COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69230 CLEVELAND INDUSTRIAL SQUARE, : INC. : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION GORDON FOOD SERVICES, INC. : : Defendant-Appellee : : vs. : : PHIFER-EDWARDS, INC., ET AL., : : Third-Party Defendants : DATE OF ANNOUNCEMENT OF DECISION: MARCH 21, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-245916 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: RICHARD G. LILLIE GRETCHEN A. HOLDERMAN 55 Public Square #1331 Cleveland, Ohio 44113-1901 For Defendant-Appellee: ROSEMARY G. GOLD HAROLD R. RAUZI Buckley, King & Bluso 1400 Bank One Center Cleveland, Ohio 44114-2652 For Third-Party Defendant FREDERICK P. VERGON Phifer-Edwards, Inc.: 500 National City East 6th St. Bldg. 1965 East 6th Street Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: Cleveland Industrial Square, Inc., owner of a building on Lee Road in Cleveland, Ohio, appeals from an order of the Common Pleas Court granting summary judgment in favor of its tenant Gordon Food Services, Inc., on claims for damages to the leased premises arising from a fire caused by another tenant. In January 1991, Cleveland Industrial Square leased office space to Gordon Food and on May 8 of that year, a fire occurred in space occupied by another building tenant, Phifer-Edwards Signs, Inc. During the course of extinguishing that fire, water damaged the Gordon Food Services premises. Representatives of the Cleveland Fire Department later determined that a cigarette in the Phifer-Edwards area caused the fire, and the parties here agree that Gordon Food was not negligent with respect to this fire. Almost two years later, however, at the end of the two-year lease term, Cleveland Industrial filed suit against Gordon Food to recover for damages to the Gordon Food premises caused by the fire. Both parties filed motions for summary judgment suggesting no factual dispute, and the trial court granted summary judgment in favor of Gordon Food. Cleveland Industrial now appeals the court's determination and Gordon Food has cross-claimed against Cleveland Industrial seeking attorney fees for filing a frivolous - 3 - appeal. Cleveland Industrial has assigned one error for our review: THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEE'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING SUMMARY JUDGMENT IN FAVOR OF APPELLANT. Cleveland Industrial argues the trial court erred in granting summary judgment because Gordon Food breached a leasehold covenant to surrender the premises to the lessor at the end of the lease term in the same condition as when it took possession and further maintains it is not responsible for the damages caused by Phifer-Edwards. Gordon Food Services contends that the trial court correctly granted summary judgment because it did not breach its lease, and it cannot be liable for damages resulting from a fire caused by another tenant. The issue then, presented on this appeal, is whether the trial court correctly granted summary judgment for the lessee, Gordon Food. Civ. R. 56 (C) provides, in pertinent part: *** Summary judgment shall be rendered *** if *** there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.*** Since both parties have filed motions for summary judgment and generally do not dispute the facts, the singular issue presented for our resolution is whether the trial court correctly granted summary judgment to Gordon Food as a matter of law. - 4 - We begin our analysis of this case by observing that each party to the lease cites a provision which supports its respective position. The principal difference in these positions can be highlighted by the following language from paragraphs twelve and twenty-two of the lease which state in relevant part: Paragraph 12 Lessor shall not be liable to lessee for any damage by or from an act or neglignence (sic) of any cotenant or to the occupant of the same building, or by any owner or occupant of adjoining or contiguous property. *** Paragraph 22 *** Lessee agrees to surrender the premises to the lessor at the end of the lease term in the same condition as when it took possession, allowing for reasonable use and wear, and damage by acts of God, including fire and storms. *** From these paragraphs, Cleveland Industrial believes Gordon Food is responsible to pay for damages to the leased premises in its building caused by the fire. Gordon Food cites an additional portion of paragraph twelve of the lease which states: *** Lessee agrees to pay for all damage to the building, caused by lessee's misuse or neglect of the premises, its apparatus, or appurtenances. It assumes liability, therefore, only for damage attributable to its own misuse, not that of another building tenant. Faced with a question of contract interpretation, our consideration of this appeal is governed by certain well recognized principles. - 5 - At the outset we note that when there is doubt or ambiguity, a contract should be construed strictly against the party who prepared it. Smith v. Eliza Jennings Home (1964), 176 Ohio St. 351; Cleveland Trust Co. v. Snyder (1978), 55 Ohio App.2d 168. We are unaware of any specific leasehold provision making Gordon Food liable for damages other than for its own negligence. In interpreting this lease, we are guided by the maxim "expressio unius est exclusio alterius," a Latin expression which means the expression of one is the exclusion of another. Black's Law Dictionary, 5th ed. (1979) defines the expression by explaining that "*** [when] certain *** things are specified in a *** contract, *** an intention to exclude all others from its operation may be inferred. ***" See, also, State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d 138. We conclude that since the lease renders Gordon Food liable only for its own negligence, it cannot be construed to impose liability on Gordon Food for the negligence of other tenants. Finally, our conclusion is bolstered by the well-reasoned opinion in Mansfield Motors, Inc. v. Freer (1932), 42 Ohio App. 214, 215, where the court stated: [A] covenant in a lease to deliver up premises in as good condition and repair as the same shall be put by the lessor at the commencement of the term, natural wear and decay excepted, is a covenant to make such repairs only as would ordinarily arise under their occupancy, and does not include extraordinary conditions resulting from injury to or destruction of the premises by fire, or the elements. - 6 - Thus, we conclude Gordon Food is entitled to judgment as a matter of law and the trial court correctly granted summary judgment in this case. We further have considered the claim of Gordon Food for attorney fees based upon what it perceives to be frivolous conduct on the part of Cleveland Industrial. Specifically Gordon Food contends that Cleveland Industrial's appeal is frivolous because it submits illogical or unsupported interpretations of the lease. Cleveland Industrial counters that its appeal is not frivolous, but rather seeks to enforce a lease agreement with Gordon Food. In consideration of whether or not to award attorney fees on a claimed frivolous appeal the court must consider App. R. 23. This rule permits our court to require an appellant to pay reasonable expenses of the appellee, including attorney fees and costs, if the court of appeals determines the appeal is frivolous. "A frivolous appeal under App.R. 23 is essentially one which presents no reasonable question for review." Talbott v. Fountas (1984), 16 Ohio App.3d 226. Having evaluated these criteria and in conformity with the reasoning of the court in Talbott, we conclude Cleveland Industrial presented reasonable questions for review and thus the claim for attorney fees is denied. - 7 - Judgment affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) 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. SPELLACY, C.J., McMONAGLE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .