[Cite as Langfan v. Carlton Gardens Co., 183 Ohio App.3d 260, 2009-Ohio-3318.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY



LANGFAN et al.,

        APPELLEES,

        v.                                                       CASE NO. 8-09-06

CARLTON GARDENS COMPANY et al.,

        APPELLEES;

                                                                 OPINION
PATEL et al.,

        APPELLANTS.



                 Appeal from Logan County Common Pleas Court
                          Trial Court No. CV 06 11 0565

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                              Date of Decision: July 6, 2009




APPEARANCES:

        Terrence G. Stolley, for appellee Carlton Gardens Company.

        William R. Montgomery, for appellants.

        Darrell L. Heckman, for appellant Kiran Patel, a.k.a. Ken Patel.
Case No. 8-09-06




       PRESTON, Presiding Judge.

       {¶1} Defendants-appellants, Upendrakamar B. Patel, also known as Ben

Patel (“Ben”), and Kiran Patel, also known as Ken Patel (“Ken”), appeal the

judgment of the Logan County Court of Common Pleas, rendered appealable

pursuant to Civ.R. 54(B) by nunc pro tunc judgment on June 2, 2009, which found

in favor of plaintiffs-appellees, Harshad Patel, also known as Harry Patel

(“Harry”), Bharatibien Patel, and Jignaay, L.L.C. (collectively, “Jignaay”). For

the following reasons, we affirm in part and reverse in part.

       {¶2} This matter stems from a foreclosure action brought by plaintiffs

Mark Langfan, Dayna Langfan, Robin Hamer, and William Langan, d.b.a. Abnet

Realty (collectively, “Abnet Realty”), as mortgagee, against defendant Carlton

Gardens Company (“Carlton Gardens”), as mortgagor, defendant Jignaay, as then

current tenant and sub-sublessee of the real property subject to the foreclosure,

defendant-appellant Ken Patel, as lessee, and defendant-appellant Ben Patel, as

sublessee. The mortgage covered property that contained both a motel business

and a restaurant business. The leases in question on this appeal concern only the

motel portion of the property.

       {¶3} The motel property was originally leased by Carlton Gardens to Ken

on December 10, 1993 (“master lease”). The master lease was for a term of ten


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Case No. 8-09-06


years, which commenced on December 11, 1993, and also contained an option to

extend the term of the lease for an additional ten years. This option was exercised

in December 2003, which extended the term of the master lease to December 10,

2013. Under the terms of this lease, Ken was to make rental payments directly to

Abnet Realty.

       {¶4} On July 15, 1998, Ken subleased the motel property to Ben and

assigned all of his rights and obligations under the master lease, with the exception

of his obligation to pay the lease payments to the mortgagee. Subsequently, in

May 2005, Ben and Ken entered into a lease agreement with Jignaay that

expressly incorporated the terms of the master lease. Ken also assigned all of his

rights and obligations under the master lease to Jignaay, with the exception of his

obligation to make rental payments. In addition, Jignaay was to make rental

payments to Ben.

       {¶5} In February 2002, the mortgage on the property became delinquent,

and a foreclosure complaint was filed on November 27, 2006, which was amended

on June 26, 2007, to include Jignaay, Ken, and Ben as defendants. Jignaay filed

cross-claims against Ken and Ben alleging various claims for relief, including

breach of contract.   Ben filed a cross-claim against Ken based on breach of

contract and indemnification.      The cross-claims were bifurcated from the

foreclosure action. The foreclosure action was tried, resolved in favor of Abnet



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Case No. 8-09-06


Realty, and the real estate was sold back to Abnet Realty at a sheriff’s sale on June

25, 2008.

       {¶6} The cross-claims were tried on December 30, 2008, and on January

13, 2009, the trial court found in favor of Jignaay against Ken and Ben based on

breach of contract, awarded damages in the amount of $78,220.00, plus interest

and costs, and found Ken and Ben jointly and severally liable for the amount of

damages.

       {¶7} Ken and Ben now appeal, with Ben raising three assignments of

error and Ken raising one assignment of error for our review.

                   BEN’S ASSIGNMENT OF ERROR NO. I

       The court erred in concluding that because the mortgage was in
       default, therefore the lease was also in default and that such required
       appellant under the lease to give notice of default to appellee.

                   BEN’S ASSIGNMENT OF ERROR NO. II

       The court erred in failing to find that any damages suffered by
       appellee resulted from appellee’s failure to continue making lease
       payments under the terms of its lease and voluntarily abandoning the
       premises.

                   BEN’S ASSIGNMENT OF ERROR NO. III

       The court erred in failing to rule on the cross-claim of appellant Ben
       Patel against appellee Ken Patel and in not finding in favor of the
       appellant on said cross-claim.

                   KEN’S ASSIGNMENT OF ERROR NO. I




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Case No. 8-09-06


       The trial court erred in finding that appellant breached a contract
       proximately causing damage to appellee.

       {¶8} Overall, both parties claim that the trial court erred in finding that a

breach of contract occurred and thereby awarding Jignaay damages.

       {¶9} Leases are considered contracts, and as such should be interpreted

with reference to contract principles. United States Corr. Corp. v. Ohio Dept. of

Indus. Relations (1995), 73 Ohio St.3d 210, 216, 652 N.E.2d 766; Stine v.

Northwest Ohio Realty Co. (Mar. 16, 1989), 3d Dist. No. 8-86-24, at *3. The

construction and interpretation of contracts are matters of law.            Latina v.

Woodpath Dev. Co. (1991), 57 Ohio St.3d 212, 214, 567 N.E.2d 262.                  An

appellate court applies a de novo standard of review to questions of law and may

interpret the language of the contract, substituting its interpretation for that of the

trial court. Bryan Publishing Co. v. Kuser, 3d Dist. No. 7-07-17, 2008-Ohio-2610,

¶ 16, citing Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d

452, ¶ 9.

                           Ben’s first assignment of error

       {¶10} In Ben’s first assignment of error, he argues that the trial court erred

in concluding that because the mortgage was in default, the lease was also in

default, and as such, Ben and Ken were required to give Jignaay notice. While

Ben acknowledges that the trial court’s ruling is unclear, he claims that it appears

that the trial court found a breach of contract either because of a failure to give


                                          5
Case No. 8-09-06


notice or because the mortgage had been in default. We disagree with Ben’s

interpretation of the trial court’s judgment entry.

       {¶11} In its judgment entry, the trial court stated:

       This cause of action centers around a motel at 308 North Main
       Street, Bellefontaine, Ohio known as the Mountain Top Inn. A
       restaurant was located on the same premise. In 1993 the fee holder
       of the premise, Carlton Garden, entered into a ten-year lease with
       one option to renew for ten years with Ken Patel. The lease
       commenced on December 11, 1993. * * * According to paragraph
       seventeen of said lease the lease survives any foreclosure of a
       mortgage and the lessees would not be named as a party to any
       foreclosure action. In 1998 Ken Patel subleased this premise to Ben
       Patel * * *. Subsequently in 2005, commencing on May 7 of that
       year, Ben Patel subleased the premise to Harry Patel dba Jignaay
       LLC. The option of the additional ten years had been exercised in
       December of 2003 so the master lease was extended to December
       11, 2013.

       The testimony of cross-claimant Harry Patel was that he paid Ben
       Patel $135,000 to purchase the motel; that is to take over his interest
       in the lease and operate it through the expiration of the same. That
       would mean that Harry Patel doing business as Jignaay LLC had the
       right to operate the motel from May 7, 2005 to December 11, 2013
       or approximately one hundred three months. Under the terms of the
       lease, paragraph seventeen provided for a notice of default from the
       lessors to the lessee. After said notice, the sublease provided for a
       ten-day cure period. The parties stipulated that the Jignaay
       defendants were never provided any notice of default, verbal or
       written of the sub sublease between Jignaay LLC and Defendants
       Ken and Ben Patel. Therefore, the Court finds that the lease was in
       full force and effect when the amended foreclosure was filed in June
       26, 2007 naming the Jignaay defendants and Harry Patel as parties.

       On March 27, 2008 a judgment entry/decree of foreclosure was
       granted by this Court ordering the property sold. A final appealable
       order endorsement was placed beneath the signature of the Court and
       the Clerk appears to have provided notice of said final judgment to


                                           6
Case No. 8-09-06


       all parties not in default. The Court overruled Harry Patel’s [Civ.R.]
       60B motion to set aside the judgment and the property was sold at
       sheriff’s sale on June 25, 2008 and the entry of confirmation was
       filed August 19, 2008.

       The Court finds as a matter of contract that Harry Patel and the
       Jignaay defendants did not get what they bargained for. They paid
       $135,000 for the right to run the Mountain Top Inn for one hundred
       three months paying rent in the amount of $3,100 per month. This
       rent was paid regularly with the exception of December 2006 up
       through April or May 2007 depending upon whether one follows the
       stipulation or Harry’s testimony.       Nevertheless, the default
       procedure to cancel the lease was never activated and the lease
       remains in effect.

       What then are the damages suffered by the Jignaay defendants?
       They paid for the right to rent the motel for one hundred three
       months; in fact, they occupied the same from May 2005 through July
       of 2008 or thirty-eight months. At the $135,000 price, they paid
       $1,310.00 per month for one hundred three months for said right.
       They received thirty-eight months or $49,780. That amount deduced
       from the $135,000 leaves a damage of $85,220. In addition, the
       Court finds that the $500 due under the terms to Ken Patel was not
       paid for thirteen months equaling $6,500. Crediting that to the
       amount that Ken and Ben owe jointly, the Court concludes that the
       damages are $78,220.

       {¶12} There is nothing in the trial court’s judgment entry that leads us to

conclude that it found a breach of contract because Ben and Ken failed to give

Jignaay notice of the defaulted mortgage or because of the fact that the mortgage

was in default.    The trial court’s statements regarding notice of default only

determined that the terms of the master lease were still in effect because there had

not been any notice of default given to Jignaay, not that the failure to give Jignaay

notice of the defaulted mortgage had amounted to a breach. Rather, the trial court


                                         7
Case No. 8-09-06


found that there was a breach of contract because “Harry Patel and the Jignaay

defendants did not get what they bargained for. They paid $135,000 for the right

to run the Mountain Top Inn for one hundred three months paying rent in the

amount of $3,100 per month,” but only received 38 months of its bargain.

Because we cannot conclude that the trial court found a breach of contract

occurred because of a failure to give notice of the defaulted mortgage or because

of the fact that the mortgage had been in default, we find Ben’s arguments under

his first assignment of error are meritless.

       {¶13} Ben’s first assignment of error is therefore overruled.

                          Ben’s second assignment of error

       {¶14} In his second assignment of error, Ben argues that the trial court

erred by failing to find Jignaay’s damages resulted from his failure to continue

paying his rent and by voluntarily abandoning the premises. Specifically, Ben

claims that under the terms of the master lease, Jignaay still had the right to

continue its business and stay on the property even in the event of a foreclosure.

Under the master lease, Ben argues that as long as Jignaay continued to pay its

rent, it could not have been evicted; however, because Jignaay voluntarily

abandoned the property, he waived any rights he may have had with respect to the

property and now is estopped from suing Ben and Ken for damages.




                                           8
Case No. 8-09-06


        {¶15} Jignaay responds by arguing that the trial court did not err. With

respect to Ben’s argument that Jignaay voluntarily abandoned the property or

waived its right to assert a breach of contract claim, Jignaay argues that it did

oppose the pending foreclosure action and did not vacate the premise until after

the issuance of a sheriff’s deed following the sale of the property. In support of its

position, Jignaay cites the following passage:

        An action to sell the mortgaged property is called a “foreclosure”
        because, through judicial process, it will foreclose or cut off the
        rights in the property of all parties to the action. That includes the
        mortgagor, the mortgagee, subsequent holders of title, junior
        lienholders, and all other claimants whose claims or interests in the
        property attached subsequent to the mortgage.

Hembree v. Mid-Am. Fed. S. & L. (1989), 64 Ohio App.3d 144, 152, 580 N.E.2d

1103.

        {¶16} Essentially, Jignaay claims that there were two breaches of contract

in this case, which are both contained within the language of the sub-sublease and

its incorporation of the language of the master lease. First, with respect to the

master lease, Jignaay points to paragraph 17, which states, “nor shall [Jignaay] be

named as a party defendant to any foreclosure of the lien,” and argues that because

Jignaay was named as a party defendant, Ben and Ken breached its contract.

Second, Jignaay claims that it paid Ken and Ben a total of $135,000 for the right to

operate the motel business, which was separate and in addition to its obligation to

pay rent. Because Jignaay was named as a defendant in the foreclosure action, in


                                          9
Case No. 8-09-06


violation of paragraph 17 of the master lease, Ken and Ben thereby interfered with

its right to operate the motel business from May 2005 through December 10, 2013.

       {¶17} First of all, with respect to Jignaay’s argument that there was a

breach based on the violation of paragraph 17 in the master lease, we do not

believe that this was the basis for the trial court’s ruling. Even though the trial

court acknowledged the fact that paragraph 17 contained the language that the

lessee shall not be named as a party defendant in a foreclosure action, later in its

opinion it specifically found that there was a breach because “Harry Patel and the

Jignaay defendants did not get what they bargained for. They paid $135,000 for

the right to run the Mountain Top Inn for one hundred three months paying rent in

the amount of $3,100 per month.” It is clear that naming Jignaay as a party

defendant in the foreclosure action was not a basis for the trial court’s breach of

contract finding; rather, it was the fact that Jignaay allegedly lost its right to

operate the motel for the contracted time that was the basis for the trial court’s

finding of a breach.

       {¶18} Even still, the fact that Jignaay was named as a party defendant in

the foreclosure action does not justify a finding that a breach of contract occurred.

As stated above, contract principles apply when construing and interpreting lease

provisions. JC & F Invests. v. Housholder, 3d Dist. No. 17-08-11, 2008-Ohio-

5313, ¶ 12, quoting United Mobile Homes v. Bollinger (Nov. 21, 1997), 3d Dist.



                                         10
Case No. 8-09-06


No. 9-97-51, citing Myers v. E. Ohio Gas Co. (1977), 51 Ohio St.2d 121, 125, 364

N.E.2d 1369; Downtown Assoc., Ltd. v. Burrows Bros. Co. (1986), 34 Ohio

App.3d 296, 297, 518 N.E.2d 564.          Therefore, when reviewing the lease

provisions in this case, we are to presume that the intent of the parties is in the

language they used, and if the contract is clear and unambiguous, then we must

follow the contract’s expressed terms and must not go beyond the plain language

of the contract. Housholder, 2008-Ohio-5313, at ¶ 12, quoting Bollinger, 3d Dist.

No. 9-97-57, citing Buckeye Union Ins. Co. v. Consol. Stores Corp. (1990), 68

Ohio App.3d 19, 24, 587 N.E.2d 391; First Natl. Bank of Cincinnati v. Cianelli

(1991), 73 Ohio App.3d 781, 785, 598 N.E.2d 789. In addition, when determining

the parties’ intent, a court must read the contract as a whole and give effect, if

possible, to every provision contained in the contract.           Foster Wheeler

Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth. (1997), 78 Ohio

St.3d 353, 678 N.E.2d 519.

      {¶19} Here, in its appellate brief, Jignaay cited the following language in

paragraph 17 of the master lease for justifying a finding of a breach of contract:

“nor shall [Jignaay] be named as a party defendant to any foreclosure of the lien.”

Based on this language, because Jignaay was named as a party defendant in the

foreclosure action with Abnet Realty, Jignaay claims Ben and Ken clearly

breached its contract. We disagree.



                                        11
Case No. 8-09-06


       {¶20} Jignaay has isolated only one portion of paragraph 17 in the master

lease. In its entirety, paragraph 17 states:

       The LESSEE agrees that upon the request of the LESSOR(S), and
       subject to the conditions hereinafter contained to subordinate its
       right hereunder to the lien of any mortgage, deed or trust, or other
       encumbrance, together with any renewals, extensions or
       replacements thereof, now or hereafter placed, charged or enforced
       against the premises, or any buildings or improvements included
       thereon, or any portion or portions thereof. Provided, however, that
       if this Lease or any renewal of it is in full force and effect and there
       are no defaults thereunder on the part of the LESSEE, the right of
       possession by the LESSEE to the leased premises and the LESSEE’s
       rights arising out of this Lease shall be protected and not affected or
       disturbed by the LESSOR(S), the mortgagee or the trustee in the
       exercise of any of the mortgagee’s or trustee’s rights under the
       mortgage or the deed of trust, nor shall the LESSEE be named as a
       party defendant to any foreclosure of the lien of such encumbrance
       nor in any way be deprived of its right under this Lease or any
       renewal thereof. In the event that any mortgagee or trustee, or any
       other person, acquires title to the leased premises, or any buildings
       or improvements included thereon, pursuant to the exercise of any
       remedy provided for in the mortgage or deed of trust, this Lease and
       any renewal thereof shall survive, and shall not be terminated or
       affected by said foreclosure or sale or any such proceedings, and the
       mortgagee, the trustee and the LESSOR(S) for and on behalf of said
       mortgagee and trustee agree that any sale of the premises, or the said
       of any [sic] buildings or improvements included thereon, pursuant to
       the exercise of any rights or remedies under the mortgage or deed of
       trust, or otherwise shall be made subject to this Lease and any
       renewal thereof and the rights of the LESSEE hereunder. The
       parties hereto agree to execute or obtain the execution of such
       reasonable documents as may be necessary to effectuate such
       subordination.

       {¶21} When reviewing this particular paragraph as a whole, it is clear that

the intent of the parties was to provide protection or a defense to a lessee in the



                                          12
Case No. 8-09-06


event that there was ever a dispute challenging the lessee’s rights to the property.

This provision was not a promise by the other leaseholders (Ben and Ken) in

which they guaranteed that Jignaay’s rights would never be disturbed. Instead, it

was a promise that Jignaay’s rights would survive or be protected in the event of a

disturbance, as long as the lease was in effect and the lease payments were being

made.

        {¶22} In fact, the party who did make the promise not to name Jignaay as a

party defendant in a foreclosure action was the mortgagee, Abnet Realty, who had

been a party to the master lease, which had been specifically incorporated into the

terms of the sub-sublease between Ben, Ken, and Jignaay. Therefore, if there was

any alleged breach of this paragraph, it was by Abnet Realty, who had promised

not to name the lessee as a party defendant. At the very least, when Jignaay was

named as a party defendant in the foreclosure action, Jignaay should have raised

this particular portion of the paragraph as a defense against Abnet Realty in its

foreclosure action. Nevertheless, as this provision specifically relates to Ben and

Ken, it is clear that the mere naming of Jignaay as a party defendant in the

foreclosure action was not a legal basis for finding a breach of contract.

        {¶23} As to Jignaay’s second argument pertaining to its right to operate the

business, we believe that this was the actual basis for the trial court’s finding that a

breach of contract had occurred. This is clear from its language that stated:



                                          13
Case No. 8-09-06


        Harry Patel and the Jignaay defendants did not get what they
        bargained for. They paid $135,000 for the right to run the Mountain
        Top Inn for one hundred three months paying rent in the amount of
        $3,100 per month. * * * They paid for the right to rent the motel for
        one hundred three months; in fact, they occupied the same from May
        2005 through July of 2008 or thirty-eight months. At the $135,000
        price, they paid $1,310.00 per month for one hundred three months
        for said right. They received thirty-eight months or $49,780.

Nevertheless, we believe that the trial court erred when it found that Ben and Ken

had breached the contract with Jignaay on the basis that Jignaay had not received

the benefit of its bargain.

        {¶24} At the outset, we note that while interpreting lease agreements

involves a de novo standard of review, when determining whether the trial court’s

findings of fact were correct, the manifest-weight standard of review is used. In

determining whether a judgment is against the manifest weight of the evidence, we

cannot substitute our judgment for that of the trial court when there exists

competent, credible evidence going to all the essential elements of a case. C.E.

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578.

The trial court is in a better position to observe the demeanor of the witnesses,

examine the evidence, and weigh the credibility of the testimony and evidence.

Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d

1273.

        {¶25} Here, the trial court found that Ben and Ken had breached their

contract with Jignaay with respect to its right to operate the motel business for 103


                                         14
Case No. 8-09-06


months. To set forth a claim for breach of contract, a complaining party must

prove the following elements by a preponderance of the evidence: (1) a contract

existed, (2) the complaining party fulfilled its contractual obligations, (3) the

opposing party failed to fulfill its obligations, and (4) the complaining party

incurred damages as a result of this failure. Farmers State Bank v. Followay, 9th

Dist. No. 07CA0011, 2007-Ohio-6399, ¶ 13, citing Lawrence v. Lorain Cty.

Community College (1998), 127 Ohio App.3d 546, 548-549, 713 N.E.2d 478.

      {¶26} It is clear from the record that two contracts existed between Ken

and Ben and Jignaay: (1) the sub-sublease agreement, and (2) the agreement to

purchase the motel business. Under the sub-sublease, Ken assigned all of his

rights and obligations in the master lease, with the exception of his obligation to

make rent payments, to Jignaay. Moreover, the terms of the master lease were

expressly incorporated into the sub-sublease. In addition to leasing the property,

Jignaay paid $135,000 in total for the right to operate the motel business through

the terms of the master lease, as extended pursuant to the option until December

10, 2013. Specifically, Jignaay paid $125,000 to Ben and $10,000 to Ken. All

three parties signed the sub-sublease.       Therefore, we find that there was

competent, credible evidence to show that a contract did exist between the parties.

      {¶27} However, we do not believe that there was competent, credible

evidence to show that Ken and Ben failed to perform under the contract, and in



                                        15
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fact, we find that there was evidence to show that it was Jignaay who failed to

perform under the contract. It is undisputed that the mortgage in question became

delinquent in February 2002, that Jignaay had no knowledge of the underlying

default when it had signed the sub-sublease, and that Jignaay was never provided

any notice of the default prior to the foreclosure proceedings. Harry testified that

he eventually learned of the foreclosure proceedings sometime in December 2006

or January 2007. Subsequently, Abnet Realty added Jignaay, Ken, and Ben as

defendants to the foreclosure proceedings on June 26, 2007. Abnet Realty filed a

motion for summary judgment, and Jignaay filed a motion in opposition.

However, the trial court found that none of Jignaay’s arguments asserted any

claims against Abnet Realty or claimed any superior interest in the property;

therefore, the trial court entered a default judgment in favor of Abnet Realty and

ordered the property be sold at a sheriff’s sale. The property was eventually sold

at a sheriff’s sale to the mortgagee, Abnet Realty, on June 25, 2008, and while

Harry testified that he had been operating the motel throughout the foreclosure

proceedings, he said that after the sheriff’s sale he moved out of the motel on July

5, 2008.

      {¶28} Even though Jignaay left the property after it was sold at the

sheriff’s sale, there is no evidence that Jignaay’s right to operate the motel was

being interfered with, or in other words, there is nothing in the record that



                                        16
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demonstrates that Jignaay had been evicted or that it was even going to be evicted

in the near future. In fact, even though Harry testified that in light of the property

being foreclosed upon he did not believe he was able to use it, he admitted that he

was never evicted from the property by Abnet Realty.

       {¶29} While there is no evidence in the record to support a finding that

Jignaay’s right to operate its business was breached by Ken or Ben, there is

evidence in the record that suggests Jignaay failed to perform its obligations under

the contract. The parties stipulated that Jignaay last paid its rental payments on

the motel property in April 2007, after the foreclosure proceedings had been

commenced. Although Harry testified that he had stopped paying rent in May

2007, not April, the fact remains that he stopped paying rent and performing his

obligation under the terms of the lease agreement before anyone had interfered

with his contractual rights. See Adaranijo v. Morris Invest. Co., 1st Dist. No. C-

070453, 2008-Ohio-2705, ¶ 9 (finding that the lease agreement had been

unaffected when the tenant failed to give adequate notice that complied with the

terms of the lease, thus the tenant’s failure to pay rent was a material breach of the

lease agreement and tenant was not entitled to a return of the deposit).

       {¶30} Jignaay argues that according to the general rule regarding

foreclosures and subordinate property rights, the sale of the foreclosed property

automatically terminated his rights under the property. See Hembree v. Mid-Am.



                                         17
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Fed. S. & L. (1989), 64 Ohio App.3d 144, 152, 580 N.E.2d 1103. Even if this

statement is true, a “rental agreement may include any terms which are not

inconsistent with or prohibited by law * * * or against public policy.” New Towne

L.P. v. Pier 1 Imports (U.S.), Inc. (1996), 113 Ohio App.3d 104, 108, 680 N.E.2d

644, citing Tillimon v. Dukes (Aug. 28, 1992), 6th Dist. No. L-91-343 (finding that

a lease agreement that had negated a landlord’s duty to mitigate damages did not

violate public policy). Although it is unusual, here the parties had contracted

around this particular situation and created a protection or defense to the lessees,

so long as they made their rent payments. Thus, under the terms of the master

lease, which was incorporated into the sub-sublease, Jignaay’s rights to the

property were protected even in the event of a foreclosure, and there is nothing in

the record that shows that this right was disturbed in any way.

       {¶31} Moreover, we find it dispositive that Jignaay voluntarily abandoned

the property once the property had been sold to Abnet Realty at the sheriff’s sale.

Jignaay never raised anticipatory breach as one of its theories against Ken or Ben

in its cross-claim. If it had raised this theory, the trial court may have found that

leaving the motel property was reasonable under the circumstances. Nevertheless,

based on the record, there was not competent, credible evidence to show that a

breach had occurred since there was no evidence that Jignaay was or was going to

be evicted or forced off the property, and thus there was not competent, credible



                                         18
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evidence to have justified Jignaay abandoning the property. See Gen. Dev. Corp.

v. Wilbur-Rogers Atlanta Corp. (1971), 28 Ohio App.2d 35, 36, 273 N.E.2d 908

(finding that there was not such a constructive breach of the terms of the lease as

to give the lessee the right to vacate the property and to be relieved from further

payment of rent).

      {¶32} Because we find that the trial court erred in finding that Ben

breached his contract with Jignaay, we find it unnecessary to address his

arguments pertaining to Jignaay’s damages.

      {¶33} Ben’s second assignment of error is, therefore, sustained.

                         Ben’s third assignment of error

      {¶34} In his third assignment of error, Ben argues that the trial court erred

by not ruling on his cross-claim against Ken. In particular, Ben claims that if

Jignaay’s breach-of-contract claim stands and Jignaay is entitled to damages, then

because Ken was Ben’s lessor, Ken should have to indemnify any damages Ben

must pay to Jignaay.

      {¶35} For a cause to be justiciable there must “exist a real controversy

presenting issues which are ripe for judicial resolution and which will have a

direct and immediate impact on the parties.” State ex rel. Keller v. Columbus,

10th Dist. No. 05AP-52, 164 Ohio App.3d 648, 2005-Ohio-6500, ¶ 19, quoting

Eagle Fireworks, Inc. v. Ohio Dept. of Commerce, 4th Dist. No. 03CA28, 2004-



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Ohio-509. A claim based upon a future event that may or may not occur is not

ripe for review. Id. at ¶ 20. See also Cuthbert Greenhouse, Inc. v. Steele, 3d Dist.

No. 14-05-47, 2006-Ohio-6920, ¶ 10.

        {¶36} Here, Ben filed a cross-claim on November 20, 2007, alleging

breach of contract, indemnification, fraud, negligence, breach of warranty, and

breach of duty against Ken.1 Subsequently, the trial court bifurcated all “cross-

claims” from the foreclosure action on March 27, 2008, and set them for trial on a

later date. A trial was held on December 30, 2008, but in its final judgment entry,

while the trial court ruled on all of Jignaay’s remaining causes of action, it failed

to rule on any of Ben’s causes of action against Ken. Thus, Ben’s cross-claim

against Ken is still pending and his third assignment of error concerning his cross-

claim against Ken is not ripe for our review.

        {¶37} Therefore, Ben’s third assignment of error is overruled.

                                  Ken’s assignment of error

        {¶38} In Ken’s assignment of error, he argues that the trial court erred in

finding that he breached his contract with Jignaay and was thereby liable for

Jignaay’s damages. In particular, Ken claims that there was never any breach

because Jignaay was protected from a foreclosure under the terms of the master




1
  In Ben’s original cross-claim, Harry’s name appeared in the caption; however, Ben filed an amended
cross-claim on November 28, 2007, that changed the name in the caption from Harry to Ken.


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lease, there was no evidence that Jignaay was evicted or would have been evicted

in light of the foreclosure, and Jignaay made no effort to mitigate its alleged

damages.

       {¶39} For the same reasons stated above in Ben’s second assignment of

error, we find that the trial court also erred when it found Ken liable for breach of

contract against Jignaay.

       {¶40} Ken’s assignment of error is, therefore, sustained.

       {¶41} Having found no error prejudicial to appellant Ben in the particulars

assigned and argued in appellant Ben’s first and third assignments of error, we

affirm the trial court’s judgment. However, having found error prejudicial to

appellants Ben and Ken in appellant Ben’s second assignment of error and

appellant Ken’s sole assignment of error, we reverse the trial court’s judgment and

remand the matter for further proceedings consistent with this opinion.

                                                          Judgment affirmed in part
                                                              and reversed in part,
                                                              and cause remanded.


WILLAMOWSKI and ROGERS, JJ., concur.




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