[Cite as Telecom Acquisition Corp. I, Inc. v. Lucic Ents., Inc.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102119

TELECOM ACQUISITION CORP. I, INC.

PLAINTIFF-APPELLEE/ CROSS-APPELLANT

vs.

LUCIC ENTERPRISES, INC.

DEFENDANT-APPELLANT/ CROSS-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cleveland Municipal Court, Housing Division Case No. 2013 CVG 007699

BEFORE: Keough, P.J., McCormack, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: April 7, 2016 ATTORNEYS FOR APPELLANT/CROSS-APPELLEE

Eric Weiss Komlavi Atsou Cavitch, Familo & Durkin Co., L.P.A. 1300 East Ninth Street, 20th Floor Cleveland, Ohio 44114

ATTORNEY FOR APPELLEE/CROSS-APPELLANT

Randy J. Hart Randy J. Hart, L.L.P. 3601 South Green Road, Suite 309 Beachwood, Ohio 44122 KATHLEEN ANN KEOUGH, P.J.:

{¶1} Defendant-appellant/cross-appellee, Lucic Enterprises, Inc. (“Lucic”), appeals from

multiple decisions rendered by the trial court before, during, and after trial.

Plaintiff-appellee/cross-appellant, Telecom Acquisition Corp., Inc. (“Telecom”), appeals from

the trial court’s in-part denial of Telecom’s motion for summary judgment regarding payment of

rent. For the reasons that follow, we affirm.

{¶2} On May 21, 2013, Telecom filed suit against Lucic for failure to pay rent, failure to

perform under the lease, and for money damages. In response, Lucic filed a counterclaim

against Telecom for breach of contract, unjust enrichment, and interference with a business

relationship.

{¶3} Telecom is the owner of commercial property located at 1204 Old River Road in

Cleveland, Ohio (hereinafter “the Premises”). Through the assignment of the original 2004

lease (hereinafter “the Lease”), Lucic occupied the Premises as a tenant from approximately

April 14, 2006, until July 23, 2013. The assignment was deemed valid in a prior 2009 lawsuit.

See Telecom Acquisition Corp. I v. Lucic Ents., Inc., 8th Dist. Cuyahoga No. 95951,

.

{¶4} The Lease was set to expire by its terms on August 31, 2014. Pursuant to the terms

of the Lease, rent was due on the first day of each month; however, if rent was not paid by the

10th day of the month, a 5 percent late charge was imposed. As of the date of the filing of

Telecom’s complaint for failure to pay rent, Lucic’s rent obligation was $8,860.96 per month.

This amount is not in dispute. Also not in dispute is that Lucic did not timely pay the rent for

May 2013, which prompted Telecom to file the underlying action. In its prayer for relief, Telecom contends that using the formula provided in the Lease, Lucic would owe Telecom

$170,190.57 for unpaid rent at the end of the Lease.

{¶5} Lucic filed its answer and counterclaim, contending that Telecom breached the

Lease and interfered with its quiet enjoyment and possession of the property when it failed to

maintain the structure of the building and the roof as required under Article V of the Lease.

Lucic alleged that the roof leaked causing damage to its property inside the Premises. Lucic also

asserted claims for unjust enrichment because it made significant improvements to the Premises.

Lucic’s final claim was that Telecom — specifically, Telecom’s President Michael A. Tricarichi

(“Tricarichi”) — interfered with Lucic’s business relationship with its African-American

customers by uttering racially insensitive comments and slurs in the presence of its customers

and staff, which caused those customers to stop frequenting Lucic’s business.

{¶6} Both parties filed cross-motions for summary judgment. The trial court granted

partial summary judgment in favor of Telecom’s claim for unpaid rent. The court agreed with

Telecom that it was entitled to judgment on its claim for unpaid rent, but only for the months that

Lucic remained in the Premises without paying rent. Therefore, the trial court awarded Telecom

damages in the amount of $27,023, which represented rent for May, June, and July 2013. The

trial court denied Telecom’s request for summary judgment on the remaining months, however,

because it found that genuine issues of material fact existed whether Telecom mitigated its

damages.

{¶7} The trial court also granted summary judgment in favor of Telecom on Lucic’s claim

for unjust enrichment, finding that the Lease allows Lucic to retain possession of any

improvement items that can be removed from the Premises with minimal damage or where the

damage could properly be repaired. {¶8} The trial court denied Lucic’s request for summary judgment on its claims for

breach of contract for failure to maintain the roof and interference with a business relationship,

finding that genuine issues of material fact existed about whether the roof leaks were caused by

Telecom’s failure to maintain the roof and whether Tricarichi’s actions caused damage to Lucic’s

business.

{¶9} The matter proceeded to a jury trial on these remaining causes of action. Following

a two-week trial, the jury awarded judgment in favor of Telecom in the amount of $56,068.89 on

its claim for past and future unpaid rent. The jury found in favor of Telecom on all of Lucic’s

remaining counterclaims. Ultimately, the trial court entered a final monetary judgment in favor

of Telecom in the amount of $74,230.93.

{¶10} Lucic now appeals, raising seven assignments of error, that will be addressed

together and out of order where appropriate. Telecom cross-appeals raising one assignment of

error.1

I. Lucic’s Appeal

A. Jury Instructions

{¶11} Lucic’s first two assignments of error pertain to the instructions the jury received

from the court. Requested jury instructions should ordinarily be given if they are correct

statements of law applicable to the facts in the case and reasonable minds might reach the

conclusion sought by the specific instruction. Murphy v. Carrollton Mfg. Co.,

,

(1991). In Ohio, it is well established that the trial court will not

1 Telecom’s notice of cross-appeal states that it is appealing both the trial court’s summary judgment ruling on April 25, 2014, and the trial court’s oral ruling on Telecom’s oral motion for directed verdict made at trial. However, Telecom has not assigned any error for our review regarding the trial court’s directed verdict ruling; thus, abandoning that ruling in this appeal. instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati,

,

(1976), paragraph two of the syllabus. Therefore, “the proper

standard of review for an appellate court is whether the trial court’s refusal to give a requested

jury instruction constituted an abuse of discretion under the facts and circumstances of the case.”

Harris v. Noveon, Inc., 8th Dist. Cuyahoga No. 93122,

, ¶ 20, citing Chambers v.

Admr., Ohio Bur. of Workers Comp.,

,

,

(9th Dist.).

“In determining the appropriateness of jury instructions, an appellate court reviews the instructions as a whole. Bailey v. Emilio C. Chu, M.D., Inc. (1992),

,

; Wagenheim v. Alexander Grant & Co. (1983),

,

,

. If, taken in their entirety, the instructions fairly and correctly state the law applicable to the evidence presented at trial, reversible error will not be found merely on the possibility that the jury may have been misled. Ohio Farmers Ins. Co. v. Cochran (1922),

,

, paragraph six of the syllabus; Stonerock v. Miller Bros. Paving, Inc. (1991),

,

. Moreover, misstatements and ambiguity in a portion of the instructions will not constitute reversible error unless the instructions are so misleading that they prejudicially affect a substantial right of the complaining party. Becker v. Lake Cty. Mem. Hosp. West (1990),

,

; Stonerock,

,

.”

, quoting Wozniak v. Wozniak,

,

(9th

Dist. 1993).

1. Quiet Enjoyment

{¶12} Relevant to this assignment of error and pursuant to the terms of the Lease, Lucic

occupied the entire interior and exterior of the building and grounds of the Premises for the

purpose of operating a liquor permit business, i.e., a nightclub. Lucic’s occupation of the

Premises was in exchange for Lucic’s payment of rent, and Telecom was responsible for

maintaining the building structure and roof. {¶13} In Lucic’s counterclaim and at trial, it was alleged that throughout Lucic’s tenancy,

the roof often leaked and because of the leaks, Lucic’s property, trade fixtures, and the interior

areas were damaged. Lucic alleged that despite advising Telecom about the leaks, no repairs

were made or the measures taken by Telecom to prevent future leaks were inadequate. Lucic

argued that Telecom’s failure to maintain the roof was a breach of quiet enjoyment; thus, it was

entitled to damages. The trial court denied Lucic’s request to instruct the jury on breach of quiet

enjoyment as an independent cause of action, but did instruct the jury “on quiet enjoyment as an

affirmative defense.”

{¶14} In its first assignment of error, Lucic contends that the trial court committed

reversible error when it refused to instruct the jury on Lucic’s counterclaim for breach of the

covenant of quiet enjoyment as an independent cause of action. Telecom argues that the trial

court’s decision was not an abuse of discretion because in order to maintain an action for breach

of quiet enjoyment, there must be some eviction — either actual or constructive. Because Lucic

continued to retain possession of the premises, breach of the covenant of quiet enjoyment could

not be maintained as an independent action. We agree.

{¶15} Breach of the covenant of quiet enjoyment can be an affirmative claim for relief if

the claim is supported by the evidence. “In Ohio, a covenant of quiet enjoyment is implied into

every lease contract for realty.” Dworkin v. Paley,

,

(8th Dist. 1994). Such covenant protects the tenant’s right to a peaceful and undisturbed

enjoyment of his leasehold.

citing Glyco v. Schultz,

,

(1972). 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.

citing Howard v.

Simon,

,

(8th Dist. 1984). Although the degree of the impairment is a question for the finder of fact, to constitute a breach of the covenant, “the

interference with the tenant’s quiet enjoyment must be so substantial as to be tantamount to an

eviction, actual or constructive.” GMS Mgt. Co., Inc. v. Datillo, 8th Dist. Cuyahoga No. 75838,

(June 15, 2000); Hamilton Brownfields Redevelopment L.L.C. v.

Duro Tire & Wheel,

,

,

(12th Dist.).

{¶16} Constructive eviction occurs when the landlord interferes with the tenant’s

possession and enjoyment of the premises, and the acts of interference by the landlord compel the

tenant to leave. Foote Theatre, Inc. v. Dixie Roller Rink, Inc.,

,

(3d Dist. 1984). The theory of constructive eviction is that the tenant is in effect

dispossessed, though not forcibly deprived of possession.

.

{¶17} In this case, the evidence at trial showed that Lucic was never evicted, either

actually or constructively, and that it maintained possession of the premises after the actions that

allegedly caused the breach — the leaking roof, which occurred as early as 2010. In fact, Lucic

continued to maintain possession and pay rent despite the leaking roof. No evidence was

presented that Lucic withheld rent payments because of the leaking roof or because of Telecom’s

interference with Lucic’s quiet enjoyment or business relationships. Compare Hamilton

Brownfields (tenant’s quiet enjoyment was breached when landlord ordered tenant to vacate the

premises because landlord did not want to obtain proper permit for tenant’s prior and known use

of the property).

{¶18} Therefore, because the evidence did not support an affirmative claim for relief on

Lucic’s claim for breach of the covenant of quiet enjoyment, the trial court did not abuse its

discretion in refusing to give the jury an instruction on this claim. Accordingly, Lucic’s first

assignment of error is overruled. 2. Breach of Contract — Intent Instruction

{¶19} Lucic brought a counterclaim against Telecom for breach of contract. In its

amended answer and counterclaim, Lucic contended that the Lease required Telecom to maintain

the structure of the building and the roof. Lucic alleged that Telecom failed to maintain the roof,

which leaked and caused damage to Lucic’s property; thus breaching the Lease. Lucic alleged

that Telecom’s actions were “intentional, willful and malicious and were committed * * * with

deliberate and malicious intent for the purpose of injuring Lucic * * *.” (Amended Answer &

Counterclaim, paragraph 36. Docket #79.)

{¶20} In response to the court’s proposed instructions, Lucic filed written objections to

the inclusion of “intent” in the elements of breach of contract. Although the trial court heard

arguments on the objections filed, no specific argument was made either in support of or against

this instruction, and no ruling was made by the trial court. However, at the conclusion of trial,

the court gave the following instruction:

Failure to Maintain Roof: Defendant alleges that the lease required plaintiff to maintain the roof. Defendant alleges that plaintiff materially and intentionally breached the lease by failing to maintain the roof and that this failure caused damage to defendant’s property and business.

In order to find for the defendant, you must find by the greater weight of the evidence, that: The lease required plaintiff to maintain the roof; plaintiff intentionally failed to maintain the roof; defendant had substantially performed its obligations under the lease at the time when plaintiff failed to maintain the roof; and the failure to maintain the roof caused damage to defendant’s property and business.

(Tr. 960-961.)

{¶21} Lucic contends in its second assignment of error that the trial court committed

reversible error when it instructed the jury to consider Telecom’s intent when deciding whether or not Telecom breached the lease agreement by failing to maintain the roof because “intent” is

not an element of breach of contract.

{¶22} Lucic also presented this argument to the trial court in its motion for a new trial.

The trial court denied Lucic’s request for a new trial on this basis because it believed that the

instruction was consistent with Lucic’s allegation in its counterclaim that Telecom breached the

Lease by intentionally failing to maintain the roof.

{¶23} “In order to substantiate a breach of contract claim, a party must establish four

elements: (1) a binding contract or agreement was formed; ‘[(2)] the nonbreaching party

performed its contractual obligations; [(3)] the other party failed to fulfill its contractual

obligations without legal excuse; and [(4)] the nonbreaching party suffered damages as a result of

the breach.’” Prime Props., Ltd. Partnership v. Badah Ents., 8th Dist. Cuyahoga No. 99827,

, quoting Textron Fin. Corp. v. Nationwide Mut. Ins. Co.,

,

(9th Dist. 1996), citing Garofalo v. Chicago Title Ins. Co.,

,

(8th Dist. 1995).

Accordingly, whether a party intentionally breached a contract is not an element that must be

proven to substantiate a breach of contract claim. The inclusion of the additional element of

intent was therefore improper.

{¶24} However, it is apparent why the trial court included the intent element in the jury

instructions. As the trial court stated in its decision denying Lucic’s motion for a new trial,

Lucic alleged that the breach was “intentional, willful, and malicious”; thus, an instruction that

mimicked the allegations was warranted. However, these types of allegations are asserted when

punitive damages are sought. Therefore, although Lucic made these allegations regarding

Telecom’s actions, these words do not transform a simple breach of contract into a tort for which punitive damages could be awarded. See Ketcham v. Miller,

,

(1922) (use of the word malicious does not transform a breach of contract into a tort action;

punitive damages may not be recovered in a breach of contract action).

{¶25} Nevertheless, the juror interrogatories demonstrate that Lucic was unsuccessful on

its counterclaim for damages for failure to maintain the roof not because of the improper

instruction, but because the jury found that (1) Telecom substantially performed its obligation to

maintain the roof from June 10, 2010, through July 2013; (2) Lucic did not substantially perform

its obligations under the Lease at the time of the roof leaks; and (3) it was not proven by a

preponderance of the evidence that Telecom’s failure to maintain the roof caused Lucic damage.

See Jury Interrogatories Nos. 14, 16, and 21.

{¶26} Accordingly, Lucic’s second assignment of error is overruled.

B. Motion for New Trial

{¶27} In its third and seventh assignments of error, Lucic challenges the trial court’s

denial of its motion for a new trial. In reviewing its motion, Lucic moved for a new trial on a

variety of grounds, but specific to these assignments of error, Lucic requested a new trial

pursuant to Civ.R. 59(A)(1) and 49(B) because the general verdict and the interrogatory answers

were inconsistent.

{¶28} Civ.R. 59(A)(1) provides a trial court with discretion to grant a new trial when

there is an “irregularity” in the proceedings that prevents a party from having a fair trial. Druzin

v. S.A. Comunale Co., 8th Dist. Cuyahoga No. 102674,

, ¶ 14. “‘The rule

preserves the integrity of the judicial system when the presence of serious irregularities in a

proceeding could have a material adverse effect on the character of and public confidence in

judicial proceedings.’”

quoting Wright v. Suzuki Motor Corp., 4th Dist. Meigs Nos. 03CA2, 03CA3, and 03CA4,

. Great deference is afforded to the trial court’s

decision denying or granting a motion for a new trial pursuant to Civ.R. 59(A)(1) and a

reviewing court will not reverse the decision absent a showing that the court abused its

discretion.

citing Koch v. Rist,

,

(2000).

1. Opening Statement

{¶29} During opening statements, Telecom’s counsel made reference to the prior 2009

lawsuit. Counsel told the jurors that the allegations Lucic made in the 2009 lawsuit were the

same allegations Lucic was making in the present case. Telecom also told the jurors that it was

successful in the 2009 case. Lucic objected, and the trial court sustained the objection.

{¶30} Despite the court’s ruling, Telecom’s counsel again referred to the 2009 lawsuit.

Again, Telecom told the jurors that Lucic’s allegations made in the 2009 lawsuit were the same

in this case. Telecom again told the jurors that it was successful in the 2009 lawsuit; thus, the

reason for this current claim against Telecom is “simply retaliation.” (Tr. 25.) Telecom further

told the jurors that Lucic “lashed out” by filing this claim, just like Lucic “lashed out in 2009,

[when] they filed a counterclaim.” (Tr. 35.) Although Telecom continued to make these

statements, Lucic did not raise another objection, make a continuing objection, or move to strike.

{¶31} In its third assignment of error, Lucic contends that the trial court abused its

discretion when it declined to order a new trial as a result of Telecom counsel’s improper and

highly prejudicial remarks during opening statements about the counterclaim Lucic filed in the

2009 lawsuit.

{¶32} Opening statements are not evidence. Opening statements are an outline of the

case to be presented and are intended to give the jury a general idea of what each side expects the

evidence to show. State v. Wilson, 1st Dist. Hamilton No. C-000670,

, citing State v. Johnson, 1st Dist. Hamilton No. C-950493,

(Sept. 25,

1996). Opening statements often serve to state the party’s theory of the case. State v. Inman,

4th Dist. Ross No. 13CA3374,

, citing State v. Warmus,

,

,

(8th Dist.)

{¶33} Counsel should be afforded latitude by the trial court in making an opening

statement. Columbus v. Hamilton,

,

(10th

Dist. 1992), citing Maggio v. Cleveland,

,

(1949), paragraph two

of the syllabus. However,

when [counsel] deliberately attempts to influence and sway the jury by a recital of matters foreign to the case, which matters he knows or ought to know cannot be shown by competent or admissible evidence, or when he makes a statement through accident, inadvertence or misconception which is improper and patently harmful to the opposing side, it may constitute the basis for the ordering of a mistrial or for the reversal by a reviewing court of a judgment favorable to the party represented by such counsel.

, citing 39 Ohio Jurisprudence, 610, Section 38; 53 American Jurisprudence,

357, Section 454 et seq.

{¶34} In this case, the court instructed the jury on two separate occasions that opening

statements are not evidence. See tr. 8 (“These statements are not evidence, but rather, a preview

of the claims made by each party and an outline of what they expect the evidence to be.

Opening statements provide you with an outline or roadmap designed to help you follow the

evidence as it is presented.”); tr. 947. (“Opening statements are designed to assist the jury, they

are not evidence.”).

{¶35} While we agree that Telecom’s counsel should not have continued comparing the

2009 lawsuit to the instant case during opening statements after the trial court sustained Lucic’s objection, we cannot say that the entire case was tainted or prejudiced to the extent that but for

the statements, the jury would have reached a different conclusion.

{¶36} The jury learned about the 2009 lawsuit through the testimonies of multiple

witnesses. As the trial court noted in its written decision denying Lucic’s motion for a new trial,

“both sides sought to introduce information regarding the previous litigation between the

parties.” Therefore, the jury heard evidence from both Lucic and Telecom about the 2009

lawsuit, the issues it involved, and the outcome, all of which occurred after opening statements.

In fact, Lucic elicited testimony from Valentina Lucic (“Valentina”) during her direct

examination about the prior litigation and the result. See, e.g., tr. 243-244.

{¶37} Accordingly, the trial court did not abuse its discretion in denying Lucic’s request

for a new trial on the basis of improper opening statement remarks. Lucic’s third assignment of

error is overruled.

2. Inconsistent Verdicts

{¶38} In its seventh assignment of error, Lucic contends that the trial court abused its

discretion in denying its motion for a new trial because the jury’s answers to the interrogatories

regarding Lucic’s counterclaim for breach of contract for failure to maintain the roof were

inconsistent with its general verdict. Specifically, Lucic contends that interrogatory Nos. 17 and

20 were inconsistent with the general verdict.

{¶39} Civ.R. 49(B) provides in relevant part that, “[W]hen one or more of the answers [to

the interrogatories] is inconsistent with the general verdict, judgment may be entered pursuant to

Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may

return the jury for further consideration of its answers and verdict or may order a new trial.” {¶40} The jury entered a general verdict in favor of Telecom on Lucic’s counterclaim for

damages for failure to maintain the roof. In interrogatory No. 17, the jury was asked, “If you

found that [Lucic] failed to fulfill its obligations under the Lease, was the failure material to the

contract such that [Telecom] should be relieved of the obligation to maintain the roof?” All

eight jurors answered “No.” In interrogatory No. 20, the jury was asked, “Do you find by a

preponderance of the evidence that [Lucic’s] conduct in altering or maintaining the interior of the

premises caused the roof leaks?” All eight jurors answered “No.”

{¶41} Lucic contends that these interrogatories are inconsistent with the general verdict

because interrogatory No. 17 demonstrates that Telecom was responsible for maintaining the roof

and that the roof leaked and in interrogatory No. 20, the jury stated that Lucic did not cause the

leaks. Accordingly, Lucic claims “given that there were roof leaks, given that [Lucic] did not

cause the roof leaks, and given that [Telecom] was responsible for maintaining the roof, the jury

should have concluded that [Telecom’s] failure to maintain the roof caused the roof leaks. Thus,

the jury should have found that Telecom breached its obligations to maintain the roof.”

{¶42} Lucic’s conclusions are not supported by the responses given by the jury in its

interrogatories. Interrogatory No. 17 establishes that Lucic’s failure to fulfill its obligations

under the Lease were not sufficient to relieve Telecom of its obligation to maintain the roof.

Previously, in interrogatory No. 14, the jury answered that Telecom did not fail to perform its

obligation to maintain the roof from June 10, 2010 through July 2013. Accordingly,

interrogatory No. 14 essentially rendered the answer to interrogatory No. 17 irrelevant.

{¶43} Lucic’s reading of interrogatory No. 20 is also misplaced. This interrogatory did

not establish whether or not the roof leaked. The jury’s answer indicates that it did not find by a

preponderance of the evidence that Lucic’s conduct in altering or maintaining the interior of the premises caused the roof to leak. Lucic asked the jury, trial court, and now this court to

presuppose that the roof actually leaked.

{¶44} As the trial court correctly pointed out, none of the answers to the interrogatories

following the initial determination that Telecom did not fail to maintain the roof suggest that the

jury was confused. Rather, the answers indicate that the jury carefully considered each question

and offered answers that are consistent with a determination that Lucic did not meet its burden of

proof on the alleged failure to maintain the roof, and that Telecom did not meet its burden of

proof on its defense.

{¶45} Moreover, if Lucic believed that the general verdict and interrogatories were

inconsistent, Lucic should have objected prior to the jury being discharged. The law is clear that

where the inconsistencies between a general verdict and an interrogatory are apparent before the

jury is discharged, the inconsistency is waived unless a party raises an objection prior to the

jury’s discharge. See Avondet v. Blankstein,

,

(8th Dist. 1997).

{¶46} Accordingly, we find the trial court did not abuse its discretion by denying Lucic’s

motion for a new trial based on an alleged inconsistency between the general verdict and the

interrogatories. Lucic’s seventh assignment of error is overruled.

C. Evidentiary Rulings

{¶47} In its fourth and fifth assignments of error, Lucic contends that the trial court erred

in its evidentiary rulings. We review evidentiary rulings for an abuse of discretion. Renfro v.

Black,

,

(1990).

1. Unrelated Eviction Actions {¶48} During cross-examination of Valentina, Telecom questioned her about 22 tenant

evictions she filed on behalf of another company she owns. These evictions were not related to

the pending action. Counsel for Lucic objected after Telecom asked the court to take judicial

notice of these actions; however, the basis for the objection and the trial court’s rulings were

conducted off the record. Following the sidebar discussion, the trial court took judicial notice of

the cases, and Telecom continued questioning Valentina about the process and procedures in

filing an eviction, including her knowledge as to whether filing a counterclaim in an eviction

case, allows the tenant to stay in the premises without paying rent during the pendency of the

action.

{¶49} In its fourth assignment of error, Lucic contends that the trial court abused its

discretion to Lucic’s substantial detriment when it permitted Telecom to question Valentina on

these unrelated evictions. Specifically, Lucic claims that Telecom’s purpose in questioning

Valentina on these evictions was to cast her as a litigious person, which is improper evidence

under Evid.R. 403 and 404(B). Telecom contends, however, that the evidence was relevant to

prove that Valentina was familiar with landlord and tenant relationships, specifically how

evictions worked.

{¶50} Evid.R. 404(B) states that evidence of other “acts is not admissible to prove the

character of a person in order to show that [s]he acted in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”

{¶51} Lucic cites to MGM Landscape Contrs., Inc. v. Berry, 9th Dist. Summit No. 20979,

, to support its position that the court abused its discretion in allowing

Telecom’s questioning of Valentina. In Berry, MGM Landscape provided landscaping services to the Berrys and subsequently filed a lawsuit for a money judgment for the services. The

Berrys counterclaimed, alleging several causes of action against the company and its president.

At trial, the Berrys were questioned about prior legal actions involving other contractors that they

had previously hired. The questions involved the Berrys’ motivations in filing those prior

lawsuits and the results of the actions.

{¶52} The Ninth District found this prior litigation evidence irrelevant and highly

prejudicial. The court also found that the line of questioning was improper Evid.R. 404(B) other

acts evidence that was used to prove the character of the defendants as highly litigious people and

that they were merely acting in conformity therewith by bringing suit against this contractor.

{¶53} Our review of the record shows that the trial court’s decision to allow the

questioning was not an abuse of discretion. Unlike in Berry, where the evidence in question

involved the aggrieved party’s unrelated multiple other lawsuits against other individuals and

companies, the line of questioning by Telecom in this case did not include specific questions

about those eviction cases, Valentina’s motivation for filing those cases as a landlord, or the

results. The evidence and testimony were not used to prove that Valentina was litigious, but

rather to demonstrate her knowledge about the landlord and tenant relationship, the eviction

process, and how the court system works, including the procedural consequences of the filing of

a counterclaim by a tenant in an eviction proceeding. This was a proper purpose under Evid.R.

404(B). Accordingly, the questioning about Valentina’s eviction knowledge was not susceptible

of being misconstrued that she was litigious. Lucic’s fourth assignment of error is overruled.

2. Post-Vacation Roof Condition

{¶54} During trial, the jury heard testimony from multiple defense witnesses that each

time it rained from 2010 until July 2013, water “poured” from the roof into the Premises. Telecom’s own witness, Franco Bucci, testified that he observed a water leak inside the

Premises.

{¶55} During Lucic’s case in chief, Doug French, Telecom’s property manager, testified

as if on cross-examination. On redirect, Telecom asked French when he was last at the

Premises. Lucic objected that the question was outside the scope of cross-examination. The

trial court overruled the objection, allowing French to respond that he was at the Premises “just

that morning,” and despite the heavy rain that occurred the night before, there were no leaks

inside the Premises. (Tr. 706-707.)

{¶56} In its fifth assignment of error, Lucic contends that the trial court abused its

discretion to Lucic’s substantial detriment when it allowed irrelevant, highly prejudicial evidence

regarding the condition of the roof approximately a year after Lucic vacated the premises.

{¶57} We first note that the objection raised at trial was not that the testimony was

irrelevant, but that it was outside the scope of cross-examination. It is a cardinal rule of appellate

procedure that a party cannot assert new legal theories for the first time on appeal. In re Banks,

4th Dist. Scioto No. 07CA3192,

. This rule applies to new arguments

regarding the admission of evidence that were not made during trial. See State v. York,

,

(4th Dist. 1996) (failure to raise and argue the excited

utterance exception at trial waives the issue on appeal). However, this argument was also a

basis upon which Lucic moved for a new trial; therefore, this issue will be addressed on appeal.

{¶58} Only relevant evidence is admissible. Evid.R. 402. “Relevant evidence” is

“evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Evid.R. 401. {¶59} Lucic contends on appeal that this testimony was irrelevant. We agree. The

present-day condition of the roof was irrelevant because it did not have any tendency to make the

existence of any fact that is of consequence to the determination of the action more or less

probable than it would be without the evidence. Evid.R. 401. Because this evidence was

irrelevant, it should not have been admitted. Evid.R. 402.

{¶60} However, we disagree with Lucic that the testimony was so highly prejudicial that

it carried the risk that the jury could conclude the roof never leaked from June 2010 to July 2013,

the relevant time frame for the litigation. Lucic assumes that the jury was incapable of

understanding the time frame upon which Lucic’s counterclaim for failure to maintain the roof

was based. However, jury interrogatory No. 14 clearly set forth that the relevant time frame for

Lucic’s counterclaim was from June 2010 to July 2013.

{¶61} We find the admission of this testimony was harmless error. Errors relating to the

trial court’s admission of evidence must be reviewed in light of Evid.R. 103(A) and the standard

established in Crim.R. 52(A), providing that such errors are harmless unless the record

demonstrates that the errors affected a party’s substantial right. Lucic fails to demonstrate how

this isolated statement affected a substantial right such that a new trial should be ordered.

{¶62} As recognized by the trial court in denying Lucic’s motion for a new trial on this

basis, Lucic opened the door to rebuttal testimony when its witnesses testified that “every time it

rained,” the roof leaked. Once French testified about the present condition of the roof, Lucic

could have questioned French about this testimony, clarifying to the jury that his recent

observations were well-beyond the time-frame complained about in its counterclaim. Lucic had

an opportunity to cure any prejudice but failed to do so.

{¶63} Accordingly, Lucic’s fifth assignment of error is overruled. D. Manifest Weight of the Evidence

{¶64} In its sixth assignment of error, Lucic makes three manifest weight challenges to

the jury verdicts in favor of Telecom on (1) Telecom’s claim for future rent, (2) Lucic’s

counterclaim for breach of contract, and (3) Lucic’s counterclaim for interference with a business

relationship.

{¶65} A reviewing court will not reverse a judgment as being against the manifest weight

of the evidence when the judgment is supported by some competent, credible evidence going to

all the essential elements of the case. C.E. Morris Co. v. Foley Constr. Co.,

,

(1978). We are further guided by the presumption that the trier of fact is

best able to view the demeanor of witnesses and use such observations in weighing the credibility

of the testimony. Seasons Coal Co. v. Cleveland,

,

(1984).

1. Telecom’s Claim for Future Rent

{¶66} At trial, Telecom sought future rent in the amount of $138,722.71. Lucic raised

the affirmative defense that Telecom was not entitled to future rents because it failed to mitigate

its damages. The jury ultimately awarded Telecom future rents in the amount of $56,068.89.

{¶67} Lucic contends that due to the overwhelming credible evidence that Telecom failed

to take reasonable steps to mitigate its damages, the jury award in favor of Telecom on its claim

for future rent was against the manifest weight of the evidence.

{¶68} Where a “breaching tenant caused harm such that the lessor’s profitability is

affected, then that harm is compensable to the extent it is proved.” Frenchtown Square

Partnership v. Lemstone, Inc.,

,

,

.

Further, “the damage award should put the injured party in as good a position had the contract not been breached at the least cost to the defaulting party.” F. Ents., Inc. v. Kentucky Fried

Chicken Corp.,

,

(1976). The Supreme Court of Ohio

has held “[a] lessor has a duty to mitigate damages caused by a lessee’s breach of a commercial

lease.” Frenchtown Square at syllabus. This “duty to mitigate arises in all commercial leases

of real property.” Id. at ¶ 18. A lessor’s efforts to mitigate “must be reasonable, and the

reasonableness should be determined by the trial court.” Id. at ¶ 21.

{¶69} The failure to mitigate damages is an affirmative defense. Young v. Frank’s

Nursery & Crafts, Inc.,

,

(1991). The burden of

proving a failure to mitigate damages lies with the party asserting the defense. Hines v. Riley,

,

(4th Dist. 1998). “A landlord is not required to use

extraordinary efforts to find a new tenant or attempt the unreasonable or impracticable.”

. “Whether a landlord made reasonable efforts to mitigate damages is a question of fact to

be resolved by the trier of fact.” Manor Park Apts. v. Garrison, 11th Dist. Lake No.

2004-L-029,

.

{¶70} Lucic contends that Telecom failed to mitigate its damages because it did not post a

“For-Rent” sign on the building or advertise the building for rent in the Plain Dealer or other

local newspapers, including free online publications. Lucic complains that Telecom’s action of

advertising the leased premises on the Select Ohio and CoStar’s websites, which required a fee to

view property listings, was insufficient evidence of mitigation. Furthermore, Lucic asserts that

it vacated the premises in July 2013, yet Telecom did not connect with a real estate agent until

October 2013.

{¶71} However, Lucic’s arguments ignore that Tricarichi hired a real estate agent to assist

with re-renting the Premises once Lucic vacated the Premises and it was cleaned. In support, Tricarichi identified the contract entered into on October 18, 2013, between Telecom and Select

Ohio to market the Premises. Tricarichi testified as to the avenues and sources that Select Ohio

has used to advertise the Premises, including utilizing mailers to potential clients. Tricarichi

also testified that posting “For Rent” signs on the Premises was, in his experience, not an

effective outlet for advertising because road access to the building was difficult, and the signage

attracts nefarious activity.

{¶72} Accordingly, competent, credible evidence exists to support the jury’s

determination that Telecom took reasonable steps to mitigate its damages. The trial court’s

judgment in favor of Telecom on future rents is not against the manifest weight of the evidence

on this basis.

2. Lucic’s Counterclaim for Breach of Contract

{¶73} Lucic contends that due to the overwhelming credible evidence showing that

Telecom failed to maintain the roof, the jury award in favor of Telecom on Lucic’s counterclaim

for breach of contract for failure to maintain the roof was against the manifest weight of the

evidence. In support, Lucic directs us to consider the evidence at trial and the inconsistent

answers to the jury interrogatory Nos. 14, 17, and 20.

{¶74} Lucic contends that the jury lost its way when it found that Telecom substantially

performed its obligation to maintain the roof from June 2010 through July 2013 because

evidence was presented that the roof leaked when it rained, causing water to leak inside the

Premises. However, Lucic’s witnesses could not opine as to the cause of the leaks.

{¶75} The jury also heard evidence that Lucic made alterations to the roof area —

including adding an air conditioning unit and a roof vent for the kitchen that could have caused

the leaks and were not Telecom’s responsibility to maintain. Lucic’s argument on appeal assumes that if the roof leaked, it was due to the failure on the part of Telecom to adequately

maintain the roof. Tricarichi and French each testified, however, about the efforts they took to

maintain the roof, including routine inspections of the new roof installed prior to the time-frame

of the lawsuit.

{¶76} Therefore, competent and credible evidence existed supporting the jury’s verdict.

The jury was in the best position to consider competing evidence and weigh it accordingly.

{¶77} Furthermore, as previously addressed under Lucic’s seventh assignment of error

regarding inconsistent verdicts, the jury interrogatories were not inconsistent with the jury award.

Therefore, we find that the jury award in favor of Telecom on Lucic’s counterclaim for breach

of contract was not against the manifest weight of the evidence.

3. Lucic’s Counterclaim for Interference with Business Relationship

{¶78} Lucic contends that due to the overwhelming credible evidence showing that

Tricarichi interfered with its business relationship with its African-American customers, the jury

award in favor of Telecom on Lucic’s claim for interference with business relationships was

against the manifest weight of the evidence. Specifically, Lucic contends that the jury’s answers

to interrogatory Nos. 24, 25, and 27 were against the manifest weight of the evidence.

{¶79} The jury answered in the negative when it was asked whether it found by the

preponderance of the evidence that the (1) plaintiff used racial slurs to interfere with defendant’s

existing or prospective business relationship with customers; (2) plaintiff intended, through its

use of racial slurs, to interfere with defendant’s existing or prospective business relationship with

customers; and (3) plaintiff’s conduct proximately caused damage to defendant’s business. See

interrogatory Nos. 24, 25, and 27. {¶80} However, a review of the jury’s answers does not necessarily mean that plaintiff

did not use racial slurs, but that the use of the slurs, if any, did not interfere with Lucic’s business

relationships. The answers could also be interpreted to mean that Lucic failed to satisfy its

burden that Tricarichi’s conduct interfered with Lucic’s business relationships. Lucic could

have asked specific questions to pinpoint what the jury did or did not find, but it failed to do so.

We will not speculate the basis upon which the jurors answered the interrogatories.

{¶81} Again, in weighing the evidence, we are guided by a presumption that the findings

of the trier of fact are correct. Seasons Coal,

,

. This

presumption arises because the trier of fact had an opportunity “to view the witnesses and

observe their demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.”

{¶82} Lucic contends that it offered the greater amount of credible evidence to show that

Tricarichi used racial slurs against its customers and it was damaged as a result. Lucic provided

testimony from various witnesses that they heard Tricarichi use racial slurs in front of Lucic’s

customers and to describe Lucic’s customers. These individuals also testified that they

witnessed some customers leave the area. However, the jury also heard testimony from other

witnesses who testified that they never heard Tricarichi make any racially insensitive remarks.

From the record, it appears that judging the credibility of the witnesses was a key role for the

jury, and the jury was within its purview to believe or disbelieve any or all of a witness’s

testimony. Thus, “to the extent that the evidence is susceptible to more than one interpretation,”

a reviewing court will “construe it consistently with the jury's verdict.” Berry v. Lupica,

,

,

(8th Dist.), citing Ross v. Ross,

,

(1980). {¶83} Based on our review of the testimony and record, we find that the jury did not lose

its way in finding in favor of Telecom on Lucic’s counterclaim for interference with business

relationship.

{¶84} Lucic’s sixth assignment of error is overruled.

II. Telecom Cross-Appeal

{¶85} In it’s cross-appeal, Telecom contends as its sole assignment of error that the trial

court erred in failing to grant summary judgment in toto against Lucic on its failure to pay rent

claim.

{¶86} An appellate court reviews a trial court’s decision on a motion for summary

judgment de novo. Grafton v. Ohio Edison Co.,

,

(1996). Summary judgment is appropriate when, construing the evidence most strongly in favor

of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party is

entitled to judgment as a matter of law; and (3) reasonable minds can only reach a conclusion

that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc.,

,

(1998).

{¶87} The party moving for summary judgment bears the burden of demonstrating that no

material issues of fact exist for trial. Dresher v. Burt,

,

(1996). The moving party bears the initial responsibility of informing the trial court of the

basis for the motion, and identifying those portions of the record that demonstrate the absence of

a genuine issue of material fact on the essential elements of the nonmoving party’s claims.

After the moving party has satisfied this initial burden, the nonmoving party has a reciprocal duty

to set forth specific facts by the means listed in Civ.R. 56(C) showing that there is a genuine issue of material fact.

If the party does not respond, summary judgment, if appropriate,

shall be entered against the party. Civ.R. 56(C).

{¶88} In this case, certain facts are undisputed by the parties. Lucic’s monthly rent

obligation was $8,860.96. The Lease was to expire in August 2014. Lucic vacated the

premises on July 23, 2013. The last rent payment made by Lucic was for the month of April

2013. Based on these undisputed facts, the trial court entered partial summary judgment in the

amount of $27,023 in favor of Telecom for unpaid rent from May 2013 until July 2013. This

amount included the 5 percent late fee assessed for May’s rent. This amount was not appealed

by either party. The sole issue on appeal is whether a genuine issue of material fact existed

regarding mitigation.

{¶89} In its motion for summary judgment, Telecom argued that it listed the Premises for

rent in October 2013, after cleaning out the premises. In support of this statement, Telecom

attached the affidavit of Tricarichi, the owner of Telecom. Tricarichi stated in his affidavit

15. [Telecom] has listed the Premises for rent since it cleaned the Premises out in October, 2013.

16. As of the date of this Affidavit [February 12, 2014], the Premises has not been re-rented.

Accordingly, Telecom argued that summary judgment was proper in the amount of $170,190.57,

which included past due rents, late charges, and future rents.

{¶90} In response, Lucic contended that it was not obligated to pay the rent owed because

Telecom did not mitigate its damages. In support, Lucic attached the affidavit of Valentina,

Lucic’s owner, stating that:

25. Since Lucic left the Leased Premises, Defendant did not put a for-rent sign on the building or otherwise advertise the Premises for rent. Attached as Exhibits DD and V are true and accurate copies of a Video and pictures showing the exterior of the building.

{¶91} On appeal, Telecom argues that the affidavit of Valentina is merely a self-serving

affidavit of facts not within her personal knowledge and thus cannot be sufficient to defeat its

motion for summary judgment. We disagree.

{¶92} An otherwise competent affidavit is not invalid for the sole reason that it is

executed by a party and submitted to aver facts in opposition to summary judgment. To the

contrary, a party’s affidavit is competent to create a genuine issue of material fact if made on

personal knowledge. Wolf v. Big Lots Stores, Inc., 10th Dist. Franklin No. 07AP-511,

. However,

[a] party’s unsupported and self-serving assertions offered to demonstrate issues of fact, standing alone and without corroborating materials contemplated by Civ.R. 56, are simply insufficient [to overcome a properly supported motion for summary judgment]. In other words, when the moving party puts forth evidence tending to show that there are no genuine issues of material fact, the nonmoving party may not avoid summary judgment solely by submitting a self-serving affidavit containing no more than bald contradictions of the evidence offered by the moving party. To conclude otherwise would enable the nonmoving party to avoid summary judgment in every case, crippling the use of Civ.R. 56 as a means to facilitate the early assessment of the merits of claims, pre-trial dismissal of meritless claims, and defining and narrowing issues for trial

(Citations omitted.) Bank One, N.A. v. Burkey, 9th Dist. Lorain No. 99 CA007359,

,*15 (June 14, 2000).

{¶93} In summary judgment proceedings, a court may not weigh the evidence or judge

the credibility of sworn statements, properly filed in support of or in opposition to a summary

judgment motion, and must construe the evidence in favor of the nonmoving party. See

Anderson v. Liberty Lobby, Inc.,

,

,

(1986).

“[W]hen reviewing a motion for summary judgment, a court must be careful not to weigh the evidence or judge the credibility of witnesses. * * * Instead, it must consider all of the evidence

and reasonable inferences that can be drawn from the evidentiary materials in favor of the

nonmoving party.” Wheeler v. Johnson, 2d Dist. Montgomery No. 22178,

. When trial courts choose between competing affidavits and testimony, they improperly

determine credibility and weigh evidence contrary to summary judgment standards. Finn v.

Nationwide Agribusiness Ins. Co., 3d Dist. Allen No. 1-02-80,

, ¶ 39.

{¶94} Accordingly, because the trial court was presented with two competing affidavits, it

could not determine the issue of mitigation. Therefore, a genuine issue of material fact existed

to defeat, in its entirety, Telecom’s motion for summary judgment on its failure to pay rent claim.

The trial court did not err in denying in Telecom’s motion in part. Telecom’s assignment of

error is overruled.

{¶95} Judgment affirmed.

It is ordered that the parties share equally the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

TIM McCORMACK, J., and SEAN C. GALLAGHER, J., CONCUR