COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60123 UNITED INDUSTRIES : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DAVE POLSON DBA AUTOWORKS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 178941. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Anthony J. Coyne, Esq. 2150 Illuminating Building 55 Public Square Cleveland, OH 44113 For Defendant-Appellant: Peter R. Harwood, Esq. Mary L. Nummela, Esq. 1717 E. 9th Street 1600 East Ohio Building Cleveland, OH 44114 -2- MATIA, C.J.: Defendant-appellant, Dave Polson dba Autoworks, appeals from an order of the Cuyahoga County Court of Common Pleas which granted summary judgment on behalf of the plaintiff-appellee, United Industries. By agreement of counsel for both the appellant and the appellee, the instant appeal was argued before a panel of two judges with the following opinion, however, being rendered by a full panel of three judges. I. THE FACTS A. THE COMMERCIAL LEASE On July of 1987, the appellant as lessee and the appellant as lessor entered into a written five year commercial lease with regard to a building located at 4611 Spring Road, Brooklyn Heights, Ohio. The appellant rented a portion of the commercial building in order to operate a business which restored and repaired antique and classic investment automobiles. B. THE LEAKING ROOF AND RESULTING DAMAGE During the term of the lease, the appellant experienced a leaking roof which caused damage to the automobiles being stored in the commercial building. The appellee did on several occasions attempt to repair the leaking roof. Such repairs, however, failed to stem the water which was leaking through the roof. As a result of the leaking roof, the appellant refused to forward rent and utility payments to the appellee. -3- C. COMPLAINT FOR FORCIBLE ENTRY AND DETAINER On October 8, 1989, the appellee filed a complaint in forcible entry and detainer for the nonpayment of rent in the Parma Municipal Court. On October 20, 1989, the appellant filed an answer and a counterclaim. The appellant's counterclaim was based upon the water damage caused by the leaking roof and involved a prayer in the amount of $31,995. On October 26, 1989, the complaint and counterclaim were transferred to the Cuyahoga County Court of Common Pleas since the appellant's counterclaim exceeded the jurisdictional limits of the Parma Municipal Court. D. COMPLAINT SETTLED On January 2, 1990, the appellee's complaint in forcible entry and detainer for the nonpayment of rent was settled and dismissed with prejudice. The appellant's counterclaim, however, remained pending. E. MOTION TO DISMISS APPELLANT'S COUNTERCLAIM On May 18, 1990, the appellee filed a Civ. R. 12(B)(6) motion to dismiss the appellant's counterclaim. The motion to dismiss was based upon the grounds that the appellant's counterclaim failed to state a claim upon which relief could be granted. The trial court, however, treated the appellee's motion to dismiss as a motion for summary judgment pursuant to Civ. R. 12(B) since the motion to dismiss presented matters outside the pleadings. On June 12, 1990, the trial court granted summary judgment on behalf of the appellee with regard to the appellant's counterclaim. -4- F. THE APPELANT'S TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from the order of the trial court which granted summary judgment on behalf of the appellee. II. SOLE ASSIGNMENT OF ERROR The appellant's sole assignment of error is that: "THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF ON DEFENDANT'S COUNTERCLAIM WHERE THE EVIDENCE PRESENTED BY PLAINTIFF AND DEFENDANT IS CONTRADICTORY, THUS EVIDENCING MATERIAL ISSUES OF FACT IN DISPUTE." A. ISSUE RAISED: TRIAL COURT ERRED IN GRANTING THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT The appellant, in his sole assignment of error, argues that the trial court erred as a result of granting the appellee's motion for summary judgment with regard to the counterclaim which involved damages as caused by a leaking roof. Specifically, the appellant argues that genuine issues of material fact existed for the trier of fact with regard to the appellee's liability for damages caused by a leaking roof and thus the trial court erred in granting the appellee's motion for summary judgment. The appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR A MOTION FOR SUMMARY JUDGMENT A trial court's disposition of a motion for summary judgment is controlled by Civ. R. 56(C) which provides in pertinent part that: -5- "*** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. ***" A trial court is required to grant a motion for summary judgment when there exists no genuine issues of material fact for the trier of fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St. 2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317. In addition, the party who opposes a motion for summary judgment may not rest upon the denials or allegations of his pleadings but must affirmatively demonstrate the existence of genuine issues of material fact in order to prevent the granting of a motion for summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112. In the case sub judice, the appellant argues that genuine issues of material fact existed for the trier of fact as to the appellee's liability for the alleged damage which was caused by the leaking roof. A review of the record, however, reveals that no genuine issues of material fact existed for the trier of fact. -6- C. APPELLEE'S LIMIT OF LIABILITY PER PARAGRAPH SIX OF LEASE Paragraph six of the written lease which was executed between the appellant as lessee and the appellee as lessor provided that: "6. That the LESSOR shall not be liable for any damage occasioned by failure to keep said premises in repair and shall not be liable for any damage done or occasioned by or from plumbing, gas, water, steam, or other pipes, or sewage or the bursting, leaking or running of any cistern, tank, washstand, water closet or waste pipe in, above, upon or about said building or premises, nor for damage occasioned by water, snow or ice being upon or coming through the roof, skylight, trap-door or otherwise, nor for any damage arising from acts or negligence of co- tenants or other occupants of the same building, or any owners or occupants of adjoining or contiguous property. (Emphasis added). Thus, pursuant to paragraph six of the written lease, the appellee was not liable to the appellant for any damage which resulted from a leaking roof. D. LIMIT OF LIABILITY IN COMMERCIAL LEASE IS ACCEPTED IN OHIO A review of Ohio case law clearly demonstrates the acceptance of a limit of liability clause when contained in a -7- commercial lease. "Plaintiff argues in support of the jury's decision that, while Ohio does recognize the validity of an exculpatory clause, it is to be strictly construed against the party seeking to enforce it. As in the case of disclaimer clauses under the UCC, the law also requires that the language of the provision must be clear and conspicuous before it may be enforced. "So long as there is no great disparity of bargaining power between the parties, a commercial lease which clearly and unequivocally relieves the lessor from liability for damages suffered by the lessee resulting even from the lessor's own negligence has been held valid in Ohio on the theory of freedom of contract. Mansfield Mut. Ins. Co. v. Cleveland, Cincinnati, Chicago & St. Louis RR. Co. (1906), 74 Ohio St. 3d; George H. Dingledy Lumber Co. v. Erie RR. Co. (1921), 102 Ohio St. 236. "Under the circumstances of the case at bar -- where (1) both parties were specifically found by the court to be of equal bargaining power, (2) plaintiff's insured was a sophisticated corporation experienced in dealing with leasing agreements for the storage of its customer's property, (3) although the language of the disclaimer did not specifically refer to implied warranties, it could not reasonably be expected to in light of the fact that no such warranty was recognized under Ohio law at the time the provision was drafted, and (4) the limiting language is simple, direct and easily understood -- the disclaimer in paragraph three excluding defendant's liability for damages occurring to plaintiff's property while in storage is valid and enforceable. Therefore, in consideration of the valid language of the disclaimer, defendant was not as a matter of law liable for the damages to the property of plaintiff's insured, even if an implied warranty of fitness were recognized in Ohio in commercial lease agreements. Accordingly, defendant's first four assignments of error -8- are sustained." Fireman's Fund Ins. Co. v. BPS Co. (1985), 23 Ohio App. 3d 56. E. TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT ON BEHALF OF APPELLEE Herein, the language of paragraph six of the written lease, which limited the appellee's liability of damages caused by a leaking roof, was simple, direct and easily understood. In addition, nothing in the record shows that the appellant and the appellee were not of equal bargaining power. Finally, the pleadings, depositions, answers to interrogatories, written admissions, affidavits and transcript of evidence in the present appeal fail to demonstrate that paragraph six of the written lease, with regard to the liability of the appellee for a leaking roof, had been modified by a subsequent oral agreement. As stated previously, a mere allegation or a reliance upon the pleadings is not sufficient to create a genuine issue of material fact. Cf. AAAA Enterprises, Inc v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St. 3d 157; Johnson v. Great American Ins. Co. (1988), 44 Ohio App. 3d 71. Accordingly, the trial court did not err as a result of granting the appellee's motion for summary judgment. No genuine issues of material fact existed for the trier of fact and the appellee was entitled to summary judgment as a matter of law since the appellee was not liable to the appellant with regard to any damage caused by a leaking roof. Judgment affirmed. -9- It is ordered that appellee recover of appellant its 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. Exceptions. SPELLACY, J. and KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .