         [Cite as JAL Dev. v. LivFitNutrition, L.L.C., 2014-Ohio-3830.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



JAL DEVELOPMENT, LTD.,                             :                APPEAL NO. C-130769
                                                                    TRIAL NO. A-1205331
        Plaintiff-Appellee,                        :
                                                                          O P I N I O N.
  vs.                                              :

LIVFITNUTRITION, LLC, a.k.a.                       :
LIVFIT NUTRITION, LLC,
                                                   :
DAVID W. PERTUSET,
                                                   :
STEVEN J. MCANDREW,
                                                   :
  and
                                                   :
AARON M. DOERFLEIN,
                                                   :
    Defendants-Appellants.                         :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 5, 2014


Statman, Harris & Elrich, LLC, and William Fecher, for Plaintiff-Appellee,


Taliaferro & Enyon, LLC, and Ernest A. Enyon, II, for Defendants-Appellants.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS



D E W INE , Judge.

       {¶1}     This is an appeal by a tenant in a dispute involving the lease of space for

a fitness center. At issue is the trial court’s decision to award lost rents to the landlord

for periods after the tenant had vacated the premises. The tenant contends that it was

forced to abandon the premises because of a leaky roof. This leaky roof, maintains the

tenant, constituted a constructive eviction, and, thereby, relieved it of any obligation to

make any further rental payments.

       {¶2}     We are not convinced. A constructive eviction requires that the tenant

be compelled to abandon the premises as a result of actions by the landlord. Here, there

is no evidence that the landlord’s failure to fix the roof forced the tenant to move out. To

the contrary, the tenant continued to operate its business on the premises during the

time that roof was said to be leaking. It was only after the leaks had been repaired and

eviction proceedings had been instituted that the tenant left. As a result, there was no

constructive eviction. We affirm the judgment of the trial court.

                                 Blame it on the Rain

       {¶3}     LivFitNutrition, LLC, (“LivFit”) rented space from JAL Development,

LTD, (“JAL”) to open a fitness and nutrition center. JAL agreed to lease the premises

“as is” to LivFit for a 15-month term beginning on October 1, 2011. David Pertuset,

Steven McAndrew, and Aaron Doerflein (collectively “guarantors”) executed a lease

guaranty in which they assumed liability in the event that LivFit defaulted under the

lease. The lease required JAL to maintain the exterior of the property, including the roof

of the building, while LivFit was responsible for the upkeep of the interior.

       {¶4}     In early December, LivFit began having problems with water intrusion

from the ceilings and windows when it rained. LivFit notified JAL each time there was a

water issue, and each time JAL sent a repairman to attempt to fix the problem. Despite


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these efforts, the leaks reoccurred on several occasions through March 2012. Some

puddles formed, damaging the wooden exercise floor installed by LivFit and rendering

portions of the premises unusable at times. In a few instances, LivFit was forced to

cancel group fitness classes, and its business started to decline.

       {¶5}     LivFit did not pay rent for February and March 2012, asserting as a

justification the unremedied problems with the roof. The lease contained a clause

requiring that rent and other charges be paid when due, “without * * * set off for any

reason whatsoever.” JAL served LivFit with a notice of default on March 16, and when

LivFit still failed to make payments, JAL served a three-day notice to vacate the

premises on March 22.

       {¶6}     Meanwhile, JAL finally repaired the leaks. On March 23, LivFit sent an

email to JAL indicating that the repairs had been successful: “We would also like to

thank you for the work done on the roof, which after this downpour we had today pretty

much seals the deal that its [sic] all taken care of.” And another email sent on April 2

confirmed: “FYI: Roof is doing great, had quite a bit of rain lately and all is hoping [sic]

up well.”

       {¶7}     Because LivFit continued to be in default of its rental obligations and

had not vacated the building, JAL instituted an eviction action on April 3. JAL further

sought damages under the lease for LivFit’s nonpayment of rent, and for breach of the

lease guaranty signed by LivFit’s individual backers. On April 30, LivFit notified JAL

that it had vacated the premises, after which JAL dismissed its eviction claim. Then on

May 5, LivFit made a payment to cover two months’ rent and utilities. Thus, LivFit had

essentially paid back rent through March.

       {¶8}     JAL was unable to relet the premises until October 2012. It sought

damages for rent, utilities, and late fees for the months of April through September

2012. LivFit filed a counterclaim in which it sought damages under the lease for JAL’s

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failure to maintain the exterior of the building. Later, in its post-trial brief, LivFit set

forth an ancillary argument that the water intrusion amounted to a breach of the

covenant of quiet enjoyment and caused LivFit to be constructively evicted from the

premises, thereby terminating its obligation to pay rent.

       {¶9}     Following a two-day trial, the trial court found that both parties had

breached the lease agreement—LivFit for failing to pay rent, and JAL for failing to

properly maintain the roof. The court further found that LivFit and the guarantors

“chose not to declare the lease terminated based on [JAL’s] breach and did not establish

they were constructively evicted.”     The court, therefore, concluded that their only

remedy was damages. The court awarded damages to JAL for rent from April through

September, late fees, and utility payments. With respect to JAL’s failure to maintain the

roof, however, the court determined that the only measurable, nonspeculative evidence

of damages set forth by LivFit was for an amount of $9.20. That figure represented the

portion of unusable square feet of rental space over a four-day period, during which

LivFit was forced to cancel its Zumba fitness classes.

       {¶10}    LivFit’s only argument on appeal is that the trial court erred by awarding

JAL lease payments for the months after LivFit had vacated the property. Specifically,

LivFit contends that it vacated the property because of the water issues (not the pending

eviction proceedings), and that its forced departure constituted a constructive eviction

and a breach of the covenant of quiet enjoyment.

                       LivFit was not Constructively Evicted

       {¶11}    A tenant is constructively evicted from its leasehold when “ ‘acts of

interference by the landlord compel the tenant to leave, and * * * he is thus in effect

dispossessed, though not forcibly deprived of possession.’ ” Burnside v. Ickes, 5th Dist.

Ashland No. 02-COA-015, 2003-Ohio-19, ¶ 19, quoting Sciascia v. Riverpark Apts., 3

Ohio App.3d 164, 166, 444 N.E.2d 40 (10th Dist.1981), citing Liberal S. & L. Co. v.

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                      OHIO FIRST DISTRICT COURT OF APPEALS


Frankel Realty Co., 137 Ohio St. 489, 499, 30 N.E.2d 1012 (1940). To establish

constructive eviction, the tenant must relinquish possession of the property.

Burnside at ¶ 19. “As long as the tenant remains in possession he cannot successfully

claim that he has been constructively evicted.” Id.; see Ott v. Marion Plaza, 3d Dist.

Marion No. 9-85-27, 1987 Ohio App. LEXIS 8545, *35 (August 31, 1987). When a tenant

is constructively evicted from its leasehold, it is generally relieved of its duty to pay rent

for the remainder of the lease term. See GMS Mgt. Co. v. Datillo, 8th Dist. Cuyahoga

No. 75838, 2000 Ohio App. LEXIS 2626, *29 (June 15, 2000), citing Liberal S. & L. at

498.

       {¶12}    In Burnside, repairs being conducted by a landlord caused noxious

fumes to permeate the tenant’s apartment. The tenant fell ill and was unable to stay in

his apartment for two days. The court held that because the tenant did not move out of

the apartment until nearly 11 months later, he “never surrendered possession of the

subject premises and, therefore, was never constructively evicted.” Burnside at ¶ 20.

       {¶13}    In this case, LivFit did not quit the premises until late April. This was

well after the leaks had been repaired, and also after eviction proceedings had been

instituted. The fact that LivFit remained in possession of the premises throughout the

time that water was coming into the building is fatal to its constructive-eviction claim.

Because LivFit was not constructively evicted, it was not discharged from its duty to pay

rent for the remainder of the lease term.

       {¶14}    Where a breach of the covenant of quiet enjoyment does not rise to the

level of a constructive eviction, the only available remedy is damages.            See, e.g.,

Cincinnati Ins. Co. v. Evans, 6th Dist. Wood No. WD-09-012, 2010-Ohio-2622, ¶ 53-54.

LivFit has not challenged the trial court’s damage award on appeal.

       {¶15}    LivFit made no attempt to terminate the lease or vacate the premises in

response to JAL’s breach. Instead, it withheld rent, and in so doing breached the lease.

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                      OHIO FIRST DISTRICT COURT OF APPEALS


LivFit’s decision to stick it out at the fitness center until after the problem was repaired

has rendered it unable to claim that it was constructively evicted. Accordingly, the trial

court did not err by ordering LivFit to pay rent for the months after it vacated the

premises until the time that a new tenant was found. We, therefore, overrule LivFit’s

sole assignment of error and affirm the judgment below.

                                                                       Judgment affirmed.


D INKELACKER , P.J., and F ISCHER , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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