COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68637 R & S PROPERTIES : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHAIM WEISZNER, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION OCTOBER 26, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 268414 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: STUART KRANTZ, ESQ. JOHN M. WIDDER, ESQ. ROGER SLAIN, ESQ. PEGGY MURPHY WIDDER, ESQ. 14409 Cedar Road Widder & Widder South Euclid, Ohio 44121 18224 Sherrington Road Shaker Hts., Ohio 44122 - 2 - JAMES M. PORTER, J., Defendants-appellants Chaim Weiszner and Jacob Wilyamowsky appeal from a judgment for past due rent of $69,377.57 plus interest in favor of plaintiff-appellee R & S Properties arising out of defendants' occupancy of leased restaurant premises. Defendants contend the court erred in making a new lease for the parties, excluded relevant evidence and erroneously found the defendants were tenants in possession. We find no merit to the appeal and affirm. On June 9, 1986, plaintiff R & S leased the restaurant premises at 13969 Cedar Road in South Euclid to the two defendants d.b.a. Vegeteria Restaurant. The specified term was for five years at monthly rent of $2,981.25 with a five year renewal option. The defendants were personally designated lessees in the written lease agreement, signed the lease as individuals and also signed a separate personal Guarantee of Lease. The defendants entered into possession and operated a restaurant during the original term. Defendants failed to pay the rent from October 1990 through June 1992. On June 9, 1992, in foreclosure proceedings instituted by mortgagee Park View Federal Savings & Loan, a receiver was appointed for the property. The receiver collected rent from July 1992 until its duties were terminated by the court. On September 11, 1992, R & S entered into a Settlement Agreement and Mutual Release with Park View and other individuals which released R & S - 3 - from any liabilities to Park View and stated that all past due rent claims were the property of R & S. R & S brought suit to recover for the delinquent rentals. The case was tried to the bench on January 24, 1995. The parties agreed that rent for the October 1990 to July 1992 period was $69,339.57. On January 31, 1995, the trial court made its final judgment entry finding in favor of plaintiff R & S against the two individual defendants in the amount prayed for. The court found that the formal lease did not satisfy the Statute of Conveyances (R.C. 5301.01) and was invalid because the lessor's signature was not notarized and observed by only one witness. The court found that the lease would be enforced as a month to month tenancy and the individuals were the tenants in possession responsible for the rent. The instant appeal ensued. We will address the defendants' assignments of error in the order presented. I. THE COMPLAINT WAS BROUGHT SOLELY ON THE LEASE; THE LEASE WAS HELD TO BE INVALID. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ATTEMPTING TO CREATE A NEW CONTRACT. The trial court found the formal written lease invalid under R.C. 5301.01, but found that the individual defendants had occupied the premises and were liable for the past due rents as month to month tenants. We find no error in the court's determination. The defendants themselves concede in their brief (Aplnts. Brf. p. 3): "When a tenant takes possession of premises under a defectively executed lease, and the rent is payable monthly, the tenancy is - 4 - only from month to month. Delfino v. Paul Davis Chevrolet, Inc. (1965), 20 Ohio St.2d 282, paragraph one of the syllabus." This was followed in our recent decision of Reuben v. S.M. & N. Corp. (1993), 83 Ohio App.3d 80, 83 where we stated: We further note that if the trial court determines that no lease exists, then it must determine the terms of the resulting tenancy. As this court held in Harleysville Mut. Ins. Co. v. West 106th Street Realty (July 28, 1988), Cuyahoga App. No. 54178, unreported at 5, 1988 WL 86958: "But it is well settled that where a purported lessee takes possession under a defectively-executed lease and pays rent, a tenancy will be implied and is subject to all of the terms of the purported lease except duration. See Baltimore & Ohio Railroad Co. v. West (1897), 57 Ohio St. 161 [49 N.E. 344]. The duration of the term is determinable by the provisions for payment of rent, so a lease providing for annual rent creates a tenancy from year to year, whereas a lease providing for monthly rent creates a tenancy from month to month. See Wineburgh v. Toledo Corporation [(1932)], 125 Ohio St. [219] at 222 [181 N.E. 20 at 21." *** Therefore, we find the trial court followed the applicable law and found that defendants occupied the premises as month to month tenants for the period from October 1990 to July 1992 for which they owed the stated amount of rent. These findings were amply supported by the evidence and we will not disturb them. This assignment of error is overruled. - 5 - II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO HEAR RELEVANT EVIDENCE OF A DECEPTION OF THE FORECLOSURE RECEIVER BY THE PLAINTIFF IN THIS MATTER. It is undisputed that a receiver has the authority to collect rent. R.C. 2735.04. State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 74. On June 9, 1992, in foreclosure proceedings instituted by mortgagee Park View, a receiver was appointed for the leased property. The receiver collected rent from July 1992 until the court terminated his duties. The receiver did not collect any past due rent owed by defendants for the period from October 1990 through June 1992. The Settlement Agreement and Mutual Release executed by R & S and Park View Federal, as amended, provided that R & S no longer owed any money to Park View Federal or any other creditors relating to the property. According to the Release, all past due claims for rent shall be the property of R & S. The court properly refused to hear evidence as to whether the receiver was the proper party to prosecute this action. This assignment of error is overruled. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO CONSIDER RECEIPT FOR PARTIAL RENT PAID BY THE DEFENDANTS. Defendants argue that the trial court failed to consider evidence of partial payment of the rent owed. Defendants alleged that some partial payments were made to the receiver. In the course of the trial, the defendants agreed that someone owed $69,377.57 in back rent to the plaintiffs. (Tr. 58). At trial, - 6 - defendants denied that they owed the back rent, but contended they made partial payments to the receiver. On cross examination, defendants' sole witness was asked by counsel to produce receipts or cancelled checks showing payment of any delinquent rent. None was produced. The trial court did not fail to consider the alleged receipts as there were none before it. This assignment of error is overruled. IV. NO EVIDENCE WAS PRESENTED AT TRIAL THAT THE DEFENDANTS WERE THE TENANTS IN POSSESSION OF THE SUBJECT PROPERTY. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT REQUIRING SUCH OF THE PLAINTIFF BEFORE DECIDING THE MATTER IN SAID PLAINTIFF'S FAVOR. On June 9, 1986, defendants executed a lease for the property at issue in their personal capacities and according to the lease, were doing business as "Vegeteria Restaurant." They personally guaranteed the payment of rent and performance of the lease. Defendants' contention that they were not personally obligated on the lease is without merit. The initial clause of the lease states "This indenture of lease made by and between R & S Properties ('lessor') and Chaim Weiszner and Jacob Wilyamowsky D.B.A. Vegeteria Restaurant, its successors and assigns ('lessee')" and the final signature pages (signed individually by defendants) as lessees plus the personal guarantee show that the defendants signed the lease in their personal capacities. Evidence at trial showed that the defendants were the tenants in possession of the subject property and were involved in the day- to-day operations from the first day the restaurant opened. Mr. - 7 - Weiszner was involved in the business aspect of the restaurant, while Mr. Wilyamowsky was the cook. Defendants never notified R & S of the fact that the name Vegeteria Restaurant was rejected by the Secretary of State and that "Kosher Kitchen" was the name of the restaurant. Defendants never raised the defense that the plaintiff sued the wrong party in any of their pleadings. No orders, invoices, checks or tax returns with the name of Kosher Kitchen were offered at trial. Further, the record suggests that the restaurant was known as Jacob's. This assignment of error is overruled. V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN IMPOSING AN AMOUNT OF DAMAGES FOR UNPAID RENT WITHOUT FIRST REQUIRING PLAINTIFF TO PRESENT EVIDENCE AS TO THE REASONABLENESS OF SUCH RENT. In Baltimore & Ohio Railroad Company v. West (1897), 57 Ohio St. 165, the court held that when a lessee takes possession under a defectively executed lease and pays rent, a tenancy will be implied and is subject to all of the terms of the purported lease except duration. Followed in Ruben v. S.M & N. Corp., supra. In the present case, defendants occasionally paid rent for the amount stated in the lease. The amount of rent for the delinquent period was agreed to equal $69,377.57. The rent specified under the defective lease is evidence of the reasonableness of same as paid and agreed by defendants. This assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellants 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 Court of Common Pleas 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. HARPER, P.J., and NAHRA, J., CONCUR. JAMES M. PORTER JUDGE 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 .