Small businesses are an important strand in the fabric of Lakewood, so it’s disappointing when a new business and their landlord cannot get along.
Nick and Tammy Asimakis, owners of the building at 14412 Detroit Ave, on Wednesday withdrew their eviction case against Two Dads’ Diner in Lakewood Municipal Court. (Read the complete court filings.)
The Rocky River couple had claimed that Two Dads’ Diner, owned by John Kamkutis and Frank Zingale, broke the terms of their lease by failing to make rent payments for the months of November and December. The lease was signed on August 31, 2009.
Tammy Asimakis issued their tenants a three-day notice to leave the premises on December 16, 2009 and six days later filed eviction papers and asked for back payments.
On December 31st, John Kamkutis, who is also a Lakewood School Board member, deposited the delinquent checks in the Asimakis’ mailbox, and included a $1,600 check to cover January’s rent. He also provided payment for utilities.
Magistrate felt eviction was warranted
Magistrate Thomas J. Wagner heard testimony regarding the situation from Asimakis and Kamkutis on January 7, 2010 and concluded that Two Dads’ Diner failed to pay their rent and needed to vacate the building by January 31st.
Business operating account statements provided by Kamkutis indicate the checks he provided Asimakis were cashed the day after the hearing. The statements show Two Dads’ Diner had a cash balance of about $4,800 near the end of the month, and a total of around $35,000 in transactions.
Violations of lease agreement and Ohio law cited by Two Dads’ lawyer
A little less than two weeks after the magistrate’s decision, a lawyer representing Two Dads’ Diner filed objections to the report and made a request to the court to overrule the judgment. Anthony J. Coyne of Mansour, Gavin, Gerlack & Manos argued that the landlord had violated the terms of the lease and Ohio law.
He said Ohio law prohibits the acceptance of money following the service of a three-day eviction notice. Coyne suggested that the acceptance of January’s rental payment should waive the three-day eviction notice because cashing the check was inconsistent with the notice to vacate.
Coyne felt the magistrate did not give consideration to relevant terms of the lease. For instance, the lease specifically states three-day notice must be provided via registered or certified mail. It also states the tenants have 30 days to make payment after receiving the notice. Kamkutis and Zingale received neither.
Coyne also argued the lease stated the landlord – not the tenants, as the magistrate had ordered – should be responsible for all attorney’s fees.
In a possible explanation as to why the rent was late, Coyne wrote that the landlords refused to accept rental payments unless they were made out to Tammy Asimakis, even though Nick Asimakis was also named as a lessor in the rental agreement.
Where do things go from here?
The Asimakis’ dismissed their legal action before they could respond to Coyne’s objections. Two Dads’ Diner remains open and is generating pretty positive buzz, but one has to wonder what will happen next. Will landlord and tenant co-exist peacefully, or will there be hard feelings that linger and cause other issues down the road?