[Cite as Frenchtown Square Partnership v. Nick Ents., Inc., 2021-Ohio-663.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

FRENCHTOWN SQUARE : O P I N I O N 

PARTNERSHIP, 

: 

 Plaintiff-Appellee, CASE NO. 2020-T-0038 

: 

 - vs - 

: 

NICK ENTERPRISES, INC., d.b.a. TACO 

BELL, : 

 Defendant-Appellant. : 

Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2019 CV 

00986. 

Judgment: Affirmed. 

Leonard D. Hall and Ronald James Yourstowsky, The Cafaro Co., 5577 Youngstown 

Warren Road, Niles, OH 44446 (For Plaintiff-Appellee). 

Daniel G. Keating, Keating Law Office, 170 Monroe Street, N.W., Warren, OH 44483 

(For Defendant-Appellant). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellant, Nick Enterprises, Inc., d.b.a., Taco Bell, appeals from the 

judgment of the Trumbull County Court of Common Pleas, granting appellee, 

Frenchtown Square Partnership, summary judgment on its “complaint for money only” 

which was filed after appellant defaulted on its commercial lease. We affirm the trial 

court’s judgment. 
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{¶2} On June 14, 2019, appellee filed a complaint seeking money damages for 

appellant’s breach of its commercial lease agreement. Appellant subsequently filed an 

answer and counterclaim, asserting appellee collected certain sums of money from 

appellant for marketing, but failed to adequately market the mall in which it was located. 

Appellant therefore asserted appellee breached its duty to effectively promote the mall 

which caused its loss of business. Appellee duly answered appellant’s counterclaim. 

{¶3} Appellee filed its motion for summary judgment, which appellant opposed. 

In its memorandum in opposition, appellant asserted genuine issues of material fact 

remained for trial because (1) appellee failed to mitigate its damages and (2) appellee 

failed to maintain the viability of the mall in a manner that would permit appellant to 

conduct business. In its reply, appellee, citing the lease agreement, noted appellant 

had waived any claim or defense that would otherwise bind appellee to mitigate 

damages; similarly, appellee pointed out that, according to the lease, appellant was not 

entitled to rely upon the existence of or quantity of other tenants or business or the type 

or quality of other businesses during the term of the lease. 

{¶4} In awarding appellee summary judgment, the court determined the lease 

language specifically relieved appellee of any duty to mitigate damages. The trial court 

also concluded appellant’s negligent management argument was precluded by the 

lease agreement. The court therefore granted appellee summary judgment on its 

complaint, as well as on appellant’s counterclaim. This appeal follows. 

{¶5} Appellant’s assignment of error provides: 
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{¶6} “The trial court erred in granting summary judgment in favor of

plaintiff/appellee without requiring an evidentiary hearing on mitigation of damages or 

disposition of appellant’s personal property under the plaintiff/appellee’s control.” 

{¶7} 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.” 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 (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-T0014, 2011-Ohio-5439, ¶27. 

{¶8} Appellant asserts the trial court erred in failing to conduct an evidentiary 

hearing on appellee’s duty to mitigate damages and its apparent seizure of personal 

property located inside the leased premises. In support, appellant contends the waiver 

of appellee’s responsibility to mitigate in the lease is unconscionable; further, appellant 

asserts the trial court simply ignored appellee’s seizure of personal property to its 

prejudice. 

{¶9} Initially, appellant did not request an oral hearing on appellee’s motion for 

summary judgment. Pursuant to local rule, an oral argument upon a motion may be 
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permitted by the trial court upon application. Trumbull County Loc.R. 12.05. Because 

appellant did not request an oral hearing, a hearing on the motion, memorandum in 

opposition, and reply brief was appropriate. 

{¶10} Further, appellant, in its memorandum opposing appellee, did not assert 

the waiver of mitigation was unconscionable. And, significantly, did not plead 

unconscionability as an affirmative defense in its answer. “Unconscionability of a 

contract is an affirmative defense.” Defoe v. Schoen Builders, LLC, 6th Dist. Wood No. 

WD-18-031, 2019-Ohio-2255, ¶40. A party may not oppose a motion for summary 

judgment by raising a new affirmative defense in its opposition to summary judgment. 

Stanwade Metal Prods. v. Heintzelman, 158 Ohio App.3d 228, 2004-Ohio-4196, ¶22 

(11th Dist.). See also Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, (1974), 

syllabus. Affirmative defenses, other than those listed in Civ.R. 12(B), are waived if not 

raised in the pleadings or in an amended pleading. Jim’s Steak House v. City of 

Cleveland, 81 Ohio St.3d 18, 20 (1998). Because appellant did not set forth 

the affirmative defense of unconscionability in a pleading, the defense is waived and will 

not be considered.

{¶11} Moreover, the trial court did not facially err in finding the written waiver of 

appellee’s responsibility to mitigate valid. In Frenchtown Square Partnership v. 

Lemstone, Inc., 99 Ohio St.3d 254, 2003-Ohio-3648, the Supreme Court of Ohio 

concluded that a duty to mitigate applies to all leases, “barring contrary contract 

provisions.” Id. at ¶20. While this pronouncement requires no additional construction, 

courts have underscored that the common-law duty to mitigate damages in a 

commercial lease may be obviated by negotiation of the parties. See Plaza Dev. Co. v. 
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W. Cooper Ents., L.L.C., 10th Dist. Franklin No. 13AP-234, 2014-Ohio-2418; B&G 

Props. Ltd. Partnership v. Office Max, Inc., 8th Dist. Cuyahoga No. 99741, 2013-Ohio5255, ¶23. 

{¶12} The lease provides: “Landlord has no duty to attempt to mitigate any 

damages resulting from Tenant’s failure to observe or perform any of the terms, 

covenants and conditions of this Lease * * *.” The plain language of the lease to which 

the parties agreed demonstrates any duty to mitigate was eliminated by the contract 

itself. There was no error in the trial court’s judgment in this respect. 

{¶13} Furthermore, appellant’s remaining contention on appeal, i.e., that the trial 

court failed to consider appellee’s apparent repossession of its personal property, was 

never an issue before the court. In its counterclaim, appellant simply alleged that it was 

required to pay appellee sums of money for marketing; appellant claimed appellee 

breached its duty to effectively market the mall and thus it suffered loss and should be 

fully released from its responsibilities under the lease. At no point did appellant argue 

appellee should reimburse it for seizure of private property. Accordingly, we conclude, 

this issue was waived. 

{¶14} Appellant’s assignment of error lacks merit. 

{¶15} For the reasons discussed, we concluded the judgment of the Trumbull 

County Court of Common Pleas is affirmed. 

MARY JANE TRAPP, P.J., 

MATT LYNCH, J., 

concur.