[Cite as Sharaydeh v. Litmer Properties, L.L.C., 2026-Ohio-3567.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
WAEL SHARAYDEH, :
CASE NO. CA2025-10-121
Appellant, :
OPINION AND
vs. : JUDGMENT ENTRY
9/14/2026
LITMER PROPERTIES, LLC, et al., :
Appellees. :
:
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2025-07-1752
Garvey, Shearer, Nordstrom, PSC, and John J. Garvey III and Jason E. Abeln, for
appellant.
Dressman Benzinger LaVelle psc, and Justin L. Knappick, for appellees.
OPINION
BYRNE, P.J.
{¶ 1} Wael Sharaydeh appeals the decision of the Butler County Court of
Common Pleas granting the motion to dismiss filed by Litmer Properties, L.L.C. and M.J.
Butler CA2025-10-121
Clips, Inc. (collectively, "the Landlords"). For the following reasons, we affirm.1
I. Factual and Procedural Background
A. The Master Lease, the Sublease, and the Dispute
{¶ 2} Litmer Properties owns real property in Walton, Kentucky. The company
leased a portion of that property to M.J. Clips pursuant to a lease agreement ("Master
Lease"). In 2022, M.J. Clips subleased that portion of the real property to Sharaydeh
pursuant to a sublease agreement ("Sublease"). The Sublease is subordinate and subject
to the Master Lease and contains a forum selection clause which states that "[a]ny
disputes . . . will be heard . . . in Butler County, Ohio."
{¶ 3} Sharaydeh operated a smoke shop on the property. Over time, disputes
arose between the Landlords and Sharaydeh over delinquent rent, non-permitted
advertising, and the condition of the property. On June 6, 2025, the Landlords delivered
notice of default to Sharaydeh. In the notice, the Landlords stated that Sharaydeh
materially breached the Sublease and requested that he cure those violations or vacate
the property. A few weeks later, on June 30, 2025, the Landlords delivered notice of
termination of the Sublease and notice to vacate the premises based on Sharaydeh's
alleged failure to cure his violations of the Sublease. Eventually, on July 22, 2025, the
Landlords initiated a forcible entry and detainer ("FED") action in Boone County, Kentucky
against Sharaydeh.
B. Sharaydeh's Complaint and the Landlords' Motion to Dismiss
{¶ 4} Rather than simply respond to the Landlords' Kentucky FED action, on July
16, 2025, Sharaydeh filed a complaint for declaratory judgment in the Butler County Court
of Common Pleas. Sharaydeh sought declarations that he was (1) "not in default of the
1. Pursuant to Loc.R. 6(A), we have sua sponte removed this appeal from the accelerated calendar. See 902 Carp Loveland L.L.C. v. Potts, 2026-Ohio-1313, ¶ 1, fn. 1 (12th Dist.).
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Sublease;" (2) that the Landlords "anticipatorily repudiated the Sublease;" and (3) that
the Landlords "waived any alleged default."2
{¶ 5} Sharaydeh included excerpts of both the Master Lease and the Sublease in
his complaint. However, the complaint did not ask for clarification or construction of any
particular lease provisions. Instead, Sharaydeh made various assertions that he was not
in default of the Sublease's provisions concerning the payment of rent and CAM charges,
advertisements, the sale of marijuana and CBD products, and the condition of the
property. He also argued that by changing the locks on the property, the Landlords
breached the terms of the Sublease and constructively evicted him. Sharaydeh based
these allegations on arguments about the facts of the matter, rather than on any particular
dispute about the meaning of the language in the Sublease.
{¶ 6} On August 8, 2025, the Landlords filed a motion to dismiss Sharaydeh's
complaint pursuant to Civ.R. 12(B)(6), arguing that Sharaydeh "fail[ed] to state a claim
upon which relief c[ould] be granted" because "[Sharaydeh] . . . materially breached the
Sublease and failed to cure those material defects . . ."
C. Trial Court's Decision
{¶ 7} On October 14, 2025, the trial court granted the Landlords' motion to
dismiss. The court relied heavily on Miami Valley Paper Co. Div. of Millen Inst. v.
Intercontinental Paper Corp., 1983 Ohio App. LEXIS 15917 (12th Dist. April 27, 1983),
stating that Miami Valley Paper was "almost dead on point." The court found that
Sharaydeh's complaint was not "justiciable in nature" because it "d[id] not seek
determinations of construction of either the Master Lease or of the subsequent sublease"
2. Sharaydeh also requested the following relief in his complaint: (1) that the Landlords "be restrained in an eviction action until such time as the issues herein are decided," (2) that the court order $13,832.94 be held in escrow until the issues in the complaint were decided; (3) that there be a jury trial on any issues triable; (4) that he be awarded attorney fees; and (5) any other relief he was entitled to. We will not address these requested forms of relief because they are not at issue on appeal.
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and did not seek "determinations as to any point of validity" of the Master Lease or
Sublease. The court also found that declaratory judgment was an "inappropriate
mechanism" to seek relief as the complaint only raised a single issue of fact (that is,
whether Sharaydeh breached the "contracts involved"). Further, the court found that there
was minimal hardship in not rendering declaratory relief as another "[s]uit ha[d] already
been filed in Kentucky." The court finally noted that "public policy and judicial economy"
would be "ill-served" if the court considered Sharaydeh's request for declaratory judgment
because, even if the court found Sharaydeh not to be in breach, a second action would
need to be filed to determine and award damages. Consequently, the trial court dismissed
Sharaydeh's complaint.
{¶ 8} Sharaydeh appealed, raising one assignment of error.
II. Law and Analysis
{¶ 9} Sharaydeh's sole assignment of error states:
THE TRIAL COURT ERRED WHEN IT DISMISSED THE
COMPLAINT FOR DECLARATORY JUDGMENT
PURSUANT TO CIV.R. 12(B).
{¶ 10} In his sole assignment of error, Sharaydeh argues the trial court abused its
discretion in granting the Landlords' motion to dismiss his declaratory judgment action
pursuant to Civ.R. 12(B)(6) because—as he argues—he did "request[] the trial court [to]
interpret the meaning of the terms of a commercial lease in relation to [the] default
disputes." He also argues that the trial court erred in its application of public policy. We
disagree.
A. Declaratory Judgments Overview
{¶ 11} "A declaratory judgment is a ruling that states the rights of parties or
expresses the opinion of the court on a question of law without ordering anything to be
done. Its distinctive characteristic is that it does not seek execution or performance from
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the opposing party." Miami Valley Paper, 1983 Ohio App. LEXIS 15917, at *3 (12th Dist.).
Rather, declaratory judgment actions provide a means by which parties can eliminate
uncertainty regarding their legal rights and obligations. Calvary Industries, Inc. v. Coral
Chemical Co., 2019-Ohio-1288, ¶ 10 (12th Dist.), quoting Mid-American Fire & Cas. Co
v. Heasley, 2007-Ohio-1248, ¶ 8. Declaratory judgments are governed by the Declaratory
Judgments Act, which is found in Chapter 2721 of the Ohio Revised Code.
{¶ 12} Pursuant to the Declaratory Judgment Act, a declaratory judgment may
"construe" a contract, and may do so "either before or after there has been a breach of
the contract." R.C. 2721.04. The Act further provides,
any person interested under a . . . written contract . . . or any
person whose rights, status, or other legal relations are
affected by a . . . contract . . . may have determined any
question of construction or validity arising under the . . .
contract . . . and obtain a declaration of rights, status, or other
legal relations under it.
(Emphasis added.) R.C. 2721.03. The applicability of declaratory judgment actions to
contracts includes the determination of parties' contractual rights and obligations under
lease agreements. Concrete Recovery, L.L.C. v. Nestle Purina Petcare Co., 2026-Ohio692, ¶ 26 (12th Dist.), citing Calvary at ¶ 10; see generally Harder Invest., L.L.C. v. PerinTyler Family Found., L.L.C., 2025-Ohio-4706 (12th Dist.).
{¶ 13} In determining whether a declaratory judgment is permissible, a court
examines (1) whether there is a real controversy between the parties, (2) which is
justiciable in character, and (3) whether speedy relief is necessary to preserve the rights
of the parties. Burger Brewing Co. v. Liquor Control Comm., Dept. of Liquor Control, 34
Ohio St.2d 93, 97 (1973); see also Donovan v. Lebanon, 2024-Ohio-6059, ¶ 29 (12th
Dist.), quoting Ohioans for Concealed Carry Inc., v. Columbus, 2020-Ohio-6724, ¶ 30.
{¶ 14} Traditionally, with regard to the second factor (that is, whether the
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controversy is "justiciable in character"), Ohio courts have employed a two-part test.
Burger Brewing at 97. The first prong considers the appropriateness of the issues for
judicial resolution, and the second prong evaluates the hardship incurred if judicial relief
is denied. Id., quoting Toilet Goods Assn. v. Gardner, 387 U.S. 158, 162 (1967).
{¶ 15} We applied these principles in Miami Valley Paper, 1983 Ohio App. LEXIS
15917, at *4-9 (12th Dist.). In that case, this court affirmed a trial court's decision to
dismiss a declaratory judgment action. First, we found that the requested declaratory
judgment action was inappropriate for judicial resolution—that is, nonjusticiable—
because the appellant's complaint requested a declaration of "nonliability of [appellant]
under the contracts" without raising any questions of construction or validity of the
contract provisions. Id. at *4-6. Instead, the request for declaratory judgment only raised
"a single question of fact, i.e., if the paper provided by the appellant [was] acceptable
under the terms of the contracts." Id. at *7. Second, we found that denying declaratory
relief caused minimal hardship to the appellant as the parties were already litigating a
similar issue with the same facts in a separate action. Id. Third, we found that speedy
relief was not "necessary for the preservation of rights which may otherwise become
impaired or lost" because the appellant was not confronted with any "threat of uncertainty
or irreparable injury." Id. at *8.
{¶ 16} Similarly, in Therapy Partners of America v. Health Providers, Inc., 129 Ohio
App.3d 572, 578 (10th Dist. 1998), the Tenth District Court of Appeals held that a
requested declaratory judgment in a contract case was not appropriate where "the
resolution of the controversy [was] largely dependent upon the determination of the facts
in the matter" and where "a cause of action had already been filed" in a separate
jurisdiction over such facts. Id. at 579. We also recognized these principles most recently
in Calvary, 2019-Ohio-1288, at ¶ 13-15 (12th Dist.), holding that "the trial court did not
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abuse its discretion in granting [appellee's] motion to dismiss" when "the factual questions
that [appellant] sought to have decided in its complaint for declaratory judgment [were]
pending in an action between the same parties" in a separate jurisdiction. See also
Keegan v. Sneed, 2000 Ohio App. LEXIS 4807, *8 (12th Dist. Oct. 16, 2000).
B. Standard of Review
{¶ 17} In this case, the trial court dismissed Sharaydeh's complaint pursuant to
Civ.R. 12(B)(6). That rule authorizes the dismissal of a complaint if it fails to state a claim
upon which relief can be granted. Marchetti v. Blankenburg, 2011-Ohio-2212, ¶ 9 (12th
Dist.). "In order to prevail on a Civ.R. 12(B)(6) motion, 'it must appear beyond doubt from
the complaint that the plaintiff can prove no set of facts entitling relief.'" Id., quoting DeMell
v. Cleveland Clinic Found., 2007-Ohio-2924, ¶ 7 (8th Dist.). In ruling on a complaint under
Civ.R. 12(B)(6), the trial court must presume that all factual allegations in the complaint
are true and draw all reasonable inferences in favor of the nonmoving party. Mitchell v.
Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). But unsupported legal conclusions are
not accepted as true for purposes of a motion to dismiss. Schulman v. Cleveland, 30 Ohio
St.2d 196, 198 (1972).
{¶ 18} Typically, "[a] trial court's order granting a motion to dismiss pursuant to
Civ.R. 12(B)(6) is subject to de novo review on appeal," meaning that this court must
independently review the complaint to determine the appropriateness of the trial court's
dismissal. BAC Home Loans Servicing, L.P. v. Kolenich, 2011-Ohio-3345, ¶ 35 (12th
Dist.), citing Sparks v. Bowling, 2009-Ohio-5071, ¶ 10 (12th Dist.) However, the Ohio
Supreme Court has recognized an exception to de novo review of a Civ.R. 12(B)(6)
dismissal that applies in a case such as the one before us. That is, the Ohio Supreme
Court has held that an appellate court must review the dismissal of a declaratory judgment
action on the basis of nonjusticiability under an abuse of discretion standard of review,
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rather than de novo review. Arnott v. Arnott, 2012-Ohio-3208, ¶ 13. An abuse of discretion
implies a ruling that is unreasonable, arbitrary, or unconscionable. Kent v. Lee, 2026-Ohio-2969, ¶ 51 (12th Dist.), citing Nwafo v. Ugwualor, 2024-Ohio-189, ¶ 11 (12th Dist.).
C. Analysis
{¶ 19} Applying these principles to the case before us, we find that the trial court
did not abuse its discretion in dismissing Sharaydeh's declaratory judgment action
pursuant to Civ.R. 12(B)(6) as it was not unreasonable to find that the request for
declaratory judgment was nonjusticiable.3
{¶ 20} Sharaydeh's complaint asked the trial court to find that he was "not in default
of the Sublease" with regard to multiple issues: the payment of rent and CAM charges,
allegedly impermissible advertisements, the sale of marijuana and CBD products, and the
condition of the property. The complaint also asked the trial court to find that the Landlords
breached the Sublease by constructively evicting him. However, none of Sharaydeh's
arguments raised any "question of construction or validity arising under the" Master Lease
or Sublease. As in Miami Valley Paper, 1983 Ohio App. LEXIS 15917, at *4-9 (12th Dist.),
Sharaydeh simply requested that the trial court issue a declaratory judgment finding him
not liable and the Landlords liable based on the facts he set forth in his complaint, rather
than seeking a declaration of rights or status under the Master Lease or Sublease in
relation to those facts.
{¶ 21} On appeal, Sharaydeh asserts that he did request the trial court to "declare
his rights and obligations in relation to Section 17.1 right to cure in relation to multiple
alleged lease defaults and multiple different sections of the lease." After a review of
3. The trial court addressed the first two declaratory judgment factors (whether there is a real controversy and justiciability), but did not address the third factor (whether speedy relief is necessary). Because the court's finding of nonjusticiability was dispositive, there was no need for the court to address the third factor. Likewise, we do not need to address that factor in this opinion.
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Sharaydeh's complaint, we fail to find contractual language making such a request. In the
complaint, Sharaydeh did quote certain provisions of the Master Lease and Sublease, but
there is no language indicating that he was seeking an interpretation of those provisions'
language or validity. Instead, to the extent Sharaydeh tied specific alleged facts to
particular provisions of the Master Lease or Sublease, he simply asked the court to
determine liability. Therefore, we find it was reasonable for the trial court to find that
Sharaydeh's declaratory judgment action was nonjusticiable and inappropriate for judicial
resolution. See Miami Valley Paper at *4-6.
{¶ 22} We also find that it was reasonable for the trial court to find that Sharaydeh
would suffer minimal hardship if his requested declaratory relief was not granted as there
was a pending FED action in Boone County, Kentucky that involved the same parties,
facts, and legal issues. See Miami Valley Paper at *7; Therapy Partners, 129 Ohio App.3d
572, at 579 (10th Dist.); Calvary, 2019-Ohio-1288, at ¶ 15 (12th Dist.).
{¶ 23} Finally, Sharaydeh argues that the trial court erred in its application of public
policy. We find that the trial court's statements about public policy "were more akin to
collateral observations on the case in the nature of dicta" rather than statements
pertaining to the holding of the case. State ex rel. Lee v. Village of Plain City, 2017-Ohio8931, ¶ 43 (12th Dist.). "Adverse dicta [is] not appealable." Id., citing Alesi v. Warren Cty.
Bd. of Commrs., 2014-Ohio-5192, ¶ 51 (12th Dist.). Therefore, we decline to address
Sharaydeh's arguments relating to the trial court's public policy statements.
{¶ 24} For these reasons, we find that the trial court did not act unreasonably in
finding Sharaydeh's declaratory judgment action to be nonjusticiable.
III. Conclusion
{¶ 25} Accordingly, we hold that the trial court did not abuse its discretion in
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dismissing Sharaydeh's declaratory judgment action, and we overrule his assignment of
error.
{¶ 26} Judgment affirmed.
HENDRICKSON and SIEBERT, JJ., concur.
JUDGMENT ENTRY
The assignment of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed.
It is further ordered that a mandate be sent to the Butler County Court of Common
Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Matthew R. Byrne, Presiding Judge
/s/ Robert A. Hendrickson, Judge
/s/ Melena S. Siebert, Judge
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