[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 L.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
