Hashem v. Perk Co., Inc. ( 2024 )

[Cite as Hashem v. Perk Co., Inc., 2024-Ohio-1984.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
SAADY HASHEM, ET AL., :
Plaintiffs-Appellants, :
No. 113149
v. :
PERK COMPANY, INC., ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 23, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-949725
Appearances:
Sam A. Zingale, for appellants.
McNeal Schick Archibald & Biro Co., LPA, and Patrick J.
Gump, for appellee.
EILEEN T. GALLAGHER, J.:
Plaintiffs-appellants, Saady Hashem a.k.a. Abouhashem (“Hashem”)
and Hashem Investments, L.L.C. (“Hashem Investments”) (collectively
“appellants”), appeal an order granting summary judgment in favor of defendant-
appellee, Perk Company, Inc. (“Perk”). They claim the following error:
The trial court erred in granting defendant Perk Company, Inc.’s
motion for summary judgment because Perk Company, Inc. failed to
demonstrate that, as to the issue of apparent authority, no genuine
issues of material fact remained unresolved, and that Perk Company,
Inc. was entitled to judgment in its favor as a matter of law.
For the reasons that follow, we affirm the trial court’s judgment.
I. Facts and Procedural History
In 2004, Hashem purchased property on Ashland Road in Cleveland,
Ohio (“the property”). In 2010, the state of Ohio, at the request of the Ohio
Environmental Protection Agency (“Ohio EPA”), initiated an action against Hashem
in the Cuyahoga County Court of Common Pleas, alleging that the property was in
violation of Ohio’s solid waste laws. (Hashem depo. tr. 76-77; defendant’s exhibits
E and F.) In April 2012, the court entered a “Consent Order for Permanent
Injunctive Relief and Civil Penalty” (“Consent Order”) wherein Hashem agreed to
remove all solid waste from the property and have it transported to solid-waste
facilities licensed or registered to accept such material by March 31, 2014. (Hashem
depo. tr. 79; Consent Order, defendant’s exhibit F.)
On January 6, 2015, the state filed its first of two motions to show cause
as to why Hashem had not completed the removal of solid waste and debris from the
property. See docket Ohio v. Saady A. Abouhashem, Cuyahoga C.P. No. CV-10-
719253.1 In June 2015, the court held a hearing on the motion and entered an agreed
1 An appellate court may take judicial notice of publicly accessible online court
dockets. Zdolshek v. AGZ Props., L.L.C., 8th Dist. Cuyahoga No. 113249, 2024-Ohio-
1284, ¶ 3, fn. 1, citing State v. McAlpin, 8th Dist. Cuyahoga No. 110811, 2023-Ohio-4794,
¶ 36, fn. 2; Fipps v. Day, 8th Dist. Cuyahoga No. 111633, 2022-Ohio-3434, ¶ 2, fn. 1; State
v. Estridge, 2d Dist. Miami No. 2021-CA-25, 2022-Ohio-208, ¶ 12, fn. 1 (noting that “it is
order whereby Hashem agreed to remove all solid waste and debris from the
property and dispose of it at licensed disposal facilities according to a schedule of
five phases. Id. The court ordered that the fifth and final phase of the cleanup was
to be completed no later than April 22, 2017. Id. However, on March 22, 2018, the
state filed the second motion to show cause, alleging that Hashem had failed to
comply with the court’s original Consent Order and subsequent orders of the court.
The court ultimately entered judgment in favor of the state and against Hashem in
the amount of $82,600.00, plus interest at a rate of three percent from March 20,
2013. Id.Meanwhile, Hashem leased the property to Cleveland Block L.L.C.
(“Cleveland Block”), an entity owned and operated by Barrett Favitta (“Favitta”).
(Hashem depo. tr. 35, 38, 42, and 95.) Favitta was also the owner and operator of
Cleveland Concrete Recycling, Inc. (“Cleveland Concrete Recycling”). In July 2015,
Cleveland Block gave permission to Perk to dump concrete on the property pursuant
to an agreement between Cleveland Block and Perk. (Hashem depo. tr. 95;
defendant’s exhibit K; Cifani aff. ¶ 3.) In April 2016, Favitta and/or Cleveland
Concrete Recycling entered into another contract with Perk that allowed Perk to
dump additional concrete debris on the property. (Cifani aff. ¶ 5.)
In March 2016, Hashem transferred title to the property to Hashem
Investments. Thereafter, in May 2017, Hashem Investments entered into a lease
a common practice for appellate courts to take judicial notice of publicly accessible online
court dockets.”).
agreement with Ashland Road Concrete, L.L.C. (“Ashland Road Concrete”)
(Hashem depo. tr. 110; defendant’s exhibit N.). Ali Jraik (“Jraik”) signed the lease
on behalf of Ashland Road Concrete. Jraik, Favitta, and another individual, Timothy
Weibling (“Weibling”), worked together in the operation of Cleveland Block,
Cleveland Concrete Recycling, and Ashland Road Concrete. (Hashem depo. tr. 56-
57.)
Favitta, on behalf of Cleveland Concrete Recycling, and Anthony
Staraitis, on behalf of Perk, executed “ODOT Beneficial Reuse Forms” confirming
that the “clean hard fill” that Perk would be dumping on the property would be
“recycled, beneficially reused as construction material, or used in legitimate fill
operations on a site other than the site of generation.” (Cifani aff. ¶ 6-9; Hashem
depo. tr. 102-104, 108-110; defendants exhibits F and M.)
In July 2021, appellants filed a complaint asserting a single claim of
trespass against Perk, Cleveland Block, Cleveland Concrete Recycling, and several
other defendants. The trial court later dismissed six defendants, including Ashland
Road Concrete, due to appellants’ failure to perfect service on them pursuant to
Civ.R. 4(E). Thereafter, appellants voluntarily dismissed Cleveland Block,
Cleveland Concrete Recycling, and three other defendants without prejudice,
leaving Perk as the only remaining defendant.
Perk filed a motion for summary judgment, conceding that it dumped
clean hard fill on the property. It argued, however, that appellants’ tenants gave it
permission to dump the debris. Appellants opposed the motion, arguing that their
tenants lacked authority to give Perk permission and that Perk’s dumping on their
property constituted a trespass. They argued they never authorized Cleveland Block,
Cleveland Concrete Recycling, or Ashland Road Concrete to allow contractors to
dump construction debris on their property. The trial court rejected appellants’
argument and granted summary judgment in Perk’s favor. This appeal followed.
II. Law and Analysis
In the sole assignment of error, appellants argue the trial court erred
in granting summary judgment in favor of Perk.
A. Summary Judgment
Appellate review of summary judgments is de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to Civ.R. 56(C),
summary judgment is appropriate when (1) there is no genuine issue of material
fact, (2) the moving party is entitled to judgment as a matter of law, and (3)
reasonable minds can come to but one conclusion and that conclusion is adverse to
the nonmoving party, the party being entitled to have the evidence construed most
strongly in his or her favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679,
653 N.E.2d 1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer
Club, 82 Ohio St.3d 367, 696 N.E.2d 201 (1998).
The party moving for summary judgment bears the burden of showing
that there is no genuine issue of material fact and that he or she is entitled to
judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264(1996). Once the moving party satisfies its burden, the nonmoving party “may not
rest upon the mere allegations or denials of the party’s pleadings, but the party’s
response, by affidavit or as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v.
Eckstein, 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996).
B. Apparent Authority
Appellants’ sole claim is for trespass. Appellants argue Perk failed to
produce evidence that it had permission to enter onto the property to dump debris.
They concede that their tenants, Cleveland Block, Cleveland Concrete Recycling, and
Ashland Road Concrete, gave permission to Perk to dump construction debris. They
contend, however, that Perk failed to demonstrate that appellants’ tenants had
actual or apparent authority to give such permission.
“A common-law tort in trespass upon real property occurs when a
person, without authority or privilege, physically invades or unlawfully enters the
private premises of another whereby damages directly ensue[.]” Apel v. Katz, 83
Ohio St.3d 11, 19, 697 N.E.2d 600 (1998), citing Linley v. DeMoss, 83 Ohio App.3d
594, 598, 615 N.E.2d 631 (10th Dist. 1992).
It is undisputed that Perk dumped clean hard fill on the property.
There is, therefore, no dispute that Perk intentionally entered onto the property.
The issue is whether Perk’s entrance onto the property was authorized. Appellants
argue Perk asserted the doctrine of apparent authority as a defense to their trespass
claim. (Appellant’s brief p. 8.) They further assert that Perk failed to meet its initial
burden of showing that no genuine issues of material fact exist because it failed to
produce evidence showing that Hashem, the principal, conferred apparent authority
on his tenants/agents that would have authorized them to allow Perk to dump debris
on the property.
However, Perk never specifically mentioned the doctrine of apparent
authority in its motion for summary judgment, nor does it assert such a defense on
appeal. Under the doctrine of apparent authority, a “principal may be liable to a
third party for the acts of the principal’s agent, even though the agent had no actual
authority, if the principal has by his words or conduct caused the third party to
reasonably believe that the agent had the requisite authority to bind the principal.”
Republic Waste Servs. of Ohio Hauling, L.L.C. v. Pepper Pike Properties, Inc., 8th
Dist. Cuyahoga No. 81525, 2003-Ohio-1348, ¶ 21, citing Miller v. Wick Bldg. Co.,
154 Ohio St. 93, 104, 93 N.E.2d 467 (1950).
The doctrine of apparent authority is typically applied as a means of
ensuring that a party acting in reliance on the representations of an
agent not qualified to make such representations is protected from the
consequences of their reliance. This doctrine is most commonly
utilized in matters of contract or tort where an agency relationship is
often present, to protect an “innocent third person” from relying on
this agency relationship to his detriment.
(Emphasis added.) State ex rel. Yost v. Church of Troy, 2020-Ohio-4695, 159
N.E.3d 818, ¶ 137 (11th Dist.) (Lynch, J., dissenting in part), citing Master Consol.
Corp. v. BancOhio Natl. Bank, 61 Ohio St.3d 570, 576, 575 N.E.2d 817 (1991);
Shaffer v. Maier, 68 Ohio St.3d 416, 418, 627 N.E.2d 986 (1994).
“While agency, as between the principal and agent, is a matter of their
mutual consent, an agency by estoppel may be created insofar as third
persons are concerned--that is, it may arise from acts and appearances
which lead third persons to believe that it has been created. Agency by
estoppel may be apparent only and exist because of the estoppel of the
principal or agent to deny the same after the third party has relied on
such appearance, so that such third party would be prejudiced if the
fact were shown to be otherwise.”
Adams v. Double “E” Ents., 7th Dist. Belmont No. 84-B-56, 1986 Ohio App. LEXIS
6303, *7 (Apr. 4, 1986), quoting 3 American Jurisprudence 2d 429-430, Agency,
Section 19.
According to appellants’ argument, appellants, acting as landlords, are
the principals in the agency relationship. Appellants’ tenants are the agents, and
Perk is the third party because it had no direct relationship with the
appellants/principals. Yet, appellants are the alleged injured party in this case. And,
as previously stated, the doctrine of apparent authority is designed to hold the
principal liable to third parties for the acts of its agents and to protect innocent third
parties from relying on this agency relationship to their detriment. Church of Troy
at ¶ 137. The common law doctrine of apparent authority was not designed to
protect the principal. Therefore, this case does not involve a principal-agency
relationship; it involves a landlord-tenant relationship, and the doctrine of apparent
authority is inapplicable.
Under Ohio law, a landlord cedes his or her possessory interests in
leased property to the tenant. Toledo v. Randolph, Slip Opinion No. 2023-Ohio-
4753, ¶ 18; see also Anderson v. Correll, N.D. Ohio 5:19-cv-0988, 2020 U.S. Dist.
LEXIS 46549, *11 (Mar. 18, 2020), quoting Palmer v. Mossbarger, Madison C.P.
No. CVH20130071, 2015 Ohio Misc. LEXIS 6908, at *2 (May 27, 2015) (“‘[T]he
owner sacrifices his possessory interests in the property to the renter[.]’”).
As previously stated, a common-law tort of trespass occurs when a
person, without authority or privilege, enters the private premises of another. Katz,
83 Ohio St.3d at 19, 697 N.E.2d 600 (1998), DeMoss, 83 Ohio App.3d at 598, 615
N.E.2d 631 (10th Dist.1992). “Privilege” is defined as “an immunity, license, or right
conferred by law, bestowed by express or implied grant, arising out of status,
position, office, or relationship, or growing out of necessity.” R.C. 2901.01(A)(12).
Thus, where a tenant gives a person permission to enter onto the leased premises,
the person cannot be found guilty or liable for trespass. Anderson at *11 (defendant
held not to be a trespasser where tenant gave him permission to enter the property);
Kent v. Hermann, 11th Dist. Portage Nos. 95-P-0042 and 95-P0046, 1996 Ohio App.
LEXIS 880 (Mar. 8, 1996) (“[A]s long as the trespasser is in the tenant’s rental unit
at the request and/or permission of the renter, the person cannot be guilty of
trespassing on the landlord’s property.); Palmer at *2 (defendant was not a
trespasser where he was invited onto property by the tenant).
It is undisputed that appellants’ tenants gave Perk permission to enter
onto the property and dump its debris. Hashem admitted at deposition that Perk
had the permission of appellants’ tenants to enter onto the property. (Hashem depo.
tr. 106-107.) And, appellants have not presented any evidence that the applicable
leases preserved their possessory interest in the property. They, therefore, cannot
establish a trespass claim against Perk.
But even if the doctrine of apparent authority were applicable and
appellants had maintained a possessory interest in the property, they knowingly
allowed Perk to unload its debris on the property and thus ratified their tenants’ acts
of granting permission to Perk. “Ratification * * * [is] the approval by act, word, or
conduct of that which was improperly done.” Paterson v. Equity Trust Co., 9th Dist.
Lorain No. 11CA009993, 2012-Ohio-860, ¶ 21, quoting AFCO Credit Corp. v.
Brandywine Ski Ctr., Inc., 81 Ohio App.3d 217, 221, 610 N.E.2d 1032(9th Dist.1992).
“A principal ratifies the unauthorized act of his agent if the ‘principal,
with full knowledge of the facts, conducts himself in a way which manifests his
intention to approve an earlier act performed by his agent which did not bind him.’”
Bailey v. Midwestern Ents., Inc., 103 Ohio App.3d 181, 185, 658 N.E.2d 1120 (10th
Dist.1995), quoting Karat Gold Imports, Inc. v. United Parcel Serv., Inc., 62 Ohio
App.3d 604, 611, 577 N.E.2d 115 (8th Dist.1989). See also Campbell v. Hospitality
Motor Inns, Inc., 24 Ohio St.3d 54, 57, 493 N.E.2d 239 (1986) (Ratification may be
implied through conduct in the absence of an express ratification.); State ex rel.
Riley Constr. Co. v. E. Liverpool City School Dist. Bd. of Edn., 10 Ohio St.2d 25, 29,
225 N.E.2d 246 (1967) (“It is well established that a principal may ratify the acts of
his agent performed beyond the agent’s authority, and such ratification extends back
to the doing of the unauthorized act by the agent and binds the principal from that
time.”).
Moreover, appellants knew the property was subject to the Consent
Order and other court orders requiring a cleanup of the property. And yet, Hashem
admitted at deposition that he received compensation for the debris Perk dumped
on the property:
Q: And you agree you received funds for material that was unloaded at
the site by Perk and other contractors when Tim Weibling was
operating the site?
A: Yes.
* * *
Q: And then you were verifying that you received a sum of funds, 50
percent of the gross for the unloading of material by Perk and other
contractors, correct?
A: Correct.
(Hashem depo. tr. 112-113.) Therefore, appellants ratified the acts of their tenants
by accepting compensation for the debris Perk dumped on the property. They,
therefore, cannot establish their trespass claim, and there are no genuine issues of
material fact that preclude an order granting summary judgment in Perk’s favor on
appellants’ trespass claim.
The sole assignment of error is overruled.
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 issue out of this court directing the
common pleas 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.
EILEEN T. GALLAGHER, JUDGE
LISA B. FORBES, P.J., and
MARY J. BOYLE, J., CONCUR