Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SUBURBAN REALTY LP,

Plaintiff,

Case No. 1:25-cv-137

v.

JUDGE DOUGLAS R. COLE

WAEL SHARAYDEH,

Defendant.

OPINION AND ORDER

This case involves a lease dispute. Defendant Wael Sharaydeh d/b/a VIP

Wireless & Smoke Shop (VIP Smoke Shop) moves to dismiss, arguing that it had a

unilateral right to cancel the lease at issue here some fourteen months after that

lease started. (Doc. 2). The Court disagrees. And, because VIP Smoke Shop seeks

dismissal solely on that basis, the Court DENIES its motion.

BACKGROUND1

In October 2021, VIP Smoke Shop entered an agreement to lease shopping

center retail space from Plaintiff Suburban Realty LP (Suburban Realty). (Doc. 1-1,

#6, 10). This lease, (attached to the Complaint as Exhibit A), was set to run for five

years, beginning on December 1, 2021. (Id. at #10). There was, however, a problem.

At the time the parties executed the lease in October, another smoke shop (MD Vape)

1 The Court draws these facts from the Complaint originally filed in state court, (Doc. 1-1),

because that version of the complaint contains the exhibits the parties reference. Because

this matter is before the Court on Defendant’s motion to dismiss, the Court must accept the

well-pleaded allegations in the Complaint as true. Bassett v. Nat’l Collegiate Athletic Ass’n,

528 F.3d 426, 430 (6th Cir. 2008). So while the Court relies on the Complaint’s allegations to

recount the case’s background, it reminds the reader that they are just that—allegations.

was currently occupying the premises. (Id.). MD Vape also had an option to renew its

lease to that same property on or before December 1, 2021. (Id.). So VIP Smoke Shop

and Suburban Realty, anticipating that MD Vape might not vacate the property,

agreed in their lease that if MD Vape renewed its preexisting lease, then the VIP

Smoke Shop lease would become void. (Id.).

The October lease agreement also addressed another possibility (and one more

relevant here): that MD Vape might instead become a holdover tenant (not renewing

its lease but also refusing to vacate). On this front, the VIP Smoke Shop lease

provided that Suburban Realty would use its “commercially reasonable best efforts

to cause MD Vape to quit the Premises as soon as practicable.” (Id.). Assuming that

Suburban Realty was successful in those efforts, the parties’ five-year lease period

would begin the first day of the calendar month following MD Vape’s departure and

Suburban Realty’s completion of any repairs or maintenance necessary to make the

property “rent ready.” (Id.). But in language key to VIP Smoke Shop’s argument in

the instant motion, the lease then went on to provide that if Suburban Realty “has

not yet made the Premises available to Tenant by May 1, 2022, Tenant may at any

time thereafter cancel this Lease by written notice to Landlord.” (Id.).

From what the Court can tell, MD Vape in fact became a holdover tenant, and

Suburban Realty removed it from the property only after prevailing in “protracted

litigation.” (Id. at #13). Then, on September 19, 2023—roughly a year and half after

the May 1, 2022, deadline noted above—the parties in this case signed a notarized

letter, (attached to the Complaint as Exhibit B), agreeing that the five-year lease they

had signed on October 11, 2021, would commence on the first day of the next month—

October 1, 2023. (Id. at #7, 13).

But then things took yet another turn. VIP Smoke Shop, “through no fault of

Suburban, failed to obtain all … permits necessary to occupy the leased premises.”

(Id. at #7). And as it had not taken occupancy, VIP Smoke Shop also chose not to pay

any rent. (Id.). This state of affairs continued for roughly fourteen months, until

December 6, 2024, at which time VIP Smoke Shop’s attorney sent a letter, (attached

to the Complaint as Exhibit C), purporting to “exercis[e] [its] option to cancel this

Lease” because the property was not made available by the original May 1, 2022,

deadline. (Id. at #7, 14). This cancellation letter also noted that if Suburban Realty

could resolve the permitting issues with the City of Fairfield, VIP Smoke Shop would

be happy to resume negotiations regarding leasing that space. (Id. at #14).

Suburban Realty maintains that this purported cancellation violates the

parties’ retail lease and has no effect, in turn meaning that VIP Smoke Shop breached

the lease. (Id. at #7). And citing the lease’s default provision, Suburban Realty sued

VIP Smoke Shop in Ohio state court for the entire value of the lease—$581,794.84.

(Id. at #7–8). VIP Smoke Shop, relying on diversity jurisdiction, removed the case to

this Court before being served. (Doc. 1). VIP Smoke Shop then moved to dismiss under

Federal Rule of Civil Procedure 12(b)(6). (Doc. 2). That motion has been briefed and

is now ripe for the Court’s review.

LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

a “complaint must present sufficient facts to ‘state a claim to relief that is plausible

on its face.’” Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d 315, 319 (6th Cir.

2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In assessing plausibility, the

Court “construe[s] the complaint in the light most favorable to the plaintiff.” Bassett

v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (cleaned up).

A court analyzing a motion to dismiss under Rule 12(b)(6) generally must

confine its review to the pleadings. Armengau v. Cline, 7 F. App’x 336, 343 (6th Cir.

2001). That said, the Sixth Circuit has “taken a liberal view of what matters fall

within the pleadings for purposes of Rule 12(b)(6). If referred to in a complaint and

central to the claim, documents attached to a motion to dismiss form part of the

pleadings.” Id. at 344.

LAW AND ANALYSIS

VIP Smoke Shop’s Motion to Dismiss rests—in its entirety—on the claim that

“the plain and unambiguous language of the Lease” conferred on VIP Smoke Shop a

“contractual right” to cancel the lease “at any time” because the property was not

made available by May 1, 2022. (Doc. 2, #20–21). And according to VIP Smoke Shop,

because it exercised that contractual right—thereby voiding the lease—there can be

no breach of contract. (Id. at #21). Suburban Realty, conversely, maintains that the

lease did not grant VIP Smoke Shop the “unilateral authority” to cancel their

agreement, or at the very least, that VIP Smoke Shop waived that right by signing

the commencement letter in September 2023. (Response, Doc. 10, #37, 41). Thus, the

Court must answer today both (1) whether the lease granted VIP Smoke Shop a

contractual right to opt-out, and (2) if so, whether VIP Smoke Shop still could exercise

that right when it did so on December 6, 2024.

In Ohio,2 if a contract is clear and unambiguous, then its interpretation is a

matter of law. Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 474

N.E.2d 271, 272 (Ohio 1984). And the Court finds the provision at issue to be clear

and unambiguous, at least as to the question of whether VIP Smoke Shop could

terminate the lease after signing the commitment letter in September 2023. The short

answer is that VIP Smoke Shop had no such right. Accordingly, the Court denies the

Motion to Dismiss (Doc. 2).

To see why, the Court starts with some settled principles of Ohio law that

govern contract interpretation. “The cardinal purpose for judicial examination of any

written instrument is to ascertain and give effect to the intent of the parties.” Foster

Wheeler Enviresponse, Inc. v. Franklin Cnty. Convention Facilities Auth., 678 N.E.2d

2 The Court interprets the contract under Ohio law. As this is a diversity case, the Court must

“appl[y] the law, including the choice of law rules, of the forum state.” Whitehouse Condo.

Grp., LLC v. Cincinnati Ins. Co., 569 F. App’x 413, 415 (6th Cir. 2014). And “Ohio’s choice of

law rules require a court to apply the law of the state with the most significant relationship

to the contract.” Int’l Ins. Co. v. Stonewall Ins. Co., 86 F.3d 601, 604 (6th Cir. 1996). The

Retail Lease was executed in, and concerns property in, Ohio. (Doc. 1-1, #10–12). So the Court

applies Ohio law here.

519, 526 (Ohio 1997). And “[t]he first place a court should look in furtherance of that

purpose is the contract’s plain language.” Ohio Nat’l Life Ins. Co. v. Cetera Advisor

Networks, LLC, No. 1:19-cv-47, 2021 WL 2819838, at *2 (S.D. Ohio July 7, 2021). In

doing so, though, a court must not read selected terms in isolation. Rather, a court

must read the contract “as a whole.” Foster Wheeler Enviresponse, Inc., 678 N.E.2d at

526. If a particular construction would render a condition in a contract meaningless,

“and it is possible to give it another construction that would give it meaning and

purpose,” the court should apply the latter. Id. Moreover, if the language of a contract

is clear and unambiguous—meaning it can be given a definite legal meaning—then

the court should look no further. Sunoco, Inc. (R & M) v. Toledo Edison Co., 953

N.E.2d 285, 292 (Ohio 2011).

Against that legal backdrop, the relevant portion of the parties’ lease reads as

follows: “[i]f Landlord has not yet made the Premises available to Tenant by May 1,

2022, Tenant may at any time thereafter cancel this Lease by written notice to

Landlord in which event this Lease will become void and of no further effect.” (Doc.

1-1, #10). VIP Smoke Shop interprets this to mean that if the property was not made

available by May 1, 2022, it has a unilateral right to cancel the lease, “at any time

thereafter”—just like the lease says. (Doc. 2, #21; Doc. 13, #57). That is, VIP Smoke

Shop contends that it has no deadline to exercise that right. Under its theory, VIP

Smoke Shop could move into the property, make rent payments for, say, three years

of the five-year term, and nonetheless retain the right to terminate the lease at will.

According to Suburban Realty, VIP Smoke Shop is essentially arguing (1) that

making the property available by the May date is a “condition precedent” of the

parties’ lease, (Doc. 10, #40–41), and (2) that because that condition did not occur, the

lease never became effective. Then, to combat that result, Suburban Realty cites case

law stating both that condition precedents are disfavored and that they can be

waived. (Id. at #40–42). So, Suburban Realty says, VIP Smoke Shop has waived any

right it may have had to challenge the formation of the lease here on those grounds.

(Id.).

VIP Smoke Shop, for its part, argues that Suburban Realty errs in claiming

that VIP Smoke Shop is treating the cancellation provision as a condition precedent

to the formation of the lease itself. (Doc. 13, #55). Rather, VIP Smoke Shop says that

“the cancellation provision was triggered by Plaintiff’s failure to perform under the

Lease after it became effective.” (Id. (emphasis added)). In other words, VIP Smoke

Shop says that the language did not create a condition precedent to formation but

rather created a conditional right for VIP Smoke Shop to cancel the already-in-

existence lease.

So, it appears both parties agree that the lease agreement took effect. The

dispute centers instead on whether VIP Smoke Shop could exercise a conditional right

to terminate that agreement at the time it attempted to do so. VIP Smoke Shop says

yes, Suburban Realty says no.

The Court begins its analysis by noting that it agrees with the parties that

providing the premises by May 1, 2022, was not a condition precedent to lease

formation. The lease itself took effect in October 2021 when the parties executed it.3

(Doc. 1-1, #6, 12). True, at the time it became effective, it did not confer any immediate

possessory rights in the leased property, nor did it even guarantee when such

possession would begin. But the contract nonetheless became effective as of that date.

As a result, the contract conferred certain rights on each of the parties. Most relevant

to the instant dispute, the Court agrees with VIP Smoke Shop that the lease conferred

on VIP Smoke Shop a conditional right to terminate the lease. Specifically, if

Suburban Realty did not make the premises available to VIP Smoke Shop by May 1,

2022, (the condition) then VIP Smoke Shop had the right to terminate the lease

instead of moving forward to take possession of the property for a five-year term (the

conditional right).

But that agreement marks the point in the road where the Court and VIP

Smoke Shop part ways in their understandings of the contract. VIP Smoke Shop

waited some thirty-one months after the condition occurred (or failed to occur,

depending on how one wants to characterize it) to seek to exercise its conditional right

to cancel the lease. And perhaps even more importantly, rather than exercising its

right to cancel, it took actions directly “inconsistent with an intent to claim [that]

right.” Mark-It Place Foods, Inc. v. New Plan Excel Realty Tr., Inc., 804 N.E.2d 979,

1000 (Ohio Ct. App. 2004); see also Eagle Realty Invs., Inc. v. Dumon, 201 N.E.3d 963,

970 (Ohio Ct. App. 2022) (“A party may waive a contractual right through a voluntary

3 The Complaint states that VIP Smoke Shop entered the lease on or about October 11, 2021.

(Doc. 1-1, #6). The lease itself states that it was “made this 11th day of October 2021,” (id. at

#10), but was not signed by Defendant until “this 22nd day of October, 2021,” (id. at #12). It

suffices here that the lease was signed, and became effective, in October 2021.

or intentional act inconsistent with claiming it.” (cleaned up)). To expand on that a

little, when Suburban Realty failed to make the property at issue available by May

1, 2022, VIP Smoke Shop had a right to terminate the lease. But it did not do so. Nor

did it terminate the lease during the sixteen months that it took Suburban Realty to

evict MD Vape from the premises. (Doc. 1-1, #13). To the contrary, in September 2023

VIP Smoke Shop signed a notarized “commencement date letter” agreeing that the

lease would begin on October 1, 2023—a letter entirely inconsistent with exercising

its right to terminate the lease rather than move forward. (Id.). And then, VIP Smoke

Shop let the lease commence and run, with no mention of cancelling, for another

fourteen months (during which time it became delinquent on rent). (Id. at #7). It

sought to terminate the lease only when it failed to obtain the correct permits. (Id. at

#7, 14 (stating that VIP Smoke Shop “cannot move forward … unless and until he is

legally permitted to move”)).

Admittedly, the lease says that VIP Smoke Shop “may at any time thereafter

cancel.” (Id. at #10). But taking “at any time” to mean that VIP Smoke Shop can

unilaterally terminate the lease for the entirety of its remaining term4 (once the

condition is met) is absurd in the context of the contract as a whole. Indeed, doing so

would render other parts of the lease without much meaning. For example, as

4 VIP Smoke Shop’s argument appears to go even further. It contends “there was no breach”

because the lease was “cancelled and is void.” (Doc. 2, #21). But by the time VIP Smoke Shop

purported to terminate the lease, it was already fourteen months delinquent on rent. (Doc.

1-1, #7). Thus, under VIP Smoke Shop’s interpretation, it had the right to, “at any time,”

retroactively rescind the lease—treating the contract as though it never existed. But this

theory is incompatible with leases of real property; Suburban Realty cannot retroactively find

a different tenant for months that have already passed.

happened in this action, VIP Smoke Shop could simply cancel the lease if Suburban

Realty attempted to hold it liable for default. (Id. at #6–8, 12). And it is unreasonable

to assume that the parties would bury such a lease-warping right deep within a

paragraph primarily focused on determining the lease’s commencement date under

various contingencies. (Id. at #10).

At bottom, conditions are one of several ways contracts allocate risks. E. Allan

Farnsworth et al., Contracts: Cases and Materials, 751 (8th ed. 2013) (“[M]aking an

event a condition involves an allocation of the risk of the nonoccurrence of the

event.”); see also Royal Indem. Co. v. Baker Protective Servs., Inc., 515 N.E.2d 5, 8

(Ohio Ct. App. 1986) (“An important function of contract law is to enforce the parties’

agreed-upon allocation of risk.” (citing Anthony T. Kronman & Richard A. Posner,

The Economics of Contract Law (1979))). The contractual provision at issue here

addressed the risk that VIP Smoke Shop may not be able to take possession of the

property by May 1, 2022. The parties’ agreement on that front was that VIP Smoke

Shop could walk away from the lease if that happened, free to set up shop elsewhere.

But VIP Smoke Shop chose not to exercise that right; instead it opted to move forward

with the original lease once the property became available. In electing that path, VIP

Smoke Shop waived its conditional right to cancel. Accordingly, the Court denies its

Motion to Dismiss (Doc. 2).

CONCLUSION

For the reasons discussed above, the Court DENIES Defendant Wael

Sharaydeh d/b/a VIP Wireless & Smoke Shop’s Motion to Dismiss the Complaint

(Doc. 2).

SO ORDERED.

November 12, 2025 —

DATE DOUGLAS R. COLE

UNITED STATES DISTRICTYJUDGE

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