MWL Enters. v. Mid-Miami Inv. Co.

• Decision Date: 24 February 2023
• Docket Number: C. A. 29445
• Citation: 2023 Ohio 547
• Parties: MWL ENTERPRISES LLC Appellee/Cross-Appellant v. MID-MIAMI INVESTMENT CO. et al. Appellant/Cross-Appellee
• Court: Ohio Court of Appeals

2023-Ohio-547

MWL ENTERPRISES LLC Appellee/Cross-Appellant v. MID-MIAMI INVESTMENT CO. et al. Appellant/Cross-Appellee

C. A. No. 29445

Court of Appeals of Ohio, Second District, Montgomery

February 24, 2023

Civil Appeal from Common Pleas Court No. 2019 CV 01651

DAVID MICHAEL RICKERT, Attorney for Appellant/Cross-Appellee, MWL Enterprises LLC

MICHAEL D. MEUTI and KELLY E. MULRANE, Attorneys for Appellee/Cross-Appellant, Store Master Funding II, LLC

TERRY W. POSEY, JR., Attorney for Appellant/Cross-Appellee Mid-Miami Investment Co., et al.

OPINION

WELBAUM, P.J.

{¶ 1} Mid-Miami Investment Co. ("Mid-Miami") appeals from a judgment denying its request for sanctions under R.C. 2323.51. In turn, Store Master Funding IV, LLC ("Store Master") has cross-appealed from the court's judgment denying its motion for contempt against Mid-Miami.

{¶ 2} After reviewing the record, we conclude that the trial court did not err in denying Mid-Miami's motion for sanctions under R.C. 2323.51, as Store Master's motion for contempt against Mid-Miami was not frivolous. The trial court correctly noted that a reasonable lawyer could have argued that the circumstances surrounding a prior injunction granted against Mid-Miami were similar to the circumstances that led Store Master to file the contempt motion. The trial court also did not err in denying Store Master's contempt motion, as Mid-Miami had not taken action. Instead, Mid-Miami had simply threatened to take action concerning the easements involved in the prior injunction. The contempt motion, therefore, was not ripe. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} This appeal and cross-appeal arise from prior litigation involving Mid-Miami, Store Master, and another party, MWL Enterprises, LLC ("MWL"), which did not file a contempt motion and is not a party to the appeal. The factual background, as set forth in our prior opinion, is as follows:

Mid-Miami, MWL, and Store Master each own commercial property at the intersection of Paragon Road and State Route 725 in Washington Township. In the 1970s, all of the land at issue originally was owned by John Wieland and his wife. In January 1977, the Wielands sold a parcel to Cassano Investments. Soon thereafter, the Wielands sold their remaining parcels to other purchasers, including Mid-Miami. Mid-Miami subsequently sold a portion of its parcel to First National Bank of Dayton. MWL now owns the former Cassano property; Store Master owns the property formerly owned by First National Bank.

The sale from the Wielands to Cassano included a reciprocal easement, prepared by Attorney John Koverman, which currently applies to Mid-Miami and MWL. Koverman prepared a similar easement for the sale from Mid-Miami to First National Bank. The easements have been in effect since 1977. In essence, the easements allow Mid-Miami, MWL, and Store Master to use each other's driveways, ingresses and egresses, and parking lots. The easement at issue in this appeal is the easement encumbering Mid-Miami's property, which includes driveways that run east-west across the north of MWL's property and north-south along the east side of MWL's property. The north-south driveway provides access to State Route 725.

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Except for references to the parties' names, paragraph four of the easements are identical. They read, in relevant part:

4. The parties desire to enter a mutual Agreement for parking and for ingress and egress over such areas of the [Mid- Miami] Tract and the [MWL/Store Master] Tract as the [parties] and their respective successors and assigns may respectively use for parking and for ingress and egress.

THE UNDERSIGNED PARTIES DO AGREE AS FOLLOWS:

A. Each of the parties hereby grants an easement for driveway, ingress and egress, and parking purposes, over that part of the [respective parties'] Tract, which is used for such purposes by the party owning such real estate and the successor or successors in interest and assigns of such party.

B. Said Easement is for the benefit of each of the parties as their interests appear in [the Tracts], and their respective successors and assigns, and all persons now or hereinafter occupying or who may be lawfully upon [either Tract].

C. The cost of operation, maintenance, repair, replacement and removal, in connection with said Easement, shall be borne by each of the parties hereto and their respective successors and assigns, and each of the parties hereby agree to maintain, repair, replace and remove as necessary, surface improvements on the respective parcels of real estate, without contribution from the other party or their successors or assigns.

D. Neither the parties or [sic] their successors in interest shall erect barriers or other obstructions which will prevent the free flow of traffic from one tract to the other.

E. Nothing herein shall be construed as preventing the parties or their successors or assigns from constructing or maintaining buildings and other improvements on their respective tracts.

Mid-Miami decided that it wanted to close its driveway along the east side of MWL's property, in large part due to maintenance costs and individuals[ ] using the property to bypass the traffic signal at the intersection of Paragon Road and State Route 725. In February 2019, Mid-Miami offered to sell this portion of its property to MWL, indicating that it intended to close the driveway if the sale could not be completed.

Two months later, MWL filed suit against Mid-Miami, alleging that Mid-Miami had expressed its intent to breach the easement. MWL named Store Master as a defendant due to its similar easement on Mid-Miami's property. MWL sought (1) a declaratory judgment that its right to access State Route 725 may not be impeded or terminated by Mid-Miami and (2) a permanent injunction preventing Mid-Miami from depriving MWL of access to State Route 725 and access across Mid-Miami's property. Store Master subsequently filed a cross-claim against Mid-Miami, also requesting a declaratory judgment and injunctive relief.

MWL Ents., LLC v. Mid-Miami Invest. Co., 2d Dist. Montgomery No. 28915, 2021-Ohio-1742, ¶ 2-6.

{¶ 4} We further stated as background that:

On April 20, 2020, the trial court granted Mid-Miami's motion for summary judgment to the extent that MWL and Store Master claimed an implied easement by necessity. However, the court concluded that the disputed driveway "is still 'used' by Mid-Miami for driveway and ingress and egress purposes because that portion of Mid-Miami's property still consists of a driveway that exits onto a public road." The court further concluded that MWL would be irreparably harmed if Mid-Miami were permitted to cut off access to State Route 725 via the driveway. The court thus held that MWL was entitled to a declaratory judgment and a permanent injunction as to the express easement, and it granted MWL's motion for partial summary judgment. Noting that the written easement between Mid-Miami and Store Master was identical to the written easement between Mid-Miami and MWL, the court stated that the "same findings apply to the written easement between Mid-Miami and Store Master."

Id. at ¶ 9.

{¶ 5} Subsequently, Store Master filed a motion for partial summary judgment, and the trial court granted that motion on the same grounds. Id. at ¶ 10-11. The court also granted a permanent injunction against Mid-Miami. Id. at ¶ 11. Mid-Miami then appealed from the trial court's decision. Id. at ¶ 12.

{¶ 6} On appeal, we affirmed the trial court. Our opinion noted that we agreed with the trial court's interpretation of the easement documents. Id. at ¶ 24. After reviewing the easements, we stated that:

The language of the easements thus indicated a general understanding that the "use" of the property would be reflected by how the property was configured. The easements did not require the property owners to have parking lots, driveways, and ingresses and egresses, and the property owners had the flexibility to construct buildings or otherwise improve the property. However, to the extent that the properties contained parking lots, driveways, and ingresses and egresses, the easements required the free flow of traffic from one property to another and the mutual use of parking areas, which could not be impeded.

Id. at ¶ 27.

{¶ 7} Our opinion further observed that "Mid-Miami's interpretation of the term 'use' would render the easements illusory. Whether the easement was being used for the purpose of driveways, ingress and egress, or parking would be subject to the whims of the property owner. Under Mid-Miami's approach, Mid-Miami (or the other property owners) could unilaterally state, at any given moment and without making any changes to the property, that the easement property was or was not being used for driveways, ingress and egress, and parking." Id. at ¶ 31.

{¶ 8} In concluding that the trial court properly granted a permanent injunction, we stated as follows:

The trial court's permanent injunctions simply require Mid-Miami to comply with the terms of the easements. The injunctions do not require that Mid-Miami maintain a driveway that provides access to State Route 725 in perpetuity. Rather, they require, consistent with the terms of the easements, that so long as there is a driveway that provides ingress and egress to State Route 725, Mid-Miami may not deprive MWL and Store Master of access to that driveway. The trial court did not abuse its discretion in imposing such permanent injunctions.

(Emphasis sic.) Id. at ¶ 46.

{¶ 9} Our opinion and judgment were filed on May 21 2021. Shortly thereafter, on August 13, 2021, Store Master filed a motion in the trial court seeking a show cause order against Mid-Miami. ...