[Cite as Hog Heaven of New Philadelphia, Inc. v. M & M W. High Ave., L.L.C., 2014-Ohio-5125.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

HOG HEAVEN OF 

NEW PHILADELPHIA, INC. 

FKA HOG CITY, LTD 

 Plaintiff-Appellee 

-vsM AND M WEST HIGH AVENUE 

LLC 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. Patricia A. Delaney, J. 

Case No. 2014 AP 02 0006 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County 

Common Pleas Court, Case No. 

 2012 CV 11 1057 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: November 14, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

LEE E. PLAKAS MICHAEL C. JOHNSON 

MARIA C. KLUTINOTY EDWARDS Johnson, Urban & Range, Co., LPA 

COLLIN S. WISE 117 South Broadway, P.O. Box 1007 

Tzangas Plakas Mannos Ltd. New Philadelphia, Ohio 44663 

220 Market Avenue, Eighth Floor 

Canton, Ohio 44702 
Tuscarawas County, Case No. 2014 AP 02 0006 2

Hoffman, P.J. 

{¶1} Defendant-appellant M & M West High Avenue, LLC appeals the January 

23, 2014 Judgment Entry entered by the Tuscarawas County Court of Common Pleas, 

which granted summary judgment in favor of plaintiff-appellee Hog Heaven of New 

Philadelphia, Inc. FKA Hog City Ltd. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Appellant owns real property located at 1290 West High Avenue, New 

Philadelphia, Ohio 44663 (“the Premises”). On July 26, 2002, Appellee and Appellant 

entered into a Lease Agreement with Option to Purchase (“the Lease Option”) for the 

Premises. Section V of the Lease Option provides Appellee with the option to purchase 

the Premises during the initial term or any subsequent renewal, and reads: 

 In consideration of the covenants and conditions hereby 

established, the parties further agree that at any time during the initial term 

of the within Lease, or any properly exercised extension periods hereof, 

Lessee shall have the right and option of purchasing the premises herein 

leased for an amount as determined by the following procedure: 

 (A) The parties hereto shall attempt to select a mutually agreed 

upon MAl appraiser to determine the fair market value of the premises. 

Said appraiser shall be commissioned by the parties to formulate an 

opinion regarding the appraised value of the premises. The appraised 

value as determined by such mutually agreed upon appraiser shall 

constitute the amount of the purchase price to be paid by Lessee pursuant 
Tuscarawas County, Case No. 2014 AP 02 0006 3

to its option to purchase. The costs incurred by said mutually agreed upon 

appraiser shall be shared equally by the parties; or 

 (B) In the event that the parties are unable to select a mutually 

agreeable MAl appraiser pursuant to the term of subparagraph (A), above, 

then each party shall commission an MAl appraiser of their own choosing 

who shall formulate written findings concerning the fair market value of the 

premises. In the event that the appraisals formulated by the two MAl 

appraisers are within ten percent (10%) of each other, then the difference 

between said two appraisals shall be split evenly, and the midpoint 

between said two appraisals shall constitute the purchase price for the 

premises. In the event that the two appraisals formulated by the two MAl 

appraisers are not within ten percent (10%) of each other, then the two 

MAl appraisers shall select a third independent MAl appraiser whose 

determination regarding fair market value shall be the purchase price paid 

for the premises. Each party shall assume responsibility for payment of 

any expenses incurred by their respective MAl appraisers. If applicable, 

the costs incurred by a third, independent MAl appraiser pursuant to the 

foregoing shall be shared equally by the parties. 

 For purposes of the within section pertaining to Lessee's option to 

purchase, the term "the premises" shall be defined as the real estate, 

attendant structures, fixtures, and those items of personalty that remain on 

the premises in the event of termination of the within lease. 
Tuscarawas County, Case No. 2014 AP 02 0006 4

 Lessee may exercise its option to purchase by providing Lessor of 

written notice thereof at any time during the pendency of the within lease, 

or during the period of any extensions hereof. In such case, the appraisal 

process outlined above shall be completed by the parties within sixty (60) 

days. In the event that Lessee determines not to exercise its option to 

purchase following completion of the appraisal process, then Lessee shall 

bear full responsibility for the MAl appraisal costs incurred pursuant to 

subparagraphs (A) and (B), above. 

 Should Lessee determine to exercise its option to purchase the 

premises, then the sale thereof shall proceed pursuant to the terms and 

conditions of the Purchase Agreement attached hereto as Appendix B. 

(Said Appendix B is unsigned and undated; and makes no provision for 

the purchase price, which shall be determined according to the procedure 

outlined above). 

{¶3} On November 4, 2011, Appellee notified Appellant of its intent to exercise 

its right to purchase the Premises pursuant to Section V of the Lease Option. Each 

party obtained an appraisal of the Premises. Because the two appraisals were not 

within ten percent of each other, Section V required the two appraisers “select a third 

independent MAl appraiser whose determination regarding fair market value shall be 

the purchase price paid for the premises.” The two appraisers did not select the third 

appraiser within the sixty-day time frames set forth in Section V. 

{¶4} Appellee made efforts to assist in the joint selection of the third appraiser. 

Appellee proposed a method for the selection process, however, Appellant rejected the 
Tuscarawas County, Case No. 2014 AP 02 0006 5

proposal. In addition to monthly base rent, Appellee also pays Appellant a percentage 

of its profits as overage rent. The overage rent represents significant income for 

Appellant. Appellee would not have owed any overage rent had the purchase been 

completed in a timely fashion. 

{¶5} On November 15, 2012, Appellee filed a complaint against Appellant for 

specific performance, declaratory judgment, unjust enrichment, and breach of contract. 

Appellee sought equitable relief as well as money damages. Appellee filed an amended 

complaint on December 31, 2012. Appellant filed a timely answer to the amended 

complaint. 

{¶6} On September 13, 2012, upon completion of discovery, Appellee filed a 

motion for summary judgment. On January 8, 2014, Appellant filed its own motion for 

summary judgment as well as a response in opposition to Appellee’s motion for 

summary judgment. Appellee filed a motion to strike, asking to court to strike 

Appellant’s motion for summary judgment as said motion was filed approximately four 

months past the dispositive motion deadline. 

{¶7} Via Judgment Entry filed January 23, 2014, the trial court granted 

Appellee’s motion to strike and awarded summary judgment in Appellee’s favor. The 

trial court ordered specific performance of the Lease Option and instructed the parties to 

select an appraiser as required by the terms of the Lease Option. The appraiser’s 

opinion alone would determine the amount which Appellee could pay to purchase the 

Premises. The trial court also awarded Appellee a credit for rental payments made to 

Appellant from January 3, 2012, until the date of the parties’ receipt of the third 

appraisal. 
Tuscarawas County, Case No. 2014 AP 02 0006 6

{¶8} It is from this judgment entry Appellant appeals, raising as error: 

{¶9} "I. THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION 

FOR SUMMARY JUDGMENT AND ISSUING A DECREE OF SPECIFIC 

PERFORMANCE. 

{¶10} "II. THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION 

FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXISTED 

AS WHETHER APPELLANT VIOLATED THE TERMS OF THE LEASE OPTION 

NECESSITATING A TRIAL ON THE MERITS. 

{¶11} "III. THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION 

FOR SUMMARY JUDGMENT IN AWARDING APPELLEE A RENT CREDIT FOR 

BASE AND OVERAGE RENT AGAINST THE PURCHASE PRICE TO BE 

DETERMINED BY THIRD APPRAISER." 

STANDARD OF REVIEW 

{¶12} Summary judgment proceedings present the appellate court with the 

unique opportunity of reviewing the evidence in the same manner as the trial court. 

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As 

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). 

{¶13} Civ.R. 56 provides summary judgment may be granted only after the trial 

court determines: 1) no genuine issues as to any material fact remain 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 viewing such 

evidence most strongly in favor of the party against whom the motion for summary 
Tuscarawas County, Case No. 2014 AP 02 0006 7

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.,

50 Ohio St.2d 317, 364 N.E.2d 267 (1977). 

{¶14} It is well established the party seeking summary judgment bears the 

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. 

Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). The standard for 

granting summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 

662 N.E.2d 264 (1996): “ * * * a party seeking summary judgment, on the ground that 

the nonmoving party cannot prove its case, bears the initial burden of informing the trial 

court of the basis for the motion, and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on the essential element(s) 

of the nonmoving party's claims. The moving party cannot discharge its initial burden 

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no 

evidence to prove its case. Rather, the moving party must be able to specifically point to 

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the 

nonmoving party has no evidence to support the nonmoving party's claims. If the 

moving party fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the nonmoving party 

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing 

there is a genuine issue for trial and, if the nonmovant does not so respond, summary 

judgment, if appropriate, shall be entered against the nonmoving party.” The record on 

summary judgment must be viewed in the light most favorable to the opposing party. 

Williams v. First United Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974). 
Tuscarawas County, Case No. 2014 AP 02 0006 8

I, II 

{¶15} In its first assignment of error, Appellant contends the trial court erred in 

granting summary judgment in favor of Appellee and issuing a decree of specific 

performance. In its second assignment of error, Appellant argues the trial court erred in 

granting summary judgment in favor of Appellee as genuine issues of material fact 

existed as to whether Appellant violated the terms of the Lease Option. Specifically, 

Appellant maintains the failure to select the third appraiser was not occasioned by any 

fault of Appellant or its selected appraiser, but rather was merely the result of the two 

appraisers reaching an impasse regarding the third appraiser. 

{¶16} Specific performance as a remedy for breach of contract is a matter 

resting in the sound discretion of the court, not arbitrary, but controlled by principles of 

equity, on full consideration of the circumstances of each particular case. Roth v. 

Habansky, Cuyahoga App. No. 82027, 2003-Ohio-5378. The standard of review in such 

a case is whether the trial court, sitting as a court of equity, abused its discretion. Id.,

citing Manning v. Hamamey (Feb. 12, 1998), Cuyahoga App. No. 72072. 

{¶17} “The remedy of specific performance is governed by the same general 

rules which control the administration of all other equitable remedies. The right to it 

depends upon elements, conditions, and incidents which equity regards as essential to 

the administration of all its peculiar modes of relief. When all these elements, 

conditions, and incidents exist, the remedial right is perfected in equity. These elements, 

conditions, and incidents, as collected from the cases, are the following: The contract 

must be concluded, certain, unambiguous, mutual, and based upon a valuable 

consideration; it must be perfectly fair in all its parts; it must be free from any 
Tuscarawas County, Case No. 2014 AP 02 0006 9

misrepresentation or misapprehension, fraud or mistake, imposition or surprise; it 

cannot be an unconscionable or hard bargain; its performance must not be oppressive 

upon the defendant; and, finally, it must be capable of specific execution through a 

decree of the court.” Id.

{¶18} The Lease Option sets forth the specific procedure to be followed if the 

two appraisals were not within ten percent (10%) of each other: 

 In the event that the two appraisals formulated by the two MAl 

appraisers are not within ten percent (10%) of each other, then the two 

MAl appraisers shall select a third independent MAl appraiser whose 

determination regarding fair market value shall be the purchase price paid 

for the premises. 

 *** 

 The appraisal process outlined above shall be completed by the 

parties within sixty (60) days. (Emphasis added.) 

{¶19} Pursuant to this provision, because the appraisals were not within ten 

percent (10%) of each other, the parties’ appraisers, Jeff Smith for Appellee and 

Charles Snyder for Appellant, were obligated to choose the third appraiser. For 

whatever reason, Smith and Snyder were unable to agree on a third appraiser within the 

requisite time frame. Appellee moved the trial court for an order of specific 

performance. We find the trial court did not abuse its discretion in ordering specific 

performance – instructing Smith and Snyder to choose the third appraiser – as such 

remedy was necessary to effectuate the intent of the parties. 
Tuscarawas County, Case No. 2014 AP 02 0006 10

{¶20} Appellant also challenges the trial court’s finding it breached the Lease 

Option. Assuming, arguendo, such finding was erroneous, we find such error to be 

harmless as the trial court’s award of specific performance was not predicated upon the 

breach. 

{¶21} Appellant’s first and second assignments of error are overruled. 

III 

{¶22} In its final assignment of error, Appellant submits the trial court erred in 

granting Appellee’s motion for summary judgment and awarding Appellee rent credit 

against the purchase price to be determined by the third appraiser as set off for base 

and overage rent paid during the period of the impasse. We disagree. 

{¶23} “ ‘[W]hen a decree for specific performance in the sale of real estate is 

granted to the purchaser he is entitled to be put in the position he would have been in 

had the contract of sale and purchase been carried out on the date agreed upon.’ “ 

Sandusky Properties v. Aveni (1984), 15 Ohio St.3d 273, 274, 473 N.E.2d 798 (quoting 

Hellkamp v. Boiman (1970), 25 Ohio App.2d 117, 122, 267 N.E.2d 323). 

{¶24} The trial court's award accomplishes this result. Accordingly, we find the 

trial court did not abuse its discretion by awarding Appellee the rent and overage rent 

paid during the period of the impasse. 

{¶25} Appellant’s third assignment of error is overruled. 
Tuscarawas County, Case No. 2014 AP 02 0006 11

{¶26} Judgment of the Tuscarawas County Court of Common Pleas is affirmed. 

By: Hoffman, P.J. 

Farmer, J. and 

Delaney, J. concur