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Keal v. Day10/21/2005
We have sua sponte removed this cause from the accelerated calendar.
{ } Plaintiff-appellant John Keal appeals from the trial court's order overruling his motion to award attorney fees against defendant-appellee Robert Day, pursuant to a clause in their commercial lease. In his single assignment of error, Keal contends that he was the "prevailing party" in Day's forcible-entry-and-detainer action, as the trial court declined to issue a writ of restitution. Because the parties entered into a settlement in which they agreed upon a new lease to accommodate their interests, the trial court correctly overruled their cross-motions for attorney fees.
{ } This case has a lengthy history. In January 1997, Keal agreed to purchase a restaurant business and to lease the real estate on which the business was located from Day for a term ending on September 31, 2003, with an option to renew for two additional five-year terms. In October 2000, the parties settled their first lawsuit and executed a new lease. On May 20, 2002, Keal filed a complaint alleging that Day had breached the lease by failing to provide maintenance and to make repairs to the restaurant floor, causing the business to be temporarily closed by the county building commissioner. Day filed an answer and counterclaim in forcible entry and detainer. His complaint also included three counts for damages allegedly arising from Keal's breach of the lease by failing to pay property taxes that he had subsequently placed in escrow.
{ } After a two-day hearing, the magistrate concluded that although Keal's obligation to pay taxes under the former lease at the time of settlement was not extinguished, the new lease did not incorporate by reference Keal's obligation to satisfy the unpaid property taxes. Therefore, the magistrate found that Day was not entitled to a writ of restitution and reserved for trial the issue of damages and whether Keal had exercised the option to renew the lease for a new term. The trial court overruled Day's objections to the magistrate's findings. Day appealed the trial court's judgment, and on June 9, 2004, we affirmed.
{ } On September 13, 2004, the parties entered into a settlement in which they agreed to execute a new lease for a term beginning on November 1, 2004, and ending on October 31, 2008. Their settlement also included an increase in the monthly rent, modified their respective maintenance responsibilities, and provided that Keal was obligated for past, but not future, taxes under the lease. They agreed to dismiss all claims except their claims for attorney fees.
{ } Ohio has adopted the "American Rule" in which each party to a lawsuit must pay his or her own attorney fees. See Sorin v. Warrensville Hts. School Dist. Bd. of Edn. (1976), 46 Ohio St.2d 177, 179, 347 N.E.2d 527. Exceptions to the rule allow fee-shifting and taxing attorney fees as costs (1) if there has been a finding of bad faith; (2) if a statute expressly provides that the prevailing party may recover attorney fees; and (3) if the parties' contract provides for fee-shifting. See Nottingdale Homeowners' Assn., Inc. v. Darby (1987), 33 Ohio St.3d 32, 33-34, 514 N.E.2d 702; see, also, Newman v. Salamander Indus. Products, Inc. (Apr. 16, 1999), 1st Dist. Nos. C-970811, C-970843, and C-970879.
{ } In this case, section 14 of the parties' lease provided "Attorney's Fees. In case a suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may rise out of possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action including a reasonable attorney's fee."
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