Nour v. Shawar
2014 Ohio 3016
Ohio Ct. App.2014Background
- Nour sublet from Shawar in Jan 2011 to operate a day-care; sublease required Shawar to make improvements.
- Shawar allegedly breached the improvements, leading Nour (via Kids Zone Day Care Inc.) to sue for breach of contract in Franklin County C.P. Court.
- Shawar then sued Nour for non-payment of rent; cases were consolidated for a jury trial with Nour prevailing on the contract claim ($80,000).
- Nour moved for attorney-fees under the sublease's fee-shifting provision; a magistrate recommended denial for lack of indemnity for attorney fees, despite reasonable and necessary fees.
- Trial court overruled the objection and adopted the magistrate’s decision; Nour appeals challenging the denial of attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nour is entitled to indemnification for attorney fees. | Nour argues Section 11.1/11.2 together cover 'all claims' including counsel fees. | Shawar contends only Shawar may recover 'reasonable counsel fees' per the second sentence of 11.1; 11.2 omits a second sentence. | No; Nour not entitled to attorney-fee indemnity. |
| How to interpret the indemnity provisions 11.1 and 11.2 in context. | Nour contends broad 'all claims' language includes fees. | Omission of a second sentence in 11.2 shows intended limit; contract read as a whole contradicts Nour's view. | The provisions must be read together; 11.2 does not authorize fees; 11.1's second sentence favors Shawar; Nour lacks fee indemnity. |
| Was there ambiguity requiring contra proferentum or other interpretive rules? | Nour invokes contra proferentum due to ambiguity. | No ambiguity; language clearly limits indemnity to Shawar’s fees, not Nour’s. | No ambiguity; applying ordinary contract interpretation, Nour cannot recover fees. |
Key Cases Cited
- Continental Tire N. Am. v. Titan Tire Corp., 2010-Ohio-1355 (6th Dist. 2010) (indemnity terms strict, must track language; express inclusion of attorney fees not implied by omission)
- Palmer v. Pheils, 2002-Ohio-3422 (6th Dist. 2002) (expressio unius est exclusio alterius; indemnity provisions must be explicit)
- Bank of New York Mellon v. Rankin, 2013-Ohio-2774 (10th Dist. 2013) (contracts read as a whole; not reading provisions in isolation)
- Auber v. Marc Glassman, 2002-Ohio-2749 (8th Dist. 2002) (contract terms must be interpreted to give meaning to all provisions)
- Heritage Mut. Ins. Co. v. Ricart Ford, Inc., 1995-Ohio-466 (10th Dist. 1995) (conducts contract interpretation in context of overall agreement)