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Auber v. Marc Glassman5/30/2002
Judgment: Affirmed in part; reversed and remanded in part.
. Defendant-appellant/cross-appellee Puritas Partnership ("Puritas") appeals from a decision of the Common Pleas Court that granted co-defendant-appellee/cross-appellant Marc Glassman, Inc., d.b.a. Marc's ("Marc's") motions for summary judgment. Upon review, we conclude that there are no genuine issues of material fact and that Marc's is entitled to judgment on its claim for indemnification. However, we reverse and remand the trial court's decision as to the amount of attorney fees.
. On March 3, 2000, plaintiff Dolores Auber tripped and fell on the sidewalk outside of the Marc's store located at the "Marc's Plaza Shopping Center" at West 150th and Puritas Road in Cleveland, Ohio. As a result of the fall, plaintiff suffered injuries and filed suit in the Cuyahoga County Court of Common Pleas alleging negligence against Puritas and Marc's.
. On April 20, 2001, Puritas, the owner of the shopping center, filed a cross-claim against Marc's seeking common law indemnification and contribution for the claims asserted by the plaintiff.
. On May 14, 2001, Marc's filed an amended cross-claim. In Count II of its cross-claim, Marc's sought contractual indemnification from Puritas, pursuant to the terms of its lease with Puritas.
. On July 10, 2001, Marc's filed its motion for partial summary judgment on Count II of its cross-claim. In that motion, Marc's sought summary judgment against Puritas based on the issue of Puritas's obligation to defend and indemnify Marc's from plaintiff's claims pursuant to the terms of the lease agreement between Marc's and Puritas.
. On August 2, 2001, while Marc's motion was still pending, the plaintiff dismissed all of her claims against the defendants after she entered into a settlement agreement with Puritas. The cross-claims between Puritas and Marc's were not dismissed.
. On August 17, 2001, Puritas filed its brief in opposition to Marc's motion for partial summary judgment and its own cross-motion for summary judgment on Marc's cross-claim.
. On August 24, 2001, the trial court granted Marc's motion for partial summary judgment and found that Puritas was obligated under the terms of the lease to defend and indemnify Marc's.
. On September 5, 2001, Marc's filed another motion for summary judgment as to the issue of damages. In that motion, Marc's attached the affidavit of Beth Weiner, Chief Financial Officer of Marc's, stating that Marc's had incurred $14,325 in attorney fees and $546.21 in litigation expenses in defending Marc's against plaintiff's claims.
. On September 13, 2001, Puritas filed its brief in opposition to Marc's second motion for summary judgment requesting a hearing to determine the reasonableness of the attorney fees and expenses.
. On September 17, 2001, the trial court granted Marc's motion for summary judgment and awarded attorney fees in the amount of $6,800 and litigation expenses in the amount of $350.
. It is from these decisions that both parties appeal and raise the following assignments of error:
I.
. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON ITS CLAIM FOR INDEMNIFICATION AND IN FAILING TO GRANT PURITAS SUMMARY JUDGMENT ON THAT CLAIM.
CROSS-ASSIGNMENT OF ERROR I.
. THE TRIAL COURT ERRED IN ITS JUDGMENT DATED SEPTEMBER 17, 2001 BY FAILING TO AWARD CROSS-APPELLANT MARC GLASSMAN, INC. THE ENTIRE AMOUNT OF ITS CLAIMED ATTORNEY FEES AND EXPENSES, I.E., $14,871.21.
. An appellate court reviews a trial court's grant o
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