Cleveland Botanical Garden v. Worthington Drewien, 2020-0629

CourtUnited States State Supreme Court of Ohio
Writing for the CourtBrunner, J.,
Citation2022 Ohio 3706
PartiesCleveland Botanical Garden, Appellee and Cross-Appellant, v. Worthington Drewien et al., Appellants and Cross-Appellees; The City of Cleveland et al., Appellees and Cross-Appellants.
Docket Number2020-0629
Decision Date20 October 2022


Cleveland Botanical Garden, Appellee and Cross-Appellant,

Worthington Drewien et al., Appellants and Cross-Appellees;

The City of Cleveland et al., Appellees and Cross-Appellants.

No. 2020-0629

Supreme Court of Ohio

October 20, 2022

Submitted May 11, 2021

Appeal and Cross-Appeals from the Court of Appeals for Cuyahoga County, No. 108536, 2020-Ohio-1278.

Hahn, Loeser & Parks, L.L.P., Eric B. Levasseur, Steven J. Knerly Jr., and Dennis R. Rose, for appellee and cross-appellant Cleveland Botanical Garden.

Squire Patton Boggs, L.L.P., Steven A. Friedman, and Sean L. McGrane, for appellee and cross-appellant University Circle, Inc.

Barbara A. Langhenry, Director of Law, and L. Stewart Hastings Jr., Assistant Director of Law, for appellee and cross-appellant City of Cleveland.

Strauss Troy Co., L.P.A., Matthew W. Fellerhoff, William K. Flynn, Amy L. Hunt, and Stephen E. Schilling, for appellants and cross-appellees Staci K. Worthington Drewien et al.


Brunner, J., announcing the judgment of the court.

{¶ 1} This matter involves the 1882 transfer of property that is today generally known as Wade Park, located in the city of Cleveland ("the city"). The dispute in this case centers on the interpretation and application of the park-use restrictions in the deed donating the property to the city. This opinion concludes that appellees and cross-appellants, Cleveland Botanical Garden ("CBG"), the city, and University Circle, Inc. ("UCI"), have not violated the park-use restrictions. This court holds that the Marketable Title Act ("MTA"), R.C. 5301.47 et seq., does not extinguish the reverter rights of appellants and cross-appellees, who include seven named heirs, the trustee of the Jeptha H. Wade Trust, and four intervenors (collectively, the "heirs"),[1] but for different reasons than those found by the Eighth District Court of Appeals. For the reasons explained below, the court of appeals' judgment is affirmed.

I. Background

A. The history of Wade Park and Cleveland Botanical Garden

{¶ 2} Jeptha Wade was a prominent industrialist and philanthropist who was involved in developing the telegraph and was a founder of Case School of Applied Science. Before his death in 1890, Wade donated to the city a 73-acre property, subject to several conditions. The 1882 deed of transfer (the "Wade deed") contained the following language:

Know all men by these presents that I, Jeptha H. Wade of the City of Cleveland County of Cuyahoga, and State of Ohio being desirous of securing to the citizens of Cleveland for all time the
opportunity of re-creating, having, improving and maintaining a beautiful and attractive Public Park therein for the benefit of all the people and being the owner of lands suitable for this purpose situated near the place where several important institutions of learning are about to be permanently located and on which grounds larger expenditures with a view to such a Park have already been made, do hereby freely give, grant, and convey unto the said City of Cleveland and its successors, to have and to hold forever, the following described real property to wit: [property description].

{¶ 3} Wade conveyed the property to the city using the phrase "forever in trust" and required the city, under the direction of the "Park Commissioners," to develop and beautify the park within three years of the conveyance in accordance with a plan approved by him. Through the deed, Wade further restricted the property's use as follows:

The said grounds at all times thereafter to be kept and maintained by said City in such repair and condition as to make it an attractive and desirable place of resort-as a Public Park to be open at all times to the public. * * * To be used for no other purpose than a Public Park and to be called and known forever by the name Wade Park.

{¶ 4} Finally, Wade reserved a future interest for himself and his heirs through a reversionary clause:

[I]f the grounds aforesaid or any part thereof shall be perverted or diverted from the public purposes and uses herein expressed, the
said property and every part thereof to revert to me or my heirs forever * * *.

{¶ 5} In the 1930s, CBG, then known as the Garden Center of Greater Cleveland, was founded and was granted permission by the city to use a boathouse on the Wade Park lagoon. In the 1960s, the city and CBG entered into a lease that incorporated the Wade deed's restrictions. The lease required in part two promises from CBG: (1) that CBG would not close off any area of the park and (2) that CBG would not charge admission for entrance to the garden center itself (except for special events). Over the years, the city and CBG entered into other leases for various CBG expansions.

{¶ 6} In 1971, the city entered into a lease with UCI in which UCI assumed the park-maintenance obligations for an area known as Wade Oval. The lease incorporated the Wade deed's park-use restrictions, providing that UCI would only use the property in a manner "consistent with any conditions, restrictions or limitations and covenants contained in [that] deed." CBG then subleased areas of the park from UCI, including in 2001 when CBG subleased an area where it subsequently installed an underground-parking garage.

{¶ 7} After an expansion in 2003, CBG sought permission from the city to modify its lease agreements to permit charging admission. CBG also sought approval from the heirs, which proved to be difficult. While still in the process of identifying the heirs and seeking deeds of release from them, CBG began charging admission for patrons to access its buildings, gardens, and conservatory. Ultimately, CBG and the heirs reached an impasse and CBG failed to obtain all the deeds of release that it sought from the heirs.

{¶ 8} Some of the heirs believed CBG's charging admission and parking fees, restricting access to certain parts of the grounds, and being closed on Mondays violated the Wade deed's restrictions requiring the park to be "open at all times to


the public." And some of the heirs viewed CBG's actions as financially benefitting only CBG and leading to the "destruction of Wade Park."

B. Procedural history

{¶ 9} In 2013, after failing to secure releases from all the heirs and facing legal pressure from individual members of the Wade family, CBG sought a declaratory judgment from the Cuyahoga County Common Pleas Court determining that (1) CBG's use, operation, and maintenance of the property is consistent with the Wade deed's park-use restrictions, (2) CBG may charge admission, and (3) CBG may charge parking fees.[2] CBG named as defendants the interested heirs and beneficiaries of the Wade estate that had not executed deeds of release, along with the city, UCI, and other entities and adjacent property owners having an interest in the outcome of any declaratory judgment rendered by the court. See R.C. 2721.12(A) ("[A]ll persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding").

{¶ 10} Additionally, several heirs and beneficiaries who did not execute deeds of release counterclaimed for declaratory judgment in their favor. One heir, William G. Wade, also filed two separate "taxpayer's actions" seeking to enjoin CBG, the city, and UCI from committing violations of the deed restrictions.[3] The heirs did not seek to enforce their reversionary interest in the park property.

{¶ 11} A number of defendants consented to a judgment in CBG's favor, and CBG was granted default judgment against several more. And a number of heirs who had previously signed deeds of limited release at CBG's request filed a


complaint to intervene in the case. They asserted that the releases they had signed did not contain a proper legal description of the affected property and were intentionally misleading due to this defect.

{¶ 12} The city and UCI counterclaimed for declaratory judgment against CBG, seeking to preserve their rights of cancelation or termination under their lease agreements with CBG if the court found that they were violating any provision of the Wade deed. Various parties moved for dismissal. CBG urged the court to dispose of the heirs' claims by finding that the heirs failed to preserve any reversionary interest they may have in Wade Park as required under the MTA.

{¶ 13} The heirs moved for summary judgment. They argued that the Wade deed created a trust and that the city had violated its fiduciary duties by relinquishing control of the park and not enforcing the deed's park-use restrictions. The heirs also argued that by charging admission and rental fees (for weddings and events), restricting hours of use (10:00 a.m. to 5:00 p.m., Tuesday through Sunday), and being "completely closed off to the public on Mondays and in the evenings after 5:00 p.m.," CBG was violating the deed's provision that the park be "open at all times to the public." The heirs also argued that CBG's charging a fee to park in the underground garage and its marketing of the garage to surrounding institutions violated the deed's park-use restrictions. They urged the trial court to construe the Wade deed's restrictions according to the maps, rules, regulations, leases, and conduct of the parties and to find that CBG had violated the deed's restrictions.

{¶ 14} CBG also moved for summary judgment, arguing that as "one of Cleveland's prized cultural institutions and * * * a leader in the fields of horticultural, botanical and environmental education," its operations were consistent with the Wade deed's requirement that the property be used as a public park. CBG also argued that the Wade deed does not forbid or otherwise mention the charging of admission or parking fees and that the phrase "open at all times to the public" does not equate to "free of charge." Finally, CBG argued that the...

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