[Cite as Iron Horse Bar & Grill, L.L.C. v. GGJ Triune, PLL, 2024-Ohio-284.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
The Iron Horse Bar and Grill, LLC Court of Appeals No. OT-23-002
Appellant Trial Court No. 20CV328
v.
GGJ Triune, PLL DECISION AND JUDGMENT
Appellee Decided: January 26, 2024
*****
Mark M. Mockensturm, Brandon Rehkopf, Kevin C. Urtz, and Blanca N. Wheeler, for appellant.
Henry Schaefer, for appellee.
SULEK, J.
{¶ 1} Appellant The Iron Horse Bar and Grill, LLC (“Iron Horse”), appeals the
judgment of the Ottawa County Court of Common Pleas, following a bench trial, which
awarded judgment in favor of appellee GGJ Triune, PLL (“GGJ”), on Iron Horse’s claim
for breach of contract. Because the trial court’s finding that GGJ did not breach the contract is against the manifest weight of the evidence, the trial court’s judgment is
reversed.
I. Factual Background and Procedural History
{¶ 2} On March 1, 2013, Iron Horse entered into a lease agreement with GGJ to
lease property in Ottawa County, Ohio, on which Iron Horse would operate a restaurant.
In recognition that the property needed substantial renovations before it could be used,
the lease provided that the monthly rent of $1,800.00 would be waived for the first three
months.
{¶ 3} Due to the extent of the renovations and the difficulty of obtaining the
necessary permits from the county, Iron Horse was not prepared to open after the initial
three months. Iron Horse, however, continued to work on the property and continued to
not pay rent.
{¶ 4} In October 2013, GGJ inquired about Iron Horse’s progress. The parties
dispute whether Iron Horse responded that it needed additional financing to complete the
renovations. But in either event, on October 22, 2013, Garry Miller, the owner of GGJ,
personally loaned $30,000.00 to Iron Horse. The promissory note listed Iron Horse’s
restaurant equipment as collateral for the loan.
{¶ 5} Subsequently, on or around December 30, 2013, GGJ attempted to lock Iron
Horse out of the premises. The police were called, and Iron Horse was able to remain on
the property. Sometime in January or February 2014, GGJ then posted a Notice to
2. Vacate the Premises for “failure to pay rent” and “continued occupation of premises
without lease.” Iron Horse never opened for business. On February 27, 2014, Iron Horse
formally returned the premises to GGJ without ever having made any rent payments.
{¶ 6} On October 14, 2020, Iron Horse filed the complaint against GGJ for breach
of contract. The matter proceeded to a bench trial on May 16, 2022.
{¶ 7} At the trial, John Shepler, one of the owners of Iron Horse, testified. Shepler
stated that he formed Iron Horse with Tami Habel as a project for him to work on in his
retirement. In preparation for opening, Iron Horse purchased $30,000 worth of restaurant
equipment from a recently closed restaurant and entered into a lease agreement with GGJ.
Several terms of the lease agreement are relevant here:
3. Rent.
The monthly rental for the term of the original lease shall be One
Thousand Eight Hundred Dollars ($1,800.00) per month, a rate of four
dollars fifty cents ($4.50) per square foot. All monthly rentals shall be
payable on the first day of each month, and in the event this lease
commences in the middle of the month, the first payment shall be pro-rated
for that portion of the first month. * * * The rent payment for the first three
months of the initial lease term shall be waived so that Lessee may
construct the interior of the building for their restaurant needs. * * *
***
3. 17. Default.
In the event Lessee shall default in the payment of the monthly
rental as provided herein and failure of Lessee to cure such default within
Fifteen (15) days, shall at the option of Lessor, work as a forfeiture of this
lease, or Lessor may enforce performance of any manner provided by law,
and Lessor’s agent or attorney shall have the right without further notice or
demand to re-enter and remove all persons from Lessor’s property without
prejudice to any remedies for arrears of rent or breach of covenant, or
Lessor’s agent or attorney may resume possession of the property and relet
the same for the remainder of the term at the best rental such agent or
attorney can obtain for the account of Lessee, who shall pay any deficiency,
and Lessor shall have a lien and security for such rental upon the fixtures
and equipment belonging to Lessee which are on the leased premises. * * *
19. Quiet Enjoyment.
Lessee, upon paying the rent and performing the covenants and
agreements of this lease, shall quietly have, hold and enjoy the leased
premises and all rights granted Lessee in this lease during the term hereof
and any extensions hereto, if any. * * *
4. 24. Complete Agreement.
This lease contains a complete expression of the agreement between
the parties and there are no promises, representations or inducements except
such as are herein provided.
{¶ 8} Shepler testified on cross-examination that when the lease was signed,
Miller told him that he did not have to pay any rent until three months after Iron Horse
opened. He claimed that Garry Miller “stated in front of witnesses I did not have to pay
rent until after the first three months of opening my business doors” and that “[h]e said it
right then, the day we all signed the lease in the office.”
{¶ 9} Upon execution of the lease, Iron Horse began renovations on the building.
Shepler testified that GGJ paid for a new roof and a new hot water heater, but Iron Horse
paid for the rest, which included a new gas line to the building, revamped electrical
wiring, and a remodeled kitchen and dining area. He claimed that Iron Horse spent
approximately $90,000.00 on the renovations. According to Shepler, the renovations
went well, but the health department kept coming up with additional things to be done in
order to receive the necessary licenses to open.
{¶ 10} By October 2013, Miller approached Shepler and asked what needed to be
done to get the restaurant opened. Shepler testified that although he had financing lined
up, Miller volunteered to give him a $30,000.00 loan. Shepler accepted the money and
signed a promissory note listing the restaurant equipment as the collateral.
5. {¶ 11} Shepler testified that by December 2013, Iron Horse was just waiting on
the health department. It had replaced all the flooring and had started installing booths.
Shepler and Habel had worked out a menu and had visited suppliers and test-cooked most
of the food. They had identified people that they wanted to hire to run the business and
were ready to begin training them.
{¶ 12} Shortly before Christmas 2013, Shepler contacted the health department
and spoke with the inspector’s supervisor. Shepler testified that he was able to clarify the
situation with the supervisor and was informed that the licenses were approved and could
be picked up after the holidays.
{¶ 13} On December 30, 2013, however, several of Miller’s employees began
changing the locks on the doors to the restaurant. The employees’ efforts set off the
alarm and Shepler and the police responded to the building. The police report states that
Shepler never received an eviction notice from GGJ, and he claimed that the eviction was
illegal. After several phone calls were made, the employees left the premises. Shepler
testified that Miller’s employees attempted to change the locks several more times after
that.
{¶ 14} Sometime in January or February 2014, GGJ posted a “Notice to Vacate
the Premises” on the door of the restaurant, which stated that Iron Horse was being asked
to leave for “Failure to pay rent” and “Continued occupation of premises without lease.”
Shepler testified that the notice was posted shortly before the restaurant was scheduled to
6. open. Further, Shepler stated that prior to receiving that notice, no one had asked Iron
Horse to pay any rent.
{¶ 15} After GGJ attempted to change the locks and sent the notices to vacate,
Iron Horse determined that it was not feasible to open the restaurant. At the end of
February 2014, Iron Horse auctioned off all of the restaurant equipment and returned the
premises to GGJ.
{¶ 16} Habel, the other owner of Iron Horse, testified next. She stated that once
the lease was signed, she spent almost all of her time at the restaurant, cleaning it and
getting it ready to open. In her mind, the restaurant would have been ready to open by
the end of January or the beginning of February 2014, and that it would have opened but
for all of the attempts to change the locks on the doors. Habel testified that she was
present on at least three occasions where Miller’s employees attempted to “break in” and
change the locks. By the end of February 2014, Habel and Shepler were exhausted and
frustrated and decided to give up on opening the restaurant.
{¶ 17} GGJ called Garry Miller as its first witness. Miller testified that when the
lease was signed, he gave Iron Horse three months to do the remodeling. When it
became clear that Iron Horse was not going to be able to open on time, Miller gave it
more time, which he left open-ended. Miller estimated that Iron Horse probably needed
an additional three months.
7. {¶ 18} In October 2013, Miller approached Shepler to see how things were
coming along. Miller testified that Shepler was distraught and claiming “I can’t do it. I
can’t get it open.” According to Miller, Shepler told him that he could not get a loan
from the bank and did not have the money to open the restaurant. At that point, Miller
offered Shepler the $30,000 loan, and Shepler volunteered the restaurant equipment as
collateral.
{¶ 19} After the loan in October 2013, Miller did not speak with Shepler. But in
December 2013, Miller became aware that Shepler was going to auction off all of the
restaurant equipment. Miller was afraid that Shepler was going to sell all of the
restaurant equipment, take the money, and walk away. He attempted to contact Shepler,
but Shepler would not respond. Having not heard from Shepler, Miller put a padlock on
the restaurant doors to force Shepler to speak with him. He then received a letter from
Shepler’s lawyer informing him that it was illegal to place the lock on the doors, so
Miller had it removed the next day. Miller stated that he would not have locked Shepler
out of the building if it had not been for the notice about the auction.
{¶ 20} On cross-examination, Miller was asked about the rent payments:
Q. * * * So I believe you initially testified that the lease says you
gave Iron Horse three months rent free to get open; is that accurate?
A. Yes.
8. Q. And then you testified that it wasn’t open after three months and
you gave them more time to get her done, I think you said?
Q. And you said it was open ended and you never put a stop date on
it?
A. I didn’t, no.
Q. Okay. And when you say you gave them more time to, to get it
done, does that mean you didn’t ask for any rent?
A. No, I didn’t ask for no rent.
Q. Okay. So as long as Iron Horse was working toward opening,
you told him not to worry about any rent payments; is that accurate?
A. That’s correct.
{¶ 21} Miller then was asked about the eviction notice. Miller admitted that the
reasons listed on the notice to vacate were not correct and he clarified:
Q. So the Iron Horse had a lease at that time?
Q. * * * So as of, you know, for the month of January 2014, Iron
Horse wasn’t late on rent?
A. No. Because they weren’t paying rent.
Q. But you didn’t ask them for rent?
9. A. I didn’t ask them for rent.
Q. Because they were still working towards open?
{¶ 22} Finally, Miller was asked about whether Iron Horse was in default of the
lease agreement:
Q. But Iron Horse didn’t owe you rent in January of 2014, did they?
A. No.
Q. Okay. So they were not in default at that time, were they?
Q. Okay.
A. Because I didn’t ask for it.
Q. Okay. And on top of that, the -- did you ever send them a notice
to pay rent?
Q. And even assuming that Iron Horse, for some reason, decided to
auction their business equipment sometime between when you loaned it to
them -- or when you made a loan to them and early January, that wouldn’t
have breached the lease, would it?
Q. Okay. It may have breached a separate agreement with you?
10. A. Yes.
Q. But it wouldn’t have been a breach of the lease?
{¶ 23} Finally, GGJ called Jeffrey Herring as its last witness. Herring testified
that in December 2013, he received notice from one of Miller’s employees that Iron
Horse was advertising an auction to sell all of its restaurant equipment.
{¶ 24} Thereafter, the parties rested and presented the trial court with their closing
arguments. The court took the matter under advisement.
{¶ 25} On December 22, 2022, the trial court entered its judgment finding in favor
of GGJ. After setting forth the elements of a breach of contract claim, as well as
statements of the law concerning the parol evidence rule, the trial court reasoned:
In the present case, the Lease provides, at paragraph 3, for monthly
rental payments due on the first day of the month with the first three
payments of the initial rental term being waived (March - May 2013). The
Lease further provides at paragraph 17, that in the event of default in
monthly payments by the Lessee and failure of the Lessee to cure the
default within 15 days, said failure operates as a forfeiture of the lease and
Lessor would have the right to re-enter the Property and remove persons
and property from therein. Finally, paragraph 24 of the Lease provides,
“This lease contains a complete expression [of] the agreement between the
11. parties and there are no promises, representation or inducements except as
are herein provided.”
The Lease is clear and unambiguous and contains a full integration
provision. As such, no oral or written modifications are permitted.
Specifically, further waivers of rent payments after May 2013 are not
provided for in the Lease and cannot be enforced. Since the Lease provided
for payments of rent commencing June 2013 and the payments were not
made, by the terms of the Lease, GGJ was permitted to consider the Lease
forfeited and re-enter the premises.
II. Assignments of Error
{¶ 26} Iron Horse has timely appealed the trial court’s December 22, 2022
judgment and now asserts three assignments of error for review:
The Trial Court erred in determining that Appellee did not breach
the parties’ agreement and its decision was against the manifest weight of
the evidence.
The Trial Court erred when it determined the parol evidence rule
applied to the parties’ conduct months after the execution of the contract.
The Trial Court erred when it determined that a waiver of rent could
not be enforced because one was not provided for in the lease.
12. III. Analysis
{¶ 27} Iron Horse’s assignments of error all pertain to the interpretation and
enforcement of the contract, thus they will be addressed together.
{¶ 28} “In an appeal from a civil bench trial, we generally review the trial court’s
judgment under a manifest-weight standard of review.” Bonner v. Delp, 2021-Ohio-
3772, 180 N.E.3d 11, ¶ 38 (6th Dist.), quoting Mike McGarry & Sons, Inc. v. Constr.
Resources One, LLC, 2018-Ohio-528, 107 N.E.3d 91, ¶ 90 (6th Dist.). In so doing, “[w]e
weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether in resolving conflicts in the evidence, the trial court
clearly lost its way and created such a manifest miscarriage of justice that its judgment
must be reversed and a new trial ordered.” Mike McGarry & Sons at ¶ 90, citing Eastley
v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. “Judgments
supported by some competent, credible evidence going to all the essential elements of the
case will not be reversed by a reviewing court as being against the manifest weight of the
evidence.” C. E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578
(1978), syllabus.
{¶ 29} But, where an appeal from a bench trial presents a questions of law, we
review such legal issues de novo. Marshall v. Snider-Blake Business Serv., Inc., 10th
Dist. Franklin No. 21AP-700, 2022-Ohio-1869, ¶ 13, appeal not allowed, 167 Ohio St.3d
1526, 2022-Ohio-3322, 195 N.E.3d 162; Mike McGarry & Sons at ¶ 90. Accordingly,
13. the trial court’s legal conclusions will be reviewed de novo, while its factual conclusions
will be reviewed under the manifest weight standard.
{¶ 30} This case involves a claim for a breach of contract. “To establish a breach
of contract, the plaintiff must establish ‘by a preponderance of the evidence that (1) a
contract existed, (2) one party fulfilled his obligations, (3) the other party failed to fulfill
his obligations, and (4) damages resulted from that failure.’” Quest Workforce Solutions,
L.L.C. v. Job1USA, Inc., 2016-Ohio-8380, 75 N.E.3d 1020, ¶ 40 (6th Dist.), quoting
Blake Homes, Ltd. v. FirstEnergy Corp., 173 Ohio App.3d 230, 2007-Ohio-4606, 877
N.E.2d 1041, ¶ 77 (6th Dist.).
{¶ 31} At issue here are the concepts of modification and waiver of contract terms.
Importantly, “[t]he modification of a contractual term is distinct from the waiver of a
contractual term.” BR Kettering Towne Ctr. L.L.C. v. Golden City Ballroom L.L.C., 2d
Dist. Montgomery No. 26718, 2016-Ohio-5159, ¶ 44. “A modification to a contractual
provision is an agreement by the parties to change or modify the term in question.” Id.
“In contrast, waiver is ‘a voluntary relinquishment of a known right.’” Id., quoting Arnett
v. Bardonaro, 2d Dist. Montgomery No. 25371, 2013-Ohio-1065, ¶ 42; see also Glidden
Co. v. Lumbermans Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553, 861 N.E.2d
109, ¶ 49 (“Waiver is a voluntary relinquishment of a known right and is generally
applicable to all personal rights and privileges, whether contractual, statutory, or
constitutional.”).
14. {¶ 32} On the issue of modification, the trial court correctly determined that the
parol evidence rule prevented Iron Horse from demonstrating that the terms of the lease
were orally modified at contract signing when Miller allegedly told Shepler that Iron
Horse did not have to pay rent until three months after it opened.
{¶ 33} “The parol evidence rule states that ‘absent fraud, mistake or other
invalidating cause, the parties’ final written integration of their agreement may not be
varied, contradicted or supplemented by evidence of prior or contemporaneous oral
agreements, or prior written agreements.’” Galmish v. Cicchini, 90 Ohio St.3d 22, 27,
734 N.E.2d 782 (2000), quoting 11 Williston on Contracts (4 Ed.1999) 569-570, Section
33:4.
{¶ 34} Here, the terms of the written lease agreement provided only that the rent
would be waived for the first three months, i.e., March, April, and May 2013. The
written agreement waiving rent for those months was not conditioned on Iron Horse
opening for business, and nothing in the lease stated that Iron Horse would not be
required to pay rent until it opened. Even if Miller contemporaneously told Shepler that
rent would not be required until three months after Iron Horse opened, the parol evidence
rule precludes Iron Horse from claiming that the lease was orally modified at that time.
Thus, pursuant to the written terms of the lease, Iron Horse was obligated to begin paying
rent on June 1, 2013.
15. {¶ 35} The trial court erred as a matter of law, however, when it determined that
further waivers of rent by GGJ could not be enforced. “A waiver of any of the terms of a
contract may be either by subsequent contract, written or oral, or by the acts and conduct
of the parties.” Ohio Farmers Ins. Co. v. Cochran, 104 Ohio St. 427, 135 N.E. 537
(1922), paragraph three of the syllabus; Checkers Pub, Inc. v. Sofios v. One 49 N., L.L.C.,
2016-Ohio-6963, 71 N.E.3d 731, ¶ 33 (6th Dist.). Sometimes, a contract will contain a
“no oral-modification clause” or an “anti-waiver” provision. The lease in this case did
not contain those terms, but even if it did “no-oral modification and written waiver
provisions, like any other contractual provision, can be waived by the parties.” 3637
Green Rd. Co., Ltd. v. Specialized Component Sales Co., Inc., 2016-Ohio-5324, 69
N.E.3d 1083, ¶ 22 (8th Dist.); USPG Portfolio Six, LLC v. Dick’s Sporting Goods, Inc.,
2023-Ohio-550, 209 N.E.3d 263, ¶ 67 (2d Dist.); 13 Williston on Contracts 39:36 (4th
Ed.) (“The general view is that a party to a written contract can waive a provision of that
contract by conduct despite the existence of a so-called antiwaiver or failure to enforce
clause in the contract.”); Am. Business Invests., Inc. v. Shaeena and Allos, LLC, 2023-
Ohio-739, 210 N.E.3d 651, ¶ 49 (Mayle, J., dissenting). Thus, contrary to the trial
court’s reasoning, nothing in the lease prohibited GGJ from waiving the term requiring
payment of rent.
{¶ 36} The question, then, is whether GGJ did, in fact, waive Iron Horse’s
obligation to pay rent. Whether a contract term has been waived is generally a question
16. of fact. Cochran at paragraph five of the syllabus; Eureka Multifamily Group v. Terrell,
6th Dist. Lucas No. L-14-1152, 2015-Ohio-1861, ¶ 13. “A party asserting waiver must
prove it by establishing a clear, unequivocal, decisive act by the other party,
demonstrating the intent to waive.” Mike McGarry & Sons, 2018-Ohio-528, 107 N.E.3d
91, at ¶ 103; White Co. v. Canton Transp. Co., 131 Ohio St. 190, 2 N.E.2d 501 (1936),
paragraph four of the syllabus.
{¶ 37} Here, Miller’s testimony on cross-examination established his clear and
unequivocal intent to waive the payment of rent. Miller testified that as long as Iron
Horse was working towards opening it should not worry about making any rent
payments, that GGJ did not request any rent payments, and that no rent payments were
due in January 2014 when GGJ attempted to lock Iron Horse out of the property.
Furthermore, there is no evidence in the record that would demonstrate that GGJ did not
waive the payment of rent through January 2014. Thus, the trial court’s finding that Iron
Horse breached the lease by failing to make rent payments, thereby entitling GGJ to re-
enter the premises, is against the manifest weight of the evidence.
{¶ 38} Applying this conclusion to the elements of a claim for breach of contract
in this case, the evidence demonstrates that a contract existed, Iron Horse fulfilled its
obligations under the contract to the extent that those obligations were not waived, and
GGJ failed to fulfill its obligation under paragraph 19 of the contract that Iron Horse
“shall quietly have, hold and enjoy the leased premises and all rights granted Lessee in
17. this lease during the term hereof and any extensions hereto” when it attempted to re-enter
the premises and lock out Iron Horse.
{¶ 39} The remaining issue, then, is whether and to what extent Iron Horse
suffered damages from GGJ’s breach of the lease agreement. The trial court did not
reach this issue in its judgment and, as a reviewing court, this court declines to usurp the
trial court’s role by considering that issue for the first time on appeal. Birr v. Birr, 2012-
Ohio-187, 969 N.E.2d 312, ¶ 52 (6th Dist.), citing Murphy v. Reynoldsburg, 65 Ohio
St.3d 356, 360, 604 N.E.2d 138 (1992).
{¶ 40} Because the trial court erred when it determined that GGJ could not waive
the payment of rent, and because the evidence incontrovertibly demonstrates that GGJ in
fact did waive the payment of rent, the trial court’s judgment in favor of GGJ on Iron
Horse’s claim for breach of contract is against the manifest weight of the evidence.
Accordingly, Iron Horse’s assignments of error are well-taken.
IV. Conclusion
{¶ 41} For the foregoing reasons, the judgment of the Ottawa County Court of
Common Pleas is reversed. This matter is remanded to the trial court for consideration of
the issue of damages on Iron Horse’s breach of contract claim. GGJ is ordered to pay the
costs of this appeal pursuant to App.R. 24.
Judgment reversed, and remanded.
18. The Iron Horse Bar and Grill, LLC v. GGJ Triune, PLL OT-23-002
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________ JUDGE Myron C. Duhart, J. ____________________________ Charles E. Sulek, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
19.