This case is a landlord/tenant dispute regarding a lease agreement between Plaintiff/landlord Trustees Main/270 and Defendants/tenants ApplianceSmart, Inc., and JANONE, Inc. The claims arise from Defendant ApplianceSmart’s failure to pay pursuant to a lease agreement, and Defendant JANONE’s obligations as guarantor under the lease.
Plaintiff filed a motion in limine related to two witnesses Defendants intended to call at trial to discuss the mitigation issue: Tony Isaac and Virland Johnson. Isaac is a director and the Chief Executive Officer of Defendant JANONE and the director of the parent company of Defendant ApplianceSmart. He will testify to Defendants’ attempts to provide a replacement tenant, show Plaintiff failed to mitigate its damages, and testify regarding the value of Plaintiffs replacement lease as an offset to any claimed damages. Johnson, the Chief financial officer of Defendant JANONE and former Chief Financial Officer of the parent company of ApplianceSmart, will offer similar testimony.
Plaintiff argued that Defendants did not disclose Isaac and Johnson as expert witnesses.
Leasing Expert Witnesses
Virland A. Johnson provided leadership and strategic direction while serving in C-Level executive roles in public and privately held companies such as Cultural Experiences Abroad, Inc., Fender Musical Instruments Corp., Triumph Group, Inc., Unitech Industries, Inc. and Younger Brothers Group, Inc. Johnson’s more than 25 years of experience is primarily in the areas of process improvement, complex debt financings, SEC and financial reporting, turn-arounds, corporate restructuring, global finance, merger and acquisitions and returning companies to profitability and enhancing stockholder value. Johnson holds a Bachelor’s degree in Accountancy from Arizona State University.
Tony Isaac has invested in various companies, both private and public from 1980 to present. Isaac’s specialty is negotiation and problem-solving of complex real estate and business transactions. Isaac has served as a director of Live Ventures Incorporated since December 2011. Isaac graduated from Ottawa University in 1981, where he majored in Commerce and Business Administration and Economics.
Discussions by the Court
Plaintiff urged the Court to prohibit Isaac and Johnson from offering any opinion testimony: (1) based upon standards within the commercial leasing industry; (2) that the Plaintiff’s actions in mitigation fail to comply with such standards; and (3) that the value of the replacement tenant lease (Plaintiff’s lease with AutoZone) retroactively offsets the rent not paid over the three years.
Defendants countered that the witnesses’ familiarity with lease terms as lessees of numerous properties across the country, qualifies as permissible lay testimony, not expert testimony.
Defendants proposed testimony about reasonableness of mitigation efforts and the value of the replacement tenant lease based on the witnesses’ “experiences as businessmen involved on a routine basis with the leasing of properties for their companies’ stores and their experience with landlords requiring or not requiring the sorts of extreme requirements that the Plaintiff demanded here.”
Analysis
While Defendants insisted that the testimony will not be based on technical or other specialized knowledge, the Court held that Isaac and Johnson’s testimony, however, would be improper to the extent their testimony begins to apply their years of experience and specialized knowledge of the commercial leasing industry to define industry standards, conclude on the reasonableness of the Plaintiffs’ actions, or conclude a value of the replacement tenant lease.
However, the Court added that Isaac and Johnson could testify as to their personal knowledge and observations of the events in this case.
Held
The Court granted in part the Plaintiff’s motion in limine prohibiting Tony Isaac and Virland Johnson from offering any opinion testimony based upon standards within the commercial leasing industry, testimony that the Plaintiff’s actions in mitigation fail to comply with such standards, and any opinion that the value of the AutoZone lease retroactively offsets the rent not paid over the three years.
Key Takeaways:
- Lay Testimony vs. Expert Testimony: The Court made a clear distinction between lay testimony and expert testimony. Tony Isaac and Virland Johnson’s familiarity with lease agreements did not automatically qualify them as experts. The Court emphasized that specialized knowledge of the commercial leasing industry would fall under expert testimony, which requires formal disclosure.
- Failure to Disclose Expert Witnesses: The Defendants did not disclose Isaac and Johnson as expert witnesses, which proved decisive. This non-disclosure led to the Court partially granting the motion in limine, preventing Isaac and Johnson from offering opinion-based testimony on critical aspects of the case.
Case Details:
| Case Caption: | Trustees Main/270 Llc V. Appliancesmart Inc. Et Al |
| Docket Number: | 2:22cv1938 |
| Court Name: | United States District Court, Ohio Southern |
| Order Date: | May 4, 2025 |
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