Frenchtown Square Partnership v. Nick Ents., Inc.
2021 Ohio 663
Ohio Ct. App.2021Background
- Tenant (Nick Enterprises, d.b.a. Taco Bell) defaulted on a commercial lease; landlord (Frenchtown Square Partnership) sued for money damages.
- Tenant answered and asserted a counterclaim that landlord collected marketing fees but failed to adequately market the mall, harming tenant’s business.
- Landlord moved for summary judgment on its complaint; tenant opposed, arguing landlord failed to mitigate damages and mismanaged the mall.
- Landlord pointed to lease language that expressly waived any duty to mitigate and disclaimed reliance on other tenants or mall quality.
- Trial court granted summary judgment for landlord on the complaint and dismissed tenant’s counterclaim, finding the lease eliminated the mitigation duty and precluded the negligence/marketing claim.
- On appeal the tenant argued the mitigation waiver was unconscionable and raised an issue about landlord’s alleged seizure of tenant property; the appellate court found those defenses waived or not pleaded and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the lease-waiver eliminates landlord's duty to mitigate damages | Lease expressly disclaims any duty to attempt mitigation; waiver is contractual and binding | Waiver is unconscionable and should not bar mitigation | Held: Waiver valid; parties may contractually eliminate mitigation; summary judgment for landlord |
| Whether unconscionability could be raised for the first time in opposition to summary judgment | Waiver defense was pleaded in the lease; unconscionability was not pleaded and thus waived | Tenant raised unconscionability in opposition to summary judgment | Held: Unconscionability is an affirmative defense; not pleaded and therefore waived |
| Whether landlord’s alleged repossession/seizure of tenant personal property was before the court | No such claim or request for reimbursement was pleaded in the counterclaim | Tenant argues trial court ignored seizure of property | Held: Issue was never pled or litigated below and is waived/not considered |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (establishes de novo standard on appeal of summary judgment)
- Frenchtown Square Partnership v. Lemstone, Inc., 99 Ohio St.3d 254 (2003) (duty to mitigate applies to leases unless contract provides otherwise)
- Stanwade Metal Prods. v. Heintzelman, 158 Ohio App.3d 228 (2004) (party may not raise a new affirmative defense for the first time in opposition to summary judgment)
- Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55 (1974) (affirmative defenses not raised in pleadings are waived)
- Jim's Steak House v. City of Cleveland, 81 Ohio St.3d 18 (1998) (reiterates that affirmative defenses, other than Civ.R. 12(B) defenses, are waived if not pleaded)