17 Mile, L.L.C. v. Kruzel , 2013 Ohio 3005 ( 2013 )

[Cite as 17 Mile, L.L.C. v. Kruzel, 2013-Ohio-3005.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99358
17 MILE, L.L.C.
PLAINTIFF-APPELLANT
vs.
RICHARD KRUZEL, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Parma Municipal Court
Case No. 12 CVF 00850
BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: July 11, 2013
ATTORNEYS FOR APPELLANT
Michael Schmeltzer
Andrew R. Duff
Amer Cunningham Co., L.P.A.
159 S. Main Street
Suite 1100
Akron, Ohio 44308
ATTORNEYS FOR APPELLEES
James R. Russell, Jr.
Mark Riemer
Goldman & Rosen, Ltd.
11 South Forge Street
Akron, Ohio 44304
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, 17 Mile, L.L.C. (“17 Mile”), brings the instant appeal challenging
the grant of summary judgment in favor of appellees, Richard and Mary Kruzel (the
“Kruzels”), on 17 Mile’s declaratory judgment actions, breach of contract, and conversion
claims. 17 Mile argues that it is entitled to back rent owed by a tenant of a
communications tower, which accrued prior to the sale of the tower to 17 Mile by the
Kruzels. After a thorough review of the record and law, we affirm.
I. Factual and Procedural History
{¶2} The Kruzels owned a communications tower in Broadview Heights, Ohio.
They leased space to cellular communications companies including Verizon, AT&T, and
T-Mobile. During the time the Kruzels owned the tower, their lease rate with AT&T
increased on June 1, 2007. However, AT&T continued to pay the prior amount of rent.
The error went unnoticed by both parties for a number of years. By October 2010,
AT&T owed the Kruzels $8,200 in back rent.
{¶3} On November 3, 2010, the Kruzels executed an assignment of the lease
agreement to 17 Mile in conjunction with the sale of the tower, which occurred on the
same day. It is disputed by the parties whether the Kruzels and 17 Mile were aware of
the past due rent at the time the sale occurred. On November 18, 2010, AT&T deposited
in the Kruzels’ bank account $8,200 for back rent. 17 Mile demanded that the Kruzels
turn over that money to 17 Mile because they had assigned their rights and interests in the
lease agreement to 17 Mile. The Kruzels declined, and so, on September 7, 2011, 17
Mile filed a complaint in Parma Municipal Court. This complaint was voluntarily
dismissed on November 14, 2011.
{¶4} Then, on March 2, 2012, 17 Mile refiled its complaint asserting claims for
breach of contract, conversion, and “action for money had and received.” The complaint
also sought declaratory judgment. After a challenge to the municipal court’s subject
matter jurisdiction was rejected, the Kruzels filed an answer, followed by a motion for
summary judgment. 17 Mile filed its own motion for summary judgment and a brief in
opposition to the Kruzels’ motion. On November 16, 2012, the trial court granted the
Kruzels’ motion, finding the assignment did not include a definite relinquishment of their
right to back rent. 17 Mile then appealed to this court, assigning two errors:
I. The trial court erred in granting Defendants-Appellees’ Motion for
Summary Judgment because it considered issues outside the scope of the
motion.
II. The trial court erred in granting Defendants-Appellees’ Motion for
Summary Judgment and overruling Plaintiff-Appellant’s Motion for Partial
Summary Judgment because the assignment of “all right, title, and interest”
in the subject lease includes the right to back rent.
II. Law and Analysis
{¶5} For clarity, the assigned errors will be addressed out of order.
A. Summary Judgment
i. Standard of Review
Civ.R. 56(C) specifically provides that before summary judgment may be
granted, it must be determined that: (1) No genuine issue as to any material
fact remains to be litigated; (2) the moving party is entitled to judgment as a
matter of law; and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most strongly
in favor of the party against whom the motion for summary judgment is
made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St. 2d 317, 327, 364 N.E.2d 267 (1977).
{¶6} We review summary judgment de novo. Comer v. Risko, 106 Ohio St. 3d
185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.
ii. Right to Accrued Rents
{¶7} 17 Mile argues the trial court erred when it interpreted the assignment
agreement and the Kruzels’ transfer of all “right, title and interest in and to the AT&T
Lease and T-Mobile Lease” to not include the right to past-due rents owed by AT&T that
accrued prior to the assignment. Arguing a plain reading of paragraph two of the
assignment agreement, 17 Mile claims the Kruzels transferred all of their rights in the
leases, including the right to past-due rent.
{¶8} “The general rule of law is that rent, which has accrued and remained unpaid
at the time of a sale, is due and payable to the [seller], in the absence of an agreement
between the [seller] and the [purchaser] that it shall be payable in whole or in part to the
latter.” Mintz v. Tannous, 74 Ohio App. 3d 636, 638, 600 N.E.2d 269 (8th Dist.1991),
citing Williams v. Martin, 83 Ohio App. 130, 82 N.E.2d 547 (1st Dist.1948); 65 Ohio
Jurisprudence, Landlord and Tenant, Section 303, at 358 (1986). See also 11-96 Thomas
Editions, Thompson on Real Property, Section 96.07 (2d Ed.2004) (“Prior to conveyance,
the rents as a general rule belong to the vendor”).
{¶9} 17 Mile claims that the assignment agreement evidences its right to collect
back rents, while the Kruzels argue that it does not evidence a clear intention on their part
to relinquish this right.
{¶10} The assignment of leases and assumption provision in paragraph two
provides,
[the Kruzels] hereby grants, conveys, sells, assigns, transfers and delivers to
[17 Mile] all of its right, title and interest in and to the AT&T Lease and
T-Mobile Lease. [17 Mile] hereby accepts the assignment of the AT&T
Lease and T-Mobile Lease and hereby assumes, and otherwise agrees to
pay, satisfy and discharge all liabilities of [the Kruzels] under the AT&T
Lease and T-Mobile Lease before and after the Closing Date as though [17
Mile] was the original landlord of the AT&T lease and T-Mobile Lease and
[17 Mile] agrees to keep and perform all covenants, terms, and agreements
of the AT&T Lease and T-Mobile Lease to have been performed by [the
Kruzels] (“Assumed Liabilities”). The assumption of the Assumed
Liabilities with respect to the AT&T Lease and T-Mobile Lease as set forth
above shall be deemed and construed to relieve [the Kruzels] of any
retained liability or of any liability arising from any event, condition,
occurrence or other matter which is the subject of a default by [the Kruzels]
prior to the Closing Date, irrespective of whether such liability arises or
matures on, before or after the Closing Date and is therefore assumed by
[17 Mile]. [17 Mile] agrees to indemnify [the Kruzels] and shall defend and
hold them harmless from and against any and all loss, damage, liability and
expense [the Kruzels] may suffer, sustain, or incur in respect to this
Assignment and Assumption Agreement or the AT&T Lease and T-Mobile
Lease, for matters arising before or after the closing date. This Section 2
applies solely between the [the Kruzels] and [17 Mile] and their heirs,
administrators, executives, successors, employees, agents, officers,
directors, entities, partnerships and related entities but will not be binding
upon subsequent assignees.
{¶11} The trial court found the assignment of rights above insufficient to
constitute a clear relinquishment of the Kruzels’ right to collect rents that accrued prior to
the sale of the communications tower. Its decision rested on the finding that the
assignment did not address rents already accrued, citing Mentz. The trial court’s finding
flows from the common law rule that
[t]he right to recover rents depends upon the ownership of the reversion at
the time the rents accrued. A subsequent transfer of the reversion does not
carry to the assignee any claim to such rents as became due while the
reversion was held by the grantor. To acquire a right to such prior rentals
the transferee of the reversion must show a definite grant to him, over and
beyond the mere conveyance of the reversion.
(Citations omitted and emphasis added.) Wessel v. Newhof Stores, Inc., 26 Ohio Law. Abs.
621, 1938 Ohio Misc. LEXIS 1189 (C.P. 1938).
{¶12} Therefore, the question before us is whether the language of the Kruzels’
grant of “all of its right, title and interest in and to the AT&T Lease and T-Mobile Lease”
includes the right to collect rent that accrued prior to the sale and assignment. We hold
that the grant is insufficient to overcome the common law presumption that back rent
belongs to the holder of the reversionary interest at the time the rents accrued.
{¶13} The federal circuit court of appeals faced a similar situation involving the
U.S. government as lessee. Ginsberg v. Austin, 968 F.2d 1198, 1201 (Fed.Cir.1992).
That court recognized that
[a]s a matter of property law, the state courts uniformly have held that rents
when due and owing become personal property, “constituting mere choses
in action which are not a part of the land and do not pass as incident to a
transfer of the reversion.” Acherman v. Robertson, 3 N.W.2d 723, 730 (Wis.
1942). See also Ennis v. Ring, 300 P.2d 773, 776 (Wash. 1956);
Restatement (Second) of Property: Landlord & Tenant § 16.2(1) (1977).
Thus, the “transfer of * * * real estate subject to the lease does not carry
with it any right to accrued rents then unpaid. These belong to the person
who was the landlord at the time of their accrual and not to the grantee,
unless assigned to him.” Velishka v. Laurendeau, 118 A.2d 600, 602 (N.H.
1955) (citation omitted). See also, e.g., Williams v. Martin, 82 N.E.2d 547,
547-48 (Ohio Ct. App. 1948); Gray v. Callahan, 197 So. 396, 398-99 (Fla.
1940); Rives v. James, 3 S.W.2d 932, 934 (Tex. Civ. App. 1928); 1 Herbert
T. Tiffany, The Law of Real Property § 116, at 182 (3d ed. 1939).
The law of contracts is consistent with that of property on the subject of
assignments. In construing the contract of a trust certificate assignment,
California has held “unless an assignment specifically or impliedly
designates them, accrued causes of action arising out of an assigned
contract * * * do not pass under the assignment as incidental to the contract
if they can be asserted by the assignor independently of his continued
ownership of the contract and are not essential to a continued enforcement
of the contract.” National Reserve Co. of Am. v. Metropolitan Trust Co. of
Cal., 112 P.2d 598, 602 (Cal. 1941).
Id. at 1201.
{¶14} Where an assignment of rights to a lease did not clearly include the right to
past rents, the Sixth Circuit has also indicated that the assignee is not entitled to collect
those rents because “it is well settled that in the absence of an express intention to do so,
an assignment of a reversionary interest in a lease will not cover rent already accrued.”
Shell Petroleum Corp. v. Jackson, 77 F.2d 340, 342 (6th Cir.1935).
{¶15} In Jackson, the assignment of leases included “‘all our right, title and
interest to the within lease * * *.’” Id. at 341. The court found this language
insufficient for the assignee to sue to collect rent that accrued before the assignment of
the leases. Id. at 341-342.
{¶16} In the present case, the assumption of liabilities contained in the same
paragraph as the assignment evidences an obvious inclusion of liabilities that accrue
before and after the transfer and assignment. This language makes it clear that 17 Mile
assumes all liabilities under the leases as if it were the original lessor. The assumption
provides,
[17 Mile] hereby accepts the assignment of the AT&T Lease and T-Mobile
Lease and hereby assumes, and otherwise agrees to pay, satisfy and
discharge all liabilities of [the Kruzels] under the AT&T Lease and
T-Mobile Lease before and after the Closing Date as through [17 Mile] was
the original landlord of the AT&T lease and T-Mobile Lease * * *.
This same language was not applied to the assignment of rights.
{¶17} In order to effectively transfer the right to back rent, the assignment must be
a definitive relinquishment. Jackson at 341-342; Ginsberg at 1201. The parties may
contract to change the common law presumption, but the assignment here does not
evidence a clear intention to do so. Courts must look to the four corners of the contract
in order to determine the intent of the parties where language is unambiguous. Kelly v.
Med. Life Ins. Co., 31 Ohio St. 3d 130, 132, 509 N.E.2d 411 (1987). But here, the
juxtaposition of the language in the same paragraph between the assignment and the
assumption indicates no clear intention to relinquish the right to back rent.
iii. Judgment Granted Beyond the Scope of the Motion
{¶18} 17 Mile claims the trial court erred when it granted summary judgment on
all of its claims in favor of the Kruzels because the Kruzels failed to move for judgment
on 17 Mile’s equitable claims.
{¶19} Citing Mitseff v. Wheeler, 38 Ohio St. 3d 112, 526 N.E.2d 798 (1988), 17
Mile claims it was denied the opportunity to argue against summary judgment on its
equitable claims because the Kruzels did not make arguments specifically addressing
these claims. However, 17 Mile’s claimed “action for money had and received” rests on
the premise that the Kruzels owed it the money AT&T paid for past due rent. 17 Mile’s
claimed right to this money flows only from the assignment of the lease agreement.
Therefore, resolution of the disputed interpretation of the assignment agreement
necessarily disposes of this claim as well. In Mitseff, the Ohio Supreme Court set forth
the moving party’s responsibilities: “the party seeking summary judgment ‘* * * bears the
burden of affirmatively demonstrating that, with respect to every essential issue of each
count in the complaint, there is no genuine issue of fact.’” Id. at 115, quoting Massaro v.
Vernitron Corp., 559 F. Supp. 1068, 1073 (D.Mass.1983).
{¶20} However, 17 Mile’s equitable claims are intertwined with their breach of
contract claim and action for declaratory judgment. All depend on its interpretation of
the assignment agreement that the Kruzels gave to 17 Mile the right to collect rents that
accrued prior to the assignment. Either the assignment gives 17 Mile a right to collect
past due rents or it does not. Without that right, no viable equitable claims exist. The
Kruzels’ arguments about the interpretation of the assignment go equally to 17 Mile’s
equitable claims.
{¶21} In their motion for summary judgment, the Kruzels argued this point. They
asserted that “17 Mile cannot succeed on its claims for breach of contract, declaratory
judgment, and money due as a matter of law.” The last claim, “money due,” references
17 Mile’s equitable claim for “money had and received,” and the arguments made in that
section of the Kruzels’ motion for summary judgment — about the interpretation of the
assignment language being insufficient to evidence a relinquishment of the right to collect
past due rent — address each claim raised by 17 Mile. The Kruzels also addressed 17
Mile’s non-contractual claims in their motion for summary judgment when seeking
judgment on 17 Mile’s conversion claims.
{¶22} Therefore, the trial court did not err in granting summary judgment on 17
Mile’s equitable claims when it granted summary judgment in favor of the Kruzels after
interpreting the contract in favor of the Kruzels. All causes of action were effectively
addressed and no issue of material fact was left to determine.
III. Conclusion
{¶23} The assignment agreement does not evidence a clear intention to relinquish
the Kruzels’ right to collect rents that accrued prior to the sale of the communications
tower and assignment of the leases to 17 Mile. Therefore, summary judgment in favor of
the Kruzels is warranted.
{¶24} Judgment affirmed.
It is ordered that appellees 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 the Parma Municipal 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR