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ICSC Legal Database - CasesMonday, February 22, 1999 05:03 PM

Case Index:
00369

Citation:
Frank B. Thomas Trust v. Imperial 400 Natl. Inc., 1990 WL 34872 (Ohio Ct. App. 1990).

Issue:
Whether the landlord's fourteen year failure to increase the initial rental amount by the price index provided for in

 the lease barred the landlord from recovering any past due amounts resulting from such increases and/or from

adjusting rents prospectively?

Facts:
The landlord, assignee of a commercial lease, leased property to defendant for a 65 year term calling for

automatic adjustments to monthly rents every ten years based on a published price index. The lease, drafted by

 the lessee, provided that the first adjustment go into effect in 1973. The plaintiff accepted the original monthly

rental amount of $650 for the entire ten year period and continued to accept that amount until 1987, four years

after the second adjustment was to go into effect. During 1987 the plaintiff notified the defendant that it was in

arrears with respect to the rental increase from 1983 and owed approximately $97,000 and, additionally, that

monthly rentals would be increased by $1,450 through 1993. Plaintiff brought suit to recover the arrearages and

defendant asserted the defenses of waiver, estoppel, and laches. the trial court granted summary judgment for

the plaintiff and the defendant appealed.

Holding:
Affirmed. The self-executing nature of the indexing provision did not require the landlord to make a demand for

the increased rentals, and, even if demand is generally required, the lease contained an express anti-waiver

provision which would be construed against the drafter, the lessee. The court rejected the defendant's assertion

that waiver, estoppel, and [aches inherently present a question of fact and, therefore, were not properly disposed

 of by summary judgment. Ohio imposes a reciprocal duty of specificity on a non-moving party in providing

evidence to defend against a motion for summary judgment. The defendant presented no evidence of any plaintiff

 action or forbearance which would raise a question of fact as to the issue of estoppel and [aches or which

would constitute a waiver of the terms of the contract.

Publication:
Legal Update

Date:
Winter 1990

Classification 1:
Landlord and Tenant

Classification 2:

Classification 3:

00369 - Legal Update - Winter 1990