L.G. Harris Family Ltd. v. 905 S. Main St. Englewood, LLC

• Decision Date: 07 October 2016
• Docket Number: Appellate Case No. 26682
• Citation: 2016 Ohio 7242
• Parties: L.G. HARRIS FAMILY LIMITED PARTNERSHIP I Plaintiff-Appellant/Cross-Appellee v. 905 S. MAIN STREET ENGLEWOOD, LLC Defendant-Appellee/Cross-Appellant
• Court: Ohio Court of Appeals

2016 Ohio 7242

L.G. HARRIS FAMILY LIMITEDPARTNERSHIP I Plaintiff-Appellant/Cross-Appellee v. 905 S. MAIN STREET ENGLEWOOD,LLC Defendant-Appellee/Cross-Appellant

Appellate Case No. 26682

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

October 7, 2016

Trial Court Case No. 2009-CV-9692

(Criminal Appeal from Common Pleas Court)

OPINION

RICHARD A. BOUCHER, Atty. Reg. No. 0033614, JULIA C. KOLBER, Atty. Reg. No. 0078855, 12 West Monument Avenue, Suite 200, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellant/Cross-Appellee

THOMAS L. CZECHOWSKI, Atty. Reg. No. 0022973, 1 South Main Street, Suite 1300, Dayton, Ohio 45402 Attorney for Defendant-Appellee/Cross-Appellant

WELBAUM, J.

{¶ 1} In this case, Plaintiff-Appellant, L.G. Harris Family Limited Partnership I ("Harris"), appeals from a judgment dismissing its action against Defendant-Appellee and Cross-Appellant, 905 South Main Street Englewood, L.L.C. ("SMS"), with prejudice. SMS cross-appeals from a judgment that it was not the prevailing party in the action and was not entitled to attorney fees.

{¶ 2} In support of its appeal, Harris contends that the trial court erred in failing to provide it with a hearing on nominal damages. Harris also contends that the trial court should have found that Harris was the prevailing party for purposes of attorney fees, based on our prior finding that SMS had breached the contract between the parties. In addition, Harris contends that the trial court erred by vacating, on its own motion, an agreed entry as to attorney fees, and by ordering that Harris pay one-half of the court costs.

{¶ 3} Conversely, SMS contends that the trial court erred in finding that SMS was not the prevailing party and was not entitled to attorney fees, costs, and expenses. SMS further contends that the court erred in ordering SMS to pay one-half of the court costs.

{¶ 4} We conclude that the trial court failed to properly follow our mandate on remand with respect to the content of the judgment entry. However, the trial court did not err in denying a hearing on nominal damages, nor did the court err in its findings with respect to prevailing party status and costs. Accordingly, Harris's First Assignment of Error will be sustained in part and overruled in part, and the remaining assignments of error as well as the cross-assignments of error will be overruled. The judgment entry filed on April 20, 2015, will be vacated, and the trial court will be ordered, on remand, to enterjudgment as directed by this opinion.

I. Facts and Course of Proceedings

{¶ 5} In November 2009, Harris filed a complaint against SMS based on a common access easement and parking maintenance agreement that the parties had executed in 2003. The complaint alleged claims for breach of contract, trespass, malicious interference with property rights, and attorney fees. In addition to damages, Harris requested termination of the easement agreement and injunctive relief ordering SMS to reinstall a curb cut and driveway that had been eliminated after the easement agreement was signed.

{¶ 6} In January 2010, SMS filed an answer and counterclaim, alleging that Harris had breached the agreement. SMS also asked for damages and attorney fees. Following a prolonged litigation history, which included the filing of three motions for summary judgment by SMS, the case was tried before a jury in April 2013. The jury concluded that SMS had breached the contract in two respects, and awarded Harris $302,800 in damages. Jury interrogatories indicated that the award included $160,000 for loss of use damages, and $142,800 for expectation damages.

{¶ 7} After SMS appealed, we dismissed the appeal for lack of a final appealable order, because the attorney fee issue had not yet been resolved. See L.G. Harris Family Ltd. Partnership I v. 905 S. Main St. Englewood Ohio L.L.C., 2d Dist. Montgomery No. 25735 (June 18, 2013) (Harris I).

{¶ 8} On July 29, 2013, the parties filed an agreed judgment entry, awarding Harris $106,299.20 in attorney fees from September 30, 2009 to June 26, 2013, plus costs andexpenses of $13,059.77, for a total award of $119,358.97. SMS then filed another notice of appeal, gave notice that it was filing a partial transcript, and presented nine assignments of error.

{¶ 9} In May 2014, we issued an opinion overruling the first, second, third, fourth, fifth, and sixth assignments of error, which pertained to the jury's verdict on the breach of contract claims. L.G. Harris Family Ltd. Partnership I v. 905 S. Main St./Englewood, L.L.C., 2d Dist. Montgomery No. 25871, 2014-Ohio-1906, ¶ 31-54 (Harris II). However, we sustained the sixth, seventh, and eighth assignments of error, which pertained to the jury's award of damages. These assignments of error included the contention that the trial court should have directed a verdict on the issue of damages. Id. at ¶ 55-84.

{¶ 10} As recounted in our 2014 opinion, the general background giving rise to the lawsuit was as follows:

For many years, Harris owned adjacent properties at 909 and 905 South Main Street (Route 48) in Englewood and operated manufacturing facilities on the properties. Both properties are on the west side of Route 48, and the 905 parcel is north of 909. Two buildings had been erected on the 909 property and one on the 905 property. When the properties were used for the manufacturing operation, semi-trailer trucks accessed the loading dock at the rear of one of the buildings on the 909 parcel via the northernmost of three driveways on that property off of Route 48, the one closest to the 905 parcel.

By the early 2000s, the manufacturing operation had ceased, and Harris had sold the 909 parcel to Michael Howell on land contract. Howelloperated an auto body shop and towing business at that location. The building on the 905 parcel was in a state of disrepair, with a partially collapsed roof, and the City of Englewood apparently considered it a nuisance. The City initiated discussions with Harris about possibly rezoning the property for development as a restaurant or other commercial venture, which would eliminate the need for Harris to abate the nuisance the property presented. Harris agreed to proceed with this plan.

In approximately 2003, the zoning of the 905 parcel was changed; Harris sold the property to SMS, which planned to build a Tim Horton's restaurant and other retail or restaurant establishments on the property. (Eventually, the development included Penn Station and BW3 restaurants and a UPS Store, in addition to the Tim Horton's.)

Shortly after the sale, SMS sought an easement from Harris to permit additional parking and access for its 905 property. The easement area consisted of a portion of the 909 parcel adjoining the 905 parcel, near the road; the easement area encompassed approximately half an acre, including the northernmost driveway permitting ingress and egress to the 909 parcel. Harris consented to the easement, and the parties signed the Common Access Easement and Parking Maintenance Agreement.

The easement stated that it was for "ingress, egress, and parking," and it contained several provisions that are pertinent to this appeal. During the "initial construction," SMS had the right to configure the easement area for parking and access, including "all ordinary and necessary repairs,maintenance, and replacements." All repairs, maintenance and replacements were required to "be completed in compliance with applicable laws, ordinances, rules and regulations," and SMS bore the costs of these changes. Thereafter, "all costs to repair, maintain or replace the Easement Area" were to be shared by the parties equally. Either party intending to make any modification was required to notify the other party in writing, including the estimated cost and attaching two "competitive bids from vendors." The other party had ten days to object, or it would be deemed to have approved. If the other party did object, the party proposing the modification could 1) proceed at its own expense or 2) obtain new bids and resubmit the request.

In 2003 or 2004, SMS submitted a plan for its proposed development to the City as part of an application for a conditional use permit. The proposed plan included an access point through the easement area, where a driveway was already located, and a second driveway further north on the 905 property. When the City's traffic engineer reviewed the proposed development, however, he concluded that the location of the driveway in the easement area (at the same location as a then-existing driveway) posed a potential traffic hazard; the driveway to another restaurant was located directly across Route 48 from the proposed entrance to the 905 development, which would have required traffic coming from opposite directions on Route 48 to share a center turn lane and created a danger of collisions. The traffic engineer recommended that the driveway throughthe easement area be moved and that the two proposed entries be combined into one. The City approved the development plan subject to the recommendations of the traffic engineer.

In 2004, SMS made its initial modifications to the easement area, including paving portions of it for parking and installing a retaining wall at the rear edge of the parking area. As part of its development, and in keeping with the traffic engineer's recommendation, SMS also created a single driveway on the 905 property and removed the driveway (or "curb cut") in the easement area on the 909 property.

For several years after the driveway was moved, until approximately 2008, Howell continued to operate his auto body shop on the 909 property. However, in November 2009, after Howell's business closed and the land contract terminated, Harris filed suit against SMS based on its relocation of the driveway, contending that the removal of the original curb cut and driveway precluded semi-trailer access to the 909 property and diminished that property's value.

Harris II, 2d Dist. Montgomery No....