Opinion
A0909138
06-04-2012
KENWOOD CORPORATE CENTER, LLC, Plaintiff, v. SLEEP EZ DIAGNOSTIC SLEEP CENTER, LLC, et. al Defendants.
DECISION
This case is before the Court on Plaintiffs Motion for Partial Summary Judgment Against Defendant Jacqui Angles on the counterclaims and for judgment on its claim against her. It is also before the Court on Dr. Angles' Motion for Summary Judgment. The motions are denied in part and granted in part.
STANDARD
Summary judgment is appropriate when there are no genuine issues of material fact that remain to be litigated and the moving party is entitled to judgment as a matter of law. Civ. R. 56(C); Celotex Corp. v. Catrett (1986), 477 U.S. 317. Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, if any, timely filed in the action and construed most strongly in favor of the non-moving party, show that there is no genuine issue as to any material fact. Civ. R. 56(C). The burden of establishing that the material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Vahila v. Hall (1997), 77 Ohio St.3d 421, 674 N.E.2d 1164. If the moving party asserts that there is an absence of evidence to establish an essential element of the non- i moving party's claim, the moving party cannot discharge this burden with a conclusory allegation, but must specifically point to some part of the record which affirmatively demonstrates this absence of evidence. Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.
The Ohio Supreme Court has established three factors to be considered upon a motion for summary judgment. These three factors are:
(1) That there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that the conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.Bostic v. Connor (1988), 37 Ohio St.3d 144, 146 N.E.2d 881 (quoting Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 375 N.E.2d 46).
Once a motion for summary judgment has been made and supported as provided in Civ. R. 56(C), the nonmoving party then has a reciprocal burden to set forth specific evidentiary facts showing the existence of a genuine issue for trial and cannot rest on the allegations or denials in the pleadings. Wing v. Anchor Media, Ltd. Of Texas (1991), 59 Ohio St.3d 108, 111, 570N.E.2d 1095.
DISCUSSION
It is undisputed that Defendant Dr. Angles signed a guarantee of the lease to Plaintiff. The Court previously ruled that questions of fact exist as to whether Dr. Boster fraudulently induced Dr. Angles to sign the guaranty. Dr. Angles does not claim that Plaintiff fraudulently induced her. Rather, she claims that Plaintiff should have been aware of Dr. Boster's fraud, that there was no consideration, that the amendment to the lease nullified the guarantee and that Plaintiff failed to mitigate its damage.
The Court finds that the guarantee is clear and unambiguous and signed by Dr. Angles. Thus, unless she has some valid defense, it is enforceable against her. The fact that she did not read it at the time she signed is irrelevant- she signed and is bound by its terms. Campo Distributors v. Fries, 42 Ohio App.3d 200 (2 Dist. 1987).
Dist. 1987).
Fraud of Dr. Boster
As to her allegations of fraud against Dr. Boster, misconduct on his part does not constitute a defense to an action on the guaranty unless the creditor was aware and participated in the fraud. Campo Distributors v. Fries, 42 Ohio App.3d 200 (2
Dr. Angles argues that there is evidence from which Plaintiff should have been aware of the fraud Dr. Boster was perpetuating on Dr. Angles. She argues that: Plaintiff never requested Dr. Angles to sign the guaranty; Plaintiff would have leased the property without it; Plaintiff witnessed Dr. Boster giving her the documents, hurrying her through the process and not giving her time to read them; and Plaintiff had no discussions at all with her.
While a close call, the Court finds that a trier of fact might infer that Plaintiff should have known of Dr. Boster's fraud (if any existed).
Lack of Consideration
As to Dr. Angles' argument that she received no consideration, the Court finds that questions of fact exist as to whether she did. Thus, her motion for summary judgment is denied on this issue.
Amendment of Lease
As to her argument that the guaranty no longer exists due to an "amendment", the Court finds her distinction between an "amendment" and "modification" unavailing. The guaranty remained in full force and effect as to "any renewal, waiver, modification, ( extension, assignment or subletting of the lease." The Court finds that this applies to the "amendment" in this case. Thus, Dr. Angles' motion on this issue is denied and it likewise provides her no defense to Plaintiffs action.
Failure to Mitigate
Dr. Angles argues she is entitled to judgment because Plaintiff failed to mitigate its damages. She argues Plaintiff had a duty to accept a sublease and its failure absolves her of liability. The Court disagrees. Whether Plaintiff mitigated its damage is a question of fact.
Damages
Finally, Dr. Angles claims that Plaintiff is not entitled to the damages it seeks-specifically tenant improvements. The Court agrees, and to the extent Plaintiff seeks this as an element of damage, Dr. Angles' motion is granted. It appears that Plaintiff is not seeking an amount for tenant improvements. The remaining damages are a question of fact for the trier of fact.
CONCLUSION
Plaintiffs Motion for Summary Judgment is denied. Dr. Angles' is also denied except on the issue of recovery of tenant improvements.