[Cite as Arvil Lee, L.L.C. v. Magg MSCC, Ltd., 2012-Ohio-2891.]


            [Nunc pro tunc opinion. Please see original at 2012-Ohio-2160.]

                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
ARVIL LEE, LLC, ET AL                                :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. Sheila G. Farmer, J.
                      Plaintiffs-Appellees           :       Hon. John W. Wise, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 2011-CA-00218
MAGG MSCC, LTD, ET AL                                :
                                                     :
                 Defendants-Appellants               :       NUNC PRO TUNC O P I N I O N




CHARACTER OF PROCEEDING:                                 Civil appeal from the Stark County Court of
                                                         Common Pleas, Case No. 2010CV03969

JUDGMENT:                                                Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                  June 25, 2012


APPEARANCES:

For Plaintiffs-Appellees                                 For Defendants-Appellants

JOHN L. JUERGENSEN CO., LPA                              RALPH F. DUBLIKAR
6545 Market Avenue North                                 BAKER DUBLIKAR, BECK, WILEY & MATHEWS
Washington Square Office Park                            400 South Main Street
North Canton, OH 44721                                   North Canton, OH 44720
[Cite as Arvil Lee, L.L.C. v. Magg MSCC, Ltd., 2012-Ohio-2891.]


Gwin, P.J.

        {¶1} Plaintiffs-Appellees, Bud Buxton and Arvil Lee, LLC ("Buxton"), filed their

Complaint against Defendants-Appellants, MAGG MSCC, Ltd., Sports Page Group,

LLC, Robert McLain and Christopher Maggiore ("McLain") on October 29, 2010,

alleging breach of contract, fraud, misrepresentation, unjust enrichment and promissory

estoppel. In response, McClain filed a counterclaim against Buxton for breach of

contract, fraud and misrepresentation, conspiracy to commit fraud, and punitive

damages. Subsequently, Buxton voluntarily dismissed his breach of contract claim.

        {¶2} On or about June 13, 2011, all outstanding issues were tried to a

magistrate. Following the submission of proposed Findings of Facts and Conclusions of

Law, the magistrate issued her decision on July 26, 2011. The magistrate's decision

totaled twenty-six pages of findings of fact and conclusions of law. The magistrate

concluded that Buxton was entitled to recover $35,168.00 in damages, which included

$25,168.00 under his unjust enrichment claim and $10,000.00 from an initial down

payment. The magistrate further concluded that McLain was entitled to a set-off of

$19,125.00 representing the fair rental value of the property while in possession of

Buxton. The magistrate dismissed the remaining claims of the parties.

        {¶3} On August 9, 2011, McLain objected to the magistrate's decision. On

August 23, 2011, Buxton filed his own objections as well as a response to McLain's

objections. Lastly, McLain filed his response to Buxton's objections on September 1,

2011. Neither party requested that a transcript of the proceedings be prepared.

        {¶4} On September 13, 2011, the trial court affirmed the decision of the

magistrate and overruled the objections of all parties.
Stark County, Case No. 2011-CA-00218                                               3


                               ASSIGNMENTS OF ERROR

      {¶5} McLain timely appealed, raising three assignments of error,

      {¶6} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANTS-APPELLANTS IN HOLDING THAT THERE WERE NO ERRORS OF

LAW WITH RESPECT TO THE MAGISTRATE'S DECISION AND THAT THE

FINDINGS OF FACT SET FORTH IN THE DECISION SUPPORTED THE

CONCLUSIONS OF LAW.

      {¶7} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANTS-APPELLANTS IN CONCLUDING, AS A MATTER OF LAW, THAT THE

DEFENDANTS-APPELLANTS WERE ENTITLED TO RECOVER UNPAID RENT

FROM THE PLAINTIFFS-APPELLEES FOR A PERIOD OF ONLY FOUR MONTHS

AND SEVEN DAYS WHERE THE COURT HAD PREVIOUSLY FOUND THAT THE

PLAINTIFFS-APPELLEES HAD POSSESSION OF THE PREMISES FOR SEVEN

MONTHS AND HAD NOT PAID ANY RENT.

      {¶8} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANTS-APPELLANTS           IN   CONCLUDING       THAT    THE        DEFENDANTS-

APPELLANTS WERE ONLY ENTITLED TO A SETOFF FOR UNPAID RENT IN THE

AMOUNT OF $19,125.00, WHERE THE COURT HAD SPECIFICALLY FOUND THAT

THE PLAINTIFFS-APPELLEES HAD POSSESSION OF THE PREMISES FOR SEVEN

MONTHS AND THAT THE PLAINTIFFS-APPELLEES HAD AGREED TO PAY RENT

IN   THE   AMOUNT     OF    $4,500.00   PER    MONTH,     THEREBY        OWING   THE

DEFENDANTS-APPELLANTS THE SUM OF $32,625.00.”
Stark County, Case No. 2011-CA-00218                                                     4


                                           ANALYSIS

                                            I., II. & III.

       {¶9} The parties agree that the only issue on appeal is the amount of the set-off

for unpaid rent to which McLain is entitled. Buxton agrees with the magistrate that the

set-off should be the fair rental value of the property while in possession of Buxton.

       {¶10} The magistrate noted that Buxton was in possession of the property for

seven months; however, the magistrate only held Buxton liable for rent beginning

February 1, 2010. The magistrate determined that the fair rental value of the property

was $4,500.00 per month until Buxton vacated the property or $19,125.00 total.

       {¶11} McLain argues that this amount should be calculated from November 1,

2009 through June 7, 2010. McLain argues that rent should have been paid since

Buxton first took possession of the property and before any improvements were made.

We agree.

       {¶12} In Finding of Fact No. 11 the trial court found,

             Several meetings were held between Buxton, McLain and Maggiore

       regarding this transaction, but there is no dispute that nothing was put in

       writing as between the parties. However, there is no dispute as to the

       general terms of the agreement between the parties, which can be

       summarized as follows:

             Buxton agreed to pay $25,000 to the defendants up front. This was

       to represent the cost of the liquor license and certain equipment that

       would come with the property.
Stark County, Case No. 2011-CA-00218                                                   5


            There is no dispute that the defendants were interested in selling the

      property, not leasing, and that Buxton was interested in purchasing the

      property as opposed to leasing. However, the parties agreed to enter into

      a short-term lease with an option to buy due to the economic conditions at

      the time and due to Buxton's inability to obtain financing at that time.

            Plaintiff testified that the rent would be $4,500 per month; and

      McLain testified that the rent would be $4,500 plus expenses.

      ***

      {¶13} In Finding of Fact No. 13, the trial court found as follows:

            There is no dispute that Buxton did not pay any rent from November

      of 2009 until June 7, 2010, when he voluntarily left the premises and

      abandoned the project. Defendants did not demand rent from Buxton at

      any time. Buxton began work on the premises in November of 2009 with

      the intent to open his sports bar/restaurant to be known as Buddy's Sports

      Bar in early February of 2010 based upon his statement to the Canton

      Repository. There is no dispute that the improvements, although started,

      were not completed, and Buxton decided on his own to abandon the

      project by letter of June 7, 2010, which he delivered to McLain's place of

      business.

      {¶14} In Conclusion of Law No. 9, the trial court concluded as follows:

            In Peoples v. Holley, supra, the parties did not dispute the existence

      of an agreement to pay monthly rent. The claim for rent is not based upon

      the enforceability of a lease, but rather on the enforceability of an implied-
Stark County, Case No. 2011-CA-00218                                                      6

        in-law tenancy. In Peoples, supra, the court determined that there was a

        month-to-month tenancy; that the tenant failed to pay the rent; and that the

        month-to-month tenancy should be enforced according to the agreement

        of the parties. This Court adopts the reasoning of Peoples v. Holley and

        reaches the same conclusion.

        {¶15} In Conclusion of Law No. 10, the trial court then went on to state as follows:

              Additionally, plaintiff had the benefit of possession of the premises

        for seven months. The value of exclusive possession is best measured by

        the fair rental value of the property while it was off the market and not in

        control of defendants. Plaintiff expected and declared that he would open

        in February 2010. Accordingly, this Court finds that plaintiff owed rent from

        February 1, 2010 through June 7, 2010.

        {¶16} In Conclusion of Law No. 6 the trial court found, “...defendant expected rent

to be paid upon possession. On more than one occasion, McLain questioned Buxton

about the unpaid rent.”

        {¶17} In the case at bar, Buxton had exclusive possession of the property from

November 2009 until June 2010 when he voluntarily left the premises. Despite

concluding that Buxton had the benefit of possession for seven months, and despite

further concluding that Buxton did not pay any rent for the seven months and seven

days that he had possession, the trial court inexplicably found that Buxton only owed

rent from February 1, 2010, through June 7, 2010, a period of four months and seven

days.
Stark County, Case No. 2011-CA-00218                                                    7


      {¶18} This was an erroneous conclusion based upon the court's own Findings of

Fact that Buxton had possession for seven months. In Conclusion of Law No. 29, the

trial court concluded, "Defendants are entitled to a set-off for the unpaid rent in the

amount of $19,125.00." Instead, the trial court should have concluded that the McLain

would be entitled to a set-off for the unpaid rent in the amount of $32,625.00,

representing $4,500.00 per month for seven months and seven days. When applying

this set-off to the amount that the trial court concluded that the McLain was entitled to,

the final judgment in favor of Buxton should have been $2,543.00.

      {¶19} Accordingly, McLain’s assignments of error are sustained and the judgment

of the Stark County Court of Common Pleas is reversed, and this case is remanded for

proceedings in accordance with our opinion and the law.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur



                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. SHEILA G. FARMER


                                             _________________________________
                                             HON. JOHN W. WISE
WSG:clw 0507
[Cite as Arvil Lee, L.L.C. v. Magg MSCC, Ltd., 2012-Ohio-2891.]




                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


ARVIL LEE, LLC, ET AL                                 :
                                                      :
                           Plaintiff-Appellant        :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
MAGG MSCC, LTD, ET AL                                 :
                                                      :
                                                      :
                        Defendant-Appellee            :       CASE NO. 2011-CA-00218




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Court of Common Pleas is reversed, and this case is remanded for

proceedings in accordance with our opinion and the law. Costs to appellee.




                                                          _________________________________
                                                          HON. W. SCOTT GWIN


                                                          _________________________________
                                                          HON. SHEILA G. FARMER


                                                          _________________________________
                                                          HON. JOHN W. WISE
