Harmon v. Haehn ( 2011 )


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  • [Cite as Harmon v. Haehn, 2011-Ohio-6449.]
    STATE OF OHIO, MAHONING COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    TERRY HARMON, et al.,                        )
    )   CASE NO. 10 MA 177
    PLAINTIFFS-APPELLANTS,                )
    )
    - VS -                                )         OPINION
    )
    RUSSELL A. HAEHN, et al.,                    )
    )
    DEFENDANTS-APPELLEES.                 )
    CHARACTER OF PROCEEDINGS:                        Civil Appeal from Common Pleas
    Court, Case No. 08 CV 1504.
    JUDGMENT:                                        Affirmed.
    APPEARANCES:
    For Plaintiffs-Appellants:                       Attorney Cherry Poteet
    Attorney Daniel Daniluk
    1129 Niles-Cortland Road, SE
    Warren, OH 44484
    For Defendants-Appellees:                        Attorney Stuart Strasfeld
    100 Federal Plaza East, Suite 600
    Youngstown, OH 44503
    JUDGES:
    Hon. Mary DeGenaro
    Hon. Gene Donofrio
    Hon. Joseph J. Vukovich
    Dated: December 9, 2011
    [Cite as Harmon v. Haehn, 2011-Ohio-6449.]
    DeGenaro, J.
    {¶1}    Plaintiffs-Appellants Terry Harmon, Terry Harmon Motors, Inc., and Harmon
    Used Car Outlet, Inc., (hereinafter "Harmon") appeal the October 8, 2010 judgment of the
    Mahoning County Court of Common Pleas declining to award $250,000 in damages as
    stipulated in the parties' commercial lease agreement and instead awarding $25,166 in
    actual damages. The trial court correctly categorized the lease provision as a liquidated
    damages clause, and correctly decided that the provision constitutes an unenforceable
    penalty. Accordingly, Harmon's sole assignment of error is meritless and the judgment of
    the trial court is affirmed.
    Facts and Procedural History
    {¶2}    The facts are generally undisputed. On April 12, 2006, Haehn, as lessor,
    and Harmon as lessee entered into a contract, commencing May 15, 2006, whereby
    Harmon agreed to lease commercial property in Canfield from Haehn for a term of four
    years and eight months, with an option to extend. At the heart of this appeal is a right of
    first refusal provision in the Lease, which was drafted by Haehn and added to the Lease
    as a result of the parties' negotiations.
    {¶3}    "Right of First Refusal. In the event that the Lessor receives a bona fide
    written offer to purchase the Demised Premises that Lessor decides to accept, then
    Lessor shall provide Lessee with a copy of the bona fide written offer. Lessee shall have
    the right, for a period of five (5) days after receipt of the bona fide offer, to purchase the
    Demised Premises at the same price and upon the same terms as contained in the bona
    fide written offer. In the event that Lessee does not exercise its right of first refusal, the
    Lessor maintains the right to sell the property with the following provisions: If the Lessor
    sells the property within the firs [sic] three (3) years of this lease and terminates said
    lease, Lessor agrees to pay Lessee $250,000.00 and Lessee will have (8) months to
    vacate property. If the Lessor sells the property the last (2) years of the lease agreement
    and the lease is terminated, Lessor agrees to pay Lessee $200,000.00 and Lessee will
    have (8) months to vacate premises. If lease is not terminated, no payment will occur. In
    the event Lessee exercises this right of first refusal, then Closing shall take place within a
    period of thirty (30) days after receipt by Lessor of Lessee's notice of its exercise of its
    -2-
    right of first refusal." (Lease, Article 28).
    {¶4}    Harmon planned to utilize the property for a used car dealership. Extensive
    renovations were necessary to achieve this goal because the prior lessee had used the
    property for a deli. However, contrary to Haehn's assertions, nothing in the Lease
    required Harmon to make any renovations; rather only to maintain the subject property:
    {¶5}    "Maintenance of Demised Premises. Lessee has inspected the Demised
    Premises and agrees to lease the same in its "As Is" condition, and without reliance upon
    any representations made by the Lessor and/or Lessor's agents and representatives.
    During the Term of this Lease:
    {¶6}    "A. * * *
    {¶7}    "B. Except as specifically designated in subparagraph "A" above as Lessor's
    responsibilities, Lessee covenants and agrees to maintain the Demised Premises, both
    interior and exterior, and every part thereof, and to make repairs thereto and
    replacements thereof * * * " (Lease, Article 9.)
    {¶8}    "Alterations or Remodeling. Lessee shall have the right, at its own cost
    and expense, to erect, install, maintain and operate on the Demised Premises such
    equipment, fixtures, alterations, and remodeling as Lessee may deem advisable as long
    as the alterations and remodeling are done in a good and workmanlike manner and in
    compliance with the law." (Lease, Article 10.)
    {¶9}    Further, the "Use" provision in the Lease does not mandate that Harmon
    use the property as a car lot. Rather, it requires only that he "use the Demised Premises
    in a careful, safe, sanitary and proper manner." (Lease, Article 2.) Contrary to Haehn's
    contentions, there are no mandatory or continuous use clauses in the Lease. The Lease
    provided a base monthly rent, which increased based upon the number of vehicles sold.
    {¶10} By late October or early November of 2006, approximately six months after
    executing the Lease, Harmon had completed only minimal renovations and had not
    opened for business. Haehn discussed with Harmon terminating the Lease because he
    had a potential buyer for the property. Haehn received a bona fide offer from a third-
    party, Albert J. Gallo of AGPG Concepts, LLC, but did not communicate this offer to
    -3-
    Harmon. On September 4, 2006, Haehn entered into a contract with Gallo to sell the
    leased premises for $775,000.
    {¶11} On November 12, 2006, Haehn presented Harmon with a Lease
    Termination Agreement, in which he sought to terminate the Lease, and to release
    himself from any liability arising out of the Lease, including any claim regarding the right
    of first refusal provision. Harmon refused to sign the termination agreement, but returned
    the keys to the building and vacated the premises. Haehn refused to pay Harmon the
    $250,000 as stipulated in Article 28 of the Lease. Haehn conveyed the property by
    general warranty deed to AGPG Concepts on April 4, 2007.
    {¶12} During the Lease period, Harmon failed to make all of his rent payments on
    a consecutive monthly basis. In addition, although Harmon was responsible for paying all
    real estate taxes and utilities for the leased premises, he did not do so. However, Haehn
    never sent Harmon written notice of these defaults or gave Harmon an opportunity to
    cure, which was required pursuant to Article 21, the Lease default provision.
    {¶13} On April 11, 2008, Harmon filed a Complaint against Haehn for breach of
    contract and declaratory judgment.        Harmon also named AGPG Concepts as a
    defendant, but later voluntarily dismissed all claims against AGPG with prejudice.
    {¶14} Harmon filed a motion for summary judgment on February 16, 2010, arguing
    there were no genuine issues of material fact regarding Haehn's breach of Article 28 of
    the Lease, and that as a matter of law, Harmon was entitled to damages in the amount of
    $250,000. Haehn filed a brief in opposition in which he argued that Harmon had
    anticipatorily repudiated the Lease by failing to pay rent, complete renovations and open
    for business. As to the damages issue, Harmon argued that the $250,000 sum was
    unenforceable as a penalty. Haehn replied, asserting, among other things, that Article 28
    was a valid liquidated damages provision that the court should enforce.
    {¶15} On June 8, 2010, the magistrate issued a decision concluding that Harmon
    was entitled to judgment as to liability, i.e., that Haehn had breached the Lease.
    However, the magistrate declined to adjudicate the issue of damages because "a
    liquidated damages provision must be reasonably proportionate to the loss suffered."
    -4-
    Accordingly, the magistrate set the matter for further hearing on damages.
    {¶16} Both parties filed objections. The trial court overruled the objections and
    adopted the magistrate's decision, noting that the enforceability of the liquidated damages
    provision would be determined after further hearing.
    {¶17} The matter proceeded to a damages hearing on August 27, 2010 where
    both Harmon and Haehn testified, along with Cheryl Zinns, comptroller for Harmon's
    businesses. Harmon presented evidence of the costs he incurred to renovate the
    property.
    {¶18} On October 7, 2010, the magistrate issued a decision, including findings of
    fact and conclusions of law.     The magistrate concluded that under the facts and
    circumstances of this case, the liquidated damages clause found in Article 28 of the
    Lease constituted a penalty that is unenforceable as a matter of law. The magistrate
    concluded that the amount of actual damages incurred by Harmon as a result of Haehn's
    breach was $25,166, and awarded judgment in that amount. On October 21, 2010,
    Harmon filed objections to the magistrate's decision. The trial court performed an
    independent review of the magistrate's decision and adopted it as its own on October 8,
    2010.
    Liquidated Damages Clause versus Lease Buyout Provision
    {¶19} In his sole assignment of error, Harmon asserts:
    {¶20} "The Trial Court erred in failing to grant judgment in favor of Plaintiffs-
    Appellants for $250,000 as expressly and unambiguously required by Article 28 of the
    Lease between Defendant-Appellee (as Lessor) and Plaintiffs-Appellants (as Lessee) as
    the bargained for consideration to be paid to Plaintiffs-Appellants once Defendant-
    Appellee exercised his express right to sell the Demised Premises and cancel the Lease."
    {¶21} Harmon raises two arguments challenging the trial court’s decision to award
    actual damages rather than pursuant to damages provided for in the Lease. Harmon first,
    contends that Article 28 was an enforceable lease buyout provision, not a liquidated
    damages clause. Alternatively, Harmon argues that if the provision is, as a matter of law,
    a liquidated damages clause, it is enforceable. Each will be addressed in turn.
    -5-
    {¶22} First, Harmon contends that the provision at issue here is not truly a
    liquidated damages clause, but rather a negotiated "lease buyout provision" that the trial
    court should have enforced as a matter of law. Under Harmon's theory, the trial court
    was no more able to set aside Article 28 as unreasonable, than it was able to set aside
    the Lease's rent provision. Haehn does not respond directly to this argument.
    {¶23} Regarding the standard of review, interpretation of an unambiguous contract
    provision, such as Article 28, presents a question of law that this court should review de
    novo. See Kuptz v. Youngstown City School Dist. Bd. of Edn., 
    175 Ohio App. 3d 738
    ,
    2008-Ohio-1676, 
    889 N.E.2d 166
    , at ¶23, citing Latina v. Woodpath Development Co.
    (1991), 
    57 Ohio St. 3d 212
    , 214, 
    567 N.E.2d 262
    . Liquidated damages are defined as "an
    amount contractually stipulated as a reasonable estimation of actual damages to be
    recovered by one party if the other party breaches. If the parties to a contract have
    properly agreed on liquidated damages, the sum fixed is the measure of damages for a
    breach, whether it exceeds or falls short of the actual damages." Black's Law Dictionary
    (9th Ed. 2009). See, also, Miller v. Blockberger (1924), 
    111 Ohio St. 798
    , 
    146 N.E. 206
    ,
    at syllabus.
    {¶24} Harmon argues that Article 28 of the Lease is not a liquidated damages
    provision, but rather "a bargained-for provision giving Haehn the contractual right to sell
    the premises and cancel Appellant Harmon's lease, but only by paying Harmon a lease
    buyout price of $250,000." In support of his argument, Harmon cites several cases
    involving real estate purchase agreements with clauses providing for forfeiture of earnest
    money deposits. For example, in Windsor v. Riback, 11th Dist. Nos. 2007-G-2775, 2007-
    G-2781, 2008-Ohio-2005, the court concluded that such a clause was not a liquidated
    damages provision because "an earnest money provision in a real estate purchase
    agreement is commonly viewed in terms of an option contract, in which the 'fee is
    forfeited if the offeree does not exercise the option, as its very purpose is consideration
    for the privilege of keeping the offer open for stated period of time.'" 
    Id. at ¶53
    (citations
    omitted.) See, also, Reitz v. Giltz & Assoc., Inc., 11th Dist. No. 2005-T-0126, 2006-Ohio-
    4175, at ¶26 (holding that provision concerning return of deposit on a real estate option
    -6-
    contract was not a liquidated damages provision because it did not apportion damages in
    the event of a breach); and Gaskins v. Young, 2nd Dist. No. 20148, 2004-Ohio-2731, at
    ¶30.
    {¶25} This line of cases is factually distinguishable because the present case
    involves a right of first refusal, not an option. "A right of first refusal is a preemptive right
    requiring the owner to offer the property first to the holder of the right. It differs from an
    option because the grantee of a right of first refusal cannot compel the owner to sell the
    property as the grantee can with an option." Beder v. Cleveland Browns, Inc. (1998), 
    129 Ohio App. 3d 188
    , 195, 
    717 N.E.2d 716
    , citing Stratman v. Sheetz (1989), 
    60 Ohio App. 3d 71
    , 73, 
    573 N.E.2d 776
    . And although Harmon also relies on Timmotors, Inc. v. Lima
    Ford, Inc., 3d Dist. No. 1-2000-11, 2001-Ohio-2138, it does not lend much support
    because the court there was not called upon to determine whether the lease provision
    was a liquidated damages clause. It was uncontested that the clause in Timmotors
    provided for an early lease termination fee.
    {¶26}    More relevant is Midamco, L.P. v. Fashion Bug of Solon, Inc. (1996), 
    116 Ohio App. 3d 854
    , 
    689 N.E.2d 605
    . In Midamco, a shopping center tenant's lease
    permitted the tenant to either terminate the lease or pay a drastically reduced rent (3% of
    gross sales), in the event that the lessor breached the lease's exclusivity provision by
    renting a space in the shopping center to another purveyor of plus-sized women's
    clothing. When the lessor ultimately breached this exclusivity provision, the tenant began
    to pay the reduced rent, which the lessor refused to accept, ultimately filing an eviction
    action. The trial court concluded that the rent reduction clause was not so great as to be
    a penalty and was therefore enforceable. On appeal, the Eighth District affirmed, but for
    different reasons, disagreeing with the characterization of the provision as a liquidated
    damages clause:
    {¶27} "Appellant mischaracterizes Section 12.17 of the lease as a 'liquidated
    damages' or damages provision. * * * Section 12.17 represents an optional provision in
    the contract, implicated by a specific occurrence (in another store opening and selling like
    merchandise to defendant's), to provide relief (in the form of decreased rent or allowing
    -7-
    the tenant to terminate the lease) to an existing tenant of exclusive merchandise at the
    shopping center for the presumed decrease in profitability to the existing tenant's bottom
    line caused by the introduction of a direct competitor on the premises." 
    Id. at 858.
           {¶28} In reaching this conclusion, the Eighth District distinguished what it termed
    the "traditional liquidated damages clause cases," such as Lake Ridge Academy v.
    Carney (1993), 
    66 Ohio St. 3d 376
    , 381, 
    613 N.E.2d 183
    :
    {¶29} "The common thread in these cases cited by appellant is that the contracts
    at issue were prepared by the lessor, the employer, educational institution or equipment
    provider, and the respective liquidated damages provision inured to the economic benefit
    of those entities upon a default or breach of the contract by the other contracting party. In
    the case sub judice, the contract was prepared by the lessor, but the economic benefit in
    the application of Section 12.17 inures to the benefit of the lessee, not the lessor.
    Additionally, the traditional stipulated damage cases require the default to be occasioned
    by the actions of, for our purposes, the lessee. * * *
    {¶30} "Our determination that this provision, Section 12.17, does not involve a
    damages issue is also supported by the lack of any mention of 'damages' in the title or
    language of Section 12.17. Furthermore, to interpret Section 12.17 as a damages
    provision is preposterous. The lease at issue was prepared by Midamco, a presumably
    savvy and experienced commercial operation. It is inconceivable that such a business
    entity would specifically provide in its lease a provision which, if implicated, would cause a
    penalty to itself and for which relief would be anticipated." Midamco at 858.
    {¶31} Harmon correctly points out that the facts of this case parallel Midamco in
    several respects. Article 28, like the provision in Midamco, fails to mention the word
    "damages." Further, Article 28 was prepared by Haehn, the lessor and an experienced
    businessman, and in fact was added to the contract specifically as the result of the
    parties' negotiations. And like in Midamco, the economic benefit flowing from the
    application of Article 28 inured to the benefit of the lessee.
    {¶32} However, the precedential value of Midamco is questionable. Despite being
    a published opinion in 1996, it has only been cited one time, see Safdi v. Gallegos (July
    -8-
    16, 1999), 1st Dist. Nos. C-980814, C-980857, and in that case the court upheld the trial
    court's decision that a liquidated damages clause was an unenforceable penalty. 
    Id. at *6.
    In addition, the analysis set forth in Midamco did not enjoy a clear majority; one of the
    judges on the panel concurred in judgment only. Accordingly, we decline to embrace
    Midamco as persuasive authority.
    {¶33} Further undermining Harmon's argument is that from the inception of the
    lawsuit, he appears to consider Article 28 as a liquidated damages clause. Count One of
    Harmon's complaint, alleging breach of contract, states:
    {¶34} "14. Defendant Russell A. Haehn breached his obligations under the Lease,
    as he sold the Premises in violation of the right of first refusal provided in Article 28 of the
    Lease.
    {¶35} "15. Prior to selling the premises, Defendant Russell A. Haehn did not
    terminate the lease or exercise any rights against Plaintiff because of any alleged breach
    of the lease.
    {¶36} "16. As a result of Defendants [sic] actions, Plaintiffs have been damaged in
    the amount of Two Hundred Fifty Thousand Dollars ($250,000.00), or such greater
    amount as may be shown at trial, plus pre- and post- judgment interest and costs."
    {¶37} Further, Harmon’s reply brief in support of summary judgment countered
    Haehn's argument that Article 28 is a penalty provision by arguing that Article 28 is an
    "enforceable liquidated damages clause."
    {¶38} It was not until Harmon filed objections to the magistrate's decision granting
    summary judgment but refusing to award the stipulated damages, that Harmon abruptly
    changed tack and advanced the lease-buyout provision theory, specifically arguing: "The
    payment at issue in this case is not a liquidated damages payment to be made for a
    breach of contract, but is an amount negotiated and agreed on by both parties that the
    Defendant was required to make if he chose to end the Lease before the end of the
    Lease term and sell the property. The Defendant's choice to terminate the Lease and sell
    the property was not a breach of the Lease, but when he chose to do so, he became
    obligated to pay the negotiated sum."          This argument contrasts sharply with the
    -9-
    allegations Harmon made in his Complaint, quoted above.
    {¶39} And although Harmon claims in his appellate brief that "[n]either the
    language of Article 28 nor any reasonable interpretation thereof reveals the Lease Buyout
    Price to be an agreed upon amount of money to be paid in lieu of damages for breach of
    contract," Harmon testified to exactly that at the damages hearing:
    {¶40} "Q. And at the time you signed the lease, did you believe that this [the
    $250,000] was a fair estimation of the damages you would suffer if the lease was
    terminated early?
    {¶41} "A. [Harmon]: Well, yeah. Yeah."
    {¶42} This is precisely the definition of liquidated damages, i.e., an amount
    contractually stipulated as a reasonable estimation of actual damages to be recovered by
    one party if the other party breaches. Miller, at 
    syllabus, supra
    . Thus, based upon all of
    the above, Article 28 is a liquidated damages provision.
    Enforceability of the Clause
    {¶43} Second, Harmon contends that if this court concludes Article 28 contains a
    liquidated damages clause, it is valid and the trial court erred in deeming it an
    unenforceable penalty. Harmon first raises a procedural issue, contending that by failing
    to raise the unenforceability of the liquidated damages clause as an affirmative defense in
    his Answer, Haehn has waived the argument on appeal. This argument is meritless.
    {¶44} Although it is true that Haehn failed to raise this defense in his Answer,
    Civ.R. 15(B) provides in relevant part that "[w]hen issues not raised by the pleadings are
    tried by express or implied consent of the parties, they shall be treated in all respects as if
    they had been raised in the pleadings."          Civ.R. 15(B).    "[I]mplied consent is not
    established merely because evidence bearing directly on an unpleaded issue is
    introduced without objection. Rather, it must appear that the parties understood the
    evidence was aimed at the unpleaded issue." State ex rel. Evans v. Bainbridge Twp.
    Trustees (1983), 
    5 Ohio St. 3d 41
    , 46, 5 OBR 99, 
    448 N.E.2d 1159
    .
    {¶45} Haehn's brief in opposition to Harmon's motion for summary judgment first
    raised the issue of Article 28's validity. In reply, Harmon did not object to that argument
    - 10 -
    based on waiver, but rather argued the merits, contending that Article 28 was a valid and
    enforceable liquidated damages clause. Subsequently, a hearing was held to determine
    whether the liquidated damages provision was enforceable and Harmon again argued the
    merits of his position. The record demonstrates Harmon fully understood the liquidated
    damages provision was an issue, and consented to litigate it. Pursuant to Civ.R. 15(B),
    the defense was not waived.
    {¶46} Turning to the merits of the enforceability issue, as a general premise, Ohio
    law considers the freedom to contract as fundamental to our society as the right to speak
    without restraint. Nottingdale Homeowners' Assn., Inc. v. Darby (1987), 
    33 Ohio St. 3d 32
    , 36, 
    514 N.E.2d 702
    , citing Blount v. Smith (1967), 
    12 Ohio St. 2d 41
    , 47, 41 O.O.2d
    250, 
    231 N.E.2d 301
    . In some circumstances, however, complete freedom of contract is
    not permitted for public-policy reasons. See, e.g., Conny Farms v. Ball Resources, 7th
    Dist. No. 09CO36, 2011-Ohio-5472.
    {¶47} For example, the law generally disfavors penalty provisions for contract
    breaches. While parties may insert into their contract a clause that apportions damages
    in the event of a default, i.e., a liquidated-damages clause, they may not agree to a
    provision that operates as a penalty and punishes a party for breach. See DeCastro v.
    Wellston City School Dist. Bd. of Edn. (2002), 
    94 Ohio St. 3d 197
    , 201, 
    761 N.E.2d 612
    ;
    Lake 
    Ridge, supra, at 381
    .
    {¶48} Deciding whether a contract provision is a valid liquidated damages clause
    or an unenforceable penalty can entail a complex analysis, and is a question of law to be
    reviewed de novo. 
    Id. at 380.
    The Ohio Supreme Court has instructed that the following
    test should be applied in making that determination:
    {¶49} "Where the parties have agreed on the amount of damages, ascertained by
    estimation and adjustment, and have expressed this agreement in clear and
    unambiguous terms, the amount so fixed should be treated as liquidated damages and
    not as a penalty, if the damages would be (1) uncertain as to amount and difficult of
    proof, and if (2) the contract as a whole is not so manifestly unconscionable,
    unreasonable, and disproportionate in amount as to justify the conclusion that it does not
    - 11 -
    express the true intention of the parties, and if (3) the contract is consistent with the
    conclusion that it was the intention of the parties that damages in the amount stated
    should follow the breach thereof." Lake Ridge at 382; see, also, Samson Sales, Inc. v.
    Honeywell, Inc. (1984), 
    12 Ohio St. 3d 27
    , 12 OBR 23, 
    465 N.E.2d 392
    , at syllabus.
    {¶50} Whether a particular sum specified in a contract is intended as a penalty or
    as liquidated damages depends upon the operative facts and circumstances of a
    particular case.   
    Id. at 28-29.
      Furthermore, if a stipulated damages provision is
    challenged, a court must view the provision "in light of what the parties knew at the time
    the contract was formed and in light of an estimate of the actual damages caused by the
    breach." Kindle Road Co., L.L.C. v. Trickle, 5th Dist. No. 03CA99, 2004-Ohio-4668, at
    ¶21. When a provision was reasonable at the time that it was formulated and bears a
    reasonable, but not necessarily exact, relationship to the actual damages, the provision is
    enforceable. 
    Id. (internal citation
    omitted.)
    {¶51} Under the facts and circumstances of this case, the trial court correctly
    concluded that the stipulated damages provision constitutes an unenforceable penalty.
    As to the first prong of the test, damages at the time the contract was formed were
    relatively certain. Although Harmon testified that if he were to make extensive renovations
    to the property only to have Haehn sell it to someone else and terminate the lease he
    would suffer some intangible damages, such as loss of goodwill. However, the bulk of
    Harmon's potential damages could be easily calculated in the event of a breach, for
    example, moving, advertising and build-out costs. Skipping ahead to the third prong, i.e.,
    whether the contract is consistent with the conclusion that it was the intention of the
    parties that damages in the amount of $250,000 should follow the breach thereof, the
    language of Article 28 adequately evinces the parties' intent, which would cut in favor of
    enforceability.
    {¶52} However, even assuming that the damages at the time of the contract's
    formation were uncertain, and the contract is consistent with the parties' intention that
    damages in the amount of $250,000 should follow a breach, the amount of damages
    specified is manifestly unreasonable and thus the clause is a penalty pursuant to the
    - 12 -
    second prong of the Lake Ridge test. "Reasonable compensation for actual damages is
    the legitimate objective of the liquidated damages provisions and, where the amount
    specified is plainly unrealistic and inequitable, courts will ordinarily regard the amount as a
    penalty." Hunter v. BPS Guard Servs., Inc. (1995), 
    100 Ohio App. 3d 532
    , 551, 
    654 N.E.2d 405
    . A damages provision is likewise unenforceable where the amount specified
    is manifestly disproportionate to the consideration paid or the damages that could
    foreseeably result from a breach. Samson Sales at 29.
    {¶53} Although Harmon testified that $250,000 was an approximation of damages
    should Haehn breach Article 28, we conclude that this amount is so unreasonably high as
    to constitute a penalty, given the circumstances of this case. The monthly rent paid by
    Harmon during the course of the lease agreement never exceeded the base amount of
    $3,000 per month, as Harmon never sold a single car. In fact, the dealership never
    opened, and Harmon's renovations to the property were minimal.
    {¶54} In addition, the $250,000 stipulated damages amount is equal to nearly one-
    third of the ultimate selling price of the property. Moreover, Harmon did not testify as to
    how the $250,000 bore a reasonable relationship to the amount of damages in the event
    of a breach. This court has previously held where the appellants never testified to or
    presented any evidence of a method of calculation used to arrive at the stipulated
    damages amount, nor could their attorney recall any attempts at calculating the damages
    to arrive at the figure, there was no basis for concluding that the amount constituted
    anything more than a penalty, and that it was therefore unenforceable. Wright v.
    Basinger, 7th Dist. No. 01CA81, 2003-Ohio-2377, at ¶20.
    {¶55} Further, although the focus of the analysis is mainly on the particular facts
    and circumstances at the time of the contract's formation, see, Kindle 
    Road, supra
    ; and a
    party is not required to prove actual damages, see USS Great Lakes Fleet, Inc. v. Spitzer
    Great Lakes Ltd. (1993), 
    85 Ohio App. 3d 737
    , 741, 
    621 N.E.2d 461
    ; some courts have
    nonetheless analyzed whether there is a large disparity between actual and stipulated
    damages in deciding whether to enforce a liquidated damages clause. For example, in
    Domestic Linen Supply & Laundry Co. v. Kenwood Dealer Group, Inc., 109 Ohio App.3d
    - 13 -
    312, 
    672 N.E.2d 184
    , the court compared the difference between actual and stipulated
    damages and decided to uphold the liquidated damages clause:
    {¶56} "In the case at bar, the trial court found that appellant had proven actual
    damages of $152,000 but held that appellant was entitled to recover only $91,354.60 in
    liquidated damages. We find that in light of the actual damages of $152,000, $91,354.60
    in liquidated damages was not so 'manifestly unconscionable, unreasonable, and
    disproportionate in amount as to justify the conclusion that it [did] not express the true
    intention of the parties * * *.'" 
    Id. at 322,
    quoting Samson Sales, 
    12 Ohio St. 3d 27
    , at
    syllabus.
    {¶57} Similarly, the court in Courtad v. Winner, 9th Dist. No. 20630, 2002-Ohio-
    2094, concluded that "[s]tipulated damages in the amount of $40,000 on a $45,000 note
    is an amount disproportionate to the actual damages that resulted from failing to make an
    installment payment of $11,250." 
    Id. at ¶25.
    See, also, Lakewood Creative Costumers v.
    Sharp (1986), 
    31 Ohio App. 3d 116
    , 
    509 N.E.2d 77
    , at paragraph two of the syllabus ("A
    liquidated damages clause which provides for an amount nearly forty times the actual
    damages is not reasonably proportionate to the loss sustained, and thus is invalid.")
    {¶58} In the present case, it goes without saying that there is a substantial
    disparity between actual damages ($25,166) and stipulated damages ($250,000). Based
    on the foregoing the trial court correctly concluded that the liquidated damages provision
    in Article 28 is an unenforceable penalty.
    Anticipatory Repudiation
    {¶59} Finally, Haehn asserts in his Appellee's brief that Harmon's actions,
    including late payment of rent, failure to renovate, failure to pay real estate taxes and
    utilities and failure to provide adequate assurances, constitute an anticipatory repudiation
    of the Lease. Haehn raised this argument in summary judgment proceedings below.
    However, to properly raise this argument on appeal, Haehn should have filed a cross-
    appeal, because he seeks to change the trial court's judgment, not merely to defend it.
    See Harper v. Dog Town, Inc., 7th Dist. No. 08 NO 348, 2008-Ohio-6921:
    {¶60} "App.R. 3(C) contemplates two situations where an appellee may seek to
    - 14 -
    raise assignments of error: 1) when the appellee seeks to both defend the judgment and
    change the judgment; and 2) when the appellee only seeks to defend the judgment. If the
    appellee seeks to change the judgment in addition to defending that judgment, then the
    appellee 'shall file a notice of cross appeal within the time allowed by App.R. 4.' App.R.
    3(C)(1)." Harper at ¶26.
    {¶61} By arguing that Harmon repudiated the agreement, Haehn is challenging
    the trial court's underlying determination that he was in breach of the Lease, meaning he
    contests the trial court's decision to award any amount of damages to Harmon.
    Therefore, with this argument he seeks not only to defend the judgment of the trial court,
    but also to change it. This requires a notice of cross-appeal, which Haehn did not file.
    Accordingly, we will not address the merits of his anticipatory repudiation argument.
    {¶62} In conclusion, the trial court correctly categorized Article 28 as a liquidated
    damages clause, and correctly decided that the provision is an unenforceable penalty.
    Accordingly, Harmon's sole assignment of error is meritless, and the judgment of the trial
    court is affirmed.
    Donofrio, J., concurs.
    Vukovich, J., concurs.