Stop 65, L.L.C. v. Beach Park Ry., L.L.C.

[Cite as Stop 65, L.L.C. v. Beach Park Ry., L.L.C., 2026-Ohio-3908.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN ) STOP 65, LLC C.A. No. 25CA012256 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE BEACH PARK RAILWAY, LLC AVON LAKE MUNICIPAL COURT COUNTY OF LORAIN, OHIO Appellant CASE No. 2400273 DECISION AND JOURNAL ENTRY Dated: October 5, 2026 ROBB CAROL ANN, Judge. {¶1} Defendant-Appellant Beach Park Railway, LLC appeals the decision of the Avon Lake Municipal Court in a forcible entry and detainer action filed by Plaintiff-Appellee Stop 65, LLC, which ended with a summary judgment for Appellee upon finding a breach of lease for subleasing without written consent. Setting forth six assignments, Appellant first alleges the court’s summary judgment was erroneous because the person who granted access to the premises was a mere licensee. Alternatively, Appellant contends the consent requirement was waived and Appellee was estopped from enforcing it. Appellant also claims entitlement to summary judgment because Appellee served a 30-day notice of default with a request to cure and the 3-day statutory notice but did not serve an additional 30-day termination notice. {¶2} Regarding an earlier judgment, Appellant argues the court erred in dismissing the breach of lease claims in the fifth and sixth counts in the counterclaim (on quiet enjoyment and repairs). From this, Appellant concludes the municipal court should have certified the case to the common pleas court due to the prayer for damages exceeding the monetary jurisdiction of the municipal court. For the following reasons, the trial court’s judgment is affirmed. STATEMENT OF THE CASE {¶3} On May 3, 2024, Appellee filed a complaint in forcible entry and detainer against Appellant regarding the premises at 33501 (Suite A) Lake Rd. Avon Lake, Ohio, which was subject  2 to a lease (the Facility Lease). The Ohio Facilities Commission was originally named as a party in case they claimed a possessory interest in the premises due to a 2019 “Non-Disturbance and Estoppel Agreement” (NDE) between the Commission, Appellant, and a former property owner (including successors) due to grant money Appellant received to operate a museum. {¶4} The complaint stated a contractual 30-day notice of default was served on Appellant on March 22, 2024, providing time to cure the breaches of unauthorized subleasing and storing items beyond the premises leased. Notice was also served on the Commission as required by the NDE. A letter attached to the complaint showed Appellant responded to the notice by claiming the default was cured due to the termination of any subleases with two named entities and the removal of various items from the premises. The complaint, however, alleged additional subtenants and improperly stored items remained, which prompted the service of a statutory 3-day notice to vacate on April 29, 2024. {¶5} In response, Appellant’s answer with counterclaim (amended) contained six counts with the following allegations: (1) retaliatory eviction; (2) failure to maintain the premises in violation of R.C. 5321.04 and in breach of the Facility Lease with a request for rent abatement; (3) tortious interference with a contract (the Commission’s NDE); (4) tortious interference with a business relationship (the museum Appellant operated); (5) preventing quiet enjoyment in breach of the lease; and (6) breach of lease for failing to maintain the premises. {¶6} Upon the trial court’s order, briefing was conducted on the issue of whether the municipal court lacked jurisdiction due to the monetary demand in the counterclaim. (6/24/24 J.E.). Appellee opposed certification of the case to the common pleas court. Relatedly, Appellee filed a motion to dismiss the counterclaim for failure to state a claim upon which relief can be granted under Civ.R. 12(B)(6), with arguments on each count. After Appellant’s response, the municipal court dismissed Appellant’s counterclaim. As a result, the court said Appellee’s opposition to certification (and a bifurcation motion) was moot and thus denied. (7/29/24 J.E.). {¶7} Appellant filed an immediate appeal, which was dismissed on Appellee’s motion for lack of jurisdiction, as the municipal court’s judgment did not resolve all claims against all parties and lacked Civ.R. 54(B) no just reason for delay language. Stop 65, LLC v. Beach Park Railway, LLC, 9th Dist. No. 24 CA 12157 (10/2/24 J.E.). Subsequently, the municipal court denied Appellant’s request to add Civ.R. 54(B) language. (10/30/24 J.E.).  3 {¶8} On January 15, 2025, the Commission was dismissed as a party by stipulation between Appellant and the Commission. After depositions were taken and discovery was concluded, the parties filed trial briefs and proposed jury instructions. {¶9} Joint stipulations of fact reviewed the following items: the contractual notice of default; Appellant’s response claiming cure; the statutory 3-day eviction notice; the history of property ownership and leases; and Appellee’s prior action evicting TBP. See Stop 65 v. TBP Avon Lake, LLC, Lorain C.P. No. 22 CV 206454 (Mar. 14, 2024). According to the parties, Appellee did not become Appellant’s direct lessor until TBP’s tenancy was terminated, before which Appellant was a subtenant obligated to pay $583 a month in rent to TBP. See Pl. Mot. (6/26/24); accord Def. Trial Br. (2/14/25) (when TBP sold the property to Appellee’s predecessor, TSH Commercial Holdings, LLC, TBP leased the premises back from TSH for $100 a month, allowing TBP to continue to collect rent from Appellant). {¶10} Just prior to the scheduled jury trial on Appellee’s claim, the municipal court continued the trial and granted a joint request to move for summary judgment. (3/13/25 J.E.). The parties then filed opposing summary judgment motions. In pertinent part, Appellee’s motion for summary judgment said Appellant breached the lease by subleasing to John Bryan. In response, Appellant argued Bryan was a mere licensee and the clause on consent was waived. In addition, Appellant’s summary judgment motion posited that after the contractual 30-day notice of default, a specific notice of termination was required rather than a mere statutory 3-day notice to vacate. {¶11} The court granted summary judgment in favor of Appellee. The court rejected the arguments about a dedicated notice of termination and found no genuine issue of material fact that Appellant created a subtenancy with Bryan without proper consent, which remained uncured after proper notice. Finding this breach entitled Appellee to lease termination, the court specifically declined to address Appellee’s additional allegations of breach (regarding Pace Foundation as an additional unauthorized subtenant and items stored outside the leased premises). (4/7/25 J.E.).1 A writ of restitution of the premises was issued. (4/10/25 J.E.); (4/10/25 Writ); (4/11/25 J.E.). {¶12} Appellant filed a timely notice of appeal. The municipal court issued a stay pending appeal on the posting of bond. (4/17/25 J.E.). Appellant sets forth six assignments of errors with 1 As Appellant points out, Appellee’s additional allegations of breach that were unaddressed by the trial court are not before this court on appeal. Lopez v. Hulburt, 2018-Ohio-2499, ¶ 10 (9th Dist.) (it is established that alternative summary judgment grounds not passed upon by the trial court will not be decided on appeal as we are a court of review).  4 the first three challenging the summary judgment and the last three challenging the dismissal of two counts in the counterclaim and the effect thereof. SUMMARY JUDGMENT STANDARD {¶13} Summary judgment can be granted when no genuine issue of material fact remains and reasonable minds construing the evidence in the light most favorable to the non-movant can only conclude the movant is entitled to judgment as a matter of law. Civ.R. 56(C) (with the evidence being pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact). A summary judgment movant has the initial burden of stating why the movant is entitled to judgment as a matter of law and showing the absence of a genuine issue of material fact. Byrd v. Smith, 2006-Ohio-3455, ¶ 10, citing Dresher v. Burt, 75 Ohio St.3d 280, 294 (1996). {¶14} As explained by the Supreme Court, the non-moving party then has a reciprocal burden. Id. The non-movant's response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing there is a genuine issue for trial. Civ.R. 56(E). The non-movant may not rest upon mere allegations or denials in the pleadings. Id. {¶15} Although the court is to consider the evidence in the light most favorable to the non-movant, summary judgment is not to be discouraged where the non-movant fails to respond with evidence supporting the essentials of his argument. Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 269 (1993). Moreover, the material issues of each case depend on the substantive law, and only outcome-determinative and properly disputed facts will preclude summary judgment. Byrd at ¶ 12. {¶16} We consider the propriety of granting summary judgment de novo. Comer v. Risko, 2005-Ohio-4559, ¶ 8 (where the Ohio Supreme Court reversed the appellate court and reinstated the trial court's grant of summary judgment). The construction of a written contract is also a matter of law reviewed de novo. Long Beach Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576 (1998). Plain and unambiguous contract terms are applied as written. Id. at 577. SUBTENANT OR LICENSEE {¶17} In the first assignment of error, Appellant alleges: “The Trial Court Erred in Granting Stop 65 Summary Judgment on its Complaint for Forcible Entry and Detainer.”  5 {¶18} Appellant contractually “agreed this lease shall not be assigned, transferred, or the premises or any part thereof, sublet or under-leased or under-rented in its entirety or in part without the prior written consent of Lessor . . .” Facility Lease, Sec. IX (any attempt at this prohibited conduct without written consent “shall be wholly null and void”). Written notification of a desire to sublet must be served by certified mail, after which the lessor shall have 10 days to make a decision. Consent shall not be unreasonably withheld; however, the requested subletting usage must meet acceptable community standards and restrictions in other leases in the shopping center with the lessor able to impose conditions on the use. Id. {¶19} In finding Appellant breached this clause, the trial court concluded John Bryan was Appellant’s subtenant. Urging a limitation clause against subletting should be strictly construed against the lessor, Appellant says the clause does not prohibit use by a licensee. We note Appellee has not attempted to argue the additional words under-rent or under-lease cover more than a typical anti-subletting clause or otherwise argue that the anti-sublease clause would prohibit a license arrangement. Appellant quotes, “The rule is well settled that an agreement by a lessee with a third person for the permissive use by the latter of the leased premises does not constitute a violation of covenants in a lease against assigning or subletting, but merely amounts to a license to use the property.” Fairbanks v. Power Oil Co. of Ohio, 81 Ohio App. 116, 123 (3d Dist. 1945) (lessee’s oral agreement with a third party allowing “trial” operation of the facilities on part of land was not a violation of a clause against sublease or assignment). Appellant concludes there was a genuine issue of material fact as to whether Bryan was a subtenant or a mere licensee. {¶20} In setting forth the law distinguishing a sublease from a license, the parties agree the following definition is applicable: A license to do an act upon land involves the exclusive occupation of the land by the licensee so far as is necessary to do the act and no further, whereas a lease gives the right of possession of the land and the exclusive occupation of it for all purposes not prohibited by its terms. DiRenzo v. Cavalier, 165 Ohio St. 386 (1956), paragraph one of the syllabus. {¶21} In DiRenzo, the Court addressed a written agreement wherein a long-time lessee rented out a ballroom (plus the lessee’s guard and attendants) to a host of a wedding reception for under 5 hours. Id. When a guest sued the lessee for personal injury after a piece of ceiling fell on him, the trial court directed verdict for the lessee upon finding the agreement with the host was a  6 sublease rather than a license. After noting the entire contents of the writing are used to evaluate intent, the Supreme Court concluded, “there is a presumption of law that the ballroom is being used under a license and not a lease.” Id. at paragraphs two and three of the syllabus. {¶22} Appellee points out the facts and type of case are quite different from the present case. Id. at 389 (in the personal injury suit, the Court found the reception host had no knowledge of or reasonable opportunity to guard against any hazard). Moreover, in finding the circumstances consistent with a license, the Court emphasized the extremely short duration and pointed out “occupation was exclusive only so far as necessary to hold a wedding reception and went no further.” Id. Additionally, the DiRenzo Court maintained prior law defining a tenant as one who occupies someone else’s premises with assent and thus has an interest in the land and estate no matter how small (including a tenancy at will). Id. at 385; see also Schloss v. Sachs, 63 Ohio Misc.2d 457, 462-463 (1993) (in finding a kiosk agreement was a lease as a matter of law rather than a license, the court described the essential aspects of a lease as “(1) a defined space or place, however small, which the lessor occupies, (2) to the exclusion of others, and (3) that the use of the space or place is not merely incidental to the performance of the contract”). {¶23} Appellant says Bryan was a lessee, insisting no evidence showed he had rights to occupy the premises to the exclusion of others. See Jefferson Med. Assoc., L.L.C. v. Unemp. Comp. Rev. Comm., 2006-Ohio-2310, ¶ 19 (10th Dist.) (stating a lease of an interest in land must give the right to exclusive possession of a certain quantity of land for a term, which involves the right to physical control at the exclusion of others). We point out the cited Supreme Court case holds that both a license and a lease have the feature of exclusive occupation. DiRenzo, 165 Ohio St. at 389 (“A license to do an act upon land involves the exclusive occupation of the land by the licensee so far as is necessary to do the act and no further, whereas a lease gives the right of possession of the land and the exclusive occupation of it for all purposes not prohibited by its terms.”). {¶24} Appellee says the trial court correctly ruled a reasonable person could only conclude Bryan had the right to exclude others from the portion of the leased premises he was possessing and occupying and Bryan was using the premises for all purposes not for only limited necessary purposes. Appellee notes Bryan would qualify as Appellant’s “tenant” under the forcible entry and detainer statute. See R.C. 1923.01(C)(1) (“a person who is entitled under a rental agreement to the use or occupancy of premises”); (C)(2) (including a sublessor in the definition of landlord), (C)(5) (defining rental agreement as “any agreement or lease, written or  7 oral, that establishes or modifies the terms, conditions, rules, or other provisions concerning the use or occupancy of premises by one of the parties to the agreement or lease”). {¶25} We review the summary judgment evidence. In his deposition testimony, Appellee’s representative described the museum as never truly active after its establishment with state funds. He originally believed Appellant would be transferring the museum to the local historical society. After the TBP case ended in March 2024, he inspected the premises. He was concerned Appellant was using only a quarter of the space for the museum with the remainder being occupied by other people or entities. {¶26} Appellee’s representative testified to personally observing evidence that Bryan was running his motorcycle repair shop (Northcoast Motorcycles) out of the warehouse and storing a mass amount of parts and items, including flammable items. Appellant’s representative told him the motorcycle repair business had no relation to the museum. Photographs assisted in visualizing the extent of Bryan’s possession and occupation, including the dedicated storage for his parts inventory and a workshop with a motorcycle on a drive-up ramp. {¶27} Appellee’s representative also saw evidence Bryan was living in the space, pointing to his viewing of a bed, washer, dryer, oven, cat (with litter box), and refrigerator stocked with food including produce. And, Bryan received his personal mail at the premises. (N.G. Depo. 13, 36-39, 47-48, 56-59, 63, 103-105, 112-113); (N.G. Aff.) (incorporating photographs). After receiving complaints about people and vehicles being present at the shopping center all night, Appellee obtained testimony that Bryan himself declared in the summer of 2024 that he was living at the premises. (S.B. Aff.) (after the supervisor at the neighboring post office asked him about a car parked overnight in the lot). {¶28} According to the January 2025 deposition of Appellant’s board member, Bryan’s arrangement began around September 2023. In the spring of 2024, Bryan’s belongings, workspace, and living space were viewed and photographed by Appellee’s representative while inspecting the premises. According to Bryan’s March 2025 affidavit prepared at the time of the summary judgment proceedings, he had not completed removing his property from the premises. The evidence of a living arrangement was not specifically disputed by Appellant. {¶29} It is also not disputed a sublease can include a portion of a leased premises. See also Facility Lease, Sec. IX (agreeing “the premises or any part thereof” shall not be “sublet . . . in its entirety or in part”). Moreover, Appellant’s board member admitted Bryan was permitted to  8 use a portion of the premises to store personal items, tools, and business equipment (including motorcycles under repair and parts); Bryan installed shelving to facilitate this storage. A package addressed to the motorcycle business at the premises was discussed. The board member admitted Bryan was permitted to perform work for his business out of the leased premises. He said the arrangement was agreed upon after Bryan’s facility was destroyed by a storm. {¶30} In return, Bryan was expected to organize a community workshop, give tours, and perform repairs (including on a historical fire truck that he volunteered on prior to the arrangement). It was also acknowledged Bryan began “donating” to help pay utilities, totaling at least $1,100. An email was discussed wherein the board member expressed concern to Bryan in January 2024 about whether he was going to be able to make the next payment, which his testimony explained referred to the $300 Bryan paid “every whenever” to help with utilities. The board member described this as “the deal [Bryan] came up with” and noted Bryan “wasn’t living up to” it. (Patton Depo. 62-63, 70-76, 83-90) (with exhibits). {¶31} While criticizing the trial court’s statement that rent need not be monetary and the quid pro quo relationship plus the donations constituted consideration, Appellant points out a licensee can also provide consideration. See BeWigged by Suzzi, Inc. v. Atlantic Dept. Stores, Inc., 49 Ohio App.2d 65, 70 (8th Dist. 1976) (finding a license after observing the agreement designated an amount of space in the store to be used by the person but did not set aside a dedicated portion of the store or permit use of the premises other than for the sale of wigs). Part of the reason for the trial court’s statement was due to Appellant’s motion for summary judgment alleging Bryan was allowed to store his belongings “free of charge” while arguing the parties did not believe the relationship was a sublease. In any case, the terms of the oral agreement were relevant in determining the legal issue of whether the arrangement was a lease or license. {¶32} Appellant continues to emphasize Bryan’s opinion that the arrangement was not a sublease or he did not believe it was a sublease. On this topic, Appellant argues the trial court improperly discounted Bryan’s affidavit as self-serving (and notes Bryan was not a party to the action in any event). Appellant points out an affidavit is not invalid merely because the affiant attests to a fact benefitting himself. See Stone v. Cazeau, 2007-Ohio-6213, ¶ 14, 16 (9th Dist.) (a self-serving affidavit is “not to be discounted out of hand” as a factual affidavit can carry the non- movant’s burden, abrogating any prior decisions suggesting otherwise).  9 {¶33} However, the trial court considered the facts in Bryan’s affidavit, including his discussion of donations. In a case cited by the court, the debtor-affiant’s statement that a creditor “accepted” a note as “payment in full” for the obligation because the note he mailed was essentially labeled self-serving because it was a conclusion of law supported by no evidence of acts by the creditor that legally constituted acceptance as payment in full. Natl. Collegiate Student Loan v. Dunlap, 2018-Ohio-2701, ¶ 37 (4th Dist.). Contrary to Appellant’s suggestion, it does not appear the trial court was declaring an affiant is unable to swear that he knows specific facts if those facts could be considered self-serving to the declarant. In any event, our review is de novo. {¶34} A factual affiant’s statement that is essentially an opinion on a legal conclusion is not dispositive to defeat summary judgment. In other words, while taking Bryan’s belief that he was not a subtenant as true, any legal declaration that he was never a subtenant is not taken as true. See Civ.R. 56(E) (“Affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit”); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 186 (1997) (compliance with the rule requires the summary judgment evidence “setting forth specific facts”). Although the belief of a party to an agreement may become a factual issue where proper and relevant, it would not override the law on evaluating a sublease versus a license. {¶35} On the topic of Bryan’s denial of the sublease label, even in the case of a written “license,” the name the parties give the agreement does not govern. Waterman v. Mackenzie, 138 U.S. 252, 256 (1891) (“a license does not depend upon the name by which it calls itself, but upon the legal effect of its provisions”). In other words, the label attached by the parties does not control, as courts look to the substance of the arrangement when determining whether the agreement resulted in a sublease. See Tillimon v. Hasan, 2004-Ohio-687, ¶ 17 (6th Dist.) (a “management agreement” was in actuality a sublease, to which the landlord did not consent); Fairbanks at 120 (evaluating whether “the nature of the arrangement was such as in law would constitute an assignment of the lease or a subletting of the premises”). {¶36} It is not the facts that are disputed but the application of the law to the facts and the ultimate legal conclusion that “the premises or any part thereof [were] sublet or under-leased or under-rented in its entirety or in part” (the language of the Facility Lease). Bryan may have used various areas of the 15,000-foot building while assisting with Appellant’s museum agenda;  10 however, he was also provided one or more dedicated spaces. Bryan’s occupancy of the premises to volunteer or work for Appellant was not limited to that “necessary to do the act and no further” but was instead essentially “for all purposes not prohibited” by the oral agreement. DiRenzo, 165 Ohio St. at paragraph one of the syllabus. {¶37} Storing certain tools may have been incidental to his working on items relevant to the leased premises, but his occupation extended beyond this. A reasonable person could only find Bryan had exclusive possession of a discrete space in the premises that was more than incidental to the service arrangement with the lessee. Bryan was permitted to store unrelated collections of parts and operate his private motorcycle repair business from the premises, which was unrelated to the lessee’s agenda. In addition, the evidence of his establishment of a residence (unrelated to any function of the alleged license) assisted in further pushing the arrangement past that of a mere license, as a matter of law. No reasonable person could find Bryan’s possession of the defined areas where he kept his belongings was intended to be open for simultaneous possession by Appellant or others. The actual use and occupancy was only consistent with a functional transfer of exclusive possession of a dedicated portion of the floor space premises, however small, to a tenant for a substantial time that continued month after month; the occupation was not merely incidental or only as necessary to the performance of the oral agreement but was for all purposes a tenant would enjoy. On such basis, this assignment of error is overruled. ALLEGED WAIVER OF SUBTENANCY BREACH {¶38} Alternatively, Appellant’s second assignment of error contends: “The Trial Court Erred in Denying Beach Park Summary Judgment on its Estoppel/Waiver Arguments and in Granting Stop 65 Summary Judgment.” {¶39} Appellant emphasizes a clause against subletting without written consent can be waived by the lessor where instead of electing to declare the lease forfeited due to the breach, the lessor waives the forfeiture by accepting rent accruing after the breach. See, e.g., Brokamp v. Linneman, 20 Ohio App. 199, 200-202 (1st Dist. 1923). Appellant then makes two arguments. {¶40} First, Appellant says any subtenancy of John Bryan was approved by the lessor prior to Appellee’s acquisition of the shopping center. In support, Appellant cites a singular paragraph in three affidavits from three members of the board stating they “never authorized any subleases to any person that were not in existence at the time that Stop 65 bought the Shopping Center.” However, this statement was non-specific and did not refer to approval, written or  11 otherwise, by the prior lessor. Furthermore, in referring to an arrangement existing before Appellant purchased the premises, the cited statement was clearly not related to Bryan. As reviewed in the prior assignment of error, Appellant’s own evidence established Bryan was not occupying the premises when Appellee purchased the premises in 2021 (or when Appellee initiated the eviction process against TBP in 2022). We also note Appellant does not reference community standards (or compliance with standards imposed by other leases) in an attempt to argue written consent would have been unreasonably withheld. {¶41} Second, Appellant argues Appellee waived any sublease arrangement with Bryan. Appellant claims Appellee knew of the existence of subtenants and thereafter accepted rent that was essentially from Appellant. In support, Appellant points to a combination of occurrences in the eviction action Appellee filed against TBP (on April 8, 2022). For instance, at a hearing in that case, Appellee’s counsel noted the action was against TBP not TBP’s subtenants, who Appellee was not seeking to evict (in that action). He referred to “subtenants in the property, including Beach Park, and I believe there’s one or two others who are paying rent.” He asked TBP to deposit its $100 rent along with rent it was receiving from subtenants pending final disposition. TBP’s ability to remain in possession pending the eviction while collecting rent from subtenants was described as unjust, at which point the $583 TBP was receiving from Appellant was offered to be deposited with the court and the court so ordered. See Def. S.J. Mot. (citing 4/28/22 and 6/6/22 transcripts in TBP eviction action). After the March 14, 2024 summary judgment was granted against TBP, Appellee moved to release the escrowed rent, which the court granted on April 22, 2024. {¶42} Contrary to Appellant’s contention, these occurrences did not constitute “an act of waiver/estoppel” of the John Bryan subtenancy breach claim. As Appellee points out, the bond was to be posted by TBP, and Appellee received it after succeeding in the TBP eviction action, before which Appellant was not obligated to pay Appellee. (As admitted by Appellant’s brief, Appellant was a subtenant under a sublease with TBP, a direct tenant of TSH from whom Appellee bought the premises). That the party subject to the court’s order had its subtenant send rent to the court instead of collecting it before sending it to the court would not transform the payments into a situation of Appellee accepting rent from the subtenant. Moreover, the issue being discussed in the cited portion of the action against TBP was the existence of TBP’s subtenants who paid rent to TBP, including Appellant (who was not a party to that action, as emphasized by TBP and the court  12 in setting the rent escrow amount). And again, Bryan was admittedly not present at the premises in 2022 when the cited reference to subtenants was made. {¶43} Appellant criticizes the trial court’s holding on this topic as unrelated to Appellant’s waiver of the subtenancy argument. The court found Appellant’s waiver arguments based on Appellee’s prior litigation against TBP failed while pointing out the prior forcible entry and detainer action was not barred to a later action if the issue was not litigated. See Hamdan v. Traish, 2015-Ohio-4561, ¶ 40 (7th Dist.), citing R.C. 1923.03. However, it appears the trial court was making the point that Appellee’s prior action was between the lessor and its tenant, not between the lessor and the tenant’s subtenants, which is a point we also make in our de novo review. {¶44} Lastly, we note after Appellee finally obtained a judgment evicting TBP, Appellee provided Appellant notice of default with time to cure alleging Appellant was in breach of the Facility Lease by allowing subtenants (including TBP, Total Restore, and any unknown subtenants). Appellee also served notice on the Commission as required by the NDE. Appellant replied with a notice of cure, saying it terminated any subleases related to TBP and Total Restore. Upon viewing the extent of the occupation of the premises by other subtenants, Appellee filed the within action, and Appellant immediately filed a motion to escrow its rent with the court. (5/14/24 Mot.). Before a ruling could be made, the judge recused, requiring a substitute assignment by the Supreme Court. (5/23/24 J.E.); (5/24/24 Assign.). According to Appellant’s notice of clarification of rental payments, one rent check was delivered on May 31, 2024 (for the July rent). (6/18/24 Not.). Appellant does not raise this as waiver. After a pretrial, the court memorialized the following: “the parties agreed that all rental payments are current through July 2024, and that acceptance will not be deemed prejudicial against the plaintiff.” (6/24/24 J.E.). This assignment of error is overruled. LACK OF ADDITIONAL 30-DAY TERMINATION NOTICE {¶45} Appellant’s third assignment of error provides: “The Trial Court Erred in Denying Beach Park’s Summary Judgment based on Stop 65’s Failure to Provide a Thirty-Day Notice of Termination and in Granting Stop 65 Summary Judgment over the Argument.” {¶46} As required by the Facility Lease, Appellee served Appellant with a contractual 30- day notice of default with time to cure (on subtenants and items beyond the premises covered by the lease). This notice specified, “Failure to do so will result in the termination of the Lease.” As  13 required by the NDE, notice was also served on the Commission. Appellant cured some issues and gave notice the cure was complete. Upon discovering the alleged breaches remained, Appellee provided the statutory 3-day notice to vacate the premises. See R.C. 1923.01(A) (forcible entry and detainer action); R.C. 1923.02(A)(9) (“[a]gainst tenants who have breached an obligation imposed upon them by a written rental agreement”). R.C. 1923.04(A) (“party desiring to commence an action under this chapter shall notify the adverse party to leave the premises, for the possession of which the action is about to be brought, three or more days before beginning the action”). {¶47} Appellant argues Appellee was contractually required to provide a second 30-day notice constituting a notice of termination before serving the statutory 3-day notice to vacate the premises. Before reaching the contractual argument, we address Appellant’s complaint that the municipal court “got distracted” by a non-contractual analysis. We point out the reason the trial court undertook said analysis was because Appellant’s summary judgment motion on this topic began by claiming Appellee did not complete the process of termination under Ohio law. {¶48} Appellant first observed a forcible entry and detainer action determines only the right to immediate possession of the property. Farla LLC v. Pretlow, 2021-Ohio-4468, ¶ 4 (9th Dist.) (while stating the forcible entry and detainer action would become moot if the tenant moved out), citing Seventh Urban, Inc. v. Univ. Circle Prop. Dev., Inc., 67 Ohio St.2d 19, 25, fn. 11 (1981), citing R.C. 1923.03 (the action is not a bar to a later action brought by either party). Appellant then suggested the law required, in all cases, a notice to terminate prior to the 3-day notice to vacate as part of a set of steps ending with the eviction action. In support, Appellant cited excerpts of cases discussing a residential lease statute. Stop 65, Lorain C.P. No. 22 CV 206454 at 12, 14 (finding TBP’s tenancy was month-to-month due to a lease defect and noting residential tenant law set forth a series of steps including a termination notice), citing Siegler v. Batdorff, 63 Ohio App.2d 76, 83 (8th Dist. 1979), citing R.C. 5321.17(B) (30-day notice to terminate month- to-month tenancy). Appellant’s motion failed to recognize the Lorain court then found the statute irrelevant to the commercial lease. Id. {¶49} Accordingly, the municipal court in the present case was forced to point out that R.C. 5321.17 does not apply to commercial leases. Maggiore v. Kovach, 2004-Ohio-722, ¶ 20 (where the Supreme Court held, “Given that the terms ‘tenant’ and ‘landlord’ as used in R.C. 5321.17(B) do not apply to commercial leases, landlords are not required to provide tenants with  14 at least 30 days' notice to terminate a commercial tenancy.”). This holding is not contested on appeal. {¶50} We turn to Appellant’s contractual argument under the “Default by Lessee” clause, which provides in pertinent part: If default be made . . . in the observance or performance of any of the terms, condition or agreements herein contained, Lessor shall have the following remedies, provided that he has first given Lessee written notice specifying such default and Lessee has failed to cure such default within thirty (30) days after receiving said notice. a. Lessor may sue to collect all sums . . . and/or for all damage . . . b. Lessor may sue to restrain by injunction any violation or threatened violation of the covenants, conditions, or provisions. Lessor may, within thirty (30) days notice to Lessee and without demand for rent due or for the observance or performance of any of said terms, conditions or agreement, terminate this lease, re-enter said premises and removal of all persons and property therefrom, using force as may be necessary. If this lease shall terminate before its expiration by reason of Lessee’s default, the same may be re-rented by Lessor (but Lessor shall not be obligated to do so) . . . Facility Lease, Sec. XI (plus no obligation to re-rent if terminated early). {¶51} Appellant relies on part of the second sentence in subsection b. Appellant concludes an additional 30-day notice was an express precondition to terminate the lease and this must occur before commencement of the process in Chapter 1923 (3-day notice to vacate followed by the eviction action). This argument was not clearly specified in the motion for summary judgment, which seemed to generally argue a notice of termination was required (without mentioning an additional 30 days) while claiming a notice to terminate and a notice to vacate were separate steps mandated by Ohio law. {¶52} In response to the argument in Appellant’s brief, Appellee asserts the cited sentence is not related to an action under Chapter 1923 but merely establishes a condition granting the landlord the right to exercise self-help. Compare Facility Lease, Sec. XI, subsec. b to R.C. 1923.02(A)(9) (action against tenant breaching written rental agreement) and R.C. 1923.04(A) (3- day notice to vacate before commencing action for possession). Appellee points out it chose to  15 utilize the safer statutory remedy and litigated the entire matter in court instead of attempting to exercise its contractual right to a self-help forcible removal of Appellant without a court decision, order, or assistance. Besides avoiding a later claim that the termination for self-help was improper, it avoided a potential unpeaceable confrontation by adding the assistance of an officer of the law in effecting the removal. See R.C. 1923.13(A); 1923.14(A). {¶53} It is not disputed that the ability to file a forcible entry and detainer action exists ev