IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. PICKERINGTON PLAZA LIMITED PARTNERSHIP, Plaintiff, : Case No. 10 CV 1235

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO PICKERINGTON PLAZA LIMITED PARTNERSHIP, Plaintiff, : Case No. 10 CV 1235 v. : Judge Berens : CRUMRINE, LLC, ET AL., : ENTRY Sustaining in part and overruling in part Plaintiff s motion for summary judgment Defendants. : This matter is before the Court upon Plaintiffs Motion for Summary Judgment Against Defendants, Crumrine, LLC and Jeanne Crumrine, filed April 28, For the following reasons, Plaintiff s motion is SUSTAINED in part and OVERRULED in part. STATEMENT OF THE CASE This is an action for money damages alleging breach of a commercial lease and unjust enrichment. Plaintiff seeks relief from the LLC tenant and from Jeanne Crumrine as guarantor. From the materials submitted for consideration upon non-oral hearing, the following facts are undisputed: 1. Plaintiff leased commercial space in Fairfield County, Ohio to Defendant Crumrine, LLC under an Assignment of Lease dated February 5, That lease term is to expire July 31, Defendant Jeanne Crumrine executed a personal guarantee for the amounts due under that lease At some point, Defendant Crumrine, LLC vacated the premises and ceased paying rent to Plaintiff. Defendants have not produced any evidence of an excuse for that conduct. 1 Defendant Ronald Thurston also executed a personal guarantee, but Plaintiff voluntarily dismissed its claims against Thurston with prejudice on May 23,

2 3. Plaintiff took several steps to find a replacement tenant, including: marketing the premises on flyers, listing the premises in commercial multiple listing services, sending materials to brokerages and prospective tenants, following up on phone calls with prospective tenants, showing the premises to prospective tenants, and placing signage in the premises advertising its availability. 4. At some point, Plaintiff leased the premises to another tenant. Under that lease, the new tenant paid no rent for the first 8 months. In addition, the new tenant leased the premises for a rate lower than the rate for which Defendant Crumrine is liable under its lease. LAW & ANALYSIS Civ.R. 56(A) and (B) permit both plaintiffs and defendants to move for summary judgment on all or part of any claim. Summary judgment is appropriate when, looking at the evidence as a whole, (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party. 2 The party moving for summary judgment must identify the basis of the motion to allow the non-movant a meaningful opportunity to respond. 3 Additionally, the movant must state specifically which areas of the opponent's claim raise no genuine issue of material fact and such assertion may be supported by affidavits or otherwise as allowed by Civ.R. 56(C). 4 The movant 2 Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the syllabus. 3 Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116, 526 N.E.2d Id. at 115, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d

3 cannot rest on conclusory assertions that the non-movant lacks evidence. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) [.] 5 If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the non-moving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial [.] 6 If the non-movant produces evidence that allows for conflicting inferences, the court may not weigh the evidence. 7 Instead, the trial court must resolve any doubts and construe the evidence in favor of the non-movant. 8 Upon reviewing the materials submitted, and considering the evidence in a light most favorable to the defendants as the nonmoving parties, the Court finds there exists no genuine issue of material fact as to the liability of Defendants Crumrine, LLC and Jeanne Crumrine for default upon the lease and pursuant to the personal guarantee pertaining thereto. The Court further finds that Plaintiff is entitled to judgment as a matter of law on Plaintiff s claim for breach of contract. Therefore, the Court hereby enters partial summary judgment in favor of Plaintiff and against Defendants Crumrine, LLC and Jeanne Crumrine as to liability. However, issues of material fact remain as to the amount of damages. Defendants have asserted the affirmative defense of failure to mitigate damages. That affirmative defense is based on the cardinal rule of contracts that an injured party is under a duty to mitigate its damages and may not recover those damages which it could have reasonably avoided. 9 The duty to mitigate 5 Dresher, at Id. at White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, 919 N.E.2d 227, at 9, citing Hamilton v. Ohio Dept. of Rehab. & Corr., 2007-Ohio-1173, at Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d 482, 485, 696 N.E.2d Snell v. Salem Ave. Assoc. (1996), 111 Ohio App.3d 23, 675 N.E.2d

4 does not place the burden upon the plaintiff to make extraordinary efforts or incur unreasonable expenses, but merely imposes a duty of commercial reasonableness. 10 By itself, the affirmative defense of mitigation of damages goes only to the amount of any damages award, it does not affect the question of liability in an action for breach of contract. Plaintiff argues that Defendants have failed to produce the evidence necessary to resist summary judgment on the grounds of failure to mitigate. Plaintiff points to the decision of the Ohio Supreme Court in Todd Develop. Co. v. Morgan, 11 which clarified the law to specify that a plaintiff moving for summary judgment does not bear the burden of producing evidence to negate the nonmoving party s affirmative defenses. 12 Plaintiff also correctly notes that Defendant s affidavit in opposition to summary judgment does not constitute evidence in support of the affirmative defense. However, Plaintiff s conclusion, that Defendant has the burden of producing her own evidence in support of her affirmative defense, it incorrect. The burden upon a nonmovant who asserts an affirmative defense in opposition to a motion for summary judgment is no greater than the burden that ordinarily falls upon the nonmoving party under Civ.R. 56(E). That burden is to set forth specific facts showing that there is a genuine issue for trial. 13 Because the moving party has no burden to produce evidence to negate the nonmoving party s affirmative defenses, the nonmovant will often have the burden of producing its own evidence on those defenses. But that is not always necessary. Civ.R. 56 places no greater burden upon the nonmoving party than it places upon the moving party. That burden is not necessarily the burden to produce evidence but to identify[] those portions of the 10 Id Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d Id. at syllabus. 13 Civ.R. 56(E); Todd Develop., at 12. 4

5 record before the trial court that include the necessary evidence. In this instance, Defendant properly identified portions of Plaintiff s supporting affidavit and the documents attached to that affidavit that demonstrate the existence of a genuine issue for trial on the defense of failure to mitigate. Specifically, Defendant pointed to the fact that those documents reveal that the new tenant paid no rent on the premises for eight months and then paid a rate lower than Defendant s lease required for the remaining period. Especially considering that the reasonableness of mitigation efforts is ordinarily an issue of fact for the jury, 14 the Court finds that a genuine issue of material fact remains as to the reasonableness of Plaintiff s mitigation efforts. Therefore, Plaintiff is not entitled to judgment as a matter of law on the issue of damages and Plaintiff s motion for summary judgment is OVERRULED as to damages. IT IS SO ORDERED. Judge Richard E. Berens Copies to: Michael J. Cassone, 141 E. Town St., Ste. 200, Columbus, OH James R. Cooper., 33 W. Main St., Newark, OH Filed June 8, Snell, at 37. 5