BM-Clarence Cardwell, Inc. v. Cocca Dev., Ltd.
| Decision Date | 14 November 2016 |
| Docket Number | No. 16 CA 3.,16 CA 3. |
| Citation | 65 N.E.3d 829 |
| Parties | BM–CLARENCE CARDWELL, INC., Plaintiff–Appellant v. COCCA DEVELOPMENT, LTD., et al., Defendants–Appellees. |
| Court | Ohio Court of Appeals |
Charles E. Ticknor, III, Nita L. Hanson, Dinsmore & Shohl, LLP, Columbus, OH, for Plaintiff–Appellant.
Amelia A. Bower, Plunkett Cooney, Columbus, OH, for Defendants–Appellees.
W. SCOTT GWIN, P.J., JOHN W. WISE, J., and PATRICIA A. DELANEY, J.
{¶ 1} Appellant BM–Clarence Cardwell, Inc. appeals from the decision of the Court of Common Pleas, Fairfield County, denying its motion for partial summary judgment and granting partial summary judgment in favor of Appellee Dollar General.
{¶ 2} The relevant facts are as follows:
{¶ 3} Appellant BM–Clarence Cardwell, Inc. ("Cardwell") is the owner of certain real estate known as 1001 S. Main Street, Baltimore, Ohio. Cardwell has owned and operated an IGA grocery store on the Property since 1999. The IGA store is a general grocery store which sells gasoline, alcohol, and lottery tickets, in addition to groceries.
{¶ 4} In 2004, Appellee Cocca Development, Ltd. approached Cardwell with a request to purchase a portion of the property for the development of a Dollar General store.
{¶ 5} On November 3, 2004, the parties, BM–Clarence Cardwell, Inc. and Cocca Development, Ltd. entered into a sales agreement which contained the following "Restriction":
{¶ 6}
{¶ 7} That contract provided for a closing date to be agreed upon by the parties.
{¶ 8} On November 18, 2004, Cocca entered into a lease with Appellee Dolgencorp, Inc. ("Dollar General") for the Property. Dollar General intended to operate a store on the premises.
{¶ 9} The Lease "provided for the unrestricted sale of groceries." The Lease included the following: "Lessor represents and warrants that it owns lawful fee simple title to a building measuring 9.014 square feet located at 1001 South Main Street in the City of Baltimore, County of Fairfield, State of Ohio 43105".
{¶ 10} On May 14, 2005, Cardwell executed a Warranty Deed for the 1001 South Main Street property to Cocca Development, Ltd. The Deed contains the following Restrictive Covenant:
Grantee covenants and agrees that the Fee Parcel shall not be used for the distribution of gasoline and liquid fuels and that no retail store located on the Fee Parcel shall offer groceries and/or alcoholic beverages as its primary products. For purposes of this deed, the phrase "primary products" means those products which either alone or combined account for 50% or more of the gross sales per annum conducted from the Property, whether by Grantee or Grantee's successors or assigns.
{¶ 11} The Deed was recorded on May 31, 2005, in OR Book 1389 Page 621 of Fairfield County Ohio Records.
{¶ 12} On September 21, 2005, Dollar General opened for business and continued to do so uninterrupted until August 5, 2011, when Cardwell notified Dollar General that the Property was being used in a manner which violated the Restrictive Covenant.
{¶ 13} According to Cocca, "[n]either Cocca Development, Ltd. nor Cocca Properties 2, LLC., mentioned to Dolgencorp., Inc. the restrictive covenant referred to in the [Purchase] Agreement when the Lease was signed or at any time thereafter."
{¶ 14} On June 26, 2012, EM–Clarence Cardwell, Inc. commenced this breach of contract action against Cocca Development Ltd., Cocca Properties 2, LLC (collectively "Cocca"), Dolgencorp, LLC, and Dollar General Corporation (collectively "Dollar General"), asserting claims for breach of contract, violation of a restrictive covenant, and injunctive relief. Specifically, Cardwell's claims were related to Dollar General's alleged violation of a restrictive covenant running with the land.
{¶ 15} Dolgencorp, LLC filed a Cross-claim against Cocca Development, Ltd.{¶ 16} A first Amended Complaint was filed on May 22, 2013, adding "John Doe Defendants 1–5".
{¶ 17} On July 26, 2013, Dollar General Corporation and Dolgencorp, LLC filed a Motion for Partial Summary Judgment.
{¶ 18} On August 2, 2013, EM–Clarence Cardwell filed a Motion for Partial Summary Judgment Concerning Enforceability of the Restrictive Covenant.
{¶ 19} On August 19, 2013, Dollar General Corporation and Dolgencorp, LLC filed a Cross–Motion for Partial Summary Judgment as to Enforceability.
{¶ 20} By Judgment Entry filed September 10, 2013, the trial court denied Dollar General Corporation/Dolgencorp, LLC's Motion for Partial Summary Judgment. In said Entry, the trial court determined that DG did not qualify as a bona fide purchaser under Ohio's recording statute and, even if it did, it still had constructive notice because the deed containing the restrictive covenant was properly recorded before DG obtained any legal interest in the property pursuant to the estoppel by deed and after-acquired property doctrines.
{¶ 21} By Judgment Entry filed January 17, 2014, the trial court granted Dollar General Corporation and Dolgencorp, LLC's cross-motion, adopting facts established in the Court's September 10, 2013, Order and ruling that, "Because no privity of estate exists between Plaintiff and DG, the Court finds that the restrictive covenant set forth in the deed is not enforceable against DG."
{¶ 22} On April 21, 2014, EM–Clarence Cardwell sought reconsideration of the January 17, 2014, and moved for summary judgment on Counts Two, Three, Nine and Ten of the First Amended Complaint.
{¶ 23} Dollar General Corporation and Dolgencorp, LLC opposed that motion and moved for partial summary judgment on the issue of rescission.
{¶ 24} The Cocca Defendants also filed an opposition to the April 21, 2014, partial Motion for Summary judgment.
{¶ 25} On June 18, 2014, the trial court granted Dollar General Corporation and Dolgencorp, LLC's partial motion on the issue of rescission and overruled the Motion for Reconsideration and Partial Motion for Summary judgment against Cocca Properties 2, LLC.
{¶ 26} The remaining issues between EM–Clarence Cardwell and the Cocca defendants were tried to a jury. The Cocca Defendants filed a Cross–Appeal on the issues that went to trial which they later dismissed.
{¶ 27} Appellant BM–Clarence Cardwell now appeals the January 27, 2014, and June 18, 2014, Judgment Entries, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶ 28} "I. THE TRIAL COURT ERRED IN GRANTING DOLLAR GENERAL'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING CARDWELL'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO ENFORCEABILITY OF THE RESTRICTIVE COVENANT BECAUSE THE COVENANT IS VALID AND ENFORCEABLE AGAINST DOLLAR GENERAL UNDER OHIO LAW.
{¶ 29}
{¶ 30} Civil Rule 56(C) in reviewing a motion for summary judgment which provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
{¶ 31} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.1999).
{¶ 32} When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 738 N.E.2d 1243 (2000).
{¶ 33} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the non-moving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the burden shifts to...
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