[Cite as Adams v. Glitz & Assoc., Inc., 2012-Ohio-4593.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97984

BERNARD ADAMS 

PLAINTIFF-APPELLANT 

vs. 

GILTZ & ASSOCIATES, INC. 

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

 Cuyahoga County Common Pleas Court 

Case No. CV-728962 

BEFORE: Boyle, J., Blackmon, A.J., and Jones, J. 

 

RELEASED AND JOURNALIZED: October 4, 2012 
ATTORNEYS FOR APPELLANT

Ronald D. Holman, II 

Eric J. Weiss 

Cavitch Familo & Durkin 

1300 East Ninth Street 

20th Floor 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Thomas A. Barni 

Renee S. Pienta 

Dinn, Hochman & Potter, LLC 

5910 Landerbrook Drive 

Suite 200 

Cleveland, Ohio 44124 
MARY J. BOYLE, J.: 

{¶1} Plaintiff-appellant, Bernard Adams, appeals from the trial court’s 

judgments granting summary judgment in favor of defendant-appellee, Giltz & 

Associates, Inc. (“Giltz”) and denying him summary judgment on his breach of lease 

claim. Adams claims that, under the lease agreement, he is entitled to recover attorney 

fees that he incurred in enforcing the lease against Giltz for its nonpayment of real 

estate taxes. But because Adams failed to serve the mortgagee the required notice of 

default under the lease — the party that ultimately cured the breach — the trial court 

found that Adams was not entitled to attorney fees under the lease. We affirm. 

Procedural History and Facts

{¶2} Adams is the owner of the real property located at 12432 St. Clair Avenue 

in Cleveland, Ohio (“the Property” or “Parcel 3”). In January 1996, Adams, as lessor, 

and Giltz, as lessee, executed a Ground Lease for the Property and two adjoining parcels 

(Parcels 1 and 2). The following year, they entered into an Amendment and 

Restatement of Ground Lease (the “Ground Lease”) for a term of 99 years. As 

consideration for the Ground Lease, Giltz prepaid the monthly rent due to Adams under 

the Ground Lease for the first 20 years. 

{¶3} Under the terms of the Ground Lease, Giltz was permitted to assign or 

sublease its rights and obligations under the lease without the Landlord’s written 
consent. The Ground Lease also permitted the lessee to mortgage its leasehold interest 

in the Property. 

{¶4} Giltz was the prior titled owner of a fourth parcel of property (Parcel 4) 

adjacent to Parcels 1, 2, and 3. Giltz entered into a sublease agreement with Moran 

Foods, Inc., d.b.a. Save-A-Lot, Ltd. (“Save-A-Lot”) for their operation of a discount 

grocery store, situated on a portion of Parcel 3 and Parcel 4, which it assigned to the 

nonparty 125th and St. Clair Street Company, LLC (“125th”). 

{¶5} On February 19, 2002, Giltz assigned all of its rights, title, and interest in 

the Ground Lease to 125th by executing an Assignment and Assumption of Ground 

Lease. On this same day, U.S. Bank National Association obtained an open-end 

leasehold mortgage, security agreement and assignment of rents and leases on the 

Property from 125th. 

{¶6} Neither Giltz nor 125th paid the real estate taxes for the year 2006 through 

2010, totaling in excess of $106,527. The county treasurer in June 2009 commenced a 

foreclosure action on the Property seeking to recover the taxes owed. Consequently, 

Adams commenced the underlying action on June 10, 2010, alleging that Giltz breached 

Article 5.3(a) of the Ground Lease by failing to pay the real estate taxes on the Property 

for the years 2006 through the present. Adams further sought the award of attorney 

fees as provided under Article 16.7 of the Ground Lease for “reasonable attorney’s fees * 

* * incurred by Landlord for enforcing the terms and provisions of this Lease.” 
{¶7} Giltz answered and counterclaimed, alleging that Adams had also breached 

the lease by failing to cooperate with Giltz with respect to the refinancing of certain 

mortgage obligations owed by Giltz on the Property. 

{¶8} After filing his complaint in this case, Adams also commenced an eviction 

action in Cleveland Municipal Court, naming Giltz and 125th as defendants in his 

amended complaint, seeking to evict them from Parcel 3. Save-A-Lot and U.S. Bank 

— the mortgagee on the Property — intervened in the action. During the pendency of 

that case and the underlying case, the real estate taxes were paid by U.S. Bank in January 

2011. Subsequently, on February 14, 2011, the Cleveland Municipal Court granted 

judgment in favor of the defendants on Adams’s claim for possession and dismissed all 

pending counterclaims and cross-claims. 

{¶9} In May 2011, Adams and Giltz filed cross-motions for summary judgment 

in this case. The trial court granted Adams’s motion for summary judgment in part, 

finding that Adams was entitled to judgment on Giltz’s counterclaim. With respect to 

Adams’s breach of contract claim, the trial court denied Adams’s motion for summary 

judgment, awarding judgment in favor of Giltz and stating the following:

Plaintiff’s sole cause of action for breach of contract is moot as the breach has been 

cured. The Court finds that Plaintiff is not entitled to attorney fees for enforcing the 

terms and provisions of the lease when Plaintiff failed to properly effectuate notice of 

default under articles 16.1 and 15.7 of the lease and the breach was ultimately cured. 

{¶10} From this order, Adams appeals, raising two assignments of error: 

I. The trial court erred when it denied appellant Bernard Adams’s motion for summary 

judgment as to the complaint. 
II. The trial court erred when it granted appellee Giltz & Associates, Inc.’s motion for 

summary judgment. 

{¶11} Adams raises the same arguments in support of both assignments of error. We will 

therefore address the assignments of error together. 

Standard of Review

{¶12} We review an appeal from summary judgment under a de novo standard. Baiko v. 

Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly, we afford no 

deference to the trial court’s decision and independently review the record to determine whether 

summary judgment is appropriate. N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio 

App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997). 

{¶13} Civ.R. 56(C) provides that before summary judgment may be granted, a court must 

determine the following: 

(1) no genuine issue as to any material fact remains 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 the evidence most strongly in favor of the nonmoving party, that conclusion 

is adverse to the nonmoving party. 

State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 654 (1996). 

Contract Interpretation

{¶14} The sole issue in this appeal is whether Giltz is liable to Adams for Giltz’s failure to 

timely pay the real estate taxes under the Ground Lease. Giltz claims that the belated payment of 

the real estate taxes did not alter Adams’s right to damages, namely, attorney fees, under Article 16.7 
of the Ground Lease. The resolution of Adams’s assignments of error lies in the interpretation of the 

Ground Lease. 

{¶15} The interpretation and construction of a written contract is a question of law, and 

therefore, appellate courts will review de novo the trial court’s interpretation of a contract. 

Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 

502, 660 N.E.2d 431 (1996). Leases are contracts subject to the traditional rules of contract 

interpretation. Mark-It Place Foods v. New Plan Excel Realty Trust, Inc., 156 Ohio App.3d 65, 

2004-Ohio-411, 804 N.E.2d 979, ¶ 29 (4th Dist.). 

{¶16} The purpose of contract construction is to discover and effectuate the intent 

of the parties. Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d 

452, ¶ 9. The intent of the parties is presumed to reside in the language they chose to 

use in their agreement. Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 132, 509 N.E.2d 

411 (1987). In determining the intent of the parties, the court must read the contract as 

a whole and give effect to every part of the contract, if possible. Clark v. Humes, 10th 

Dist. No. 06AP-1202, 2008-Ohio-640, ¶ 12. 

{¶17} Article 16.7 of the Ground Lease provides in part the following: 

Tenant expressly agrees to pay all expenses that Landlord may incur for 

reasonable attorneys’ fees * * * and all other costs paid or incurred by 

Landlord for enforcing the terms and provision of this Lease * * *. 

 

{¶18} Relying on this provision, Adams contends that he is entitled to recover all 

the attorney fees that he incurred in connection with the foreclosure action, the eviction 

action, and in pursuing the underlying case. We disagree. 
{¶19} First, we note that the recovery of fees in connection with the foreclosure 

action are precluded under the plain language of Article 16.7. The provision limits the 

recovery of fees for those incurred by Landlord “for enforcing the terms and provisions 

of this Lease.” Notably, Adams never filed a cross-claim against Giltz in the 

foreclosure action, seeking to enforce the lease. Any alleged fees incurred in the 

foreclosure action arose from having to defend a third-party lawsuit related to Property 

covered under the Ground Lease. Article 16.7 does not provide for the recovery of fees 

under such circumstances. 

{¶20} Next, we now turn to the issue of whether Adams is entitled to recover 

attorney fees for the eviction action and the underlying breach of lease claim filed in this 

case. Although Adams focuses his appeal on Article 16.7, we cannot read this 

provision in isolation and must give effect to the contract as a whole. Under Article 

15.7 of the Ground Lease, Adams was required to provide the mortgagee, i.e., U.S. 

Bank, with notice of Giltz’s failure to pay the real estate taxes, thereby giving U.S. Bank 

the opportunity to cure such default. The provision provides as follows: 

 15.7 Notice to Default Served on Leasehold Mortgagees

No notice of default, as provided in Article XVI of this Lease, shall be 

valid, binding, and effective until the notice is served on all mortgagees in 

the manner set forth in this Lease, at the address set forth in the mortgage or 

the address that mortgagees provide to Landlord according to the provisions 

set forth in this Lease. 
{¶21} Article XVI — titled “Default” — is the section containing the provision 

for recovery of attorney fees. Article 16.1 specifically lists those items that constitute a 

default under the lease, including the tenant’s failure to perform any term or agreement 

under the lease. 

{¶22} It is undisputed that Adams did not comply with Article 15.7. Adams 

argues that this provision is irrelevant to his claim for attorney fees because it was 

created for the sole benefit of the mortgagees and not applicable in his pursuit of attorney 

fees. But we find no basis to adopt such an interpretation. Indeed, there is absolutely 

no language in the Ground Lease that supports this position. And given that principles 

of contract interpretation preclude a court from rewriting the contract by reading into it 

language or terms that the parties omitted, we find that the trial court properly declined 

to do so. See Porter v. Columbus Bd. of Indus. Relations, 111 Ohio App.3d 238, 242, 

675 N.E.2d 1329 (10th Dist.1996). 

{¶23} Contrary to Adams’s assertion, we find that, reading the contract as a 

whole, it is clear that the right to recover reasonable attorney fees incurred by the 

landlord for enforcing the lease arises when the tenant is in default. And given that 

Article 15.7 negates any finding of default when the mortgagee has not been served with 

such notice, Adams was not entitled to recover any attorney fees incurred in connection 

with the underlying action as well as the eviction action. 

{¶24} Moreover, Adams’s pursuit to recover the real estate taxes may have been 

avoided altogether had he properly complied with Article 15.7. Indeed, U.S. Bank — 
the mortgagee — is the party that ultimately paid the outstanding real estate taxes on the 

Property. Thus, at a very minimum, given the factual circumstances of this case, the 

award of attorney fees to Adams would not be reasonable as a matter of law and 

therefore precluded under the language of Article 16.7. 

{¶25} Adams’s two assignments of error are overruled. 

{¶26} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

MARY J. BOYLE, JUDGE 

PATRICIA ANN BLACKMON, A.J., and 

LARRY A. JONES, SR., J., CONCUR