Slife v. Kundtz Properties, Inc.

• Decision Date: 30 May 1974
• Parties: , 69 O.O.2d 178 SLIFE et al., Appellants, v. KUNDTZ PROPERTIES, INC., Appellee.
• Court: Ohio Court of Appeals

Page 179

40 Ohio App.2d 179

318 N.E.2d 557, 69 O.O.2d 178

SLIFE et al., Appellants, v. KUNDTZ PROPERTIES, INC., Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 30, 1974.

Syllabus by the Court

1. Civil Rule 12(B)(6) motions to dismiss for failure to state a claim upon which relief can be granted test the sufficiency of the complaint and are not to be used to terminate litigation on its merits.

2. Where a claim is found upon some written instrument and a copy thereof is attached to the complaint in accordance with Civil Rule 10(D), the complaint should not be dismissed for failure to state a claim upon which relief can be granted unless the complaint and the written instrument on their face show to a certainty some insuperable bar to relief as a matter of law.

3. Where a claim is founded upon some written instrument and a copy thereof is attached to the complaint in accordance with Civil Rule 10(D), the court, in ruling on a Civil Rule 12(B)(6) motion to dismiss for failure to state a claim, must avoid interpreting such instrument at that pre-trial stage unless it is so clear and unambiguous on its face that the court can determine to a certainty that the plaintiff would be entitled to no relief under any provable set of facts.

4. In ruling on a Civil Rule 12(B)(6) motion the Court should not dismiss the complaint because it doubts the plaintiff will win on the merits. Whether the plaintiff can prevail is a matter properly determined by the proof and not by the pleadings. Unless the motion is properly converted into a summary judgment motion, the ruling must test only the sufficiency of the complaint.

Zellmer & Gruber, Cleveland, for appellants.

Thompson, Hine & Flory, Cleveland, for appellee.

CORRIGAN, Judge.

Mr. and Mrs. Robert M. Slife, plaintiffs-appellants, own residential property described as sub-lot No. 8 in the Edgewater Estates Subdivision, Lakewood, Ohio. Pursuant to their deed, recorded November 15, 1965, the property remains subject to the '. . . exceptions, reservations, easements and conditions contained in deed from Kundtz Properties, Inc., to Robert R. Morrow and Leah M. Morrow, dated August 9, 1944. . . .' (Exhibit F)

On February 26, 1973, they filed a complaint in Common Pleas Court for declaratory judgment and equitable relief as successors in interest to the grantees under the warranty deed recorded in August, 1944. Under this deed, the grantor, Kundtz Properties, Inc., defendant-appellee, had reserved the natural gas rights in this land and an easement to service the gas wells for a period of up to 99 years. Kundtz covenanted with the grantees, their heirs and assigns, to supply natural gas at a reduced rate for the purpose of residential heating. Appellants' complaint directed the court to determine their right to so receive natural gas at reduced rates, to determine appellee's right to continue to extract natural gas, and to further determine their right to damages.

The 1944 deed contains a description of the property, and the following provisions:

'Excepting and reserving to the Grantor all gas in and under said premises and certain gas wells upon said premises, together with the piping and machinery in connection therewith, which wells, gas, pipes and machinery shall be and remain the property of the Grantor, its successors and assigns, and further excepting and reserving to the Grantor, its successors and assigns, an easement or right of ingress and egress over said premises to maintain, repair or otherwise oversee and operate said wells, piping and machinery, including the movement over said premises of all necessary machinery therefor.

This exception, reservation and easement shall continue so long as the gas wells upon said premises continue to produce gas or so long as the Grantor, or its successors and assigns, deems it advisable to maintain and operate gas wells, but in no event longer than ninety-nine (99) years from the date of this conveyance.

'This conveyance is further subject to the condition that the Grantees, their heirs and assigns, will not dig or sink any other gas or oil wells upon said premises without the written consent and approval of the Grantor, its successors and assigns, first obtained.

'The Grantor covenants with the Grantees, their heirs and assigns, that so long as said wells produce gas or so long as the Grantor, its successors and assigns, maintains and operates any said wells, the Grantor, its successors and assigns, will furnish natural gas to the Grantees, their heirs and assigns, for the purpose of heating the residence now upon said premises at a rate computed by the addition of two cents (2c) per thousand feet to the price per thousand feet received from the sale of said gas to the East Ohio Gas Company or any other utility to which said gas may be sold by the Grantor its succesors and assigns.'

Pursuant to Civil Rule 15(A), appellants obtained written consent of appellee, and filed an amended complaint on May 8, 1973, for declaratory judgment and equitable relief to which they attached the 1944 warranty deed as Exhibit A, and five subsequent deeds, including the 1965 deed to them as Exhibits B through F, in accordance with Civil Rule 10(D).

On June 15, 1973, appellee filed its motion to dismiss appellants' complaint for failure to state a claim upon which relief can be granted. Civ.R. 12(B) (6). On October 9, 1973, the court granted appellee's motion to dismiss to which appellants filed their appeal on October 12, 1973.

In their assignments of error the plaintiffs-appellants assert that the 1944 deed created a covenant which runs with the land and that sufficient facts were alleged in the amended complaint to set forth a claim requiring a trial on the merits and negating a dismissal on a Civil Rule 12(B)(6) ruling.

For the purposes of a motion to dismiss, the complaint is to be liberally construed in a light most favorable to the plaintiff, and the material allegations are to be taken as admitted. See Jenkins v. McKeithen (1969), 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404; 5 C. Wright & A. Miller, Federal Practice & Rpocedure, Sec. 1357, at 594 (1969). The 'complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson (1957), 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. See also Cook & Nichol, Inc., v. Plimsol Club (5th Cir., 1971), 451 F.2d 505, 506.

In ruling on a Rule 12(B)(6) motion, a court inquires whether the allegations constitute a statement of claim under Civil Rule 8(A). Actually few complaints fail to meet the liberal standards of Rule 8 and become subject to dismissal. Minkoff v. Steven Jrs., Inc. (2d Cir., 1958), 260 F.2d 588. All that the civil rules require is a short, plain statement of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it is based. Conley v. Gibson, supra, at 47, 78 S.Ct. 99. Moreover, the motion to dissmiss is viewed with disfavor and should rarely be granted. See, e. g., Madison v. Purdy (5th Cir., 1969), 410 F.2d 99, 100-101.

An action should not be dismissed merely because the court doubts the plaintiff will prevail. Cf. Brown v. Brown (9th Cir., 1966), 368 F.2d 992, cert. denied (1966), 385 U.S. 868, 87 S.Ct. 133, 17 L.Ed.2d 95. Whether the plaintiff can prevail is a matter properly determined by the proof and not the pleadings. See, e. g., Sass v. District of Columbia (1963), 114 U.S.App.D.C. 365, 316 F.2d 366.

The deeds attached to appellants' amended complaint sufficiently set forth a chain of title to the property to establish their claim as successors in interest to have the rights and reservations in those deeds construed in a declaratory judgment action.

Appellee concedes that the covenant to supply gas at reduced rates is a real covenant (Appellee's brief, pp. 10, 13), and we conclude that it is real as it is clearly a charge on the land and runs with the land. See 15 Ohio Jurisprudence 2d Rev. 18-19, Covenants, Section 15; 20 American Jurisprudence 2d 594, 595, Covenants, Conditions, Etc., Section 25. The language the covenantor used to create its several benefits clearly 'touch and concern' the land in question and strongly infers that the parties intended the covenant to run with the land. See Peto v. Korach (8th Dist., 1969), 17 Ohio App.2d 20, 244 N.E.2d 502.

Appellee maintains that the meaning of the covenant is plain and unambiguous in its statement that the covenant to supply gas at reduced rates '. . . to the Grantees, their heirs and assigns, for the purpose of heating the residence now upon said premises . . .' limited the grantor's obligation to the duration of the existence of the 1944 mansion house then upon said premises. The 1944 mansion house was razed before the parcel was subdivided and thereafter appellants' house was erected on a sub-lot within the original parcel.

Appellee therefore argues that the covenant to supply gas was extinguished when the original mansion house was razed, and thus appellants' amended complaint with the 1944 deed attached fails to state a claim upon which relief can be granted. The motion to dismiss below directed the court to...