[Cite as B & G Properties Ltd. Partnership v. Office Max, Inc., 2013-Ohio-5255.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99741



         B & G PROPERTIES LIMITED PARTNERSHIP
                                                                    PLAINTIFF-APPELLEE

                                                     vs.

                                    OFFICEMAX, INC.
                                                                    DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-754680


        BEFORE: Celebrezze, J., Stewart, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: November 27, 2013
ATTORNEYS FOR APPELLANT

Michael J. Zbiegien, Jr.
Patrick J. Krebs
Taft Stettinius & Hollister, L.L.P.
200 Public Square
Suite 3500
Cleveland, Ohio 44114

Michael M. Dingel, pro hac vice
Officemax, Inc.
1111 West Jefferson Street
Suite 510
Boise, Idaho 83702


ATTORNEYS FOR APPELLEE

Michael N. Ungar
Marvin L. Karp
Lawrence D. Pollack
Matthew T. Wholey
Ulmer & Berne, L.L.P.
Skylight Office Tower
1660 West 2nd Street
Suite 1100
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Appellant, OfficeMax, Inc. (“OfficeMax”), appeals from the grant of

summary judgment and certain damages in favor of appellee, B & G Properties Limited

Partnership (“B&G”), in B&G’s action for breach of a commercial lease agreement

between it and OfficeMax. OfficeMax claims the trial court erred in finding the lease

was not terminated when an assignee of the lease filed for bankruptcy and that B&G was

not required to mitigate its damages under the lease. OfficeMax also argues the trial

court erred in finding that a 5 percent late payment provision was an enforceable damages

clause rather than an unenforceable penalty. After a thorough review of the record and

law, we affirm.

                           I. Factual and Procedural History

       {¶2} In 1994, the parties negotiated a 20-year lease of commercial property located

in North Olmsted, Ohio, that commenced in 1995.            OfficeMax never occupied the

premises, instead assigning its rights in the lease to Planet Music, Inc. (“Planet Music”) in

1996. Planet Music assigned its interest in the lease to Borders, Inc. (“Borders”) in 2005.

 In February 2011, Borders filed for Chapter 11 bankruptcy protection.              Borders

ultimately went from plans for reorganization to liquidation. The bankruptcy trustee

eventually rejected the lease and sent notice to B&G. In turn, B&G sought rents from

OfficeMax. OfficeMax argued that Section 7.2 of the lease agreement terminated the

lease when Borders filed for bankruptcy and rejected the lease. B&G disagreed, took

possession of the premises, and sued OfficeMax on May 6, 2011, for breach of contract in
the Cuyahoga County Common Pleas Court. The case was transferred to the specialized

commercial docket. Both parties filed motions for summary judgment. On April 19,

2012, the trial court granted B&G’s motion and found that OfficeMax breached the lease

agreement.

       {¶3} The court then set about determining damages. B&G filed a motion seeking

to limit the scope of the hearing asserting that the lease agreement included a provision

waiving its common law duty to mitigate its damages. OfficeMax disagreed with that

interpretation. On October 3, 2012, the trial court ruled that the lease agreement did

waive B&G’s obligation to mitigate its damages and found OfficeMax would be liable for

the entire amount of outstanding rent. OfficeMax attempted to appeal this order, but this

court found that it was not final and appealable at that time. The parties, for the most

part, then stipulated to damages, except for a 5 percent late payment provision.

OfficeMax argued this provision was an unenforceable penalty. On March 11, 2013, the

trial court found the provision enforceable and awarded B&G $1,212,821.84 in past due

rent, penalties, interest, and attorney fees.   OfficeMax then filed the instant appeal

assigning four errors for review:

       I. The trial court erred in failing to enforce the clear and unambiguous
       terms of the commercial lease agreement at issue which included a
       provision, Section 7.2(a) thereof, that called for the cancellation of the
       Lease if Borders, the “Tenant” of the Lease, rejected the Lease in
       bankruptcy which rejection in fact occurred March 16, 2011.

       II. The trial court erred in ruling that Section 7.1 of the Lease waived
       B&G’s common law duty to mitigate damages.
       III. The trial court erred in denying OfficeMax’s motion to amend the
       October 3, 2012 journal entry.

       IV. The trial court erred in ruling that the 5% late charge provided for in
       Section 2.1(d) of the Lease is an enforceable late fee and not an
       unenforceable penalty.

                                 II. Law and Analysis

                                 A. Summary Judgment

                                  1. Standard of review

       {¶4} This court reviews a lower court’s summary judgment decisions de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

       “Summary judgment is appropriate if (1) no genuine issue of any material
       fact remains, (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 construing the evidence most strongly in favor of the
       nonmoving party, that conclusion is adverse to the party against whom the
       motion for summary judgment is made.” State ex rel. Duncan v. Mentor
       City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 9.

DIRECTV, Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15.

       {¶5} A decision regarding contract interpretation is a matter of law, reviewed de

novo as well. Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d

452. “Ohio courts ‘presume that the intent of the parties to a contract is within the

language used in the written instrument. If [courts] are able to determine the intent of the

parties from the plain language of the agreement, then there is no need to interpret the

contract.’” Telecom Acquisition Corp. I v. Lucic Ents., 8th Dist. Cuyahoga No. 95951,

2012-Ohio-472, ¶ 11, quoting Saunders at ¶ 9.

                                  2. Lease Cancellation
       {¶6} OfficeMax argues that is it not liable under the lease because it was canceled

pursuant to Section 7.2(a) of the agreement. This provision states,

              If a petition is filed by or against Tenant1 under Chapter 7 of the
       Bankruptcy Code and the Trustee elects to assume this Lease for the
       purposes of assigning it or otherwise, the assumption or assignment, or
       both, may be made only if all of the terms and conditions set forth under
       Section 7.2(b) below are satisfied. If the Trustee fails to assume this Lease
       within sixty (60) days after his appointment, or within such additional time
       period as the Bankruptcy Court may allow, this Lease shall be deemed to
       have been rejected. * * * In the event this Lease is rejected, Landlord shall
       then immediately be entitled to possession of the Premises without further
       obligation to Tenant or the Trustee and this Lease shall be canceled.
       Landlord’s right to be compensated for damages in the bankruptcy
       proceedings, however, shall survive.2
       {¶7} B&G argues that the defined term “Tenant” in the lease refers to OfficeMax,

and interpreting the word “Tenant” in the bankruptcy termination provision to mean

Borders is contrary to the contract and rules of contract interpretation. However, after an

assignment, the assignee steps into the shoes of the assignor and assumes the rights and

responsibilities under the lease. Certain provisions clearly must refer to the assignee.

The assignee has the ability to execute an option to extend the lease,3 something it can


       1
         “Tenant” is a defined term under the lease agreement to mean “OFFICEMAX, INC., an
Ohio corporation.”

           Borders filed for bankruptcy reorganization under Chapter 11, which is addressed by
       2


Section 7.2(b) of the agreement, and has similar wording about rejection of the lease, except that it
does not contain the cancellation language and does not state how the lease is to be treated after a
rejection in a Chapter 11 proceeding. However, the bankruptcy proceedings turned into a liquidation
similar to those under Chapter 7 following Borders’ failed attempt to reorganize. Therefore, the
language of Section 7.2(a) should be read to apply because the bankruptcy proceedings ended in
liquidation rather than a reorganization.

           See Telecom Acquisition Corp. I, 8th Dist. Cuyahoga No. 95951, 2012-Ohio-472.
       3
only do if the word “Tenant” in the option provision is read to refer to an assignee.

There are other provisions that clearly always refer to the original tenant, like a clause

holding the original tenant liable for any breach by an assignee. Therefore, this court

must determine whether the bankruptcy termination provision is one that should be

interpreted to refer to the tenant in possession or the original tenant.

       {¶8} To understand the intention of the parties, it is necessary to understand the

nature of the clause at issue.       This bankruptcy termination clause is common in

commercial leases. These provisions arose to permit a landlord to terminate the lease if

the tenant filed for bankruptcy. These clauses came to be known as “ipso facto” clauses.

 Rubin, Not Every Ipso Facto Clause Is Unenforceable in Bankruptcy, 32-7 ABIJ 12

(2013). Their genesis was the result of various bankruptcy code provisions that allowed

the bankruptcy estate to avoid certain lease provisions, including allowing assignment

without landlord consent.       These provisions were widely enforceable.        Wadyka,

Executory Contracts and Unexpired Leases: Section 365, 3 Bank.Dev.J. 217, 245 (1986).

However,

       [t]hese clauses came to be seen by Congress as hampering a debtor’s
       rehabilitation efforts, and in 1978, to further the goal of preserving a
       debtor’s assets and providing the debtor an opportunity to formulate a plan
       of reorganization, Congress enacted various provisions under the
       Bankruptcy Reform Act [of 1978] that invalidated contractual ipso facto
       clauses against debtors in bankruptcy.

Lynn, Brown, and Mayesh, Enforcing Bankruptcy Termination Lease Clauses Against

Assignees, New York Law Journal (Oct. 9, 2007).
         {¶9} The clause at issue in the present case is triggered on the rejection of the lease

in bankruptcy. Its purpose is to return possession of the premises to the lessor as soon as

possible with minimal disturbance to the bankruptcy proceedings. The bankruptcy estate

seeking to reorganize and emerge as a going business can be devastated by the loss of its

lease and its business premises. However, a lease rejected by the bankruptcy trustee no

longer benefits the estate, and possession can be returned to the lessor. This bankruptcy

termination provision therefore benefits the lessor when a tenant in possession rejects the

lease.

         {¶10} OfficeMax asserts that the complete assignment of all its interests in the

lease to Planet Records and then to Borders relieved it of any liability under the lease

when the lease was cancelled as a result of the assignee “tenant” under the lease, Borders,

filing for bankruptcy and rejecting the lease.

                When a lease is assigned, the assignee takes over all obligations
         contained in the initial contract between the landlord and the lessee. The
         “lessee is not discharged from his obligations under such lease, [but] the
         assignee assumes the position of principal obligor for the performance of
         the covenants of the lease, and the lessee becomes his surety for such
         performance.”

Lucic Ents., 8th Dist. Cuyahoga No. 95951, 2012-Ohio-472, ¶ 28 (Stewart, J., dissenting),

quoting Gholson v. Savin, 137 Ohio St. 551, 31 N.E.2d 858 (1941), paragraph two of the

syllabus. See also Ogle Leasing Co. v. Submarine Galley, Inc., 2d Dist. Montgomery

No. 11267, 1990 Ohio App. LEXIS 42, *13 (Jan. 11, 1990).

         {¶11} This black letter law was codified by the parties in the lease itself. Section

8.2 states, “[a]ny assignment, subletting or other transfer, even with the consent of the
Landlord, shall not relieve Tenant from primary liability for the payment of rent and other

charges or from the primary obligation to keep and be bound by the terms, conditions, and

covenants of this Lease.”

       {¶12} The primary disagreement between OfficeMax and B&G is to whom should

the bankruptcy termination provision in Section 7.2 apply, OfficeMax or Borders.

       {¶13} OfficeMax relies on New York case law to argue that “Tenant” under the

bankruptcy termination provision should be construed to mean Borders. Staples, Inc. v.

Moses, 806 N.Y.S.2d 448, 9 Misc.3d 1102(A) (2005). In that case, Staples assumed a

commercial lease through assignment by the original lessee.         The lease contained a

bankruptcy termination provision similar to the provision in the present case that entitled

the landlord to immediate possession if a petition in bankruptcy was filed by the tenant

under the lease. The landlord attempted to regain possession of the premises after it

discovered that the original lessee filed for bankruptcy several times. The trial court

determined that the provision should apply to the tenant in possession at the time of the

bankruptcy filing, meaning Staples, not the original lessee. However, the Moses court

recognized that it is in conflict with another New York case, Inip Co. v. Bailey, Green &

Elger, Inc., 356 N.Y.S.2d 436, 78 Misc.2d 235 (1974).

       {¶14} In Inip Co., the bankruptcy termination clause was more detailed and gave

the landlord the option to terminate the lease upon the tenant filing for bankruptcy. The

tenant under the lease assigned its interest to a third party. The original tenant filed for

bankruptcy, and the landlord cancelled the lease under this provision even though the
tenant in possession remained solvent and remained current in rental payments. The

third-party tenant remained in possession in derogation of the landlord’s notice to vacate.

The court ruled that the bankruptcy termination provision applied to the original tenant

under the lease. It recognized the inequitable results visited on the tenant in possession,

but determined that risk was assumed by the assignee tenant when it assumed the lease.

       {¶15} There is a dearth of case law on this area, but the majority of cases hold that

a bankruptcy termination provision in a commercial lease applies to the tenant in

possession after an assignment where the language of the provision does not differentiate

between the original tenant and assignees. Stamm v. Buchanan, 55 N.M. 127, 128, 227

P.2d 633 (1951); A.J. Flagg v. Andrew Williams Stores, Inc., 127 Cal.App.2d 165, 273

P.2d 294 (1954); Waukegan Times Theater Corp. v. Conrad, 324 Ill.App. 622, 59 N.E.

308 (1945).

       {¶16} The New Mexico Supreme Court determined that the original lessee’s

declaration of bankruptcy did not entitle the lessor to retake possession when the assignee

tenant in possession had not breached the lease. Stamm at 128. That court addressed

the question

       whether, after valid assignment of a lease pursuant to lessor’s consent
       contained in the lease, involuntary bankruptcy of original lessee, who as
       assignor executed the assignment, gave lessor the right to forfeit the lease as
       against an assignee in possession, performing all the covenants of the lease
       on lessee’s part to be performed, by reason of an option in the lease
       providing that bankruptcy of the “lessee,” voluntary or involuntary, should
       give lessor the right forthwith to terminate the lease and retake possession
       of the demised premises.

Id. The court reaffirmed that
       “[t]o construe the option paragraph so as to permit the termination of the
       lease upon the bankruptcy of the assignee would result in a forfeiture which
       clearly would be inequitable in this case, and is to be avoided. The law
       frowns upon forfeitures. Forfeitures should never be decreed unless the
       language of the instrument sought to be construed so states in clear,
       unmistakable terms.”

Id. at 132, quoting In re Murray Realty Co., 35 F.Supp. 417, 419 (N.D.N.Y.1940). See

also Model Dairy Co. v. Foltis-Fischer, Inc., 67 F.2d 704 (2d Cir.1933) (holding a

provision terminating the lease on appointment of a receiver for the tenant applied to an

assignee in possession); In re Famous Fain Co., 13 F.2d 529 (2d Cir.1926) (holding that

the bankruptcy termination provision applied to the assignee in possession because the

landlord treated it as the tenant and executed ancillary documents that referred to the

assignee in possession as tenant).

       {¶17} The majority of these cases are underpinned by the abhorrence in the law for

forfeiture of the leasehold estate. See, e.g., A. J. Flagg at 176-177. Without abundantly

clear language that the termination provision should apply only to the original lessee,4

this court is loath to effectuate a forfeiture that may be wrought by these common

termination provisions.     Therefore, we hold that the provision applies to tenants in

possession when the parties to a lease do not make it clear to whom it should apply after

an assignment. Parties may contract for the provision to apply differently, but “where a

provision so full of financial hazard and danger to a tenant in possession under an

       4
           See Carson v. Imperial “400” Natl., Inc., 267 N.C. 229, 147 S.E.2d 898 (1966) (where the
termination provision referenced the original lessee by name rather than generically as tenant, the
North Carolina Supreme Court determined the bankruptcy termination provision applied to the
original tenant).
assignment is intended, it must rest on language so plain and unmistakable that the courts

are left no alternative but to enforce it according to the letter.” Stamm at 135. This

holding comports with the basic purposes of these provisions to return possession of the

property to the landlord as quickly as possible when the lease has been rejected in

bankruptcy.

         {¶18} The fact that the provision applies to Borders and the lease was terminated

does not resolve the question of OfficeMax’s liability.         OfficeMax argues that the

cancellation of the lease absolves it of liability for future rents owed for the duration of

the lease. However, the termination of the lease as a result of its repudiation by the

tenant in possession does not impact the tenant’s or the surety’s liability for rents. This is

because “despite the termination of the lease * * * [l]essees are potentially liable * * * for

the rent up to the point of the lessor’s finding a new tenant, or the expiration of the lease,

whichever is earlier.” Dennis v. Morgan, 89 Ohio St.3d 417, 419, 2000-Ohio-211, 732

N.E.2d 391. See also Pinnacle Mgt. v. Bell, 12th Dist. Butler No. CA2011-08-145,

2012-Ohio-1595, ¶ 8. Further, “an assignee and the original lessee may be held jointly

and severally liable where there has been a valid assignment.” Colony by the Mall v.

Duckro, 2d Dist. Montgomery No. CA 6169, 1979 Ohio App. LEXIS 8802, *9 (June 29,

1979).

         {¶19} Under Section 7.1(iv), B&G preserves OfficeMax’s responsibility for all

rents for the entire period of the lease after the lease is terminated. This provision

provides, “[i]n case of re-entry, or of the termination of this Lease, whether by summary
proceedings or otherwise, Tenant shall remain liable for the Fixed Rent, Additional Rent

and other obligations of Tenant herein provided for the balance of said term, whether

Premises be relet or not * * *.” “Cancel” and “terminate” have the same meaning in this

case.       Thomas v. Am. Elec. Power Co., 10th Dist. Franklin No. 03AP-1192,

2005-Ohio-1958, ¶ 35, citing Grant v. Aerodraulics Co., 91 Cal.App.2d 68, 73, 204 P.2d

683 (1949) (“[t]he words ‘terminate,’ ‘revoke’ and ‘cancel,’ as used in * * * the written

agreement, all have the same meaning, namely, the abrogation of so much of the contract

as might remain executory at the time notice is given”). OfficeMax argues that the

cancellation of the lease terminates liability for the executory portion of it. However,

Section 7.1(iv) specifically imposes liability on the tenant for the duration of the lease

even in the event the lease is terminated, and Section 8.2 5 imposes that liability on

OfficeMax.6

        {¶20} The reservation of rights to rents in Section 7.1 for the duration of the lease

harmonizes with the language of the bankruptcy provision, which preserves B&G’s

claims for rents when it states that its “right to be compensated for damages in the

bankruptcy proceedings, however, shall survive.” Section 7.2(a).


          “Any assignment, subletting or other transfer, even with the consent of the Landlord, shall
        5


not relieve Tenant from primary liability for the payment of rent and other charges or from the
primary obligation to keep and be bound by the terms, conditions, and covenants of this Lease.”
        6
           B&G claims its cause of action survives termination of the lease according to R.C. 1310.51.
  However, this statute, a part of Ohio’s codification of the Uniform Commercial Code, does not apply
to the lease of real property. See R.C. 1310.01(A)(10) (defining “lease” to mean “a transfer of the
right to possession and use of goods”).
       {¶21} B&G argues that the bankruptcy termination provision should apply only to

the original lessee, and a holding contrary to its position creates an incentive for lessees

looking for a way out of a long-term lease to simply assign the lease to an insolvent

entity, which can then file for bankruptcy and terminate the lease. B&G also argues that

a contrary ruling would create a disincentive for landlords to allow assignments.

However, the holding of this court eliminates these possibilities while at the same time

preserving the rights of tenants in possession.

       {¶22} We therefore hold that the bankruptcy termination provision applies to

Borders, the tenant in possession at the time of the bankruptcy, but, based on the language

of the contract, OfficeMax, the assignor, remains jointly and severally liable as a surety.

                              3. Duty to Mitigate Damages

       {¶23} There is inherent in every contract a duty to act in good faith. As a function

of this duty, plaintiffs must reasonably act to lessen the financial impact of a breach.

This duty to mitigate damages demands that landlords attempt to relet the premises when

the tenancy terminates prematurely as a result of the tenant’s breach.          Frenchtown

Square Partnership v. Lemstone, Inc., 99 Ohio St.3d 254, 2003-Ohio-3648, 791 N.E.2d

417, ¶ 21.

               Imposing such a duty assures that an award of damages will put the
       injured party in as good of a position as if the contract had not been
       breached while affording the least amount of cost to the defaulting party. F.
       Enterprises, Inc, et al. v. Kentucky Fried Chicken Corp. (1976), 47 Ohio
       St.2d 154, 160, 351 N.E.2d 121. This is in conformity with the tenants of
       contract law. Id. Requiring a landlord to mitigate damages by attempting to
       relet the abandoned premises also promotes the most productive use of the
       land while at the same time, discourages injured parties from suffering
       avoidable economic losses. [White v. Smith, 8 Ohio App. 368 (7th
       Dist.1917)].

New Towne L.P. v. Pier 1 Imports (U.S.), 113 Ohio App.3d 104, 108, 680 N.E.2d 644

(6th Dist.1996). However, this common law duty, like many others, may be changed by

negotiation between the parties. Frenchtown Square at ¶ 20.

       {¶24} Here, the parties’ agreement includes the following provision in Section 7.1:

               In case of re-entry, or of the termination of this Lease, whether by
       summary proceedings or otherwise, Tenant shall remain liable for the Fixed
       Rent, Additional Rent and other obligations of Tenant herein provided for
       the balance of said term, whether Premises be relet or not, and for expenses
       to which Landlord may be put in re-entering, including preservation of the
       Demised Premises, less however, the avails after deducting brokers’
       commissions, remodeling and redecorating expenses and attorney’s fees, if
       any, in connection with the reletting, upon demand of Landlord. Any such
       reletting may be for a term exceeding or less than the period of this Lease.
       Landlord shall not be liable for failure to relet the Premises, and in the event
       of reletting, for failure to collect the rent under such reletting.

The trial court found this provision obviated B&G’s duty to mitigate its damages by

attempting to relet the premises.

       {¶25} OfficeMax states that the lease language before us is substantially the same

as the language employed in the lease that was the focus of Westfield Franklin Park Mall

L.L.C. v. Vanity Shop of Grand Forks, Inc., 642 F.Supp.2d 756 (N.D.Ohio 2008). That

lease provided that the “[l]andlord shall use its reasonable efforts to mitigate its damages

hereunder; however the failure or refusal of Landlord to relet the Premises shall not affect

Tenant’s liability.” The court in Westfield declined to interpret this provision as waiving

the landlord’s common law duty to mitigate its damages. Id. However, this provision

affirmatively incorporates the common-law duty to mitigate damages. It is not similar
to the provision in the present case that completely abrogates this duty, stating “Tenant

shall remain liable for the Fixed Rent * * * for the balance of said term, whether Premises

be relet or not * * *.”      The provisions are not similar, and the case does not aid

OfficeMax.

       {¶26} The provision in this case sets forth that OfficeMax will be liable for rent

for the entire duration of the lease irrespective of the reletting of the premises. This is a

sufficiently clear statement of the parties’ intention. “Each party must stand or fall upon

the written contract * * *.” Ins. Co. v. Brecheisen, 50 Ohio St. 542, 548, 35 N.E. 53

(1893). Here, the contract expresses a clear intent to waive the landlord’s common law

duty to mitigate its damages by reletting the premises.

       {¶27} A danger to be guarded against in this context is a landlord being placed in a

better position than if no breach had occurred. However, the trial court gave OfficeMax

a credit in the amount of $234,000 against the amount of judgment in favor of B&G for

rents received by B&G from a new tenant that leased a portion of the premises.

Therefore, it is not a concern in this case at this point.

                             4. Liquidated Damages Provisions

       {¶28} The trial court also determined that the lease contained an enforceable late

payment provision that made OfficeMax liable for an additional amount of damages equal

to 5 percent of the outstanding rent due under the lease. OfficeMax claims this late

payment provisions is an unenforceable penalty.              B&G argues it is an enforceable

liquidated damages provision for the late payment of rent.
          {¶29} Punitive damages are generally not recoverable in a breach of contract

action.      Lake Ridge Academy v. Carney, 66 Ohio St.3d 376, 381, 613 N.E.2d 183

(1993). “A remedy is considered to be punitive if it subjects the breaching party to a

liability ‘disproportionate to the damage which could have been anticipated from breach

of the contract.’” Cintas Corp. v. Joel Lehmkuhl Excavating, 2d Dist. Montgomery No.

19613, 2003-Ohio-2958, ¶ 13, citing Lake Ridge Academy.

                  Liquidated damages clauses in contracts are enforceable if they meet
          various conditions; otherwise, they are unenforceable as penalties for
          non-performance. The Ohio Supreme Court’s decision in Samson Sales,
          Inc. v. Honeywell, Inc. (1984), 12 Ohio St.3d 27, 12 Ohio B. 23, 465 N.E.2d
          392, outlines the enforceability test for liquidated damages provisions. First,
          the amount of actual damages must be uncertain and difficult to prove.
          Second, the amount of stipulated damages must be reasonable and
          proportionate to the contract as a whole. Third, the parties’ intent to
          stipulate to damages must be clear and unambiguous. See, also, Lake Ridge
          Academy v. Carney (1993), 66 Ohio St.3d 376, 613 N.E.2d 183.

Carter v. CPR Staffing, Inc., 8th Dist. Cuyahoga No. 94671, 2010-Ohio-6026, ¶ 16.

          {¶30} Section 2.1(d) of the lease provides,

                 Each installment of Fixed Rent shall be due and payable in advance

          on the first day of each month during the term hereof. Any rent or other

          sums payable by Tenant to Landlord under this Lease which is not paid

          within ten (10) days after such payment first becomes due, will be subject to

          a late charge of five percent (5%) of the amount due. Such late charge will

          be due and payable as Additional Rent on or before the next day on which

          an installment of Fixed Rent is due.
       {¶31} OfficeMax argues that B&G has suffered no damages because it has been

fully compensated for rent, attorney fees, and any other expense associated with the lease.

 This argument has been addressed and rejected by at least one court applying New York

law:

               Defendant’s argument suggests that in the event that plaintiff
       suffered no actual damages, the liquidated-damages provision should not be
       enforced. However, even if we agreed with defendant that plaintiff
       necessarily suffered no actual damages since no late payments have been
       processed, defendant’s argument is contrary to New York law, under which
       “the actual damages suffered by the party for whose benefit the
       [liquidated-damages] clause is inserted in the contract have little relevance
       to the validity of a liquidated damages clause.” Walter E. Heller & Co.,
       Inc. v. Am. Flyers Airline Corp., 459 F.2d 896, 898 (2d Cir.1972). Instead,
       the propriety of the liquidated-damages clause is to be evaluated as of the
       time at which the contract was made. Bradford v. New York Times Co., 501
       F.2d 51, 57 (2d Cir.1974). A liquidated-damages clause in a commercial
       lease imposing a one-time payment of three percent of past-due rent and
       related expenses is not unreasonable. See K.I.D.E. Assocs., Ltd. v. Garage
       Estates Co., 280 A.D.2d 251, 254, 720 N.Y.S.2d 114, 117 (1st Dept. 200)
       (late charge of five percent per month not unconscionable in “commercial
       lease negotiated by sophisticated business people”).

Sidley Holding Corp. v. Ruderman, S.D.N.Y. No. 08 Civ. 2513, 2009 U.S. Dist. LEXIS

126040, *28 (Dec. 30, 2009). This, in a broad sense, comports with Ohio law where

       a court must view the provision “in light of what the parties knew at the
       time the contract was formed and in light of an estimate of the actual
       damages caused by the breach.” When a provision was reasonable at the
       time that it was formulated and bears a reasonable, but not necessarily
       exact, relationship to the actual damages, the provision is enforceable.

(Citation omitted.)    Harmon v. Haehn, 7th Dist. Mahoning No. 10 MA 177,

2011-Ohio-6449, ¶ 50, quoting Kindle Road Co., L.L.C. v. Trickle, 5th Dist. Licking No.

03CA99, 2004-Ohio-4668, ¶ 21.
      {¶32} The damages that would result from the late payment of rent were not easily

ascertainable at the time the lease was drafted and executed. The affidavit submitted by

B&G attached to its motion in support of the enforceability of the late-payment provision

indicated several costs incurred by B&G that would result from late payment. These

include sending notices of default and demand letters, “the cost of time spent preparing

detailed and complicated matter material analyses of charges and amount due under the

lease that change monthly as OfficeMax continues to fail to pay,” and the cost of

“handling demands for information from lenders and other third parties due to decreased

cash flow.”

      {¶33} Next, the amount of the late-payment provision, 5 percent, must be

reasonable in relation to the lease as a whole, and may not be “unconscionable,

unreasonable, or disproportionate in amount.” Premium Ents. v. T.S., Inc., 9th Dist.

Medina No. 2751-M, 1999 Ohio App. LEXIS 396, *9 (Feb. 9, 1999). This provision

was freely negotiated by parties of equal bargaining power, and both thought it was a

reasonable expression of the damages resulting from the late payment of rent. The

parties agreed, at the time of formation, that the provision is a reasonable approximation

of those damages, and OfficeMax has failed to show otherwise.

      {¶34} Finally, this is a clear statement of the parties’ intention to stipulate damages

for the late payment of rent. All three prongs of the above test are satisfied, and the

late-payment provision is enforceable.
                           B. Denial of Motion to Amend

      {¶35} On October 3, 2012, the trial court issued a journal entry finding:

            Section 7.1 of the parties’ contract waives the Plaintiff, B&G
      Properties’ common law duty to mitigate. Specifically, Section 7.1 states:

              “Tenant [Office Max] shall remain liable for fixed rent, additional
      rent and other obligations * * * herein provided for the balance of the [term
      of the lease] * * *, whether the premises be relet or not * * * *.”

             The court further finds that by agreeing to this provision, Office Max
      relieved B&G of any duty to relet the premises in the event of a breach by
      Office Max.

      {¶36} Both parties moved the trial court to amend its judgment. B&G requested

that the court add “no just reason for delay” language to a prior judgment entry and

require OfficeMax to post a supersedeas bond. OfficeMax wanted the court to clarify

that B&G’s duty to mitigate was waived only as to reletting of the premises. Officemax

claimed that B&G’s failure to file a claim with the bankruptcy court against Borders

constituted a unique failure to mitigate its damages not covered by Section 7.2 of the

lease. The trial court granted B&G’s motion in part by adding “no just reason for delay”

language to the April 19, 2012 journal entry granting summary judgment in favor of

B&G. However, the court denied the request for a supersedeas bond and OfficeMax’s

motion to amend.
                                 1. Standard of Review

      {¶37} “Civ.R. 54(B) allows for reconsideration of an interlocutory order, and

provides, in pertinent part, that the order ‘is subject to revision at any time before the

entry of judgment adjudicating all the claims and the rights and liabilities of all the

parties.’” Forman v. Forman, 3d Dist. Marion No. 9-06-63,

2007-Ohio-4938, ¶ 19.       OfficeMax’s motion to amend is akin to a motion for

reconsideration of an interlocutory judgment. “A trial court has plenary power in ruling

on a motion for reconsideration, and we will not reverse such rulings absent an abuse of

discretion.” Mindlin v. Zell, 10th Dist. Franklin No. 11AP-983, 2012-Ohio-3543, ¶ 23,

citing Groza-Vance v. Vance, 162 Ohio App.3d 510, 2005-Ohio-3815, 834 N.E.2d 15

(10th Dist.), ¶ 53.   An abuse of discretion connotes an arbitrary, unreasonable, or

unconscionable decision. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140

(1983).

                                  2. Duty to Mitigate

      {¶38} OfficeMax argues that even if the lease did abrogate B&G’s duty to relet the

premises, that did not encompass all B&G should be required to do to mitigate its

damages, and the trial court erred in denying its motion to amend the judgment.

OfficeMax claims B&G should have submitted a claim in bankruptcy against Borders,

and its failure to do so constituted a breach of its duty to mitigate damages. However, as

previously discussed, OfficeMax is jointly and severally liable for rent for the remainder

of the lease term. As such, B&G was not required to pursue a claim against Borders.
       {¶39} Further, OfficeMax’s claim is moot. B&G did receive a payment from

Borders as a result of the bankruptcy proceedings, and the trial court offset that amount

against OfficeMax’s liability. In its motion to amend, OfficeMax estimated that B&G

would have received between $22,609.50 and $56,523.74 from the bankruptcy

proceedings had it filed a claim against Borders. In fact, the final order of the trial court

in this case indicates the judgment against OfficeMax was reduced by $51,248.99 for

payments received by B&G from “Borders and/or its bankruptcy estate.” The argument

OfficeMax wished to make regarding B&G’s failure to file a claim against Borders is

moot. Therefore, the trial court did not err in overruling OfficeMax’s motion to amend

the October 3, 2012 journal entry.

                                     III. Conclusion

       {¶40} The parties involved are both sophisticated business entities with equal

bargaining power. The provisions included in the lease were negotiated by the parties,

and they must live by them. Here, that means OfficeMax remains liable for rent owed

for the duration of the lease regardless of reletting. Further, the late-payment provision is

enforceable as an approximation of the damages that would result from the late payment

of rent.

       {¶41} Judgment affirmed.

       It is ordered that appellee 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 common pleas 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., JUDGE

MELODY J. STEWART, A.J., CONCURS IN JUDGMENT ONLY;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY IN PART AND
DISSENTS IN PART (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY IN PART AND
DISSENTING IN PART:

      {¶42} I respectfully dissent from the lead opinion’s determination of the second

assignment of error and would find that Section 7.1 of the lease does not contain an

express waiver of the landlord’s duty to mitigate damages. I concur in judgment only

with the remaining assignments of error.

      {¶43} A commercial landlord has a duty to mitigate damages, as is reasonable

under the circumstances. Frenchtown Square Partnership v. Lemstone, Inc., 99 Ohio

St.3d 254, 2003-Ohio-3648, 791 N.E.2d 417. Section 7.1 of the lease does not contain

an express provision that releases B&G from its obligation to take actions to mitigate its

damages, nor is an implied waiver allowed. The lease merely provides that the tenant

would remain liable for the full amount of the rent for the balance of the lease term,

regardless of whether the premises were relet, and that the landlord would not be liable

for a failure to relet the premises. This provision does not clearly and unambiguously
provide that the landlord is released from its obligation to mitigate damages. Further, the

fact that part of the premises may have been relet does not render the mitigation argument

moot. The required inquiry is whether B&G’s efforts to relet the premises and minimize

its damages were reasonable.      I would remand the matter to the trial court for a

determination of this issue.
