COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72118 ISKANDAR ABI-ABDALLAH, ET AL. : ACCELERATED DOCKET : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : : AND MAINGATE SHOPPING CENTER, INC., : ET AL. : OPINION : Defendants-Appellees : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: AUGUST 28, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Common Pleas Court, Case No. CV-304470 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: _________________________ APPEARANCES: For Plaintiffs-Appellants: N. STEPHEN NIGOLIAN Ochs, Vanik & Nigolian 55 Public Square, Suite 200 Cleveland, Ohio 44113 For Defendants-Appellees: JOEL I. NEWMAN 711 Leader Building Cleveland, Ohio 44114 PER CURIAM: Iskandar Abi-Abdallah, d/b/a Simply Pizza, and Howard Rubin, d/b/a Suds R Us Laundromat, appeal as lessees from an order of the common pleas court granting summary judgment to Maingate Shopping 2 Center, Inc., Joseph Carey Roofing and Construction Corp., and to Joseph Carey, individually, on claims for breach of lease and tortious interference with the contract. The record in this case reflects that on June 15, 1993, Rubin signed a ten-year laundromat and dry cleaning drop-off-point lease, and on January 26, 1995, Abi-Abdallah signed a five-year pizzeria lease, in the Maingate Shopping Center, 2765 E. 55th Street in Cleveland, Ohio. On March 6, 1996, Abi-Abdallah and Rubin jointly filed a complaint in common pleas court against Maingate Shopping Center, Inc., Joseph Carey, and Joseph Carey Roofing and Construction Corp., alleging breach of and tortious interference with their respective leases. On November 15, 1996, the appellees jointly moved for summary judgment, supported by Carey's affidavit, contending that Joseph Carey and Joseph Carey Roofing and Construction Corp. should be dismissed from the case, as they are not parties to the leases, further urging that Maingate had not breached the lease agreements and contending that, as a party to the leases, it cannot be found liable for tortiously interfering with them. On December 13, 1996, appellants filed a motion seeking an extension of time until January 2, 1997 to respond to appellees' summary judgment motion, and on that day, filed a brief in opposition, supported by an eviction notice served on Rubin by Joseph Carey, individually, a copy of a Cleveland Municipal Court complaint for only money filed by Carey Construction against Abi- 3 Abdallah, an invoice to Simply Pizza for work done by Carey Construction, together with affidavits from Abi-Abdallah and Rubin, and a garnishment notice which had been served on Abi-Abdallah in an effort to collect the judgment award to the construction company. On January 17, 1997, the court denied the request for extension of time as moot, and on January 24, 1997, granted summary judgment to appellees, citing Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Rubin and Abi-Abdallah now appeal and raise one assignment of error for our review: THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE THERE EXISTED GENUINE DISPUTE AS TO MATERIAL FACTS AND WHERE THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN SUCH MOTION. Appellants assert that the court erred in granting summary judgment contending that neither the shopping center nor the construction company offered any evidence in support of the summary judgment motion as it related to them and contending, further, that each of the appellees individually could have breached or tortiously interfered with the lease contracts. Appellees argue that the court correctly granted summary judgment because appellants failed to timely file their brief in opposition to the motion for summary judgment and thereby failed to produce evidence in accordance with Wing, supra. On review, then, we are asked to consider the propriety of the court's summary judgment ruling. 4 Civ.R. 56(C) sets forth the test regarding rendition of a summary judgment. It provides in relevant part: * * * 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 * * *. 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 * * *. Further, in Wing, supra, cited by the trial court in its ruling, the court stated in its syllabus: 3. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. However, in Dresher v. Burt (1996), 75 Ohio St.3d 280, the court, in referring to the third paragraph in Wing, supra, stated at 295: *** We now believe that this holding in Wing is too broad. Specifically, paragraph three of the syllabus in Wing fails to account for, among other things, the burden Civ.R. 56 places upon a moving party. We therefore limit paragraph three of the syllabus in Wing to bring it into conformity with Mitseff, supra, 38 Ohio St.3d 112, 526 N.E.2d 798, Celotex, supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, the requirements of Civ.R. 56, and our discussion and holdings supra. (Emphasis in original.) The court also noted in Dresher at 293, 5 *** However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. In their complaint, Abi-Abdallah and Rubin alleged that appellees breached their respective leases and the implied covenants of quiet enjoyment. Appellees jointly filed a motion for summary judgment and an affidavit of Joseph Carey denying any breach and asserting that appellants failed to pay rent and maintenance fees. Under Wing, supra, and Dresher, supra, this then shifted the burden of production of evidence to Abi-Abdallah and Rubin, who failed to meet their burden of production to set forth specific facts showing a genuine issue for trial. In Developers Three v. Nationwide Ins. Co. (1990), 64 Ohio App.3d 794, 798, the court defined the elements of tortious interference with a contract: One who intentionally and improperly interferes with the performance of a contract * * * between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract * * *. (Emphasis added). Thus, the tort requires interference by a non-party to the contract. See Garg v. Venkataraman (1988), 54 Ohio App.3d 171. Here, the lessees allege Maingate, Carey Construction, and Carey interfered with their leases and prevented their performance under those contracts. Since Maingate Shopping Center, Inc. is a 6 party to the leases, it cannot be the subject of a tortious interference claim. Further, even assuming Carey and Carey Construction Company did interfere with the leases, their liability would extend only to Maingate Shopping Center, Inc., as the injured party, not appellants. Accordingly, since appellants failed to meet their burden of production pursuant to Wing, supra, and since they may not recover on their claims of tortious interference, the court properly granted summary judgment to appellees. For these reasons the judgment of the trial court is affirmed. Judgment affirmed. 7 It is ordered that appellee recover of 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. PATRICIA ANN BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .