[Cite as Ashtabula Cty. Airport Auth. v. Rich, 2017-Ohio-9263.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

ASHTABULA COUNTY, OHIO 

ASHTABULA COUNTY : O P I N I O N 

AIRPORT AUTHORITY, et al., 

: 

 Plaintiffs-Appellees, CASE NO. 2017-A-0018 

: 

 - vs - 

: 

JOSEPH A. RICH, 

: 

 Defendant-Appellant. 

Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015 CV 

0097. 

Judgment: Affirmed in part, reversed in part, and remanded. 

David E. Pontius and Jason L. Fairchild, Andrews & Pontius, L.L.C., 4810 State Road, 

P.O. Box 10, Ashtabula, OH 44005 (For Plaintiff-Appellee, Ashtabula County Airport 

Authority). 

Thomas L. Feher and Barbara A. Lum, Thompson Hine, L.L.P., 3900 Key Center, 127 

Public Square, Cleveland, OH 44114 (For Plaintiff-Appellee, Dwight H. Bowden). 

David A. McGee, Svete & McGee Co., L.P.A., 100 Parker Court, Chardon, OH 44024 

(For Defendant-Appellant). 

DIANE V. GRENDELL, J. 

{¶1} Defendant-appellant, Joseph A. Rich, appeals from the judgments of the 

Ashtabula County Court of Common Pleas, granting plaintiffs-appellees, the Ashtabula 

County Airport Authority and Dwight H. Bowden’s, Motion for Partial Summary 

Judgment and awarding them past due rent and attorney’s fees. The issues to be 

determined in this case are whether a claim for rent that is not yet due and payable at 
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the time a complaint is filed is a compulsory counterclaim and whether a counterclaim 

relating to indemnification for attorney’s fees incurred during an underlying claim is 

compulsory. For the following reasons, we affirm in part, reverse in part, and remand 

the judgment of the court below. 

{¶2} On February 17, 2015, appellees filed a Complaint against Rich. It 

alleged that, in 2013, Rich failed to comply with the terms of a lease agreement he had 

entered into with Ashtabula Airport Authority, under which Rich rented a portion of an 

aircraft hangar. The Complaint alleged that Rich breached the agreement by 

discontinuing use of electric power and using a portable generator within the hangar. 

After being notified via letter “of the 30-day termination of his tenancy * * * effective 

September 30, 2013,” Rich did not vacate but instead filed suit against the appellees 

(Ashtabula County Court of Common Pleas Case No. 2013 CV 756). Rich ultimately 

left the hangar in December 2014. 

{¶3} The appellees’ Complaint raised two counts. Count One was for Breach 

of Contract for Unpaid Rent from October 2013 through December 2014. Count Two 

was for Indemnification for Attorney’s Fees which were incurred when appellees 

defended the 2013 action brought by Rich in relation to the lease. 

{¶4} Rich filed an Answer on April 16, 2015, arguing, inter alia, that the claims 

were “barred by Ohio Civ. R. 13 and the rules governing compulsory counterclaim.” 

{¶5} Appellees filed a Joint Motion for Partial Summary Judgment on 

September 2, 2015. They argued that Rich refused to vacate the hangar for over a year 

after their request to terminate the lease and did not make payments for rent from 

October 1, 2013 to December 15, 2014. Regarding the indemnification claim, they 
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contended that the lease required Rich to pay for the attorney’s fees they incurred from 

defending prior suits in relation to the lease and Rich’s lack of compliance. 

{¶6} Rich filed a Motion for Summary Judgment and Brief in Opposition on 

January 14, 2016. He argued that the rent arrearage is barred as a compulsory 

counterclaim that appellees failed to raise in previous proceedings. He also contended 

that the indemnity provision was barred as against public policy. The parties 

subsequently filed a reply and sur-reply. 

{¶7} The following pertinent deposition testimony and exhibits were presented 

on summary judgment: 

{¶8} Rich testified that he signed an agreement to lease the hangar for 2013. 

The terms of the lease provided, in pertinent part, for monthly payment of rent due on 

the 1st but accepted until the 21st prior to a determination of default, and required that 

no alterations be made to the property and that Rich follow the Ashtabula County Airport 

Rules and Regulations. The lease contained an “Indemnification” clause which 

provided that the lessee: 

shall indemnify, defend and save harmless Lessor, its agents, 

employees, trustees, officers, directors and contractors from and 

against any and all loss, [and] cost (including attorneys’ fees) * * * 

arising from or in connection with (i) Lessee’s use of, occupancy of, 

or activities in or about the Hangar Space; (ii) any breach or default 

by lessee of the provisions of this Agreement; [and] (iii) any 

negligent act or willful misconduct by Lessee * * *. 

{¶9} Rich indicated that at some point during 2013, he requested that First 

Energy suspend the electricity to his hangar. He confirmed that he used a generator 
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within his hangar, as well as installed an outlet for use with the generator. Dwight 

Bowden, the board president of the Ashtabula County Airport, testified that a prohibition 

against generators in the Rules and Regulations was in place to protect the safety of the 

airport. 

{¶10} An August 13, 2013 letter from the Airport Authority’s counsel to Rich 

indicated that his tenancy would be terminated on September 30, 2013, for violating the 

lease agreement due to his “discontinuation of electric power” and use of the portable 

generator. Rich testified that once he received the letter, he “immediately took the 

generator out, took the wiring out, [and] put it back to its regular state.” Rich agreed that 

his plane remained in the hangar after receiving this letter from October 2013 through 

December 15, 2014, when he vacated the airport, but paid no rent for those months. 

{¶11} On October 7, 2013, in Ashtabula County Court of Common Pleas Case 

No. 2013 CV 756, Rich filed a Complaint against the appellees and the Ashtabula 

Airport Board of Trustees, raising claims for Breach of Contract, Discriminatory 

Conduct, Breach of Good Faith, Declaratory Judgment, Breach of Fiduciary Duty, 

Fraud, and a violation of 42 U.S.C. §§ 1983 and 88. These claims arose primarily from 

the appellees’ “attempt to terminate” and failure to extend the lease. After the matter 

was removed to federal court in relation to a First Amendment retaliation claim, it was 

remanded back to the Court of Common Pleas for resolution of the remaining claims. 

{¶12} Ashtabula County Airport Authority filed a Landlord’s Complaint on 

October 25, 2013, in the Ashtabula County Court, Eastern Area, asking for restitution of 

the premises and also alleging that Rich was in default for failure to pay rent in October 

2013 and should be ordered to pay rent for any future months he did not tender 

payment. The court dismissed the matter on November 25, 2013, stating that it should 
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have been raised in the Common Pleas Court, which had “first acquired jurisdiction.” 

This decision was affirmed in Ashtabula Cty. Airport Auth. v. Rich, 11th Dist. Ashtabula 

No. 2013-A-0069, 2014-Ohio-4288. 

{¶13} On December 12, 2014, the Ashtabula County Court of Common Pleas 

issued a Judgment Entry in Case No. 2013 CV 756, granting the defendants’ Motion for 

Judgment on the pleadings. It held that either party had the right to terminate the lease, 

without cause, by giving thirty days prior written notice to the other party, a right which 

the defendants properly exercised. Thus, Rich’s claims were dismissed. 

{¶14} In the present matter, following review of the foregoing summary judgment 

motions, evidence, and proceedings, in a March 30, 2016 Judgment Entry, the trial 

court granted the appellees’ Joint Motion for Partial Summary Judgment and denied 

Rich’s Motion for Summary Judgment. It found the claim for rent was not a compulsory 

counterclaim since, with the exception of the October 2013 rent, the remaining rent 

became due only after the appellees had filed their answer in Rich’s underlying 2013 

CV 756 claim. The court concluded that the indemnification clause for attorney’s fees in 

the lease agreement was not unconscionable, and was enforceable for the purpose of 

collecting attorney’s fees. Rich’s subsequent Motion for Reconsideration was denied. 

{¶15} Following a hearing on the issue of damages, the court found that 

Ashtabula County Airport Authority should be awarded an amount of $57,575 for 

attorney’s fees and $3,132.38 for unpaid rent, and Bowden should be awarded an 

amount of $101,930 for attorney’s fees. 

{¶16} Rich timely appeals and raises the following assignments of error: 

{¶17} “[1.] The trial court erred in denying Appellant, Joseph Rich’s, Motion for 

Summary Judgment and granting Appellees, Ashtabula Airport Authority and Dwight 
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Bowden’s Motion for Summary Judgment on the issue of liability for attorney fees and 

rent arrearage under the hangar lease at issue. 

{¶18} “[2.] The damage award rendered is against the manifest weight of the 

evidence and/or based upon inadmissible evidence.” 

{¶19} In his first assignment of error, Rich argues that the trial court erred in 

granting summary judgment in favor of the appellees. 

{¶20} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the 

evidence shows “that there is no genuine issue as to any material fact” to be litigated, 

(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from 

the evidence * * * that reasonable minds can come to but one conclusion and that 

conclusion is adverse to the party against whom the motion for summary judgment is 

made, that party being entitled to have the evidence * * * construed most strongly in the 

party’s favor.” 

{¶21} A trial court’s decision to grant summary judgment is reviewed by an 

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate 

court to conduct an independent review of the evidence before the trial court without 

deference to the trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist. 

Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27. 

{¶22} Rich argues that both the attorney’s fees/indemnification claim and the 

request for the rent arrearage should have been raised in the prior proceedings he 

initiated, as they were compulsory counterclaims, and cannot now be raised in a 

separate lawsuit. 
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{¶23} As an initial matter, the appellees argue that Rich cannot advance a res 

judicata defense since he did not raise it in his Answer. However, Rich’s Answer stated 

as a defense that the matters raised in the Complaint should have been previously 

brought through a compulsory counterclaim, the same contention raised here. Thus, we 

will consider the merits of this argument. 

{¶24} Pursuant to Civ.R. 13(A), “[a] pleading shall state as a counterclaim any 

claim which at the time of serving the pleading the pleader has against any opposing 

party, if it arises out of the transaction or occurrence that is the subject matter of the 

opposing party’s claim and does not require for its adjudication the presence of third 

parties of whom the court cannot acquire jurisdiction.” 

{¶25} “The two-pronged test for applying Civ.R. 13(A) is: (1) does the claim exist 

at the time of serving the pleading * * *; and (2) does the claim arise out of the 

transaction or occurrence that is the subject matter of the opposing claim.” Geauga 

Truck & Implement Co. v. Juskiewicz, 9 Ohio St.3d 12, 14, 457 N.E.2d 827 (1984). The 

Supreme Court held that a claim becomes a compulsory counterclaim where it “is 

complete and exists before the time the [defendant] is required under Civ.R. 12(A)(1) 

and (B) to serve his answer and counterclaim.” Id. at 15. But see Kerr v. Lakewood 

Shore Towers, Inc., 8th Dist. Cuyahoga No. 93462, 2010-Ohio-265, ¶ 23 (considering 

whether the counterclaim existed at the time the forcible entry and detainer complaint 

was initiated).

{¶26} “To determine whether a counterclaim is compulsory, the Supreme Court 

of Ohio has adopted the ‘logical relation’ test.” Rymers v. Rymers, 11th Dist. Lake No. 

2011-L-064, 2012-Ohio-1675, ¶ 48. This test provides that “a compulsory counterclaim 

is one which is logically related to the opposing party’s claim where separate trials on 
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each of their respective claims would involve a substantial duplication of effort and time 

by the parties and the courts.” Rettig Ents., Inc. v. Koehler, 68 Ohio St.3d 274, 626 

N.E.2d 99 (1994), paragraph two of the syllabus. 

{¶27} As to the rent arrearage, Rich argues that it should have been raised 

during his 2013 lawsuit. The appellees argue that the claim for a rent arrearage did not 

exist at the time of the first pleading, October 7, 2013, since Rich was not in default for 

October rent until October 21, 2013, and that the only claim in existence when the 

appellees’ Answer was filed on November 6, 2013, was for October rent. We note that 

the trial court decided that October rent should not be awarded given these 

circumstances. 

{¶28} We must consider, then, whether the claim for November 2013 through 

December 2014 rent was a compulsory counterclaim. As noted above, for the 

compulsory counterclaim rule to apply, the claim must exist at the time of the pleading. 

At the time of the filing of both the complaint and answer in Rich’s lawsuit, no such rent 

was due or owed. It was not clear at that point whether Rich would remain as a tenant, 

since he had been asked to leave and had not signed a new lease for 2014. 

{¶29} In relation to rent claims in general, it has been held that recovery for a 

monthly installment of rent due when an action has commenced does not bar recovery 

for subsequent installments due under the lease. Ogle Leasing Co. v. Submarine 

Galley, Inc., 2d Dist. Montgomery No. 11267, 1990 WL 1780, *4 (Jan. 11, 1990); see 

Humitsch v. Collier, 11th Dist. Lake No. 99-L-099, 2001 WL 20733, *3 (Dec. 29, 2000). 

Compare Lujan v. Smith, 6th Dist. Lucas No. L-83-197, 1983 WL 6990, *5 (Nov. 11, 

1983) (noting that each default for rent may be the subject of an independent action). 

Under this reasoning, we see no basis to conclude that appellees could not wait to 
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request rent that was not yet owed at the time the prior lawsuit was initiated, especially 

given that it was unclear how long Rich would remain in possession or if he would 

continue to pay rent. It is noteworthy that Rich testified he had a credit card on file with 

appellees and that he informed them they could take out rent while he continued to 

remain in breach of the lease, further supporting a conclusion that no claim existed at 

the time the complaint and answer were filed in Rich’s lawsuit. 

{¶30} Rich contends that a claim for past rent was also barred by the decision of 

the Ashtabula County Court, Eastern Area (2013 CVG 335), in which Ashtabula County 

Airport Authority filed a forcible entry and rent claim, as well as this court’s decision on 

appeal in that case. In 2013 CVG 335, the judge concluded that it was without 

jurisdiction because the Common Pleas Court had “first acquired jurisdiction,” and that 

“this claim must have been filed as a counterclaim in that action.” This does not amount 

to a holding that the claim now raised was compulsory. Moreover, on appeal, this court 

merely noted that Civ.R. 13(A) is not clearly inapplicable in a forcible entry and detainer 

action, and emphasized that the real issue was whether the Eastern Area court had 

jurisdiction. Ashtabula Cty. Airport Auth., 2014-Ohio-4288, at ¶ 22 (“Whether the civil 

rules require this [forcible entry action] to be filed as a compulsory counterclaim is not 

relevant to whether one court has jurisdiction to the exclusion of others.”). No ruling 

was made as to the issue presently before this court, whether the rent arrearages were 

a compulsory counterclaim in the common pleas proceedings. 

{¶31} For these reasons, we find that the lower court correctly determined the 

rent claim was not a compulsory counterclaim and its merits were properly considered 

and ruled upon by the court. 
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{¶32} Rich also argues that the indemnification claim was barred by Civ.R. 13(A) 

and should have been raised in the prior proceedings rather than in the present lawsuit. 

{¶33} The indemnification for attorney’s fees claim in this matter arises from a 

clause in the lease that requires Rich to pay such fees related to any claims arising from 

or relating to the lease or from his breach of the lease. 

{¶34} The trial court did not address Rich’s claim that the attorney’s fees request 

was barred due to the appellees’ failure to raise this as a compulsory counterclaim in 

the prior action.1 Upon review of this issue, we find that the indemnification for 

attorney’s fees claim should have been raised in Rich’s initial lawsuit, Ashtabula Court 

of Common Pleas Case No. 2013 CV 756. 

{¶35} Courts have recognized that claims for attorney’s fees should be raised as 

compulsory counterclaims when they relate to the underlying litigation. L.M. Lignos 

Ents. v. Beacon Ins. Co. of Am., 8th Dist. Cuyahoga No. 70816, 1997 WL 67755, *2 

(Feb. 13, 1997); Rome Hilliard Self Storage v. Conkey, 10th Dist. Franklin No. 02AP973, 2003-Ohio-5038, ¶ 12. 

{¶36} Here, the elements of the two-prong test and “logical relation” test for 

compulsory counterclaims outlined above are met. First, the attorney’s fees claim 

existed at the time of the pleadings. Upon the filing of the complaint, litigation had 

commenced and the appellees began to be represented by counsel. While the exact 

amount of the fees to be recovered could not yet be determined, this is no different than 

 

1. While Rich did not discuss the compulsory counterclaim issue as to attorney’s fees/indemnification in 

his initial summary judgment motion, it was raised both in his answer and in the subsequent summary 

judgment reply, to which the appellees had the chance to respond. As this court has held, a party which 

fails to request that a new argument raised in a reply be stricken cannot argue that it is “ambushed” by a 

new argument or assert waiver. Staschiak v. Certified Logistics, 11th Dist. Trumbull No. 2015-T-0055, 

2016-Ohio-897, ¶ 18.
 11

any other claim for attorney’s fees. Bowden argues that, since he did not hire counsel 

until after the initial complaint and answer were filed, his claim did not yet exist. Such a 

contention is questionable, given that he was represented through the filing of an 

answer made on behalf of all defendants and that he was in the process of obtaining 

separate counsel who represented him for the entire length of the proceedings. 

Furthermore, Bowden argues that the basis for the claim of indemnification was Rich’s 

breach of the lease, an event that took place even before the filing of Rich’s lawsuit. 

{¶37} The appellees cite case law arguing that indemnity does not apply until a 

loss is suffered. See Casto v. Sanders, 11th Dist. Portage No. 2004-P-0060, 2005-

Ohio-6150, ¶ 38; Stengel v. Columbus, 74 Ohio App.3d 608, 613, 600 N.E.2d 248 (10th 

Dist.1991). These cases provide little guidance as they relate to a specific loss in an 

insurance claim and/or statutory indemnity and do not address the concern of when a 

“loss” occurs in relation to recovery of attorney’s fees. Casto is also dissimilar in that it 

relates to a third-party indemnifying a loss rather than a direct claim for attorney’s fees 

from the lessor to the lessee. 

{¶38} Rome Hilliard, cited above, provides guidance for the particular 

circumstances of this case. In Rome Hilliard, Conkey rented a parking space from 

Rome Hilliard, and signed a contract agreeing to indemnify Rome Hilliard for attorney’s 

fees arising from his use of the premises. Conkey sued Rome Hilliard when his trailer 

was stolen from the premises. 2003-Ohio-5038, at ¶ 2-5. After that litigation had 

ended, Rome Hilliard brought a complaint for attorney’s fees under the indemnification 

clause, which was dismissed due to failure to file the claim as a compulsory 

counterclaim in the initial litigation. Id. at ¶ 8-9. The appellate court held that the 

counterclaim was compulsory, since the attorney’s fees related directly to the subject 
 12

matter of the initial claim. It emphasized that the “claim for attorney fees involves 

duplicating evidence previously explored in the ancillary litigation. The core facts in the 

present litigation would be substantially the same, if not identical, to those in the 

ancillary litigation because only one set of events gave rise to all of the claims: the 

storage contract was the basis of both the ancillary and the present litigation.” Id. at ¶ 

16. See also L.M. Lignos, 1997 WL 67755, at *1-2 (when the appellant’s insurer 

brought an action for declaratory judgment to determine whether it had a duty to defend 

appellants, it was required to pursue as a compulsory counterclaim the request for 

reimbursement for attorney’s fees in defending the declaratory judgment action). 

{¶39} The same analysis applies here and the second prong of the compulsory 

counterclaim test is satisfied, since the claim for attorney’s fees arose directly out of the 

prior claim and “involve[d] many of the same factual issues, or the same factual and 

legal issues.” (Citation omitted.) Rettig, 68 Ohio St.3d at 279, 626 N.E.2d 99. Under 

the logical relation test, there was a duplication of time and effort in hearing the 

attorney’s fees issue in a separate matter, as they related entirely to the tasks 

performed in the initial lawsuit. The judge there was in the best position to evaluate the 

work that occurred in the matter. Instead, filing a separate lawsuit merely duplicated 

much of the work, restating the facts from the prior case in many pleadings, as well as 

including attachments of various judgments from the prior proceedings that had to be 

considered and evaluated by a new judge. This duplication of effort was entirely 

unnecessary in this matter. 

{¶40} Further, to find that the appellees were not required to file their 

counterclaim for attorney’s fees in the prior proceeding merely because they had just 

hired counsel at that time or were in the process of doing so is inconsistent with the 
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clear objective of Civ.R. 13(A). The purpose of Civ.R. 13(A), is to “avoid a multiplicity of 

actions and to achieve a just resolution by requiring in one lawsuit the litigation of all 

claims arising from common matters.” Rettig at 278; Carlton v. Alar Dev. Co., 11th Dist. 

Portage No. 2006-P-0045, 2006-Ohio-6877, ¶ 12. There was no question at the time 

the proceedings began that the attorney’s fees issue was intertwined with the underlying 

issues relating to the lease and the breach of the lease, as discussed above. 

{¶41} Since the issue of attorney’s fees in the underlying proceeding was a 

compulsory counterclaim, we reverse the court’s judgment awarding attorney’s fees in 

favor of the appellees. However, as to the award of rent in the present proceedings, 

since it was properly raised in this matter, attorney’s fees that were expended in 

litigating that claim only may be awarded. On that basis, we remand to the trial court for 

the sole issue of determining and awarding the amount of attorney’s fees expended only

in relation to the collection of rent owed by Rich to the Ashtabula Airport Authority that 

was sought in the present lawsuit. 

{¶42} It is necessary to address Rich’s additional claim that the indemnification 

clause that allows for collection of attorney’s fees in relation to the lease is 

unconscionable and inapplicable. 

{¶43} The indemnification clause allows Ashtabula Airport Authority to recover 

attorney’s fees “arising from or in connection with (i) Lessee’s use of, occupancy of, or 

activities in or about the Hangar Space [and] (ii) any breach or default by lessee of the 

provisions of this Agreement.” It is clear that attorney’s fees expended to collect the 

rent payment for the months Rich continued to remain in the hangar arise from Rich’s 

use and occupancy of the hangar. As such, the indemnification clause is applicable. 
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{¶44} Rich also argues that the indemnification clause is unconscionable and in 

violation of public policy because it requires him to pay attorney’s fees any time he 

brings litigation, regardless of whether he wins or loses. 

{¶45} We find no public policy violation. As applicable to the present case, this 

clause is fair, as it merely requires Rich to pay attorney’s fees in relation to rent that he 

owed. Furthermore, “[i]n considering whether a provision in a contract is against ‘public 

policy[,]’ * * * we must remember that the freedom to contract is fundamental, and that 

we should not lightly disregard a binding agreement, unless it clearly contravenes some 

established or otherwise reasonable public interest.” (Citation omitted.) Hurst v. Ent. 

Title Agency, Inc., 157 Ohio App.3d 133, 2004-Ohio-2307, 809 N.E.2d 689, ¶ 18 (11th 

Dist.). We find that Rich voluntarily chose to enter this contract and has not established 

that it clearly convenes a public interest. 

{¶46} To the extent that Rich contends that the clause is unconscionable, we 

disagree. 

{¶47} “Unconscionability has generally been recognized to include an absence 

of meaningful choice on the part of one of the parties together with contract terms which 

are unreasonably favorable to the other party.” (Citation omitted.) Lake Ridge 

Academy v. Carney, 66 Ohio St.3d 376, 383, 613 N.E.2d 183 (1993). 

{¶48} “Substantive unconscionability goes to the specific terms of the contract. * 

* * [T]he court should observe whether the terms of the contract are commercially 

reasonable.” Bayes v. Merle’s Metro Builders/Blvd. Constr., LLC, 11th Dist. Lake No. 

2007-L-067, 2007-Ohio-7125, ¶ 9. “Procedural unconscionability concerns the 

formation of the agreement, and occurs where no voluntary meeting of the minds was 

possible.” Porpora v. Gatliff Bldg. Co., 160 Ohio App.3d 843, 2005-Ohio-2410, 828 
 15

N.E.2d 1081, ¶ 7 (9th Dist.). “In order to determine whether or not a contract provision 

is procedurally unconscionable, courts consider the relative bargaining positions of the 

parties, whether the terms of the provision were explained to the weaker party, and 

whether the party claiming that the provision is unconscionable was represented by 

counsel at the time the contract was executed” as well as whether the service or good 

could be otherwise obtained, i.e., an absence of meaningful choice. Id.; Collins v. Click 

Camera & Video, Inc., 86 Ohio App.3d 826, 834, 621 N.E.2d 1294 (2d Dist.1993). “One 

must allege and prove a ‘quantum’ of both prongs in order to establish that a particular 

contract is unconscionable.” Collins at 834.

{¶49} Here, Rich fails to satisfy the procedural unconscionability prong and does 

not show an absence of meaningful choice. As the trial court noted, he is a 

businessman, and holds a master’s degree, as well as being a flight instructor who 

conducted business out of the Ashtabula Airport. As to meaningful choice, while there 

was some testimony by Bowden that there may not be a similar type of hangar in 

Ashtabula County, he was aware of other airports in the area with different types of 

hangars, as well as an airport in Cuyahoga County with similar hangars. That Rich 

found it more convenient to use the Ashtabula Airport to store his airplane does not 

mean he was deprived of meaningful choice to reject the terms of the lease, including 

the indemnification clause. In his testimony, in fact, he highlighted some concerns he 

had with the lease, but chose to voluntarily sign it. He fails to prove the elements of 

procedural unconscionability and, thus, cannot prevail on this contention. Collins at 

834. For these reasons, we reject the argument that the provision at issue was 

unconscionable. 
 16

{¶50} The first assignment of error is with merit in part, to the extent discussed 

above. The lower court, on remand, is ordered to consider attorney’s fees to be 

awarded only as they relate to the collection of past due rent in the present lawsuit. 

{¶51} In his second assignment of error, Rich argues that the attorney’s fees 

award was against the weight of the evidence or based on inadmissible evidence. 

Since this award has been reversed and remanded for recalculation of appropriate 

damages, these arguments are rendered moot. 

{¶52} The second assignment of error is moot. 

{¶53} For the foregoing reasons, the judgments of the Ashtabula County Court 

of Common Pleas, granting summary judgment in favor of appellees and awarding them 

attorney’s fees and rent, are affirmed in part, reversed in part, and remanded for further 

proceedings consistent with this opinion. Costs to be taxed against the parties equally. 

CYNTHIA WESTCOTT RICE, P.J., concurs, 

THOMAS R. WRIGHT, J., concurs in judgment only.