[Cite as Hrynik v. Nicole Brayden Real Estate, 2012-Ohio-3822.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98036

JOHN HRYNIK, ET AL. 

 PLAINTIFFS-APPELLANTS/ 

 CROSS-APPELLEES

vs. 

 

NICOLE BRAYDEN REAL ESTATE

DEFENDANT-APPELLEE/ 

CROSS-APPELLANT

JUDGMENT: 

REVERSED IN PART; AFFIRMED IN PART

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-740002 

BEFORE: Jones, P.J., S. Gallagher, J., and Rocco, J. 

RELEASED AND JOURNALIZED: August 23, 2012 
ATTORNEY FOR APPELLANTS 

Douglas P. Whipple 

Whipple Law, LLC 

13940 Cedar Road, Suite 420 

University Heights, Ohio 44118 

ATTORNEYS FOR APPELLEE 

Michael D. Brennan 

5910 Landerbrook Drive 

Suite 200 

Cleveland, Ohio 44124 

Thomas M. Horwitz 

Thomas M. Horwitz Co., LPA 

1991 Crocker Road 

Suite 600 

Westlake, Ohio 44145
 

LARRY A. JONES, SR., P.J.: 

 {¶1} This case involves a dispute over a commercial lease. The matter proceeded 

to a bench trial at which the court entered judgment in favor of 

plaintiffs-appellants/cross-appellees, John Hrynik, et al. Hrynik is now appealing the trial 

court’s decision to deny his motion for attorney fees. 

Defendant-appellee/cross-appellant, Nicole Brayden Real Estate (“NBRE”) filed a 

cross-appeal arguing that the trial court erred by entering judgment in favor of Hrynik. 

For the reasons that follow, we reverse in part and affirm in part. 

 {¶2} In 2008, NBRE and Hrynik entered into a commercial lease whereby NBRE 

agreed to lease Hrynik 15,000 square feet of warehouse space in a 50,000 square foot 

building located in Warrensville Heights. Hrynik paid the first and last month’s rent and a 

$2,500 security deposit as his initial payment on the lease. Hrynik operated a laundry 

business known as B&H Laundry, a subsidiary of Marbelle Industries, and planned on 

using the warehouse space for cold storage of washers and dryers. Adjacent to the 

warehouse space was a dock, restrooms, and an office. The office area was accessible 

either from the warehouse or from outside. 

 {¶3} The dispute between the parties arose in late 2009, when the owner of NBRE, 

Keith Schwartz, discovered that Hrynik was using the office for storage of personal items. 

 NBRE demanded an additional $600 a month in rent for the office and also demanded a 

year of back rent for the office; Hrynik refused and decided not to renew his lease. 
Hrynik moved out, but NBRE did not return his security deposit, claiming that B&H 

Laundry owed NBRE for damage to the office floor and for rent for use of the office 

space. 

{¶4} Hrynik filed suit against NBRE, alleging that the latter failed to return his 

$2,500 security deposit. NBRE filed an initial counterclaim seeking $4,700 in unpaid 

rent for the office space, late fees, interest, and costs. The company then amended their 

counterclaim to demand judgment in excess of $100,000. 

{¶5} The matter proceeded to a bench trial at which the following pertinent 

evidence was presented. 

{¶6} Donna Hunter, who worked for Hostess Brands, testified that Hostess 

occupied parts of the subject building, including the office space, before Hrynik moved 

into the warehouse. Hunter testified that Hostess decided to move to the rear of the 

building and Hrynik moved in to the front area of the warehouse. According to Hunter, 

she assumed that Hrynik was leasing the office space of the warehouse because Hostess 

had that space as part of their lease. When necessary, she would contact Hrynik to gain 

access to the office because the building’s thermostats were located in the office. Hunter 

testified that she had knowledge that the building’s sump pump would occasionally stop 

working. If the sump pump stopped, water would leak into the office area, and this 

occurred on more than one occasion. Hunter further testified that she did not remember 

when Hrynik moved boxes into the office space, but she thought it was prior to July 2009. 

{¶7} Carl Hall testified that he was the operations manager for Hrynik’s business 
and it was his understanding that the company was leasing warehouse space that included 

the bathrooms, dock, and office. He testified that he always had access to the office area 

because the door was either open or unlocked. According to Hall, the office floor was in 

“fair” condition when the company leased the area and remained in fair condition during 

the lease. Hall testified that, at the time B&H Laundry commenced its lease, he noticed 

water damage to the floor tiles in the office area. 

{¶8} Keith Schwartz testified that he was the sole principal and member of NBRE. 

When Schwartz did the initial walk thru with Hrynik, he showed Hrynik the warehouse 

space, dock, restrooms, and office area. But when it came time to negotiate the terms of 

the lease, Hrynik told him that he had no use for the office. Thus, according to Schwartz, 

NBRE’s lease with Hrynik did not include the office space. Schwartz claimed that the 

office had a door with a lock on it and he would have given B&H Laundry keys to the 

office if the lease included that area. 

{¶9} Schwartz admitted that the sump pump malfunctioned at least once in 2008 

and 2009 and he knew that water had leaked into the office space. He argued, however, 

that the floor of the office was in good condition, the tiles were not peeling, and the floor 

did not have scratches on it prior to Hrynik’s laying pallets on the floor. 

{¶10} In October 2009, Schwartz brought a prospective tenant to see the office 

space and was surprised to discover boxes and other household items on pallets in the 

office. A few weeks later, he emailed B&H Laundry an invoice for back rent for the 

office at a rate of $600 a month for the entire time period of the lease (13 months). 
{¶11} On cross-examination, Schwartz conceded that the lease with B&H Laundry 

included use of the dock and restrooms adjacent to the warehouse, even though the lease 

did not specifically provide for their use. 

{¶12} Hrynik testified that he owned B&H Laundry and leased the warehouse space 

to store approximately 800 coin-operated washers and dryers. Hrynik admitted he initially 

told Schwartz he had no use for the office area of the warehouse, but considered the office, 

dock, and restrooms part of the 15,000 square feet covered by the lease. 

{¶13} Hrynik testified that the first time he went into the office, shortly after 

signing the lease, it was at Hunter’s request because the building’s thermostats were 

located in the office. At that time he noticed a half-inch of standing water in the office. 

In October 2009, his daughter got divorced, and he moved her belongings into the office 

space; at that time he put her boxes on pallets because he knew there was potential that the 

office would flood. 

{¶14} As to the condition of the office floor, Hrynik testified that at the time he 

moved the pallets into the office, the floor was “a typical 20- to 30-year old floor, which 

had been worn from over time and from the water. Some of the tiles were flaking and 

some of the tiles were raising up at the edges.” 

{¶15} A month or so later, Hrynik found out that he was not supposed to use the 

office. He moved his daughter’s belonging out of the office, but testified that there was 

no damage to the floor from his pallets. 

{¶16} Hrynik ended his lease in December 2009. He requested the return of his 
$2,500 security deposit, but did not receive it. 

{¶17} After hearing all testimony and accepting the parties’ closing arguments in 

the form of briefs, the trial court issued a judgment entry ruling in favor of Hrynik in the 

amount of $2,500 plus interest. The trial court further ordered each party to pay their 

own costs and attorney fees. 

{¶18} Hrynik assigns two errors for our review, as quoted: 

 

I. The trial court erred and abused its discretion, to the prejudice of 

Appellants, by failing to enforce the attorney fee clause in the parties’ 

commercial lease. 

II. The trial court erred and abused its discretion, to the prejudice of 

Appellants, by failing to conduct a post-trial evidentiary hearing on the 

amount and reasonableness of Appellant’s attorney fees. 

{¶19} NBRE filed a cross appeal, assigning the following four assignments of 

error, as quoted: 

I. The trial court erred by entering judgment in favor of B&H Laundry 

Services Inc. and Marbelle Industries, Inc. 

II. The trial court erred when it held that the Lease was ambiguous and 

construed it against NBRE. 

III. The trial court erred when it failed to enter judgment in favor of NBRE 

on its amended counterclaim. 

IV. The trial court erred when it failed to consider NBRE’s amended 

counterclaim. 

I. Hrynik’s Appeal

{¶20} In his assignments of error, Hrynik argues that the trial court erred by failing 

to order NBRE to pay his attorney fees. He further claims that the trial court erred when 
it failed to hold an evidentiary hearing on the issue of attorney fees. 

A. Amended Complaint 

{¶21} NBRE claims that Hyrnik is not entitled to attorney fees because he failed to 

request them in his original complaint. Although NBRE acknowledges Hrynik requested 

attorney fees in his amended complaint, the company argues that the amended complaint 

was never properly before the court. 

{¶22} Civ.R. 15(A) provides, in part, as follows: 

A party may amend his pleading once as a matter of course at any time 

before a responsive pleading is served or, if the pleading is one to which no 

responsive pleading is permitted and the action has not been placed upon the 

trial calendar, he may so amend it at any time within twenty-eight days after 

it is served. Otherwise a party may amend his pleading only by leave of 

court or by written consent of the adverse party. Leave of court shall be 

freely given when justice so requires. 

{¶23} The record reflects that on March 11, 2010, Hrynik filed his complaint. 

NBRE attempted to file a handwritten counterclaim, but the court did not accept it for 

filing. NBRE filed a motion for reconsideration of that decision. The trial court issued 

an entry in which it stated that it was treating the motion for reconsideration as a motion 

for transfer to the regular docket of the Bedford Municipal Court and granted the transfer 

on March 30, 2010. 

{¶24} On April 16, 2010, Hrynik filed his first amended complaint, in which he 
requested attorney fees. On April 21, 2010, the trial court scheduled a pretrial on 

“plaintiff’s first amended complaint.” On May 10, 2010, NBRE filed its answer to the 

first amended complaint and its first amended counterclaim. What we can glean from the 

municipal court record is that Hrynik filed his complaint in small claims court and NBRE 

tried to file a counterclaim, but was not allowed to do so. NBRE then moved for 

reconsideration and the trial court transferred the case to the regular docket based on the 

dollar amount NBRE asked for in the counterclaim. Hrynik filed his first amended 

complaint and NBRE then filed its answer to the first amended complaint and its first 

amended counterclaim. 

{¶25} Pursuant to Civ.R. 7(A), only complaints, answers, and replies constitute 

pleadings; Schwartz’s initial counterclaim was not a responsive pleading. NBRE did not 

file its responsive pleading, the answer, until after Hrynik filed his first amended 

complaint. As such, pursuant to Civ.R. 15, Hrynik’s was entitled to amend his complaint. 

{¶26} Based on these facts, we find no merit to NBRE’s argument that Hyrnik’s 

first amended complaint was not properly before the court. 

B. Attorney Fees

{¶27} Generally, in Ohio each party to a lawsuit must pay his or her own attorney 

fees. Exceptions to this rule allow fee-shifting and taxing attorney fees as costs (1) if 

there has been a finding of bad faith; (2) if a statute expressly provides that the prevailing 

party may recover attorney fees; or (3) if the parties’ contract provides for fee-shifting. 

(Internal citations omitted.) Keal v. Day, 164 Ohio App.3d 21, 24, 2005-Ohio-5551, 840 
N.E.2d 1139 (1st Dist.); see generally Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 

2009-Ohio-306, 906 N.E.2d 396, ¶ 7. Any attorney fees award must be “fair, just and 

reasonable as determined by the trial court upon full consideration of all of the 

circumstances of the case.” Nottingdale Homeowners’ Assn., Inc. v. Darby, 33 Ohio 

St.3d 32, 514 N.E.2d 702 (1987), syllabus. 

{¶28} In the case at bar, paragraph 23 of the lease provided: 

Attorney’s Fees: If either party named herein brings [an] action to enforce 

the terms hereof or declare rights hereunder, the prevailing [party] in any 

such action, on trial to appeal, shall be entitled to reasonable attorney’s fees 

and to be paid by the losing party as fixed by the court. 

{¶29} The contract between Hyrnik and NBRE specifically provided that the losing 

party would pay the prevailing party’s reasonable attorney fees. During trial, each party 

requested attorney fees should it be found to be the prevailing party. Specifically, Hrynik 

requested reasonable attorney fees for his “prosecution of its claim for the return of its 

security deposit,” for his defense against NBRE’s counterclaim and “pursuant to the 

Court’s decision on November 22, 2010, granting Plaintiff’s motion to compel discovery 

and for award of attorney fees.” The trial court, however, determined that each party 

would bear its own costs and attorney fees. This was in error. 

{¶30} The trial court found that the lease was an enforceable contract between the 

parties. That contract specifically provided for the losing party to pay the prevailing 

party’s attorney fees; the amount to be determined by the court. Based on this, the trial 
court should have determined an amount of reasonable attorney fees. And based on our 

review of the trial court record, the court would be unable to determine the amount of 

attorney fees absent documentary or testimonial evidence from Hrynik. Therefore, upon 

remand, the trial court shall hold a hearing to determine a reasonable amount of attorney 

fees. 

{¶31} The first and second assignments of error are sustained. 

 II. NBRE’s Cross-Appeal

{¶32} In NBRE’s first and second cross-assignments of error, the company argues 

that the trial court erred in entering judgment in favor of Hrynik. In the company’s third 

and fourth cross-assignments of error, it argues that the trial court erred in failing to award 

damages on NBRE’s counterclaim. 

A. Standard of Review

{¶33} While NBRE argues specific points in its assignments of error, it is 

essentially arguing the trial court’s judgment in favor of Hrynik was against the manifest 

weight of the evidence. 

{¶34} A reviewing court will not reverse a trial court’s judgment in a civil action 

unless it is against the manifest weight of the evidence. A trial court’s judgment is not 

against the manifest weight of the evidence so long as some competent and credible 

evidence supports it. See, e.g., C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 

376 N.E.2d 578 (1978), syllabus. To determine whether a trial court’s judgment is 

against the manifest weight of the evidence, a reviewing court must not re-weigh the 
evidence. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 79-80, 461 N.E.2d 1273 

(1984). Under this highly deferential standard of review, this court does not decide 

whether we would have come to the same conclusion as the trial court. Amsbary v. 

Brumfield, 177 Ohio App.3d 121, 2008-Ohio-3183, 894 N.E.2d 71, ¶ 11 (4th Dist.). 

Instead, we must uphold the judgment so long as the record contains “some evidence from 

which the trier of fact could have reached its ultimate factual conclusions.” Id., citing 

Bugg v. Fancher, 4th Dist. No. 06CA12, 2007-Ohio-2019, ¶ 9. Moreover, we presume 

the trial court’s findings are correct because the trial court is best able to view the 

witnesses and observe their demeanor, gestures, and voice inflections and to use those 

observations in weighing the credibility of the testimony. See, e.g., Seasons Coal, at 80. 

That being said, to the extent that the judgment involves a question of law, we review the 

question of law independently and without any deference to the trial court. Cooper v. 

Smith, 155 Ohio App.3d 218, 2003-Ohio-6083, 800 N.E.2d 372, ¶ 10 (4th Dist.). 

B. The Parties’ Lease

{¶35} In Ohio, 

courts presume that the intent of the parties to a contract resides in the 

language they chose to employ in the agreement. Only when the language 

of a contract is unclear or ambiguous, or when the circumstances 

surrounding the agreement invest the language of the contract with a special 

meaning will extrinsic evidence be considered in an effort to give effect to 

the parties’ intentions. When the terms in a contract are unambiguous, 

courts will not create a new contract by finding an intent not expressed in the 

clear language employed by the parties. 

(Internal citations omitted). Shifrin v. Forest City Ents., 64 Ohio St.3d 635, 638, 

1992-Ohio-28, 597 N.E.2d 499. 
{¶36} Generally, any ambiguities in a lease are construed against the party who 

prepared the lease. Cleveland v. Sohio Oil Co., 8th Dist. No. 78860, 2001 Ohio App. 

LEXIS 5192, *15 (Nov. 21, 2001). A 

fundamental and frequently applied general rule of construction is that if 

there is doubt or ambiguity in the language of a contract the document is to 

be construed strictly against the party who prepared it or selected its 

language and in favor of the party who took no part in its preparation or in 

the selection of its language. He who speaks should speak plainly or the 

other party may explain to his own advantage. 

Id., citing McKay Machine Co. v. Rodman, 11 Ohio St.2d 77, 228 N.E.2d 304 (1967). 

{¶37} Here, the trial court concluded that the lease was ambiguous because it did 

not expressly include or exclude the office space. NBRE argues that the trial court erred 

in (1) finding that the lease was ambiguous and (2) construing any ambiguity in favor of 

Hrynik. 

{¶38} The lease, which Schwartz testified was a boilerplate lease he got from the 

prior owners of the building, contained a premises clause, which stated: “Lessor hereby 

leases to Lessee * * * Fifteen Thousand (15,000) square feet of space * * * commonly 

known as the front portion of the fifty thousand (50,000) square foot building.” The 

“use” clause stated that “[t]he premises shall be used and occupied for storage, 

warehousing and distribution of washers and dryers.” The lease did not further delineate 

or describe the premises being leased. 

{¶39} In its judgment entry, the trial court found, in part, as follows: 

The Lease provided for the rent of 15,000 square feet including the “front 

portion” of the Defendant’s building. The Plaintiffs used a majority of the 

Lease premises for storage of coin laundry equipment. The Plaintiffs’ [sic] 

claimed that of the 15,000 square feet, that the “office space[,]” which was 
directly connected to the warehouse that the Plaintiffs used, was indeed part 

of the 15,000 square feet, which is the object of the lease. 

The Defendant claimed that the office space was excluded from the 15,000 

square feet and also claim that Plaintiffs’ [sic] owe rent for the office space, 

and late fees, and also damage to the floor covering the office space, along 

with the attorney fees. * * * 

The question is whether or not the office space is included or can be 

presumed to be part of the 15,000 square feet. 

It is clearly not excluded from the 15,000 square feet. 

The Plaintiffs argue that a prior lessor and its lease * * * included the office 

space in a virtually identical lease. * * * 

Inasmuch as the lease was ambiguous (and whether or not the office space 

was included or excluded), that ambiguity must be construed against the 

Defendant. * * * 

The Court has found the office space was part of the Lease premises. 

(Emphasis sic.) Trial court’s January 31, 2012 judgment entry. 

{¶40} Based on the transcript of the trial in this matter, we find that there was 

competent, credible evidence to support the trial court’s decision in favor of Hrynik. 

{¶41} Hrynik testified that he understood that the office was included in the lease. 

Although Hrynik did not initially believe that he would use the office space, he decided to 

use it to store his daughter’s belongings after she divorced. In order to access the office 

space from the inside of the building, one had to pass through his warehouse space. 

Moreover, if a person in the office wanted to access the bathrooms, he or she would have 

to go through Hyrnik’s warehouse space. 

{¶42} The lease in this case makes no mention of the office space; the lease does 
not either specifically include or exclude the office space. But the lease also did not 

include or exclude other areas the parties agree were part of the lease, specifically the 

bathroom and the dock. Although Schwartz testified that the lease did not include the 

office space, we leave it to the trial court’s discretion to decide factual conflicts. In so far 

as the ambiguity of the lease is a question of law, after a de novo review, we agree with the 

trial court that the lease was ambiguous as the term “front portion of the fifty thousand 

(50,000) square foot building” could include the warehouse space, office, bathrooms, and 

dock. 

{¶43} NBRE also claims that the trial court erred in ordering NBRE to return the 

security deposit to the “plaintiffs” when Hrynik was the only party to the lease. But the 

parties’ lease identified the lessee as “John Hrynik DBA [B & H] Laundry Inc. separately 

and jointly.” In his first amended complaint, Hrynik listed himself and Marbelle 

Industries, d.b.a. B&H Laundry Services, Inc., as the plaintiffs. 

{¶44} NBRE was ordered to pay $2,500, the amount of the security deposit, plus 

interest, to the plaintiffs. Whether there is one, or more than one, plaintiff denoted in the 

trial court’s judgment entry is of no consequence as the damage award is the same. 

{¶45} Based on these facts, the first and second cross-assignments of error are 

overruled. 

III. NBRE’s Counterclaim

{¶46} In the third and fourth cross-assignments of error, NBRE argues that the trial 

court erred in failing to grant its counterclaim for past due rent and damages. In its 
amended counterclaim, NBRE demanded judgment for a year’s worth of rent of the office 

at $600 a month plus compounding late fees, for damage to the floor, and for attorney fees 

and costs, in an amount totaling over $100,000. 

{¶47} The trial court found that the lease could be construed to include the office 

space and this court agrees; therefore, NBRE cannot recover for any additional rent it 

alleged Hrynik owed for use of that space. 

{¶48} As to its claims that Hrynik damaged the office floor, we again defer to the 

judgment of the trial court. Hrynik and Hall testified that the office floor suffered water 

damage prior to Hrynik putting pallets on the floor. Although Schwartz insisted the floor 

was in good condition prior to Hrynik using the office, the trial court was in the best 

position, as trier of fact, to resolve this dispute. 

{¶49} In light of the above, we find that there was competent, credible evidence 

going to the court’s decision to deny NBRE’s counterclaim. 

{¶50} The third and fourth cross-assignments of error are overruled. 

{¶51} Accordingly, the case is remanded for an evidentiary hearing to determine 

the amount of reasonable attorney fees to be awarded to the appellants. The trial court’s 

judgment is affirmed in all other respects. 

It is ordered that appellants recover of appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas 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. 

 

 

LARRY A. JONES, SR., PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

KENNETH A. ROCCO, J., CONCUR