[Cite as Capital Real Estate Partners, L.L.C. v. Nelson, 2019-Ohio-2381.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

 WARREN COUNTY 

CAPITAL REAL ESTATE 

PARTNERS, LLC, 

Appellee/Cross-Appellant, 

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SAMUEL NELSON, et al., 

Appellants/Cross-Appellees. 

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CASE NO. CA2018-08-085 

 CA2018-08-094

O P I N I O N 

6/17/2019

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 16CV88133 

Gregory A. Keyser, 6657 Hitching Post Lane, Cincinnati, Ohio 45230, for appellee/crossappellant 

Rittgers & Rittgers, Ryan G. McGraw, Konrad Kircher, 12 East Warren Street, Lebanon, Ohio 

45036 for appellants/cross-appellees 

 RINGLAND, J.

{¶ 1} Appellants/Cross-Appellees, Samuel and Ellen Nelson, appeal the decision of 

the Warren County Court of Common Pleas granting summary judgment in favor of 

Appellee/Cross-Appellant, Capital Real Estate Partners, LLC ("Capital"). Capital also 

appeals the trial court's decision with respect to the payment of attorney fees. For the 

reasons detailed below, we affirm. 
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{¶ 2} Capital is engaged in the business of brokering sales and leases of commercial, 

office, or industrial real estate. EK Prop, LLC, ("EK") previously owned property at 3751 

Commercial Drive, Middletown, Ohio ("Property"). 

{¶ 3} During its ownership of the Property, EK entered into an exclusive Leasing 

Listing Agreement with Capital. Pursuant to the Leasing Listing Agreement, EK agreed to 

use Capital as its exclusive agent to market and broker the Property. The Leasing Listing 

Agreement specified that EK agreed to pay Capital a six percent commission if there was a 

sale of the Property. In addition to the sale commission, EK also agreed to pay Capital a 

commission if the Property was leased. The written commission schedule provides that EK 

pay six percent of the base rent for the first 60 months of the lease period and three percent 

of the base rent for any remaining period longer than 60 months. 

{¶ 4} In 2011, Capital secured a lease of the Property to Barrett Paving Materials, 

Inc. and EK paid the agreed commission. 

{¶ 5} In June 2015, EK sold the Property to the Nelsons. In so doing, Capital 

brokered and closed the sale of the Property to the Nelsons for $1,350,000. As part of the 

closing between the Nelsons and EK, the Nelsons signed a document titled "Contract to 

Purchase Commercial-Industrial-Investment" ("Contract"). The Contract includes an 

addendum, which provides in pertinent part: 

Buyer acknowledges that the current tenant of the Property was 

acquired via the exclusive leasing services of Capital Real Estate 

Partners, LLC ("Broker") under the terms of a Leasing Listing 

Agreement entered into between the Seller and Broker on or 

about January 31, 2011. Under the terms of the Schedule of 

Sales and Lease Commissions attached to and made a part of 

the Leasing Listing Agreement, Seller or its successors or 

assigns owes Broker for ongoing commissions due when/as/if 

the current tenant of the Property subsequently renews its lease. 

A copy of the Leasing Listing Agreement and the Schedule of 

Sales and Lease Commissions are attached hereto as Exhibit A. 
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Under the terms of that agreement, the obligations for ongoing 

leasing commissions due to Broker for any and all subsequent 

renewals are to be transferred from the Seller to a future buyer at 

the time of closing. Buyer acknowledges these ongoing lease 

commission payment obligations due to Broker should the tenant 

renew its lease, and will execute any necessary documentation 

at closing to memorialize the transfer of these commission 

obligations from Seller to Buyer for Broker's benefit. Buyer's 

commitments to honor these ongoing commission obligations 

shall not merge with the deed; rather, these commission 

payment obligations shall survive closing until the current 

tenant's lease obligations (including any subsequent 

amendments thereto) are expired. 

{¶ 6} The Nelsons' signatures appear directly under the addendum. During the 

period of time prior to closing, the Nelsons were represented by counsel, who also reviewed 

the Contract and addendum. Following the sale, Capital was paid a sale commission 

pursuant to the terms of the Agreement. 

{¶ 7} Subsequently, the Nelsons renegotiated the lease with Barrett and executed a 

lease renewal. Upon learning of the lease renewal, Capital sent an invoice to the Nelsons for 

the commission owed by virtue of the Nelsons' assumption of the obligations provided in the 

Contract addendum. The Nelsons refused to pay, asserting that they did not realize their 

obligations under the Contract extended to paying Capital lease renewal commissions. 

{¶ 8} On January 7, 2015, Capital filed the instant action against the Nelsons, 

alleging breach of contract for failure to pay the lease commission following Barrett's lease 

renewal. Capital also brought claims for breach of contract and unjust enrichment against 

EK. All parties moved for summary judgment. After considering the motions, the trial court 

granted summary judgment in favor of Capital. The Nelsons now appeal, raising two 

assignments of error for review. Capital also cross-appeals the trial court's decision with 

respect to the denial of attorney fees. 

{¶ 9} Assignment of Error No. 1: 
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{¶ 10} THE TRIAL COURT ERRED WHEN IT GRANTED CRP'S MOTION FOR 

SUMMARY JUDGMENT ON ITS CAUSE OF ACTION FOR BREACH OF CONTRACT. 

{¶ 11} In their first assignment of error, the Nelsons argue the trial court erred by 

granting summary judgment in favor of Capital. We find the Nelsons' claims to be without 

merit. 

{¶ 12} This court reviews summary judgment decisions de novo, which means we 

review the trial court's judgment independently and without deference to the trial court's 

determinations, using the same standard in our review that the trial court should have 

employed. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008, 

2014-Ohio-5493, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) 

there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as 

a matter of law, and (3) the evidence submitted can only lead reasonable minds to a 

conclusion which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 

Ohio St.3d 367, 369-70 (1998). 

{¶ 13} To establish a claim for breach of contract, a plaintiff must prove (1) the 

existence of a contract, (2) plaintiff fulfilled his or her contractual obligations, (3) defendant 

failed to fulfill his or her contractual obligations, and (4) due to this failure plaintiff incurred 

damages. Roberts v. McCoy, 12th Dist. Butler CA2016-04-071, 2017-Ohio-1329, ¶ 27. 

{¶ 14} A meeting of the minds occurs where "a reasonable person would find that the 

parties manifested a present intention to be bound to an agreement." Connor & Murphy, Ltd. 

v. Applewood Village Homeowners' Assn., 12th Dist. Butler No. CA2007-09-213, 2009-Ohio1447, ¶ 52. "Parties to contracts are presumed to have read and understood them and * * * 

a signatory is bound by a contract that he or she willingly signed." Preferred Capital, Inc. v. 

Power Engineering Group, Inc., 112 Ohio St.3d 429, 2007-Ohio-257, ¶ 10. 
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{¶ 15} Ohio contract law recognizes the doctrine of incorporation by reference. 

Volovetz v. Tremco Barrier Solutions, Inc., 10th Dist. Franklin No. 15AP-1056, 2016-Ohio7707, ¶ 26. When a document is incorporated into a contract by reference, that document 

becomes part of the contract. Id. Mere reference to a document is insufficient to incorporate 

it. Id. at ¶ 27. Rather, the contract language must clearly demonstrate that the parties 

intended to incorporate all or part of the referenced document. Id. In other words: 

the language used in a contract to incorporate extrinsic material 

by reference must explicitly, or at least precisely, identify the 

written material begin incorporated and must clearly 

communicate that the purpose of the reference is to incorporate 

the referenced material into the contract * * *. 

Id., citing Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 1339, 1345 

(Fed.Cir.2008) (distinguishing instances where the parties merely acknowledge referenced 

material is relevant to the contract). Whether a contract has incorporated another document 

by reference presents a question of law for a court to determine. Id. 

{¶ 16} The Nelsons do not dispute that their signatures appear on the Contract 

addendum. Nevertheless, the Nelsons contend that the trial court erred by granting summary 

judgment in favor of Capital because (1) the Contract should be construed against Capital as 

the drafter of the document, (2) the addendum is not sufficiently incorporated into the 

Contract, (3) there was no meeting of the minds, and (4) the addendum was not supported 

by consideration. We have reviewed all of the Nelsons' arguments on appeal and find they 

are without merit. 

{¶ 17} In this case, the addendum begins by stating a number of acknowledgments. 

Pursuant to the terms of the Contract, the Nelsons "acknowledge[d]" that Barrett's tenancy 

was acquired via the exclusive listing services of Capital "under the terms of a Leasing Listing 

Agreement entered into between [EK] and [Capital] on or about January 31, 2011." The 
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addendum then references the Schedule of Sales and Lease Commissions that was 

incorporated into the pertinent Leasing Listing Agreement.1 The addendum further states 

that under the terms of the Leasing Listing Agreement, "the obligations for ongoing lease 

commissions due to [Capital] for any and all subsequent renewals are to be transferred from 

the Seller to a future buyer at the time of closing." 

{¶ 18} As to the Nelsons' obligations therein, the addendum includes the provision that 

they "acknowledge[d] the[] ongoing lease commission payment obligations due to [Capital] 

should the tenant renew its lease" and "will execute any necessary documentation at closing 

to memorialize the transfer of these commission obligations from Seller to Buyer for Broker's 

benefit." 

{¶ 19} For reasons more pertinent to Capital's cross-appeal, we note that the 

addendum does not explicitly or precisely state that the Leasing Listing Agreement was fully 

incorporated into the addendum. The addendum merely references those documents. 

Nevertheless, by the language employed in the addendum, it is clear that the Nelsons agreed 

to pay lease commission obligations to Capital. We further find, and agree with the trial 

court, that the referenced commission obligations relate to the commission schedule 

contained in the Leasing Listing Agreement. As a result, we find Capital met its burden in 

establishing the terms of the contract and the Nelsons breached by failing to pay the lease 

commission upon Barrett's renewal. Though this court construes ambiguity against the 

drafter, there is no ambiguity that supports the Nelsons' arguments as to their liability for 

lease commission payments. 

{¶ 20} Finally, we reject the Nelsons' claim that the Contract was not supported by 

 

1. Since the addendum states that the Schedule of Sales and Lease Commissions was incorporated into the 

Leasing Listing Agreement, we will refer only to the Leasing Listing Agreement. 
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consideration. Contrary to the Nelsons' argument, the Contract clearly involved the sale of a 

valuable property in exchange for money. The terms in the addendum were negotiated terms 

contained in the Contract. The Nelsons entered into a valid contract and breached that 

agreement, causing Capital to incur damages in the form of the outstanding lease 

commission. Based on these facts, we agree that summary judgment was appropriately 

granted in favor of Capital. As a result, the Nelsons' first assignment of error is overruled. 

{¶ 21} Assignment of Error No. 2: 

{¶ 22} IN THE UNLIKELY EVENT THE TRIAL COURT'S GRANTING OF SUMMARY 

JUDGMENT TO CRP IS AFFIRMED, THE TRIAL COURT STILL ERRED IN THE TOTAL 

AMOUNT OF ITS AWARD TO CRP. 

{¶ 23} In their second assignment of error, the Nelsons, for the first time, allege that 

Capital waived its right to the collection of any additional lease commissions by application of 

the doctrines of waiver and accord and satisfaction. However, we have thoroughly reviewed 

the record and determine this argument was never raised or presented below. As this court 

has previously stated, "[i]t is axiomatic that a party cannot raise new issues or legal theories 

for the first time on appeal and failure to raise an issue before the trial court results in waiver 

of that issue for appellate purposes." BAC Home Loans Servicing, LP. v. Mullins, 12th Dist. 

Preble No. CA2013-12-015, 2014-Ohio-4761, ¶ 33. As a result, we overrule the Nelsons 

second assignment of error. 

{¶ 24} Cross-Assignment of Error: 

{¶ 25} THE TRIAL COURT ERRED WHEN IT FAILED TO AWARD INTEREST AN 

[sic] ATTORNEY FEES PROVIDED BY THE PARTIES' WRITTEN CONTRACT FOR REAL 

ESTATE COMMISSIONS. 

{¶ 26} In its cross-assignment of error, Capital argues the trial court erred by denying 
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attorney fees and interest. We find Capital's argument to be without merit. 

{¶ 27} As noted above, Ohio contract law recognizes the doctrine of incorporation by 

reference. Volovetz, 2016-Ohio-7707 at ¶ 26. However "mere reference" to a document is 

insufficient unless the contract language clearly demonstrates that the parties intended to 

incorporate all or part of the referenced document. Id. at ¶ 27. 

{¶ 28} In this case, as stated above, the plain language of the addendum provides that 

the Nelsons agreed to assume the obligation of paying lease commissions upon renewal. 

The addendum further provides that the commission schedule is set forth in the Leasing 

Listing Agreement. However, the addendum makes no reference to the payment of attorney 

fees or interest and the contract language does not clearly demonstrate that the parties 

intended to fully incorporate the terms set forth in the Leasing Listing Agreement. Rather, as 

correctly found by the trial court, "it is not at all clear * * * that the contract provision can 

reasonably be interpreted to include all of the ancillary terms of the separate agreement, 

including attorney's fees and interest." As a result, we find Capital's cross-assignment of 

error to be without merit and therefore overruled. 

Judgment affirmed. 

 HENDRICKSON, P.J., and M. POWELL, J., concur.