Columbia Dev. Corp. v. Krohn ( 2014 )


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  • [Cite as Columbia Dev. Corp. v. Krohn, 2014-Ohio-5607.]
    ENTERED
    IN THE COURT OF APPEALS FIRST
    DEC 19 2014
    APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY
    COLUMBIA DEVELOPMENT
    CORPORATION,                                                CASE NO. C1300842
    Plaintiff-Appellee,                                     OPINION
    - vs-
    MARC KROHN, RECEIVER, et al.,
    Defendants-Appellants.
    CIVIL APPEAL FROM HAMILTON COUNTY COURT OF COMMON PLEAS .
    Case No. A1201721
    Frost Brown Todd, LLC, Douglas R. Dennis, James C. Frooman and Ali Razzaghi, 3300
    Great American Tower, 301 East Fourth Street, Cincinnati, Ohio 45202, for plaintiff-appellee
    Barrett & Weber, LPA, C. Francis Barrett, 500 Fourth & Walnut Centre, 105 East Fourth
    Street, Cincinnati, Ohio 45202, for plaintiff-appellee
    Michael R. Schmidt and RobertS. Rubin, 250 East Fifth Street, Suite 2350, Cincinnati, Ohio
    45202, for defendants-appellants
    Miller Canfield Paddock & StonPLC, Paul E. Per \and Matthew C. Steele, 511 Walnut
    Street, Suite 1900, Cincinnati, Ohio 45202, for defend,nts-appellants
    M. POWELL, J.
    {1}      Defendants-appellants, NNN 250 East Fifth Street, LLC and 34 related entities
    (NNN), by and through their Receiver, Marc A. Krohn, appeal a decision of the Hamilton
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    County Court of Common Pleas granting partial summary judgment in favor of plaintiff-
    appellee, Columbia Development Corporation (Columbia), on NNN's counterclaim for tortious
    interference with contract. For the reasons stated below, we affirm the decision of the trial
    court.
    {2}   Columbia is the title holder and ground landlord for the land on which the
    Chiquita Center (Building) is located. NNN is the current ground tenant. The landlord/tenant
    relationship between the parties is governed by a lease entered into by NNN's predecessor-
    in-interest and Columbia on April29, 1982 (Ground Lease). The Ground Lease provides that
    NNN may sublease its interest in the Building.and that NNN and subtenants may install
    signage on the Building subject to compliance with applicable regulations and laws.
    {3}   On May 27, 2005, NNN entered into a sublease agreement with Deloitte LLP
    (Deloitte), whereby Deloitte became a tenant occupying four floors of the Building (Deloitte
    Lease).    The lease gave Deloitte exclusive signage rights.        On December 2, 2011, the
    Deloitte Lease was amended by a letter (Letter Agreement).               The Letter Agreement
    preserved Deloitte's signage rights in conjunction with Deloitte's agreement to permit a new
    Building tenant, The Nielsen Company (Nielsen), to erect a sign on the east fagade of the
    Building. Pursuant to the Letter Agreement, Deloitte was entitled to offsets in rent in the
    event that installation of a Nielsen sign on the Building would prevent installation of a sign on.
    the Building by Deloitte (Rent Credit Provision).
    {4}   In 2012, Nielsen began the process of erecting its sign on the Building. To
    erect the sign, Nielsen and NNN sought a Notwithstanding Ordinance for a variance from the
    Cincinnati Zoning Code 1411-39(f), which provides that only the "principal occupant" of a
    building, as determined by the building owner, may display a sign. NNN, acting as owner of
    the Building, determined     that Nielsen was not the "principal occupant."        Therefore, a
    Notwithstanding Ordinance was sought so that Nielsen would be able to erect its sign.
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    Nielsen was granted a Notwithstanding Ordinance and erected a sign on the east fa<;:ade of
    the Building in March 2012.
    {'if 5}    In response to Nielsen's erection of the sign, Columbia filed a lawsuit against
    NNN and the City of Cincinnati seeking a temporary restraining order, preliminary injunction,
    and permanent injunction to enjoin the display of Nielsen's sign on the Building (Nielsen
    Injunction Motion). Deloitte was not a party to this lawsuit.
    {'if 6}    NNN and Columbia engaged in discovery regarding the Nielsen Injunction
    Motion. During discovery, Columbia subpoenaed Deloitte for information related to Deloitte's
    signage rights on the Building. On April5, 2012, Mr. Ronald Joseph, president of Columbia,
    was deposed. During the deposition, Mr. Joseph stated that he objects to "anyone putting
    signage on .the building" because in his opinion "it degrades the value of the building * * * it
    degrades the building from the neighborhood that we occupy throughout the area." After the·
    deposition was completed, Deloitte provided a copy of the Deloitte Lease and a copy of the
    Letter Agreement, with the Rent Credit Provision redacted.
    {'if 7}    On May 3, 2012, Columbia's counsel sent a letter to NNN's counsel which
    reiterated Columbia's objection to the Nielsen sign. The letter stated that Columbia objected
    to any signage installed by other tenants and intended to "vigorously litigate" this issue.
    Columbia copied the letter to Deloitte's counsel.       Due to this letter, Deloitte delayed the
    planned installation of its sign on the Building.
    {'if8}     On May 17, 2012, NNN filed a counterclaim against Columbia alleging that
    Columbia had tortiously interfered with the Letter Agreement between NNN and Deloitte
    regarding Deloitte's signage rights at the Building. Attached to the counterclaim was an un-·
    redacted copy of the Letter Agreement disclosing the Rent Credit Provision to Columbia.
    {'if 9}   On June 18, 2012, the trial court denied the Nielsen Injunction Motion. The
    court reasoned that Nielsen was permitted to erect the sign because Nielsen and NNN
    - 3-
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    sought a Notwithstanding Ordinance for a variance from Section 1411-39(f) of the Zoning
    Code. In so holding, the court noted that while the issue of whether Columbia or NNN owns
    .
    the Building is "hotly contested," ownership is not determinative because the Ground Lease
    authorized NNN to seek a Notwithstanding Ordinance in the name of Columbia. Therefore,
    Columbia did not have standing to contest this action because it had "bargained away any
    rights with respect to signage issues in exchange for significant ground rent."
    {10} NNN joined Deloitte as a party to the action on June 21, 2012. On June 29,
    2012, Deloitte notified Columbia of its intention to install its sign the following week. On July
    2, 2012, Columbia sent a letter to the City of Cincinnati referencing Section 1411-39(f) of the
    Zoning Code which discusses signage rights of a building's principal occupant and declaring
    itself the owner of the Building, the "principal occupant" ofthe Building, and revoking all prior
    designations of "principal occupant."
    {11} On July 3, 2012, Columbia filed a motion for a temporary restraining order and
    a preliminary injunction to prevent the erection of the Deloitte sign (Deloitte Injunction
    Motion). Columbia's motion for a temporary restraining order was granted on July 9, 2012.
    However, the trial court ultimately denied the Deloitte Injunction Motion on December 10,
    2012.
    {12} In denying the Deloitte Injunction Motion, the court addressed the issue of
    ownership of the Building and determined that for purposes of Section 1411-39(f), Columbia
    was not the owner of the Building. Therefore, Columbia's action in declaring itself owner of
    the Building and the "principal occupant" under Section 1411-39(f) was not valid. Instead,
    NNN, as owner of the Building, could determine Deloitte is the "principal occupant" and
    permit it to erect its sign.
    {13} Thereafter, Columbia moved for partial summary judgment on NNN's tortious
    interference with contract claim. NNN opposed Columbia's summary judgment motion. On
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    December 9, 2013, the trial court granted Columbia's motion for partial summary judgment.
    In granting summary judgment, the court observed that the deposition testimony of Mr.
    Joseph, the president of Columbia, could not support NNN's tortious interference claim
    because the deposition was taken before Columbia received the Deloitte Lease or the Letter
    Agreement. However, the court noted that the issue of whether Columbia had knowledge of
    these contracts was immaterial because NNN did not meet the other elements of the tort.
    Specifically, NNN did not establish that (1) Columbia's actions were intended to procure an
    interference with the contractual rights of NNN, or (2) Columbia's efforts to preserve its
    perceived legal rights to controlling signage on the Building were not legally justified.
    {14} On behalf of NNN, the Receiver now appeals the trial court's summary
    judgment deCision, asserting the following sole assignment of error:
    {15} THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN
    FAVOR OF COLUMBIA ON [NNN'S] CLAIM FOR TORTIOUS INTERFERENCE WITH
    CONTRACT BECAUSE THERE ARE NO GENUINE ISSUES OF MATERIAL FACT IN
    DISPUTE.
    {16} NNN challenges the trial court's grant of summary judgment in favor of
    Columbia on NNN's tortious interference with contract claim. NNN argues there are four acts
    committed by Columbia that tortiously interfered with NNN's contractual relationship with
    Deloitte. These acts are (1) Mr. Joseph's statement at the April 5th deposition that he objects
    to signage because it diminishes the value of the Building, (2) Columbia's May 3rd letter
    stating an objection to signage and an intent to "vigorously litigate" the issue, (3) Columbia's
    July 2nd letter to the City of Cincinnati designating itself as "principal occupant" of the
    Building, and (4) Columbia's filing of the Deloitte Injunction Motion. NNN argues that these
    actions demonstrate that Columbia intentionally procured the breach of contract between
    Deloitte and NNN and that Columbia was not legally justified or privileged in its actions.
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    Additionally, NNN maintains that Mr. Joseph's deposition should have.been considered in
    support of the tortious interference claim even though Mr. Joseph did not receive the Deloitte
    Lease or the Letter Agreement before his deposition..
    {'J 17} In order to establish that it was entitled to summary judgment, Columbia was
    required to establish (1) that there was no genuine issue as to any material fact, (2) that it
    was entitled to judgment as a matter of law, and (3) that reasonable minds could come to but
    one conclusion, and that that conclusion is adverse to the nonmoving party. See Bostic v.
    Connor, 
    37 Ohio St. 3d 144
    (1988). Once a motion for summary judgment has been made
    and supported as provided in Civ.R. 56(C), the nonmoving party has a reciprocal burden to
    set forth specific evidentiary facts showing the existence of a genuine issue for trial, and
    cannot rest on the allegations or denials in the pleadings. Wing v. Anchor Media, Ltd. of
    Texas, 
    59 Ohio St. 3d 108
    , 111 (1991).        But, if the moving party does not meet its initial
    burden, no duty arises on the part of the responding party to produce evidence in opposition
    to the motion, and the motion must be denied. Stinespring v. Natorp Garden Stores, 
    127 Ohio App. 3d 213
    , 216 (1st Dist.1998), citing Vahi/a v. Hall, 
    77 Ohio St. 3d 421
    , 430 (1997).
    {'J 18} The elements of tortious interference with contract are (1) the existence of a
    contract; (2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional
    procurement of the contract's breach, (4) lack of justification, and (5) resulting damages.
    Alexander v. Motorists Mut. Ins. Co., 1st Dist. Hamilton No. C-110836, 2012-0hio-3911,1!33,
    citing Kenty v. Transamerica Premium Ins. Co., 
    72 Ohio St. 3d 415
    (1995), paragraph two of
    the syllabus.
    Intentional Procurement of Contract's Breach
    {'J 19} NNN argues that the four acts committed by Columbia, Mr. Joseph's deposition,
    the May 3rd letter threatening to "vigorously litigate" signage, the July 2nd letter to the City of
    Cincinnati, and Columbia's filing of the Deloitte Injunction Motion, establish that Columbia
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    intentionally procured Deloitte to breach its contract with NNN by preventing Deloitte from
    installing signage. Columbia responds by asserting that none of these actions amounted to
    an intentional procurement of breach of the contract and that some of the actions occurred
    before Columbia became aware of the Rent Credit Provision.
    {20} The third element of tortious interference with contract is the "wrongdoer's
    intentional procurement of the contract's breach." Alexander, 2012-0hio-3911 at 1[33. To
    satisfy this element, it is essential that the plaintiff show that the defendant intended to cause
    a breach of contract. Gosden v. Louis, 
    116 Ohio App. 3d 195
    , 224 (9th Dist.1996), citing
    Restatement of the Law 2d, Torts, Section 766, Comment h (1979)("[i]f the actor does not
    have this intent, his conduct does not subject him to liability under this rule even if it has the
    unintended effect of deterring the third person from dealing with the other.").
    {21} In arguing that it did not intentionally procure the breach of the contract
    between NNN and Deloitte, Columbia asserts that two of the four actions NNN relies upon
    occurred before Columbia knew of the existence of the contract, or a vital portion of the
    contract, between NNN and Deloitte. Specifically, Columbia argues that Mr. Joseph's April
    5th deposition testimony and Columbia's May 3rd letter, occurred before Columbia knew of
    the Rent Credit Provision contained in the Letter Agreement. Columbia maintains that the
    breach of contract was not "Deloitte's inability to put up a sign" but instead the breach
    occurred only when "Deloitte withholds rent under the Rent Credit Provision-a provision
    concealed from Columbia." Therefore, because NNN cannot establish the second element
    of the tort with respect to these actions (i.e., that Columbia knew of the Rent Credit
    Provision), NNN cannot rely upon these acts to show that Columbia intentionally procured the
    contract's breach. The evidence demonstrates that Columbia was not provided with the un-
    redacted Letter Agreement containing the Rent Credit Provision until NNN filed its
    counterclaim against Columbia on May 17, 2012. However, as the trial court observed,
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    "[w]hether such knowledge is required to support [NNN's] counterclaim is immaterial"
    because NNN has failed to put forth evidence that demonstrates that Columbia's actions
    were intended to procure Deloitte's breach of the Letter Agreement.
    {22} Upon a thorough review of the record, the evidence demonstrates that
    Columbia's actions were not intended to procure Deloitte to breach the Letter Agreement with
    NNN. Instead, the evidence establishes that Columbia was merely trying to enforce its
    perceived legal rights in prohibiting signage on the Building under the Ground Lease entered
    into by Columbia and NNN. Mr. Joseph's deposition was in regards to the Nielsen Injunction
    Motion and he was merely expressing his opinion regarding the effect of signage on the
    value of the Building. The two letters sent by Columbia were Columbia's attempt to enforce
    its perceived legal rights under the Ground Lease and the Cincinnati Zoning Code. Similarly,
    in filing the Deloitte Injunction Motion, Columbia was seeking to enforce its understanding of
    the Ground Lease with NNN. Columbia never sought to encourage Deloitte to assert its
    rights to the Rent Credit Provision or to prevent Deloitte from erecting a sign apart from the
    Deloitte Injunction Motion. As the trial court noted: "Quite simply, Columbia's objection to
    signage on the Building does not, in and of itself, equate to an intention to procure the breach
    of any contract with NNN." See 
    Gosden, 116 Ohio App. 3d at 225
    (intent not established
    when no suggestion by defendants that owners stop dealing with plaintiff); N. Coast Engines,
    Inc. v. Hercules Engine Co., 8th Dis!. Cuyahoga No. 89091, 2008-0hio-793, 27.
    {23} Therefore, the trial court did not err in finding that Columbia did not intentionally
    procure the breach of contract between Deloitte and NNN.
    Lack of Justification
    {24} NNN also argues that the trial court erred in finding that Columbia's actions
    were justified. NNN maintains that the Ground Lease, Deloitte Lease, and Letter Agreement
    clearly provided that Deloitte was authorized to erect signage on the Building and therefore
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    any actions Columbia took in preventing Deloitte from exercising its signage rights were not
    justified. Additionally, NNN asserts that two of Columbia's actions, the July 2nd letter and
    filing the Deloitte Injunction Motion, were not legally justified because at the time of these
    actions, the trial court had already denied the Nielsen Injunction Motion.              Therefore,
    Columbia knew it did not have any legally protected interest in prohibiting signage on the
    Building.
    {'if 25}   The fourth element of tortious interference with contract, lack of justification,
    requires proof that the defendant's interference with the contract was improper. Fred Siegel
    Co., L.P.A. v. Arter & Hadden, 
    85 Ohio St. 3d 171
    (1999), paragraph two of the syllabus.
    Ohio law places the burden of proving a lack of privilege or justification upon the plaintiff.
    Alexander, 2012-0hio-3911 at33.
    {'if 26}   The Restatement of the Law 2d, Torts, Section 773 (1979), addresses this
    element of the tort and provides: "One is privileged purposely to cause another not to perform
    a contract, or enter into or continue a business relation, with a third person by in good faith
    asserting or threatening to protect properly a legally protected interest of his own which he
    believes may otherwise be impaired or destroyed by the performance of the contract or
    transaction." See C/auder v. Holbrook, 1st Dist. Hamilton No. C-990145, 
    2000 WL 98218
    , *3
    (Jan. 28, 2000); Ament v. Reassure Am. Life Ins. Co., 
    180 Ohio App. 3d 440
    , 2009-0hio-36,
    62 (8th Dist.); Reali, Giampetro & Scott v. Soc. Nat/. Bank, 
    133 Ohio App. 3d 844
    , 853 (7th
    · Dist.1999).
    {'if 27}   In the case at bar, the Ground Lease between NNN and Columbia provided that
    NNN and subtenants may install signage on the Building subject to compliance                    with
    applicable regulations and laws. In 2005, NNN entered into the Deloitte Lease, with NNN
    subleasing a portion of the Building to Deloitte. The Deloitte Lease gave Deloitte exclusive
    signage rights.      Later, the Deloitte Lease was amended by the Letter Agreement which
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    preserved Deloitte's signage rights in return for Deloitte's agreement that Nielsen could also
    erect a sign on the Building.
    {'If 28}    In 2012, Columbia filed two separate actions regarding its signage rights, the
    Nielsen Injunction Motion and the Deloitte Injunction Motion. At issue in both motions was
    whether signage was permitted under Section 1411-39(f) of the Cincinnati Zoning Code.
    Section 1411-39(f) permits, "[o]ne trademark or building identification sign identifying the
    principal occupant as determined by the building owner of a building***." The trial court
    denied both injunction motions. In denying the Nielsen Injunction Motion, the court found that
    the installation of the sign complied with Section 1411-39(f) because NNN was permitted
    under the Ground Lease to seek a variance from the Zoning Code in the name of Columbia.
    In denying the Deloitte Injunction Motion, the court found that for purposes of Section 1411-
    39(f), Columbia was not the "owner" of the Building and did not have the right to designate
    itself as the "principal occupant." In its decision regarding the Deloitte Injunction Motion, the
    court noted that "with respect to Columbia's previous motion regarding the Nielsen signage,
    the Court was not called upon to determine ownership of the Building in order to determine
    that [NNN] was within its rights to seek a Notwithstanding Ordinance permitting Nielsen to
    erect signage on the fagade of the building***."
    {'If 29}   After   a review of the record, we find Columbia's objections to Deloitte's signage
    rights were privileged and asserted in good faith. Columbia had a privilege to protect its
    perceived legal rights in prohibiting signage on the Building and all of its actions were legally
    justified.. NNN maintains that the Ground Lease, Deloitte Lease, and Letter Agreement so
    clearly provided that Deloitte was authorized to erect signage on the Building that any action
    Columbia took in preventing Deloitte from exercising its signage rights was not privileged.
    However, while these documents did provide that NNN and Deloitte could erect signage, the
    Ground Lease stated that the installation of signage is subject to compliance with applicable
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    regulations and laws. In this case, there was an issue regarding whether Section 1411-39(f)
    permitted signage. The trial court initially found that for purposes of a temporary restraining
    order, Columbia's argument that Section 1411-39(f) did not permit signage had merit and
    temporarily prohibited the erection of Deloitte's sign.
    {30} Additionally, Columbia's actions in sending the July 2nd letter to the City of
    Cincinnati and filing the Deloitte Injunction Motion, after the Nielsen Injunction Motion was
    denied, were also privileged and justified. In the Nielsen Injunction Motion, the trial court was
    not called upon to determine ownership of the Building because the court determined that the
    action of NNN and Nielsen in seeking a Notwithstanding Ordinance was permitted under the
    Ground Lease. In contrast, the issue of ownership was central to the denial of the Deloitfe
    Injunction Motion. At the time of the July 2nd letter and the filing of the Deloitte Injunction
    Motion, Columbia's status as "owner" of the Building for purposes of Section 1411-39(f) had
    yet to be determined. Further, Columbia never sought to encourage Deloitte to assert its
    rights to the Rent Credit Provision or prevent it from erecting its signage separate and apart
    from the Deloitte Injunction Motion and all of Columbia's actions were preliminary to the
    litigation or pursuant to the litigation.
    {31}    NNN cites GZK, Inc. v. Schumaker Partnership, 2d Dis!. Montgomery No.
    22172, 2008-0hio-1980, for the proposition that actions such as those undertaken by
    Columbia present genuine issues of material fact regarding whether such actions were
    legally justified. However, in contrast to the actions of Columbia, which were all preliminary
    or pursuant to this litigation, the defendant in GZK engaged in numerous efforts, many of
    which were not related to the litigation. These actions included sending threatening letters to
    the third party, filing the lawsuit, negotiating a second contract with the third party and the
    third party's breach of contract with the plaintiff. GZK at137-138.
    {32} Thus, Columbia's actions were privileged as it was acting in good faith to
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    protect its perceived legal interests. Consequently, the trial court did not err in finding that
    Columbia's actions were legally justified.
    Mr. Joseph's Deposition
    {33} NNN argues that the trial court erred when it determined NNN could not rely
    upon Mr. Joseph's deposition testimony to support its tortious interference claim because
    NNN did not provide copies of the Deloitte Lease and Letter Agreement to Columbia until
    after the deposition. NNN maintains that Mr. Joseph's testimony shows that Columbia
    "intended to procure Deloitte's breach" and "possessed no legal justification for such
    interference."
    {34} The second element of tortious if!terference with contract requires that the
    defendant is aware of the existing contract.        Alexander, 2012-0hio-3911 at 33.            In
    recognizing the tort of interfering with contract, the Ohio Supreme Court adopted
    Restatement of the Law 2d, Torts, Section 766 (1979). 
    Kenty, 72 Ohio St. 3d at 419
    . The
    Restatement specifically addresses the actor's knowledge of the other's contract and
    provides that for an alleged tortfeasor "[t]o be subject to liability * * * the actor must have
    knowledge of the contract with which he is interfering and of the fact that he is interfering with
    the performance of the contract." Crown Equip. Corp. v. Toyota Material Handling, U.S.A.,
    Inc., 6th Cir. No. 05-4476, 
    2006 WL 3044430
    (Oct. 27, 2006), quoting Restatement, Section
    766, Comment i. ·A tortious interference with contract claim must fail if a plaintiff does not
    prove that a defendant was aware of the contract between the plaintiff and the third party.
    Akron Group Services, Inc. v. Patron Plastics, Inc., 9th Dist. Summit No. 22507, 2005-0hio-
    5101' 22, 28.
    {35} Mr. Joseph was deposed on April 5, 2012.              At the time of Mr. Joseph's
    deposition, Columbia had only filed the Nielsen Injunction Motion. During the deposition, Mr.
    Joseph was asked what his specific objections were to the Nielsen sign. He responded by
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    stating:
    My specific objections are to the signage of anyone putting
    signage on the building. In my opinion, it degrades the value of
    the building, and it's contrary to the understanding we have with
    the Urban Renewal Department * * * I think it degrades the
    building from the neighborhood that we occupy throughout this
    area***.
    Later, Mr. Joseph testified that he believes signage is "wrong and detracts from the building
    where we need substantial tenants for the stream of income which benefits members of our
    family."
    {36} We are unpersuaded by NNN's argument that the trial court erred in refusing to
    consider Mr. Joseph's deposition because it was taken before Columbia or Mr. Joseph
    became aware of the Deloitte Lease, Letter Agreement, and Rent Credit Provision. In the
    court's decision granting Columbia's motion for partial summary judgment, the trial court
    specifically discussed the second, third, and fourth elements of tortious interference with
    contract. In regards to the second element, the defendant's knowledge of the existing
    contract, the trial court noted that Deloitte did not provide Columbia with copies of the
    Deloitte Lease and Letter Agreement until after Mr. Joseph's deposition. Therefore, the court
    concluded that "NNN cannot rely upon Mr. Joseph's deposition testimony to support its
    tortious interference claim." The court continued by discussing the issue of when Columbia
    became aware of the Rent Credit Provision in the Letter Agreement and then stated,
    "[w]hether such knowledge is required to support [NNN's] counterclaim is immaterial to the
    Court's decision herein because, as set forth below, the Court finds that Columbia's actions
    were not intended to procure Deloitte's breach of the Letter Agreement."         Though this
    statement was made in the context of the specific Rent Credit Provision, this statement also
    equally applies to knowledge of the Deloitte Lease and Letter Agreement; whether this
    knowledge is required to support the second element of the tortious interference claim is
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    immaterial because NNN failed to prove the remaining elements.
    {37} On appeal, NNN's specific argument is that the trial court erred when it refused
    to consider Mr. Joseph's deposition testimony in regard to the third and fourth elements; the
    intentional procurement of the contract's breach and the absence of justification or privilege.
    While the trial court concluded in its discussion of the second element that NNN could not
    rely on Mr. Joseph's deposition to support its entire tortious interference claim, the court's
    decision makes it evident that it considered the deposition in its analysis of the third and
    fourth elements.
    {38} In discussing whether Columbia intentionally procured the breach of the
    contract between Deloitte and NNN, the court stated: "[NNN] contends that Columbia's intent
    to procure the breach of the signage provision of the Deloitte Lease and Letter Agreement
    can be directly inferred from Mr. Joseph's deposition testimony that Columbia would object to
    anyone putting signage on the Building without its consent***." The court listed a number
    of other actions that NNN argued demonstrated Columbia's intent to procure a breach of
    contract and concluded, "However, as Columbia points out, none of these actionsindicate an
    intent to procure Deloitte's breach of its contract with [NNN]."
    {39} In regards to the absence of justification or privilege, the court stated:
    Similarly, for much the same reason as the Court finds
    Columbia's objection to building top signage does not evidence
    an intention to procure Deloitte's breach of its contract with
    [NNN], the Court finds that Columbia's objection and resulting
    litigation seeking to prevent such signage while not ultimately
    successfully, were taken in good faith to prevent what Columbia
    perceived to be its legal rights.
    The court ultimately concluded that NNN "failed to offer evidence that Columbia's efforts to
    preserve its perceived legal rights were not legally justified." While the court did not explicitly
    discuss Mr. Joseph's deposition testimony, it is apparent that the court's decision considered
    all of Columbia's objections to signage, including Mr. Joseph's deposition testimony and
    '   '
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    found that the fourth element was not met.
    {'J 40}   Additionally, as discussed previously, even considering Mr. Joseph's deposition
    testimony, NNN did not show that Columbia intentionally procured the breach of contract
    between Deloitte and NNN or that Columbia's efforts in protecting its legal interest were not
    privileged.         In his deposition, Mr. Joseph was merely expressing his opinion regarding
    signage on the Building and his statements were not directed toward Deloitte. Additionally,
    Mr. Joseph's testimony does not establish that Columbia was acting without legal justification.
    Columbia was privileged to protect its perceived legal rights and Mr. Joseph's deposition
    reflecting his personal views fails to establish that Columbia was not protecting its legal
    rights.
    {'J 41}   Therefore, the trial court did not err in determining that Mr. Joseph's deposition
    testimony could not be used to support the tortious interference claim.                    Columbia's
    knowledge of the Deloitte Lease and Letter Agreement was immaterial because NNN failed
    to establish the other elements of the tort. Additionally, the court considered Mr. Joseph's
    deposition in its analysis and, in our de novo review of Columbia's motion for summary
    judgment, his testimony does not demonstrate that Columbia intentionally procured the
    breach of contract and Columbia's efforts were not legally justified.
    Conclusion
    {'J 42}    In light of the foregoing, there are no genuine issues of material fact and
    Columbia is entitled to judgment as a matter of law in regards to NNN's tortious interference
    with contract claim. As such, the sole assignment of error of the Receiver, acting on behalf
    of NNN, is overruled.
    {'J 43}    Judgment affirmed.
    HENDRICKSON, P.J., and S. POWELL, J., concur.
    - 15-
    '   '
    Hamilton C1300842
    Hendrickson, J., of the Twelfth Appellate District, sitting by assignment of the Chief
    Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
    S. Powell, J., of the Twelfth Appellate District, sitting by assignment of the Chief
    Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
    M. Powell, J., of the Twelfth Appellate District, sitting by assignment of the Chief
    Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
    - 16-
    

Document Info

Docket Number: C-130842

Judges: Powell

Filed Date: 12/19/2014

Precedential Status: Precedential

Modified Date: 12/30/2014