IN THE SUPREME COURT OF OHIO

ATELIER DISTRICT LLC,

Plaintiff-Appellee,

vs.

PARKING COMPANY OF AMERICA,INC.,

08-0061Case No.

On Appeal from the Franklin CountyCourt of Appeals, Tenth Judicial District

Defendant-Appellant. Court of Appeals Case No. 07-AP-O1-87

MOTION TO STAY THE JUDGMENT OF THETENTH DISTRICT COURT OF APPEALS

OF DEFENDANT-APPELLANTPARKING COMPANY OF AMERICA

Stephen D. Jones (0018066)Michael R. Traven (0081158)RoETZEL & ANDREss, LPA155 E. Broad Street, 12th FloorColumbus, Ohio 43215Telephone: (614) 463-9770Facsimile: (614) 463-9792E-mail: sjones@ralaw.com

mtraven@ralaw.com

David M. Scott (0068110)Nicole VanderDoes (0079736)LUPER, NEIDENTHAL & LOGAN, LPA50 W. Broad St., 12th FloorColumbus, Ohio 43215Telephone: (614) 221-7663Facsimile: (614) 464-2425E-mail: dscott@Inlattomeys.com

nvanderdoes@lnlattomeys.com

Attorneys for Defendant-AppellantParking Company ofAmerica

803487 \ 116571.0001

Attorneys for Plaintiff-AppelleeAtelier District LLC

JAN J 9 7_oop

CL€Rk OF COURTs'u REMt: eC1u

--H o

MOTION TO STAY THE ORDER OF THE TENTH DISTRICT COURT OF APPEALSOF DEFENDANT-APPELLANT PARHING COMPANY OF AMERICA

Now comes Defendant-Appellant, Parking Company of America ("PCA"), and

respectfully moves this Court for an Order granting a stay of the Court of Appeals Judgment,

without the posting of an additional bond, pending appeal of the same to this Court. This Motion

is filed contemporaneously with a Notice of Appeal.

On January 26, 2007, the Franklin County Court of Common Pleas entered judgment in

favor of Plaintiff-Appellee against PCA in the amount of $488,006.51. On January 30, 2007,

PCA filed a notice of appeal from the judgment with the Tenth District Court of Appeals.

Thereafter, on February 23, 2007, the Court of Common Pleas entered a stay of its decision

pending that appeal, but forced PCA to post a bond in the amount of $200,000. (A copy of the

court's entry is attached as Exhibit A). PCA posted the required bond, a copy of which is

attached at Exhibit B. On December 31, 2007, the Tenth District Court of Appeals issued its

final judgment in this matter. A copy of the court of appeals' opinion and judgment entry are

attached as Exhibits C and D, respectively.

PCA once more seeks an order staying the execution of both judgments-the trial court's

and the court of appeals'-pending the appeal to this Court. PCA also requests that this Court

conclude that the $200,000 bond that PCA has already issued is adequate and sufficient to secure

the judgment pending this appeal.

Civ.R. 62(B) provides that an "appellant may obtain a stay of execution of a

judgment * * * by giving an adequate supersedeas bond * * * approved by the court." (emphasis

added). App.R. 7(B) likewise provides that a stay of judgment "may be conditioned upon the

filing of a bond or other appropriate security in the trial court." (emphasis added). The express

803487 \ 116571.0001 2

introductory language of R.C. 2505.09 provides that the requirements set forth therein apply

"[e]xcept as provided * * * in applicable rules governing courts." Accordingly, courts have

consistently held that the determination of whether a bond is necessary, and, if so, what amount,

lies within the sound discretion of the court. See Irvine v. Akron Beacon Journal, 147 Ohio

App.3d 428, 2002-Ohio-2204, at ¶¶ 108-09; Whitlatch & Co. v. Stern, 9th Dist. No. 15345, 1992

WL 205071 (construing App.R. 7(B) and R.C. 2505.09). Courts have even held that, in some

circumstances, a court may enter a stay without the requirement of a bond. Irvine, supra;

Whitlatch, supra.

In this case, however, PCA is not requesting the Court to order that no bond be issued.

Rather, PCA is requesting that the Court hold that the $200,000 bond that PCA issued below is

adequate and sufficient security for a stay of the judgment pending appeal. Accordingly, PCA

respectfixlly requests that this Court enter an order staying execution of the Tenth District Court

of Appeals judgment entered on December 31, 2007, without the posting of an additional bond.

Respectfully submitted,

01wStephen D.Jones (0018066)Michael R. Traven (0081158)ROETZEL & ANDRESS, LPA155 East Broad Street, 12th FloorColumbus, OH 43215Telephone: 614.463.9770Facsimile: 614.463.9792

Attorneys for Defendant-AppellantParking Company ofAmerica, Inc.

803487\116571.0001 3

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and accurate copy of the foregoing has been

served upon the following parties via e-mail transmission and regular U.S. Mail, postage prepaid

this 9th day of January, 2008:

David M. Scott, Esq.Nicole VanderDoes, Esq.Luper Neidenthal & Logan LPA50 West Broad Street, Suite 1200Columbus, OH 43215

Attorneys for Plaintif^AppelleeAtelier District LLC

Stephen D. Jones

803487\116571.0001 4

IN THE COURT OF COMMON PLEASFRANKLIN COUNTY, OHIO

ATELIER DISTRICT LLC, Case No. 04CVH-08-8277

Plaintiff, JUDGE SHEWARD

^vs.

PARKING COMPANY OF AMERICA,INC.9

f

Defendant.

c- ^s. :..>

r,J

C.

JUDGMENT ENTRY GRANTING DEFENDANT'S MOTION FOR STAY OFEXECUTION OF JUDGMENT PENDING APPEAL (WITH BOND)

This matter is before the court upon the Motion of Defendant Parking Company of

America, Inc. for Stay of Execution of this Court's January 26, 2007 Judgment Entry, pending

disposition of Defendant's appeal to Ohio Tenth District Court of Appeals.

The court finds the motion well-taken and it is hereby GRANTED.

IT IS HEREBY ORDERED that pursuant to Civil Rule 62(B), upon Defendant posting

a supersedeas bond or other security in the amount of $^"^^d ^o^, that this Court's

Judgment Entry of January 26, 2007, shall immediately be stayed pending appeal and no

execution or any enforcement proceedings shall lie from such Judgment Entry.

IT IS FURTHER ORDERED that if Defendant posts a check as its bond, the check be

placed with the Clerk of Courts in an interest-bearing account with such interest paid to

Defendant at such time as this Court issues an order releasing the bond to Defandant.

IT IS SO ORDERED.

JUDGE SHEWARD

EXHIBIT

766237

Ste^hen D. Jones (0018066)Michael R. Traven (0081158)ROETZEL & ANDRESS155 E. Broad Street, 12' FloorColurnbus, Ohio 43215Attorneys for Defendant Parking Company ofAmerica, bzc.

Copies to:

David M. ScottLuper Neidenthal & Logan LPA50 West Broad Street, Suite 1200Columbus, OH 43215Attorney for Plainta,ffAtelier District LLC

Stephen D. Jones

Michael R. TravenROETZEL & ANDRESS155 E. Broad Street, 12th FloorColumbus, Ohio 43215Attorneys for Defendant Parking Company ofAmerica, Inc.

2766237

IN THE QEO COURT OF T'EE COMMON PLEAS

IN A1.'D FOR THE COUNTY OF IRANQIlQ

ATELIER DISTRICT L.L.C. }

VS.

Plaintiff,

PARKING COMPANY OF AMERICA, INC.

Defendant

KNOW ALL MEN BY THESE PRESENTS:

)

Bond Niunber: 08758350

SUPERSEDEAS $:QN-b

Thst the undersigned PARKING COMPANV OF AMERTC'A, TNC as principal, andFjD= A]p FA"YiTi' 037p NIARM ATV ) as Surety, are held and truly bound unto the Plaintiffup to the penal sum of ;Fi nr}i-e-1 'll-ntc.-rcr; ^,rl m(Yl/1(Ylthr.:-^($^,QCQ;^ ) law^ful money of the United Stetes of America for the payment of wbich will and truly bemade, we bind ourselves, jointly and severally, and our respcctive successors and assigns by these presents.

Tbe condition of this obLigation is such that:WHEREAS, on the ^t17 Of .T^Tt.y, 2007 , a Judgment and decree was entered in the above Court nn Iheabove cause number in favor of the Plaintiff and against the Defendant, a copy of which said Judgment isattached hereto and by this reference made a part hereof; and,

W'HEREAS, De.fendant is desirous of filing a Notice of Appeal and the Appeal is now pending; and,

W'Id.EREAS, the above entitled Court, has fixed the maximum amount of the Supersedeas Bond at*,'tM EivYfi ed 71^ L-amr9 arxi 0J11(l()-hc':° (5200;030.0..

NOW THEREFORE, if the Defendant shall prosecute the said Appeal %vith diligence, and if the decision of theabove eatisled Court be affirmed, or said Appeal dismissed, if said Defendant complies with said ludgment andpays all costs and dainages finally adjudged against it and pays to the Plaindff all damages which Plaintifl'maysustain by the suspension of provisions of the attached Judgment of the stay of proceedings, and then thisobligation shall be void; othernise to remain in fvll force and effect.

DATED 21st 2007 .

PARIQhT, (TNIPANY OF 44RT(`A. iTS

Bv:

B

Ynncipal

EXHIBIT

DAY OF FebalaCY

Brs

EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND

"Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice-President, or any of the SeniorVice-Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive Committee,shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint ResidentVice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may require, or toauthorize any person or persons to execute on behalf of the Company any bonds, undertaldng, recognizances, stipulations,policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instraments inthe nature of mortgages,...and to affix the seal of the Company thereto."

CERTIFICATE

I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certifythat the foregoing Power of Attomey is still in full force and effect on the date of this cerlificate; and I do further certify thatthe Vice-President who executed the said Power of Attomey was one of the additional Vice-Presidents specially authorizedby the Board of Directors to appoint any Attomey-in-Fact as provided in Arti.cle VI, Section 2, of the By-Laws of theFIDELITY AND DEPOSIT COMPANY OF MARYLAND.

This Power of Attomey and Certificate maybe signed by facsimile under and by authority of the folloaring resolution of theBoard of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held onthe l Oth day of May, 1990.

RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanicallyreproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore orhereafter, wherever appearing upon a certified copy of any power of attomey issued by the Company, shall be valid andbinding upon the Company with the same force and effect as though manually affixed."

IN TESTIMONY VJHEREOF, I have hereunto subscnbed my name and affixed the corporate seal of the said Conipany,

this 21st day of Febt^y , 27J7

/z .re ^• /,/

Assistanf Secretary

TO Bp- AttaclZ:'d to Eon3 Ab. 08758350.

Ild THE 0.m COURT OF THE CpPqyON PLEAS

IN A.tv'D FOR THE COUNTY OF FRQIIK<.QQ

ATELIER DISTRICT L.L.C.

Plaintiff, )

v8. )

PARKING COMPANY OF AM'E[2ICA, INC.j

Defendant

Bond Number: 08758350

SUPERSEDEAS• f..'L.1E

t ^! tai

o%

KNOW ALL MEN BY THESE PRESENTS:

That the tmdersigned PARKING COMPANV OF AMFRTCAS TN( as principal, andFTM Tiy ANf) DEFOSTT 0229i pF M4R'LAND , as Surety, are held and truly bound unto the Plaintiff

up to the penal sum of ;bl-'„=Purv H arlrr-rj 'il" tcrwY' a-A m('f)/1(Ylhhc: V.^($2QQ,DOQ,^'c) taw-fui money of the United States of America for the payment of which will and truly bema.de, we bind ourselves, jointly and severally, and our respective successors and assigns by these presents.

The condition of fbis obligation is such that:WHEREAS, on the Zbth of Tffi'Nnt-y, 20)7, a Judgment and decree was entered in the above Cour[ in theabove ea.use number in favor of the Plaintiff and against the Defendant, a copy of which said Judgnent isattaehed hereto and by this reference made a part hereof; and,

WHEREAS, Defendant is desirous of filing a Nofice of Appeal and the Appeal is now pending; and,

WFiEREAS, the above entitled Court, has fixed the maximum amount of the Supersedeas Bond at% %'1R0 I ILmdrrd '11 rucan i ert3 OO/j (X)H,-::': ($ 20D.01).0D

NOW THEREFORE, if the Defendant shall prosecute the said Appeal %ttiih diligence, and if the decision of theabove entitlad Court be affirmed, or said Appeal dismissed, if said Defendant complies with said Judgment andpays all costs and damages finally adjudged against it and pavs to the Plaintiff all damages tvhiob Plaintifmaysustain by the suspension of provisions of the attached Judgment of the stay of procee,iings, and then thisobligation shall be void; othenvise to remain in full force and effect.

DATED 21st DAY OF FP1Ai ^ 2007 .

007S' (TMPANV OF' AMFRTCA

By: ll' tI

Prmcipal

(F AMERICA

BAttomey-In-Fact

-y

EXHIBITb

EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND

"Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice-President, or any of the SeniorVice-Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive Committee,shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint ResidentVice-Presidents, Assistant Vice-Presidents and Attomeys-in-Fa.ct as the business of the Company may require, or toauthorize any person oi persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations,policies, contracts, agreements, deeds, and releases and assigrroPnts of judgements, decrees, mortgages and instruments inthe nature of naortgages.... and to affix the seal of the Company thereto."

CERTIFICATE

I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do bereby certifythat the foregoing Power of Attomey is still in foll force and effect on the date of this certificate; and I do fiirther certify thatthe Vice-President who executed the said Power of Attorney was one of the additional Vice-Presidents specially authorizedby the Board of Directors to appoint any Attomey-in-Fact as provided in Article VI, Section 2, of the By-Laws of theFIDELITY AND DEPOSIT COMPANY OF MARYLAND.

This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of theBoard of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held onthe 10th day of May, 1990.

RESOLVED: "That the facsimile or machanically reproduced seal of the company and facsimile or mechanicallyreproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore orhereafter, wherever appearing upon a certified copy of any power of attomey issued by the Company, shall be valid andbinding upon the Company with the same force and effect as though manually affixed."

IN TES'I'MONY VJIIF,REOF, I have hereunto subscribed my name and affixed the corporate seal of the said Company,

this 21st dayof Feb.y^y , 2707

IN,Asaistnnt Secretnry

'Ib Be Atta1-e1 to Earl Ab. 03758350.

Power of AttorneyFIDELITY AND DEPOSIT COMPANY OF MARYLAND

KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, acorporation of the State of Maryland, by M. P. HAMMOND, Vice President, and GREGORY E. MURRAY, AssistantSecretary, in pursuance of authority granted by Article Vl, Section 2, of the By-Laws of said {>^ny, which are set forth onthe reverse side hereof and are hereby certified to be in foll force and effect on the ^ereby nominate,

M1 V ORLANDO J li L BINETT D TREADWELLi h Ild c e . , o ne . , ,constitute an appo nt e ,Deborah Dunlap AVASTHI, Colleen R. RIOIIX and Tber of , EACH its true andlawful agent and Attomey-in-Fact, to make, execut , for surety, and as its act and deed:any and all bonds and undertakings, suc gs in pursuance of these presents, shallbe as binding upon said C ampl urposes, as if they had been duly executed and

y at its office in Baltimore, Md., in their own proper persons.acknowledgedby el Wbeyt'This power of atto s ofMichelle V. ORLANDO, Joline L. BINETTE, Nancy E. PETERS,Shannon S. WALTO L, Deborah Dunlap AVASTHI, dated December 29, 2004.

h hd b i h d lat t e extract set fort on the reveise si e hereof is a tue copy of Articees ereby cert fy t e VI,The said AssistantSection 2, of the By-Laws of said Company, and is now in force.

IN WITNESS WHEREOF, the said Vice-President and Assistant Secretary have hereunto subscribed their names andaffixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 8th day of September,A.D. 2006.

ATTEST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND

Cq^^. Mww-^B.y:

Gregory E. Murray Assistant Secretary M. P. Hammond Vice President

State of Maryland 1 ss:City of Baltimore f

On this 8th day of September, A.D. 2006, before the subscriber, a Notary Public of the State of Maryland, dulycommissioned and qualified, came M. P. HAMMOND, Vice President, and GREGORY E. MURRAY, Assistant Secretary ofthe FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officersdescribed in and who executed the preceding instrument, and they each acknowledged the execution of the same, and beingby me duly swom, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid,and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Sealand their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction ofthe said Corporation.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first abovewrittea

Dennis R. Hayden Notary PublicMy Comnussion Expires: February 1, 2009

POA-F 063-6107A

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Atelier District, LLC,

Plaintiff-Appellee,

V.

Parking Company of America, Inc.,

Defendant-Appellant.

O P I N I O N

No. 07AP-87(C.P.C. No. 04CVH-08-8277)

(REGULAR CALENDAR)

^Rendered on December 31 2007 r ^,

m70 ^

Luper, Neidenthal & Logan, LPA, David M. Scott and Nicoisn

c-sc.x

Vanderpoes, for appellee. c-^0

Roetzel & Andress, LPA, Stephen D. Jones and Michael Rlp,Traven, for appellant. U)

APPEAL from the Franklin County Court of Common Pleas.

BRYANT, J.

{q[1} Defendant-appellant, Parking Company of America, Inc. ("PCA"), appeals

from a judgment of the Franklin County Court of Common Pleas awarding plaintiff-

appellee, Atelier District, LLC ("Atelier"), damages in the amount of $488,006.51.

Because the trial court erred in awarding Atelier $27,000 for demolition performed

pursuant to a city of Columbus emergency order, we vacate that portion of the trial court's

EXHIBIT I

No. 07AP-87 2

judgment but affirm the remainder of the judgment, as competent, credible evidence

supports it and it is in,accordance with law.

1. Facts

{12} Atelier is a business entity that owns real estate in Columbus; Bradley

Mindlin, its manager, is an attorney with experience in real estate matters. PCA is a

national corporation with 30 years experience owning and operating parking lots

throughout the United States. Martin Chavez, PCA's president and co-owner, has a

mastei's degree in business administration, real estate and finance; he approves PCA's

leases. Timothy Chavez ("Chavez"), PCA's Senior Operations Manager, is responsible for

its operations.in Columbus, including contract negotiations and securing governmental

approval.and permits for PCA's work.

{9[3} On December 21, 1995, PCA and Columbus Central Properties, Ltd.

("CCP"),- the parent company of Atelier, executed a five-year lease agreement (the

"Lease") that, PCA drafted; its term began on January 1, 1996 and ended December 31,

2000. Pursuant to the Lease, CCP agreed to lease to PCA six lots, described as Lots 40,

41, 42, 43, 44 and 45, that CCP owned in a designated historic redevelopment area in

Columbus known as the Warehouse District. In return, PCA agreed to pay CCP a

guaranteed annual rent of no less than $153,000 to use CCP's property for parking lot

operations PCA would manage on its own behalf.

{14} The Lease also provided under the section entitled "Legal Compliance," that

both parties agreed "to comply with all pertinent city, state and federal statutes herein

applicable." They further agreed PCA "shall obtain at its own sole cost, any required

licenses or permits in carrying on its business operations on the Premises and provisions

No. 07AP-87 3

hereof." Under the section entitled "Miscellaneous," the parties agreed the "Lease sets

forth the complete agreement of the parties hereto and no modification hereof shall be

binding unless in writing and signed by the parties hereto."

{15} On August 8, 2000, Chavez sent Mindlin a proposal to extend the Lease,

"to upgrade the parking lots to make the area more cohesive" with Atelier's building

improvements, and "to assure a more appealing parking environment for the tenants and

general public alike." On November 2, 2000, Atelier and PCA executed an Addendum

renewing the Lease for an additional five-year term to begin on January 1, 2001 and end

on December 31, 2005. The Addendum incorporated all the terms, provisions, and

conditions of the Lease except where the Addendum specifically modified or amendedr

them. Pursuant to Section 3 of the Addendum (the "Improvements" provision), PCA

agreed to pay Atelier a guaranteed annual rent of no less than $204,000 and to "make

improvements" to the parking lots "which shall include development, paving, demolition

and fencing, such improvements to be more particularly described in Exhibit B, attached

hereto and made a part hereof."

{9[6} Except for Lot 41 where no improvements were planned, Exhibit B

described the "improvements" to be made on each lot as simply "development,"

"demolition," "paving," "fencing" or "new decorative fencing." The Addendum neither

further described "improvements" nor contained a "time is of the essence" provision or a

due date by which the improvements were to be completed. Exhibit B set forth cost

estimates for the improvements on each respective lot, stating the "total" sum of $160,578

for all the lot improvements "represents estimate [sic] of costs, to be determined later

based on three or more competitive bids." (Emphasis sic.) Neither the Addendum nor

No. 07AP-87 4

Exhibit B states that $160,578 is a cap or the maximum amount PCA must spend for the

lot improvements. PCA drafted the Addendum and Exhibit B; PCA's Chavez prepared the

cost estimates reflected in Exhibit B.

{9[7} Aware that PCA needed approval from the city's Downtown Development

Commission ("DDC"), as well as necessary permits, before PCA's development work on

the lots could proceed, the parties in February 2001 submitted proposed development

plans for DDC approval. Chavez acknowledged knowing then that at least one DDC

member was opposed to demolishing buildings to create surface parking; he also knew

the DDC either might require revisions before approving the plans or might not approve

the plans at all. The DDC tabled its decision on the proposed improvements to Lots 43

and 44 while it considered various options relating to demolition work on the lots,

including possible preservation of a historical symbol or farfade of one of the buildings.

{18} As Addendum Section 3 and Exhibit B required, PCA subsequenfly

completed development, paving and fencing work on Lots 40, 42 and 45 at a cost of

$154,890, almost twice PCA's estimate of $81,978 reflected in Exhibit B. Addendum

Section 3 and Exhibit B also required PCA to make "demolition, paving & fencing"

improvements on Lots 43 and 44, an undertaking PCA estimated in Exhibit B to cost

$78,600. The parties agreed the work included demolition of two vacant buildings on Lots

43 and 44, followed by paving and fencing work to combine the two lots into one parking

lot.

{19} In May 2003, while the DDC was still considering the demolition work

proposed for Lots 43 and 44, another city of Columbus agency issued an emergency

order declaring the two buildings on Lots 43 and 44 an "unreasonable and imminent

No. 07AP-87 5

threat to the life and safety of the surrounding area" and a violation of city code. The city

ordered that, unless the buildings were promptly reinforced or demolished, the city would

demolish them at one and one-half times the cost. Without notice to PCA, Atelier had the

buildings razed five days later at a cost of $27,000.

{y[10} On February 2, 2004, the DDC issued a"Certifcate of Appropriateness"

approving revised development plans for Lots 43 and 44, a prerequisite to PCA's

obtaining any necessary zoning clearance and permits for the paving and fencing

improvements on the lots. On April 27, 2004, Atelier sent a letter to PCA requesting its

assurance it would "do all work under the Lease to parking lots 43 and 44." PCA refused,

believing it could not recoup its costs for the improvements over the remaining term of the

Addendum, particularly because the parking lots generated less revenue than expected

and PCA experienced cost overruns. The same day, Atelier gave notice of default to PCA

pursuant to the Lease.

{9[11} On August 10, 2004, Atelier filed a complaint against PCA claiming PCA

breached its contract with Atelier by (1) failing to undertake and complete the demolition,

paving, and fencing work on Lots 43 and 44 as the Lease and Addendum required and

(2) taking excessive credits for tenant parking spaces. PCA filed an answer and a

counterclaim. Specifically, PCA claimed that because neither party contemplated the

DDC would not promptly approve the demolition work and other improvements to Lots 43

and 44, the parties' agreement should be reformed to release PCA from any obligation to

perform the improvements. PCA also claimed Atelier breached PCA's contractual right of

first refusal by leasing the premises at issue to a third party after PCA's lease expired on

December 31, 2005.

No. 07AP-87 6

{112} A three-day bench trial began on December 11, 2006. In a January 26,

2007 judgment entry, the trial court concluded (1) the Lease and Addendum constitute a

valid, enforceable contract between the parties; (2) the Addendum obligated PCA to

complete demolition, paving and fencing work on Lots 43 and 44; (3) PCA breached the

Addendum by failing to complete any demolition, paving or fencing work upon Lots 43

and 44; and (4) PCA is liable to Atelier for damages flowing from its breach. The court

accordingly awarded damages to Atelier in the amount of $488,006.51 and denied PCA's

counterclaims.

II. Assignment of Errors

1113} PCA appeals, assigning the following errors:

FIRST ASSIGNMENT OF ERROR - The trial court erred inholding that PCA breached the agreement because PCA wasexcused from perFonnance.

SECOND ASSIGNMENT OF ERROR - The trial couit erredin holding that PCA breached the agreement because theparties never had a meeting of the minds.

THIRD ASSIGNMENT OF ERROR - The trial court erred ingranting summary judgment in favor of Atelier on theaffirmative defenses of waiver, laches, and time is of theessence.

FOURTH ASSIGNMENT OF ERROR - The trial court erredin awarding Atelier the costs for the demotion of the buildingsbecause Atelier was obligated under the parties' agreementsto pay for all government requirements.

FIFTH ASSIGNMENT OF ERROR - The trial court erred indenying PCA's counterclaim for breach of the right of firstrefusal.

SIXTH ASSIGNMENT OF ERROR - The trial court erred inawarding Atelier damages because the scope of the awardwas not what the parties contemplated at the time of their

No. 07AP-87 7

agreements, Atelier failed to mitigate its damages, andAtelier's evidence regarding damages was speculative.

III. Breach of Contract

{114) We first address PCA's second assignment of error, in which PCA contends

no meeting of the minds occurred because the parties were mutually mistaken as to the

scope and cost of the "paving" improvements for Lots 43 and 44. PCA asserts, that as a

result, the Addendum is not an enforceable contract, and PCA's refusal to complete any

of the paving and fencing improvements on those lots did not constitute a breach of

contract.

{115} A contract is a promise or set of promises for the breach of which the law

gives a remedy, or the performance of which the law recognizes as a duty. NetJets, Inc.

v. Binning, Franklin App. No. 04AP-1257, 2005-Ohio-3934, at ¶8, citing Episcopal

Retirement Homes, lnc. v. Ohio Dept oflndus. Relations (1991), 61 Ohio St.3d 366, 369.

For an agreement to be enforceable, the parties must consent to its terms, the agreement

must be definite and certain, and a meeting of the minds must exist as to the agreement's

essential terms. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, at ¶16; Motorists

Mut. lns. Co. v. Columbus Finance, Inc., 168 Ohio App.3d 691, 2006-Ohio-5090, at 17.

{116} Questions regarding the existence of a contract and its meaning are

questions of law subject to de novo review. NetJets, at ¶7; Saunders v. Mortensen, 101

Ohio St.3d 86, 2004-Ohio-24, at ¶9. Leases are contracts and are subject to traditional

rules of contract interpretation. Mark-!t Place Foods, Inc. v. New Plan Excel Realty Trust,

Inc., 156 Ohio App.3d 65, 2004-Ohio-411, at ¶29. Courts thus interpret lease provisions

according to traditional contract principles. Bucher v. Schmidt, Hancock App. No. 5-01-48,

No. 07AP-87 8

2002-Ohio-3933, at ¶13. "Contracts are to be interpreted so as to carry out the intent of

the parties, as that intent is evidenced by the contractual language." Skivotocki v. E. Ohio

Gas Co. (1974), 38 Ohio St.2d 244, paragraph one of the syllabus; Shifrin v. Forest City

Ent., Inc. ( 1992), 64 Ohio St.3d 635.

{117} So long as a contract is clear and unambiguous, the rights and obligations

of the parties are determined on the plain language of the agreement. Bucher, citing

C/eveland Trust Co. v. Snyder (1978), 55 Ohio App.2d 168; Nationwide Mut. Fire Ins. Co.

v Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108. Whether a contract is ambiguous is

a question of law. Ohio Historical Soc. v. Gen. Maintenance & Eng. Co. (1989), 65 Ohio

App.3d 139, 146. The meaning of the words in an ambiguous contract becomes a

question of fact. Id. Extrinsic evidence is admissible to ascertain the parties' intentions,

and the trial court's determination will not be overtumed absent an abuse of discretion. Id.

at 147, citing C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279; Shifrin,

supra, at syllabus. The language in an ambiguous contract will be construed strictly

against the party who prepared the contract or selected the language. Cent. Realty Co. v.

Clutter (1980), 62 Ohio St.2d 411; McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d

77, 80.

{118} PCA drafted the Lease, Addendum and Exhibit B. None of the documents

define or describe the term "paving." Because the term is susceptible to different

meanings, it is ambiguous. The trial court thus properly admitted parol evidence to

ascertain the parties' intent about the "paving" on Lots 43 and 44. See Shifrin, supra;

Dalicandro v. Morrison Rd. Dev. Co., Inc. (Apr. 17, 2001), Franklin App. No. OOAP-619.

No. 07AP-87 9

{9[19} Mindlin, Atelier's manager, testified he had no specific preconception about

the scope of the paving and fencing improvements for Lots 43 and 44. According to

Mindlin, the improvements were simply to provide a cohesive parking lot, and PCA was to

"do the work pursuant to code and law." (Tr. 179-180.) Both a licensed civil engineer and

a commercial asphalt construction contractor, each of whom is familiar with city of

Columbus commercial paving and development requirements, testified for Atelier that the

city would not permit a mere "asphalt overlay" to be installed on Lots 43 and 44. Rather,

for the "paving and fencing" improvements to comply with city of Columbus requirements,

both engineering work and a "comprehensive plan" was necessary, including engineered

plans, a hydrology plan and installation of an internal drainage system, excavation and

site preparation of the entire surPace area of the lots, instailation of underground utilities

and the parking lot surface, construction of a concrete entry apron and brick pillars,

removal and construction of concrete curbing and sidewalks with handicap ramps,

fencing, parking lot lighting, and landscaping.

{1201 Chavez admitted the lot improvements were meant to upgrade the parking

lots to make a more appealing parking environment cohesive with the extensive

renovations and investments Atelier made in buildings it owned in the surrounding area.

He further conceded the scope of the "paving" improvements PCA was required to make

would depend on the various governmental prerequisites for making the improvements on

Lots 43 and 44. Although he maintained PCA merely had to install an "asphalt overlay" on

the lots to fulfill its obligations under the Addendum, he also acknowledged the "paving"

work required engineering work, a "comprehensive plan," a hydrology plan for internal

drainage, electrical and lighting work, and construction of brick pillars. PCA's own paving

No. 07AP-87 10

expert testified that the "paving" work on Lots 43 and 44 included installation of pillars,

concrete curbs, landscaping, and fencing, all based on documents and information PCA

provided to him.

11121} The trial court concluded, and PCA does not dispute, that the Lease and

Addendum represent contracts freely negotiated, at arm's length, between two

sophisticated business entities. Construing ambiguities in the written documents against

PCA as the drafter, and finding Ateliees evidence to be more credible, the court

concluded the "Improvements" provision is a valid and enforceable provision that

obligated PCA to complete the "paving and fencing" work on Lots 43 and 44. The court

noted Chavez was aware engineering work and a "comprehensive plan," including a

hydrology plan, would be required for the work on Lots 43 and 44.

{9[22} Civil "[j]udgments supported by some competent, credible evidence going to

all the essential elements of the case will not be reversed by a reviewing court as being

against the manifest weight of the evidence." C.E. Morris Co., at syllabus. We afford

every reasonable presumption in favor of the trial court's judgment and findings of fact,

and evidence susceptible of more than one interpretation is construed consistently with

the trial court's judgment. Gerifo, lnc. v. Fairfield (1994), 70 Ohio St.3d 223, 226, certiorari

denied (1995), 513 U.S. 1150. See, also, Seasons Coal Co. v. Cleveland (1984), 10

Ohio St.3d 77, 80.

{123} Competent, credible evidence supports the trial court's determination that

PCA was contractually obligated to perform "paving" work on Lots 43 and 44 pursuant to

the "Improvements" provision. As the trier of fact, the trial court appropriately weighed the

conflicting evidence on the meaning of the term "paving," and it found Atelier's evidence

No. 07AP-87 11

to be more credible. If PCA mistook "paving" to mean only "asphalt overlay" on Lots 43

and 44, the mistake was unilateral and did not relieve PCA of its duty to perform under

the contract. See Ohio Tumpike Comm. v. Alexanderian, Wood App. No. WD-05-060,

2006-Ohio-4301, at ¶12 (concluding a unilateral mistake does not relieve a party of its

obligations under a contract where the mistake is the result of the party's own

negligence). Because PCA undisputedly refused and failed to perform the "paving and

fencing" improvements on Lots 43 and 44, it breached its obligations under the

"Improvements" provision. PCA's second assignment of error is overruled.

IV. Excused Performance

{1[24} PCA's first assignment of error contends that, even if a valid, enforceable

contract existed, PCA did not breach the contract because its performance was excused.

Specifically, PCA claims its duty to perform the paving and fencing.improvements on Lots

43 and 44 was excused because: (1) Atelier hindered PCA's ability to perform the

improvements, (2) Atelier frustrated PCA's ability to promptly perform, (3) conditions

precedent to PCA's performance were not satisfied, and (4) Atelier materially breached

the contract.

A. Hindrance of PCA's Ability to Perform

{125} PCA first contends it was excused from performing the improvements on

Lots 43 and 44 because Atelier hindered PCA's performance. When the parties submitted

their proposal for the improvements to Lots 43 and 44 to the DDC in February 2001,

Chavez initially took the lead in securing the DDC's approval. PCA argues that shortly

after the DDC tabled its decision on the improvements, Atelier assumed full responsibility

No. 07AP-87 12

for securing the DDC's approval and effectively removed PCA from the approval process

when Mindlin allegedly told Chavez, "Tim, you are out."

{126} At trial, Mindlin denied so stating. Chavez, who testffled Mindlin made the

statement to him, admitted the alleged statement referred to Chavez personally and did

not absolve PCA of its responsibility under Section 8 of the Lease to secure necessary

governmental approval and required licenses or permits for the improvements on Lots 43

and 44. He also admitted that nothing in writing absolved PCA of any of its obligations

pursuant to the Lease and Addendum. Chavez' testimony and Section 8 of the Lease

constitute competent, credible evidence that PCA was not relieved of its obligation to

secure the DDC's approval and the necessary permits to make the improvements on Lots

43 and 44.

{1[27} PCA next contends Atelier hindered PCA's performance because Atelier

refused to meet the DDC's "conditions" for approval of the planned improvements on Lots

43 and 44. PCA claims the DDC would have approved the demolition work on those lots,

and thus allowed PCA to proceed with the improvements, if Atelier had agreed to install a

historical symbol or fagade of one of the buildings on the lots. Contrary to PCA's

contention, Chavez at trial testified the DDC had no such "condition" for its approval.

{128} Based solely on Chavez' trial testimony, the trial court could reasonably

conclude Atelier did not hinder PCA's performance of the improvements to Lots 43 and

44.

B. Time was of the Essence - Frustration of Purpose

1129} PCA acknowledges the Addendum does not contain an express provision

stating "time is of the essence." PCA seeks to imply one because, it asserts, one of the

No. 07AP-87 13

principal purposes in executing the Addendum was not only so PCA could complete the

improvements to Lots 43 and 44 as quickly as possible and recoup its costs for the

improvements, but also so Atelier could realize the enhanced value of additional parking

spaces for its tenants. PCA further argues Atelier frustrated the Addendum's purpose

because it removed PCA from the DDC approval process and protracted the approval

process by refusing to meet the DDC's conditions for demolition.

{130} Even were we to accept the "frustration of purpose" doctrine, we could not

conclude that PCA's contractual obligations were excused because, as noted, competent,

credible evidence demonstrates Atelier neither removed PCA from the DDC approval

process nor refused to meet any "condition" for the DDC's approval. See Wells v. C.J.

Mahan Constr. Co., Franklin App. No. 05AP-180, 2006-Ohio-1831, at ¶18, appeal not

allowed, 111 Ohio St.3d 1411, 2006-Ohio-5083 ( noting "frustration of purpose" doctrine is

not widely accepted in Ohio). PCA's claim that Atelier frustrated PCA's ability to promptly

perform its obligations under the contract is without merit.

{1[31} PCA next claims a "time is of the essence" term is necessarily implied in the

parties' agreement. Generally, the time for performance is not of the essence unless

either the parties include an express stipulation to that effect or such a requirement can

be implied from the nature or circumstances of the contract. Brown v. Brown ( 1993), 90

Ohio App.3d 781, 784; see, also, Truetried Service Co. v. Hager (1997), 118 Ohio App.3d

78, 83 (applying contract construction p(nciples to lease agreements, including

construing provisions against the party who prepared it).

{132} Here, the parties, by an express integration provision, limited their

agreement to the written contract. See Aultman Hosp. Assn. v. Comm. Mut. Ins. Co.

No. 07AP-87 14

(1989), 46 Ohio St.3d 51, 54. In neither the Lease nor Addendum did PCA include any

provision indicating that time was of the essence. In the absence of such a provision, the

"law will not insert by construction for the benefit of one of the parties an exception or

condition which the parties either by design or neglect have omitted from their own

contract when the lease of commercial property is involved." Truetried, supra, at 86;

Aultrnan Hosp. Assn., supra, at 53 (noting "[i]ntentions not expressed in the writing are

deemed to have no existence and may not be shown by parol evidence").

{y[33} Moreover, Chavez testified he expected the DDC's opposition to the

proposed demolition work, and he acknowiedged PCA had no guarantee the DDC would

approve the proposed lot improvements. With that knowledge, PCA, if it desired to

absolve itself of liability in the event the DDC delayed or denied its approval, could have

sought to include a term in the Addendum that "time is of the essence." Absent such a

provision, PCA's performance was not excused due to any delay that occurred in

obtaining the DDC's approval for the improvements on Lots 43 and 44.

C. Conditions Precedent

{134} PCA contends it was excused from performing the improvements to Lots 43

and 44 because two conditions precedent to PCA's performance were not satisfied: (1)

the DDC failed to "promptly" approve the demolition of the buildings on Lots 43 and 44

and (2) three competitive bids were not obtained for the improvements to those lots.

{135} A condition precedent is a condition that must be performed before

obligations in the contract become effective. Mumaw v. Westem & Southem Life Ins. Co.

(1917), 97 Ohio St. 1, 11. Essentially, a condition precedent requires that an act must

take place before a duty to perform a promise arises. If the condition is not fulfilled, the

No. 07AP-87 15

parties are excused from performing. Id. To determine whether the parties intended a

condition precedent, we consider the language of the contract. Id.

{1[36} Here, the failure of the Addendum to mention DDC approval, let alone its

"prompt" approval, suggests the parties did not intend it to be a condition precedent.

Moreover, Section 8 of the Lease provides PCA was obliged to "obtain at its sole cost,

any required licenses or permits in carrying on its business operations on the premises

and provisions hereof." " 'Ordinarily, when one contracts to render a performance for

which a govemment license or permit is required, it is his duty to get the license or permit

so that he can perPonn. The risk of inability to obtain it is on him; and its refusal by the

government is no defense in a suit for breach of his contract.' " Security Sewage

Equipment Co. v. McFerren (1968), 14 Ohio St.2d 251, 254, citing 6 Corbin on Contracts

435, Section 1347. Because PCA assumed the responsibility to obtain any required

licenses or permits, it bore the risk that the government would delay in issuing them.

Although the DDC had to give its approval before PCA could make the improvements on

Lots 43 and 44, PCA failed to demonstrate that its "prompt" approval was a condition

precedent to PCA's contractual obligations.

{137} Similarly unpersuasive is PCA's argument that Atelier had to procure three

competitive bids before PCA was obligated to make the improvements on Lots 43 and 44.

PCA agreed to complete the lot improvements pursuant to the "Improvements" provision

and Exhibit B without including any "cap" or "maximum" on the amount it must spend to

complete the improvements. Therefore, obtaining competitive bids before it undertook its

obligation to complete the lot improvements was in PCA's own best interest and its sole

responsibility.

No. 07AP-87 16

{138} Accordingly, PCA's performance was not excused by the failure of

conditions precedent.

D. Atelier Materially Breached the Agreement

{q[39} PCA asserts it was excused from performing the improvements to Lots 43

and 44 because Atelier materially breached the parties' contractual agreement when it

failed to comply with the DDC's requirement that a fagade be installed to one of the

buildings on those lots. PCA contends the DDC would have approved the demolition work

on the lots if the building fagade were installed, but Atelier refused to pay for installing the

fagade and thus violated paragraph 10 of the Lease, excusing PCA from peiformance.

PCA merely rehashes its argument that Atelier "hindered PCA's performance." Because

the argument is without merit, PCA was not excused from making the improvements to

Lots 43 and 44 due to breach of the parties' agreement.

{140} PCA's first assignment of error is overruled.

V. Defenses of Waiver and Laches

{9[41} Before trial, Atelier moved for partial summary judgment, requesting that the

"Improvements" provision be declared enforceable as a valid contractual provision. In its

third assignment of error, PCA asserts the trial court erred in granting summary judgment

against PCA's "affirmative defenses" of waiver, laches, and "time is of the essence" that

PCA raised in opposition to Atelier's motion.

{142} Preliminarily, contrary to its assertion on appeal, PCA did not raise a "time

is of the essence" affirmative defense in its memorandum contra Ateliets motion, and the

trial court did not grant summary judgment against the defense. Accordingly, we do not

review PCA's claim to the extent it asserts such error.

No. 07AP-87 17

{1143} PCA's memorandum contra, however, asserted that "waiver" and "laches"

estopped Atelier from enforcing the "Improvements" provision. Specifically, PCA argued

Atelier "waived" its right to claim PCA breached the provision because Atelier waited until

April 27, 2004 to demand that PCA make the improvements on Lots 43 and 44. PCA also

contended "laches" barred Atelier from claiming a breach because Atelier unreasonably

delayed enforcing the provision by waiting until April 27, 2004 to demand assurance that

PCA would perform.

{9[44} "Waiver," as applied to contracts, is a voluntary relinquishment of a known

right. State ex re/. Wallace v. State Med. Bd. of Ohio (2000), 89 Ohio St.3d 431, 435;

'Waiver assumes one has an opportunity to choose between either relinquishing or

enforcing of the right." Chubb v. Ohio Bur. of Workers' Comp. (1998), 81 Ohio St.3d 275,

279. A party who has a duty to perform and who changes its position as a result of the

waiver may enforce the waiver. Id. at 279, citing Andrews v. State Teachers Retirement

Sys. (1980), 62 Ohio St.2d 202, 205. The party asserting waiver must prove the waiving

party's clear, unequivocal, decisive act. Automated Solutions Corp. v. Paragon Data

System, 167 Ohio App.3d 685, 2006-Ohio-3492, at ¶28.

t9[45} " 'Laches is an omission to assert a right for an unreasonable and

unexplained length of time, under circumstances prejudicial to the adverse party.'

Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, quoting Smith v. Smith (1957), 107 Ohio

App. 440, 443-444, affirmed (1959), 168 Ohio St. 447. The elements of laches are (1) an

unreasonable delay or lapse of time in asserting a right, (2) the absence of an excuse for

the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice

No. 07AP-87 18

to the other party. State ex rel. Ohio Dept. of Mental Health v. Nadel, 98 Ohio St.3d 405,

2003-Ohio-1632, at 116.

1 146} PCA premises its waiver and laches arguments on Atelier's failure to

factually rebut Chavez' affidavit. PCA specifically relies on Chavez statements that Atelier

assumed full responsibility for securing the DDC's approval for the lot improvements after

the DDC tabled its decision on the matter. Chavez stated that Atelier's subsequent

silence on the matter led him to "believe" Atelier abandoned the improvements and

waived PCA's duty to perform them. (Sept. 7, 2005 AfFidavit of Chavez, ¶3, 5 & 10.)

{1[47} At best, the statements are equivocal as to PCA's duty to perform the

improvements on Lots 43 and 44. Neither equivocal nor inconsistent conduct constitutes

a waiver. Bucher, at ¶15. Nor does silence constitute a waiver where, as here, one is not

obligated to speak. Id. Chavez' statements do not establish a genuine issue of material

fact to support PCA's waiver defense.

{148} Moreover, because the Addendum does not contain a "time is of the

essence" provision or a due date for performing contractual obligations, Atelier could

demand PCA's performance any time during the Addendum's term and could reasonably

expect PCA would perform its obligations at any time during the duration of the

Addendum. Indeed, Chavez affidavit states Atelier demanded PCA's performance on

April 27, 2004, during the Addendum's term. Thus, Atelier did not "waive" its right to

enforce its rights under the contracts, and its delay in asserting its contractual rights was

not unreasonable, especially where the DDC gave its approval less than three months

before Atelier requested PCA to fulfill its contractual obligations.

No. 07AP-87 19

11491 Because the trial court did not err in granting summary judgment against

PCA's defenses of waiver and laches, PCA's third assignment of error is overruled.

VI. Breach of Right of First Refusal

11[501 PCA's fifth assignment of error asserts the trial court erred in denying its

counterclaim that alleged Atelier breached PCA's contractual "right of first refusal" by

"leasing or renting to another prospective tenanY' after the Lease expired. (Emphasis

added; Addendum, §2.)

1151} PCA premises its claim on Ateliers entering into an agreement with Ampco

System Parking after the Lease and Addendum with PCA expired. Under the agreement,

Ampco was to operate the subject parking lots and to perform substantially the same

tasks that PCA performed under the Lease and Addendum. The trial court concluded

Atelier did not breach PCA's contractual right of first refusal because (1) PCA's breach of

the Addendum relieved Atelier of its obligation to provide PCA with a right of first refusal,

and (2) even if PCA did not breach the Addendum, PCA's right of first refusal was never

triggered because Atelier entered into a "management agreement" with Ampco.

19[521 At trial, Atelier presented evidence that its management agreement with

Ampco differs from PCA's Lease. Under the Lease, PCA was a lessee to whom Atelier

conveyed a leasehold interest, PCA had the right to occupy and control the premises, and

PCA paid rent to Atelier. PCA conducted the parking operations on its own behalf,

assumed the risks, and enjoyed the benefits associated with operating a parking lot on

the premises. See Jones v. Keck (1946), 79 Ohio App. 549, 552 (defining "lease" as "a

conveyance of an estate in real property for a limited term, with conditions attached, in

consideration of rent"). By contrast, Atelier's management agreement with Ampco

No. 07AP-87 20

conveys no property interest. Under it, Atelier pays Ampco a monthly fee to manage the

parking lot operations on behalf of Atelier as the owner; Atelier has control of the

premises, assumes the risks, and enjoys the benefits associated with the parking

operations. Unlike a lease, the management agreement is tantamount to a"license" See

id. (stating a "license in respect to real estate is authority granted by the owner to another

to do a particular act or series of acts upon the land without grant to the licensee or any

estate or interest in the land").

{1153] Competent, credible evidence thus supports the trial court's determination

that Atelier's management agreement with Ampco is not a lease or rental agreement so

that PCA's "right of first refusal" not only was not breached but was never triggered.

PCA's fifth assignment of error is overruled.

VII. Demolition Work

11541 In its fourth assignment of error, PCA asserts the trial court erred in

awarding Atelier the demolition costs for the two buildings on Lots 43 and 44. PCA

contends Atelier was obligated under Section 10 of the Lease to pay for any

improvements governmental authorities ordered.

{q[551 Section 10 addresses repair and provides generally that the "Lessee shall

keep the Premises in good order and shall maintain the Premises in the same condition

as Premises are at the time of occupancy." The section further provides that "[a]ny

structural, mechanical, electrical, or other installations or improvements to the Premises

required by statutes or regulation ***, or any other govemmental requirements, shall be

the sole responsibility of Lessor." The "Improvements" provision, however, obligates PCA,

as the Lessee, to "make improvements to ***[the] Parking Lots which shall include ***

No. 07AP-87 21

demolition * * * described in Exhibit B." The parties agree that Exhibit B, in turn, required

demolition of the two structures that were on Lots 43 and 44 when the parties executed

the Lease and Addendum.

{156} The trial court did not reference Section 10 of the Lease, but it determined

Atelier caused the buildings to be demolished "in order to avoid sanctions and comply

with the Order from the City of Columbus." (Decision, ¶50.) Ultimately concluding PCA

was obligated to undertake the demolition under the "Improvements" provision, the court

ordered PCA to pay $27,000 to Atelier as the cost for the demolition work. Our inquiry

focuses on whether Section 10 of the Lease or the "Improvements" provision is

controlling. We conduct a de novo review of the pertinent provisions and construe them to

give effect to the parties' intent. Saunders, supra.

{157} Generally, absent an express agreement to the contrary, a lessor is

responsible for making or paying for substantial or structural improvements to commercial

premises where a governmental agency orders the changes that go beyond what may be

considered ordinary repairs. Wollett v. Boston Bars, Inc. (June 26, 1980), Franklin App.

No. 79AP-644. See, also, Fritz v. Otis Elevator Co. (1988), 48 Ohio App.3d 240

(distinguishing "ordinary repairs" from substantial "improvements to real property").

Pursuant to Section 10 of the Lease, Atelier, as the lessor, assumed the "sole

responsibility" for demolition of the two buildings on Lots 43 and 44 when it undertook the

demolition work pursuant to the city of Columbus' emergency order. PCA's agreement in

the "Improvements" provision to demolish the buildings on Lots 43 and 44 does not

specifically modify, supercede or relieve Atelier of the "sole responsibility" it assumed

under Section 10 of the Lease to perform improvements the city ordered. Hence, Atelier

No. 07AP-87 22

retained the "sole responsibility" to perform the demolition work the city ordered, including

the responsibility to pay the costs of the demolition work.

{158} Because Section 10 of the Lease controls demolition work done pursuant to

the city's order, PCA's fourth assignment of error is sustained.

Vill. Damages

11591 PCA's sixth assignment of error argues the damages the trial court awarded

for PCA's failure to improve Lots 43 and 44 were unreasonably high and far different in

scope than the parties agreed when they executed the Addendum. Maintaining the

parties intended only that PCA install an "asphalt overlay" and provide minimal drainage,

P.CA contends the court, at most, should have awarded Atelier $131,000, the amount

PCA's paving expert testified it would cost for the work on the subject lots.

11601 " 'Damages for a breach of contract are those which are the natural or

probable consequence of the breach of contract or damages resulting from the breach

that were within the contemplation of both parties at the time of the making of the

contract' " Wells, at ¶11, quoting The Toledo Group, Inc. v. Benton Industries, Inc.

(1993), 87 Ohio App.3d 798, 806. Contract damages are intended to place the injured

party in the same position it would have been had the contract not been breached. Wells,

supra, citing Schulke Radio Productions, Ltd. v. Midwestem Broadcasting Co. (1983), 6

Ohio St.3d 436, 439. Damages need not be calculated with mathematical certainty, but

cannot be based on mere speculation and conjecture. Allied Erecting & Dismantling Co.,

Inc. v. Youngstown, 151 Ohio App.3d 16, 2002-Ohio-5179, at ¶64. The plaintiff must

show its entitlement to damages in an amount ascertainable with reasonable certainty.

No. 07AP-87 23

Id.; Interstate Gas Supply, Inc. v. Calex Corp., Franklin App No. 04AP-980, 2006-Ohio-

638, at ¶59.

{161} At trial, Chavez acknowledged the scope of the paving and fencing

improvements on Lots 43 and 44 would depend on the various governmental

requirements PCA had to comply with in order to obtain the necessary approval and

permits to do the work. The subject lots undisputedly are located in a designated historic

redevelopment area that is subject to more governmental restrictions and requirements

than a non-designated area. Because the parties. agreed at trial that the stated dollar

amounts in Exhibit B for the improvements reflect only "estimated" costs for the paving

and fencing work not yet been performed, both parties presented evidence on projected

costs to complete the paving and fencing improvements on Lots 43 and 44.

{162} Glenn Halmbacher, a civil engineer licensed in Ohio and California with

approximately 30 years of experience, and Drew DiMaccio, a local asphalt contractor with

over 20 years of commercial paving experience, both testified on behalf of Atelier that a

mere "asphalt overlay" on Lots 43 and 44 would not comport with the city of Columbus'

requirements. Each witness was extensively familiar with city requirements for

commercial paving and development work, including work performed in historic

redevelopment areas.

{163} Halmbacher presented unrebutted evidence on behalf of Atelier that the

reasonable cost of engineering services for the improvements on Lots 43 and 44 was

$29,000, including coordination between the various state agencies, ensuring compliance

with applicable zoning codes and governmental regulations, and creating engineered

drawings from which the paving and fencing work on Lots 43 and 44 could be done. With

No. 07AP-87 24

respect to the construction work related to the paving and fencing improvements on Lots

43 and 44, Halmbacher testified the cost estimate for the work, after factoring in all the

governmental requirements, was $419,316.51; Halmbacher's detailed written estimate

was admitted into evidence. DiMaccio testified that approximately a year before trial he

estimated the paving and fencing improvements, done in compliance with city

requirements, would cost $311,842, a cost he opined would be higher at the time of trial.

{9[64} James Kuhn, a local paving contractor with over 20 years of primarily

residential paving• and. asphalt overlay experience, testified on behalf of PCA. He

estimated a cost of $131,000 to complete the paving and fencing work on Lots 43 and 44.

He, however, conceded his estimate did not include monies for fees, pennits, or a

hydrology plan, and he did not utilize engineered drawings or consult with an engineer,

architect or any city of Columbus representative in preparing his estimate. He explained

his estimate was lower than the others presented at trial because his estimate assumed

installation of an asphalt overlay on the existing lot surface rather than excavation and

reconstruction of the entire lot surface. He also acknowledged his estimate did not include

sidewalks or handicap ramps included in the other estimates.

1165} The trial court found that PCA, as a sophisticated business with experience

owning and managing parking lots throughout the United States, reasonably foresaw or

should have foreseen the cost for paving and fencing could deviate from the amounts

estimated in the Addendum. Finding the evidence regarding the necessity and cost of

engineering services to be unrebutted, the trial court awarded Atelier $29,000 in

engineering costs. After weighing the conflicting evidence regarding the construction

costs to complete the paving and fencing work on. Lots 43 and 44, the court found

No. 07AP-87 25

Atelier's witnesses more compelling because they had greater expertise in the

commercial paving context. The trial court thus awarded Atelier $419,316 as the

reasonably certain and foreseeable construction cost to complete the paving and fencing

work on Lots 43 and 44.

{166} Because the trial court, as the trier of fact, appropriately weighed the

evidence regarding the paving and fencing costs on Lots 43 and 44, and competent,

credibie evidence supports its damages award for the paving and fencing improvements,

PCA's sixth assignment of error is overruled.

VIII. Conclusion

{1671 Having sustained PCA's fourth assignment of error and overruled its

remaining assignments of error, we modify the trial court's judgment to the extent it

concluded PCA was contractually obligated to perform and pay for the costs of the

demolition work that was performed pursuant to an order of the city of Columbus, we

reduce the award to Atelier by the $27,000 the court awarded it for the demolition work,

and we affimi the judgment as modffied.

Judgment affirmed as modified.

KLATT and DESHLER, JJ., concur.

DESHLER, J., retired of the Tenth Appellate District, assignedto active duty under authority of Section 6(C), Article IV, OhioConstitution.

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Atelier District, LLC,

Plaintiff-Appellee,

V.

Parking Company of America, Inc.,

Defendant-Appellant.

ro

n>J^

N

No. 07AP-87(C.P.C. No. 04CVH-08-8277)

(REGULAR CALENDAR)

.I ID zM NT FNTRY

For the reasons stated in the opinion of this court rendered herein on

December 31, 2007, and having sustained PCA's fourth assignment of error and

overruled its remaining assignments of error, we modify the trial court's judgment to the

extent it concluded PCA was contractually obligated to perform and pay for the costs of

the demolition work that was performed pursuant to an order of the city of Columbus, we

reduce the award to Atelier by the $27,000 the court awarded it for the demolition work,

and we affirm the judgment as modified. Costs to be divided equally between the parties.

BRYANT, KLATT and DESHLER, JJ.

; n

ByJudge P'e`gfy BrFInt

of Section 6(C), Article IV, Ohio Constitution.

DESHLER, J., retired of the Tenth AppellateDistrict, assigned to active duty under authority

EXHIBITE^a D