Davis v. Sean M. Holley Agency, Inc.Davis v. Sean M. Holley Agency, Inc.
Attorney for Plaintiff-Appellee
David M. Duwel, Atty. Reg. No.0029583; Todd T. Duwel, Atty. Reg. No. 0069904, 130 W. Second Street, Suite 2101, Dayton, OH 45402
Attorneys for Defendant-Appellant
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O P I N I O N
Rendered on the 29th day of October, 2010.
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GRADY, J.:
{¶ 1} This is an appeal from an order of the municipal court in an action for garnishment of personal property of a judgment debtor in the possession of a third party.
{¶ 2} On October 5, 2006, Sean M. Holley leased a commercial premises from Nicoll, Inc. The written lease agreement was signed
{¶ 3} On August 23, 2008, Chaz Davis filed an affidavit, order, and notice of garnishment pursuant to
{¶ 4} On October 9, 2009, Davis commenced an action against Holley on a complaint in accounting, demanding an accounting of all charges and credits under the lease between Nicoll and Holley and demanding a judgment against Holley for any monies Holley owes Nicoll. Holley filed an answer on January 29, 2009, admitting the existence of its lease with Nicoll, the notice that Davis filed, and Holley’s response to the notice. Holley otherwise denied Davis’s allegation that it held any monies due and owing to Nicoll under the terms of their lease. Holley also pleaded eight affirmative defenses.
{¶ 5} The case was tried to the court on November 25, 2009.
{¶ 6} The trial court found that Holley stopped paying rent to Nicoll beginning on June 1, 2007, due to the water damage to the premises that Nicoll failed to prevent, and that the total amount of rent that was unpaid until Holley vacated the premises in February of 2008 is $5,800. After deductions for a security deposit and other costs Holley incurred, the court awarded a judgment against Holley and in favor of Davis for $3,736, plus interest and costs. Holley appeals.
ASSIGNMENT OF ERROR
{¶ 7} “THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW BY AWARDING CHAZ DAVIS JUDGMENT AGAINST THE SEAN HOLLEY AGENCY.”
{¶ 8} Holley relies on two provisions of its lease with Nicoll to contend that it owes no unpaid rent to Nicoll, and therefore cannot be required to pay the same to Davis to satisfy his judgment against Holley.
{¶ 9} Paragraph 10 of the lease provides that Nicoll shall maintain and repair the roof, and that any damage to the interior
{¶ 10} Paragraph 29 of the lease provides that Nicoll covenants and agrees that Holley, upon paying the rent due, “may peaceably and quietly enjoy the Premises . . . without hindrance of [Nicoll] or any person lawfully claiming under [Nicoll].” Holley argues that Nicoll’s failure to repair the roof deprived Holley of its right to peaceable and quiet enjoyment of the premises, relieving Holley of its duty to pay any further rent to Nicoll. Further, pursuant to paragraph 29, Davis may not now claim a right to which Nicoll is not entitled.
{¶ 11}
{¶ 12} “In Ohio, a covenant of quiet enjoyment is implied into every lease contract for realty.” Dworkin v. Paley (1994), 93 Ohio App. 3d 383, 386. Such covenant protects the tenant‘s right to a peaceful and undisturbed enjoyment of his leasehold. Id. The covenant is breached when the landlord obstructs, interferes with, or takes away from the tenant in a substantial degree the beneficial use of the leasehold. Id. The degree of the impairment required is a question for the finder of fact. Id. When the landlord breaches the covenant of quiet enjoyment, the tenant is relieved of its obligation to pay rent for the premises. GMS Mgt. Co., Inc. v. Datillo (June 15, 2000), Cuyahoga App. No. 75838; Hamilton Brownfields Redevelopment LLC v. Duro Tire and Wheel, 156 Ohio App. 3d 525, 2004-Ohio-1365, at ¶23.
{¶ 13} Davis argues that Holley waived its right to argue its defense of breach of the covenant of quiet enjoyment because it is an affirmative defense that, per
{¶ 15} The only witness who testified at trial was Sean Holley. He testified that he had leased the premises from Davis, before Davis sold the building to Nicoll, who was another tenant. When that lease terminated, Holey signed a lease with Nicoll. When problems with the premises developed, Nicoll did not respond and could not be located.
{¶ 16} Holley testified that the problems with the premises started in 2007, stating:
{¶ 17} “YEAH THE EARLY PART OF THE SUMMER THERE. WE STARTED HAVING LEAKS COMING IN THROUGH THE CEILING AND WELL YOU HAVE TO UNDERSTAND IS THERE’S A SUITE NEXT TO ME WITH ANOTHER BUSINESS. THERE’S MY SUITE AND THEN THERE’S A SUITE UP ABOVE THAT MR. NICOLL OCCUPIED DURING THAT TIME. WE STARTED HAVING WATER COMING IN
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{¶ 18} “SO THE WATER IS COMING IN THROUGH THE FIXTURES EVERY TIME IT RAINS. WE’VE GOT BUCKETS IN ALL THE DIFFERENT OFFICES WITHIN OUR SPACE THERE. THERE’S A TERRIBLE MILDEW SMELL THAT STARTS TO BUILD AND YOU KNOW WE DO OUR BEST TO TRY AND MEET WITH OUR CLIENTS OUTSIDE OF THE OFFICE WHERE POSSIBLE BUT YOU KNOW WE DO HAVE PEOPLE COME IN TO PAY BILLS AND THINGS OF THAT NATURE. ALL THROUGH THIS TIME WE ARE TRYING TO CONTACT MR. NICOLLS STILL AND UNABLE TO DO SO. EVENTUALLY AT SOME POINT IN THERE – WELL BEFORE THAT EVEN I SHOULD SAY WE STARTED TO KNOW SOMETHING WAS SERIOUSLY WRONG WHEN WE GOT NOTICE THAT THE WATER WAS GOING TO BE SHUT OFF IN THE BUILDING. THERE WAS SOMETHING LIKE FIFTEEN
{¶ 19} Holley said that Davis told him he was foreclosing against Nicoll’s interest under a land contract between them. Nicoll told Holley to send the rent payments he owed Nicoll to Holley. Holley declined to do that. Nicoll told Holley to make the necessary repairs and “we will be able to make things right and settle up” (T. 12) when the foreclosure was completed. Nicoll also declined to do that because “I’m not in the business of being a contractor.” (T. 11).
{¶ 20} Holley testified that he occupied the premises until February of 2008, when he moved out. In going to a new location Holley had to perform improvements there that cost approximately $4,200. (T. 15). He also had to install a new phone system there that cost $3,500. (Id.)
{¶ 21} Holley testified that “the biggest part of my business
{¶ 22} “WE TRIED TO MEET THEM AWAY FROM THE OFFICE WHERE POSSIBLE. SOMETIMES IS ESPECIALLY IF THEY HAVE A HOME FOR EXAMPLE THAT WE ARE WRITING THEN SOMETIMES WE CAN MEET AT THE KITCHEN TABLE AND TRY TO DO THAT. THE REALITY IS ESPECIALLY FOR SOMEONE WHO IS BUYING AUTO INSURANCE IT’S PRETTY HARD TO JUSTIFY TO THEM WHY I NEED TO MEET AT THEIR HOUSE OR AT DENNYS TO WRITE INSURANCE FOR THEM. SO YOU KNOW IF IT WAS – ESPECIALLY IF IT WAS RAINING DURING THAT TIME PERIOD. IF IT WASN’T RAINING IT MAY NOT BE DRIPPING THROUGH WE JUST HAVE THE STAINS AND SMELL THAT WERE COMING YOU KNOW THE SIDING BLOWING ON THE SIDE OF THE BUILDING. IT WAS EMBARRASSING BUT YOU KNOW I TRIED TO EXPLAIN TO THEM AND KIND OF JOKE AROUND YOU KNOW THAT THIS IS NOT MY BUILDING. I DON’T OWN IT SO YOU KNOW I CAN’T REALLY DO ANYTHING ABOUT THAT BUT AGAIN IF IT WAS AND IF THIS WAS YOUR HOUSE YOU KNOW I WOULD COME THROUGH AND DO THAT JUST KIND OF JOKE IT OFF IF I COULD.
{¶ 23} “Q. BUT IT WAS EMBARRASSING TO YOU?
{¶ 24} “A. YEAH IT WAS EMBARRASSING
{¶ 26} “A. RIGHT” (T. 19).
{¶ 27} Holley acknowledged that no one could have paid him to stay in the space he rented after February of 2008, adding: “would I have chosen to conduct business in a location like that? Absolutely not.” (T. 28).
{¶ 28} Holley’s testimony, which was uncontradicted, is substantial evidence showing that the ceiling leaks and related damage to the premises deprived Holley of his right to the peaceable and quiet enjoyment of the premises he leased from Nicoll. Nicoll had agreed to both keep the premises, including the roof, in good repair and to protect Nicoll’s right of peaceable and quiet enjoyment. Nicoll breached those promises. Nicoll’s breach deprived Nicoll of the right to the rent Holley agreed to pay, to the extent that Holley’s right of peaceable and quiet enjoyment was impaired.
{¶ 29} Davis’s claim for relief against Holley is derivative of Nicoll’s rights against Holley, and is likewise diminished by the degree of impairment to Holley’s right of peaceable and quiet enjoyment that Holley suffered because of Nicoll’s breach. On this record, the trial court was charged by law to determine the extent of that breach and to reduce the amount of any award to which Davis might be entitled accordingly. The court failed to
{¶ 30} The assignment of error is sustained. The judgment of the trial court will be affirmed with respect to the award of $3,736 the court ordered in favor of Davis, but reversed, in part, and remanded for further proceedings to determine the extent to which that award should be reduced to account for the impairment of Holley’s right of peaceable and quiet enjoyment of the premises arising from Nicoll’s breach of his promises to Holley.
BROGAN, J. And FAIN, J., concur.
Copies mailed to:
Richard G. Knostman, Esq.
David M. Duwel, Esq.
Todd T. Duwel, Esq.
Hon. Daniel G. Gehres