument

in support of each assigned error. Consequently, “an appellant ‘cannot incorporate

the arguments contained in the other assignments of error to support a different

assignment of error.’” State v. McKnight, 2023-Ohio-1933, ¶ 10 (9th Dist.), quoting

State v. Calhoun, 2021-Ohio-1713, ¶ 24 (9th Dist.); see also State v. Washington,

2023-Ohio-1667, ¶ 117 (8th Dist.).

This court declines to extrapolate and apply the arguments Blackwing

made in its previous assignments of error to this assignment of error. McKnight at

¶ 10. We will confine our analysis to the argument Blackwing raised in this

assignment of error, although we note that Blackwing failed to comply with the

appellate rules in this assigned error as well as failing to include any citations to

authority or parts of the record upon which it relies. For this reason alone, we could

overrule the assignment of error but employ our discretion to review Blackwing’s

claim. A declaratory-judgment action enables a court to declare the rights,

status, and other legal relations of the parties. Spaeth v. State Auto. Mut. Ins. Co.,

2012-Ohio-3813, ¶ 12 (8th Dist.), citing Civ.R. 57; R.C. Ch. 2721. In its counterclaim

for declaratory judgment, Blackwing requested the trial court declare that

Cumberland’s complaint fails because it breached the subject leases and failed to

cure prior to commencing this action and cannot establish damages; that landlord

self-help is not available to Cumberland under the leases because the leases did not

contain the requisite statutory language; that Cumberland cannot exercise any other

rights adverse to Blackwing; and that the court order any further relief necessary.

The trial court in this case already determined that there was a breach

of the lease by Blackwing and awarded damages to Cumberland. As to Blackwing’s

claim that Cumberland improperly exercised self-help, Cumberland presented

evidence that it followed a lawful eviction process and obtained a judgment from the

trial court, which issued a writ of execution allowing for Blackwing’s eviction.

Blackwing makes no attempt to rebut this argument in its response to Cumberland’s

motion for summary judgment. Blackwing also provided no evidence that

Cumberland exercised any rights adverse to Blackwing or that Blackwing is entitled

to any other relief. Thus, Blackwing has failed to show that a genuine issue of fact

exists that precludes summary judgment. The trial court correctly granted summary

judgment to Cumberland on this claim.

In its counterclaim for breach of contract, Blackwing contends that

Cumberland breached the leases by failing to deliver the space in accordance with the lease agreement, failed to reimburse Blackwing for tenant improvements or

utility installation costs, and failed to allow Blackwing to complete its project by

preventing installation of a vent hood.

To prevail on a breach-of-contract claim, the party seeking to enforce

the contract must prove all of the following elements by a preponderance of the

evidence: (1) the existence of a contract, (2) performance by the plaintiff, (3) breach

by the defendant, and (4) damage or loss to the plaintiff. Skoda Minotti Co. v. Kent,

2022-Ohio-3237, ¶ 14 (8th Dist.), citing Holliday v. Calanni Ents., 2021-Ohio-2266,

¶ 20 (8th Dist.).

The thrust of Blackwing’s argument on appeal is that it is entitled to

$167,050 in tenant improvement funds that Cumberland failed to remit to it.

Each lease provided for a $50 per square foot allowance for tenant

improvements: “[Cumberland] will provide a $50 per square foot allowance for

Tenant Improvements.” In its brief on appeal, Blackwing argued that the full

amount was due as soon as the leases were executed. During oral argument,

Blackwing conceded that standard practice is normally to submit receipts before

payment for tenant improvements but argued that the leases were silent as to that

provision so the money was due up front. Cumberland contends that it could not

pay Blackwing for tenant improvements until Blackwing submitted receipts, which

it did not do.

Courts presume the intention of the parties is reflected in the plain

language of a contract. Raudins v. Hobbs, 2018-Ohio-2309, ¶ 25 (8th Dist.). If terms in a contract are vague or ambiguous, industry custom is relevant to clarify

the meaning of the terms. See Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d

241, 248 (1978), citing Steel Works v. Dewey, 37 Ohio St. 242, 249 (1881) (noting

that “although extrinsic evidence of a general custom or trade usage cannot vary the

terms of an express contract, such evidence is permissible to show that the parties

to a written agreement employed terms having a special meaning within a certain

geographic location or a particular trade or industry, not reflected on the face of the

agreement”); Bennett v. Heidinger, 30 Ohio App.3d 267, 270 (8th Dist. 1986)

(“Extrinsic evidence of custom or usage in a particular industry may be considered

in interpreting a contract.”)

An allowance is defined as “[a] deduction, an average payment, a

portion assigned or allowed: the act of allowing.” The Law Dictionary,

https://thelawdictionary.org/allowance/ (accessed Mar. 18, 2025), archived at

https://perma.cc/6WYY-L6ZK. Cumberland asserted that in the context of the

commercial leasing industry, tenant improvement allowances are a term of art that

describes funding provided by a landlord and used to reimburse tenants up to an

agreed dollar amount per square foot for tenant improvements to a commercial

space, which can include build-out or renovation.

Attached to Cumberland’s motion for summary judgment was an

affidavit from Richard Pace, CEO of Cumberland and a licensed architect. Pace

averred, in part: 18. In commercial leasing and construction, Tenant Improvement allowance is a term with a specific meaning, and describes funding (sometimes obtained with the mortgage as part of financing in new construction) provided by the landlord to reimburse tenants up to an agreed dollar amount per square foot for tenant improvements, build- out, or renovation of a commercial space.

19. In my professional experience, the process followed by Cumberland for reimbursement of Tenant Improvement funds is typical in the commercial real estate industry, including requiring submission of receipts and obtaining bank approval to release Tenant Improvement funds, to ensure the funds being distributed were, in fact, used for Tenant Improvements.

Blackwing contends that Cumberland breached the terms of the

leases because it failed to pay for improvements it made to the premises. Blackwing

concedes it did not provide receipts for its expenses to be reimbursed but, again,

claims it was not required to do so under the terms of the lease. Contrary to its

unsupported assertions, Blackwing has not shown that the tenant improvements

funds were due to it in full upon execution of the lease; simply, Blackwing presented

no evidence in support of its theory that the funds were to be paid before any

improvements were made or receipts provided.

The evidence before us is that Cumberland did not reimburse

Blackwing for improvements because Blackwing never submitted receipts or other

proof that it had made improvements to the premises and the cost of the

improvements. Because Blackwing has failed to meet its reciprocal burden under

Civ.R. 56, it cannot show that a genuine issue of material fact remained that would

preclude summary judgment. Therefore, the trial court did not err in granting summary judgment

in favor of Cumberland.

Accordingly, the second and third assignments of error are overruled.

Judgment affirmed.

It is ordered that appellee recover from appellants 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.

__ MICHAEL JOHN RYAN, JUDGE

EMANUELLA D. GROVES, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR