Lewanski Development, L.L.C. v. HD Strongsville Portfolio, L.P. , 194 Ohio App. 3d 372 ( 2011 )

[Cite as Lewanski Dev., L.L.C. v. HD Strongsville Portfolio, L.P., 194 Ohio App.3d 372, 2011-Ohio-3055.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95453
LEWANSKI DEVELOPMENT, L.L.C., ET AL.,
APPELLEES,
v.
HD STRONGSVILLE PORTFOLIO, L.P., ET AL.,
APPELLANTS.
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-580495
BEFORE: Sweeney, J., Kilbane, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 23, 2011
ATTORNEYS FOR APPELLANTS
For HD Strongsville Portfolio, LP, and Home Depot U.S.A., Inc.
Berns, Ockner & Greenberger, .L.L.C.
Timothy J. Duff
Sheldon Berns
3733 Park East Drive
Suite 200
Beachwood, OH 44122
ATTORNEYS FOR APPELLEES
For Lewanski Development, L.L.C., et al.
Taft, Stettinius & Hollister, L.L.P.
Majeed G. Makhlouf
Michael J. Zbiegien Jr.
3500 BP Tower
200 Public Square
Cleveland, OH 44114
For Lowe’s Home Centers, Inc.
Isaac, Brant, Ledmar & Teetor, L.L.P.
David G. Jennings
Jerry L. Kaltenbach
J. Stephen Teetor
250 East Broad Street
Suite 900
Columbus, OH 43215
Lewis, Rice & Fingersh, L.C.
Benjamin J. Lipman
600 Washington Avenue
Suite 2500
St. Louis, MO 63101
(Attorneys for appellees continued on page ii)
McDonald Hopkins, L.L.C.
Ryan M. Fitzgerald
600 Superior Avenue E.
Suite 2100
Cleveland, OH 44114
For the city of Strongsville
Kenneth Kraus
Law Director
City of Strongsville
16099 Foltz Industrial Parkway
Strongsville, OH 44149
Kolick & Kondzer
Daniel J. Kolick
24650 Center Ridge Road
Suite 175
Westlake, OH 44145
Also listed:
For Gordon Food Services, Inc., et al.
James R. Peterson
Miller Johnson
Calder Plaza Building
250 Monroe Ave., NW, Suite 800
Grand Rapids, MI 49503-2250
For Wal-Mart Real Estate Business Trust
Keating Meuthing & Klekamp, P.L.L.
Thomas M. Tepe Jr.
Joseph L. Trauth Jr.
One East Fourth Street
Suite 1400
Cincinnati, OH 45202
JAMES J. SWEENEY, Judge.
{¶ 1} Defendants-appellants, HD Strongsville Portfolio, L.P. (“HDSP”) and Home
Depot U.S.A., Inc. (“Home Depot”), appeal the trial court’s decision granting declaratory
judgment in favor of plaintiffs-appellees, Lewanski Development, L.L.C., R.E. Services
No. 32, L.L.C., and TGI Pearl Road Investors, L.L.C. (collectively “the Lewanski
parties”).1 Finding no merit to the appeal, we affirm.
{¶ 2} This appeal involves an easement for the extension of an internal roadway
(“Ring Road”) to connect the northern and southern sections of a triangular-shaped retail
development area (“the Triangle”) in Strongsville, Ohio. The Triangle is bordered to the
north by Sprague Road, to the west by Pearl Road, and to the south by Whitney Road.
{¶ 3} In April 1994, Strongsville Retail Limited Partnership (“SRLP”) undertook
the development of the northern section of the Triangle and entered into a development
agreement with the city of Strongsville. Under the agreement, the “Developer” is SRLP
and the “Property” is “the approximately 46 acres of real property” that became the
northern section of the Triangle. Section 5.1 of the agreement pertains to the
development of the internal roadway and states as follows:
{¶ 4} “Section 5.1 Internal Roadway. Developer will construct the internal
roadway substantially as shown on the Concept Plan (the ‘Internal Roadway’). If
1
Defendants Lowe’s Home Centers, Inc., and the city of Strongsville are also appellees herein.
Defendants Wal-Mart, Gordon Food Service, Inc., and Gaelic Financial Services, L.L.C., are not
parties to the appeal.
requested, in writing, by the City, Developer will provide for the extension of the Internal
Roadway for pedestrian and automobile (but not heavy vehicles or trucks) ingress and
egress to the south and for subsequent use of the Internal Roadway by owners of properties
to the south of the Property; provided that (i) such owners execute and deliver to
Developer or subsequent owners of the Property or any affected portions thereof a
mutually acceptable easement agreement which shall include, without limitation, a sharing
of the maintenance costs for the Internal Roadway and such reasonable restrictions on the
use of the Internal Roadway as shall be determined by Developer or subsequent owners of
the Property or any affected portions thereof; and (ii) the use of the adjoining properties to
the south of the Property, in the reasonable judgment of the Developer or the subsequent
owners of the Property or any affected portions thereof, is not offensive or detrimental to
the Property or any portion thereof.”
{¶ 5} The northern section of the Triangle was developed to contain a Wal-Mart
store and a retail space that was originally leased to Builders Square, Inc. SRLP owned
the property that was leased to Builders Square, Inc. HDSP now owns that property and
leases it to Home Depot. Wal-Mart Real Estate Business Trust (“Wal-Mart”) owns the
property on which the Wal-Mart store is located and on which the Ring Road extension
would be built. Outlots A and B are also located in the northern section of the Triangle.
{¶ 6} In May 1994, SRLP, its then tenant Builders Square, Inc., Wal-Mart Stores,
Inc., and R.E. Services, Inc., entered into an agreement of easements, conditions, and
restrictions (“1994 ECR”).2 The 1994 ECR incorporates the terms of Section 5.1 of the
1994 development agreement and requires compliance therewith. The city is not a party
to the 1994 ECR.
{¶ 7} Section 2.4 of the 1994 ECR contains a general prohibition against the
granting of access easements for the benefit of properties outside the northern section of
the Triangle “except in accordance with Section 2.1F hereof.” Section 2.1F addresses the
future Ring Road expansion and incorporates the terms of Section 5.1 of the 1994
development agreement. Section 2.1F provides as follows:
{¶ 8} “Future Ring Road Extension. Wal-Mart and Tenant hereby acknowledge
that, pursuant to Section 5.1 of the City development agreement, Developer has agreed to
provide for the extension of the Ring Road * * *. Wal-Mart, Tenant and Developer
hereby agree to comply with the terms of Section 5.1 of the City development agreement,
and to amend this Agreement to provide for said extension of the Ring Road as, when and
under the conditions specified therein. Any rights, approvals or consents exercisable by
Developer with respect to the extension of the Ring Road pursuant to the City
development agreement shall be exercised by the Owner of the Developer Parcel, and
Developer hereby assigns to Tenant all right, title and interest of Developer in such rights,
approvals or consents, subject, however, to the terms and provision of the City
development agreement.”
At the time, R.E. Services, Inc., was the owner of two outlot parcels.
2
{¶ 9} Under the 1994 ECR, the “Developer” is SRLP and references to the
“Developer” include respective successors, assigns, and successors in interest in and to
any fee or leasehold estate in the Developer parcel. The Developer parcel is what
became the Home Depot parcel, and Home Depot was assigned all the rights and
obligations of HDSP. The 1994 ECR also provides that the covenants and restrictions
thereunder shall “run with the land” and “be binding upon and inure to the benefit of the
successors and assigns of all or any portion of the estates of any Owner.”
{¶ 10} In 2003, Lewanski Development, L.L.C. (“Lewanski”) and R.E. Services
No. 32, L.L.C. (“R.E. Services”) began to develop the southern section of the Triangle.
Lowe’s Home Centers, Inc. (“Lowe’s”) owns property in the southern section of the
Triangle, and a Lowe’s store is located there. The Lewanski parties and Lowe’s are not
parties to the 1994 development agreement or the 1994 ECR.
{¶ 11} In November 2004, Lewanski informed Wal-Mart, HDSP, and the Home
Depot that Lewanski was developing a retail shopping center in the southern section of the
Triangle and provided a proposed amendment to the 1994 ECR that would allow for the
extension of Ring Road. On June 15, 2005, the city sent a letter to HDSP, Home Depot,
and Wal-Mart requesting under Section 5.1 of the 1994 development agreement that the
extension of the internal roadway be completed and asking the parties to “work together to
finalize any details on the Mutual Easement Agreement.”
{¶ 12} Wal-Mart agreed to the easement. Initially, HDSP did not object. After
learning that Lowe’s was going to be in the southern section, Home Depot and HDSP
objected to the easement and the extension of Ring Road.
{¶ 13} HDSP and Home Depot asserted that in their judgment, the use of the
southern portion of the property by Lowe’s, which is a competitor of Home Depot, is
detrimental to their property. HDSP and Home Depot claim that “the use of the Southern
Shopping Center by Lowe’s would decrease Home Depot’s sales, and accordingly
decrease the value of HDSP’s fee interest and Home Depot’s leasehold interest in the
Home Depot parcel, a situation that would be exacerbated by joining the two shopping
centers.” They also claim that connection of the internal roadway “would lead to
inappropriate cut-through traffic, burdening the Home Depot parcel with increased
congestion, wear and tear, and risk of accidents.”
{¶ 14} Despite HDSP’s and Home Depot’s disapproval, in December 2005,
Wal-Mart unilaterally granted the easement for the Ring Road extension through a
December 2005 agreement with Lewanski and Lowe’s titled Agreement of Easements,
Conditions and Restrictions for Ring Road Extension (“the Lewanski – Wal-Mart
Easement”).
{¶ 15} Lewanski and R.E. Services filed a declaratory-judgment action asking the
court to declare that Wal-Mart has the legal right to grant the easements provided for in the
Lewanski – Wal-Mart Easement, that the Lewanski – Wal-Mart Easement is valid, that the
Lewanski parties may legally proceed with the construction of the Ring Road extension,
and that HDSP and Home Depot have no right to stop the construction.3
{¶ 16} HDSP and Home Depot filed a counterclaim against the Lewanski parties
and a cross-claim against the other defendants seeking a declaration of the following:
that Wal-Mart has no right to extend the internal roadway except in accordance with the
1994 ECR; that under the 1994 ECR, the internal roadway may only be extended if, in the
reasonable judgment of HDSP and Home Depot, the extension would not be offensive or
detrimental to their property interests; that in the reasonable judgment of HDSP and Home
Depot the extension of the internal roadway would be offensive or detrimental to their
property interests; and that Lewanski, TGI, Lowe’s, Gaelic, and GFS have no right to use
an extension of the internal roadway. Wal-Mart took the position that it had the right to
grant the access easement subject to the rights of HDSP and Home Depot.4
{¶ 17} Several motions for summary judgment were denied by the trial court. The
case proceeded to a five-day bench trial. Thereafter, the trial court granted a declaratory
judgment in favor of the plaintiffs and against HDSP and Home Depot on the complaint
and counterclaim.
3
TGI Pearl Road Investors, L.L.C., was added as a new party plaintiff after it
acquired property in the southern section of the Triangle. HDSP, Home Depot,
Wal-Mart, Lowe’s, the city, Gordon Food Services, Inc. (“GFS”), and Gaelic Financial
Services, L.L.C. (“Gaelic”) were named as defendants. Although a number of parties
were named as defendants, only HDSP and Home Depot are adverse parties to the
plaintiffs. GFS and Gaelic did not participate in the proceedings and agreed to be
bound by any judgment of the court.
4
Wal-Mart is not a party to this appeal.
{¶ 18} The court determined that “under Section 5.1 of the 1994 Development
Agreement, Wal-Mart, as the most directly affected owner, had the right to grant the
easement for the completion of the ring road.” The court further found that the testimony
of the witnesses failed to establish any potential physical harm to the Home Depot parcel,
and only showed speculative losses to Home Depot. Additionally, the court found that
the evidence did not show an offensive use of the property. The court concluded that
“the City has the right to require the ring road connection under Section 5.1 of the 1994
development agreement and that [HDSP and Home Depot] have failed to establish that
they have the right to block the ring road connection.”
{¶ 19} It is from this order that HDSP and Home Depot appeal, raising the
following single assignment of error for review.
ASSIGNMENT OF ERROR ONE
The trial court erred in interpreting the 1994 ECR as permitting
Wal-Mart to unilaterally grant an access easement to the Northern Shopping
Center for the disputed road extension and in entering judgment in favor of
Plaintiffs and against HD Strongsville Portfolio and Home Depot.
{¶ 20} “A declaratory judgment action allows a court of record to declare the rights,
status, and other legal relations of the parties whether or not any further relief is or could
be claimed. Civ.R. 57 and R.C. 2721.01 et seq.” State ex rel. AFSCME v. Taft, 156
Ohio App.3d 37, 2004-Ohio-493, 804 N.E.2d 88, ¶26. Factual determinations made in a
declaratory-judgment action are reviewed under an abuse-of-discretion standard.
Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863
N.E.2d 142, ¶ 14; Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, Cuyahoga
App. No. 94057, 2010-Ohio-5351, ¶ 14. However, to the extent that the court is required
to interpret contract provisions, that interpretation presents a question of law that we
review de novo. Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d
452, ¶ 9, citing Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73Ohio St.3d
107, 652 N.E.2d 684.
{¶ 21} Ohio courts “presume that the intent of the parties to a contract is within the
language used in the written instrument.” Id. at ¶ 9, citing Hamilton Ins. Serv., Inc. v.
Nationwide Ins. Cos. (1999), 86 Ohio St.3d 270, 714 N.E.2d 898. “[A] contract is to be
read as a whole and the intent of each part gathered from a consideration of the whole.”
Id. at ¶ 16, citing Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities
Auth. (1997), 78 Ohio St.3d 353, 361, 678 N.E.2d 519. The terms of a contract are to be
given their plain and ordinary meaning. Lager v. Miller-Gonzalez, 120 Ohio St.3d 47,
2008-Ohio-4838, 896 N.E.2d 666, ¶ 15. “[W]hen ‘the terms in a contract are
unambiguous, courts will not in effect create a new contract by finding an intent not
expressed in the clear language employed by the parties.’ ” Holdeman v. Epperson, 111
Ohio St.3d 551, 2006-Ohio-6209, 857 N.E.2d 583, ¶ 12, quoting Shifrin v. Forest City
Ents., Inc. (1992), 64 Ohio St.3d 635, 638, 597 N.E.2d 499.
{¶ 22} In the instant case, the 1994 ECR contains a general prohibition against the
granting of access easements for the benefit of property outside the northern section except
in accordance with Section 2.1F, which pertains to the future Ring Road expansion.
Pursuant to Section 2.1F, the parties agreed to comply with the terms of Section 5.1 of the
1994 development agreement. Furthermore, Section 2.1F requires the parties “to amend
[the 1994 ECR]” to provide for an access easement for the extension of Ring Road “under
the conditions specified” in Section 5.1 of the development agreement.
{¶ 23} Section 5.1 of the 1994 development agreement provides for the extension of
the internal roadway upon a written request from the city if two conditions are satisfied.
The first condition requires as follows:
(i) [The owners of properties in the southern portion] execute and deliver
to Developer or subsequent owners of the Property or any affected portions
thereof a mutually acceptable easement agreement which shall include,
without limitation, a sharing of the maintenance costs for the Internal
Roadway and such reasonable restrictions on the use of the Internal
Roadway as shall be determined by Developer or subsequent owners of the
Property or any affected portions thereof[.]
{¶ 24} This provision requires that owners of properties in the southern portion
execute and deliver a “mutually acceptable easement agreement” to one of several
alternatives. The word “or” is most commonly used as a disjunctive and indicates “‘an
alternative between different or unlike things.’ ” State ex rel. Rear Door Bookstore v.
Tenth Dist. Ct. of Appeals (1992), 63 Ohio St.3d 354, 361-362, 588 N.E.2d 116, quoting
Pizza v. Sunset Fireworks Co. (1986), 25 Ohio St.3d 1, 494 N.E.2d 1115. Here, the
easement agreement was not delivered to the “developer” of the northern section, nor was
it delivered to “subsequent owners” of the northern section. Thus, the remaining
alternative is to “any affected portions” of the northern section.
{¶ 25} “[T]he word ‘any’ may mean ‘all,’ ‘some,’ or ‘one,’ depending on the
context.” In re Wyrock (June 5, 1980), Cuyahoga App. Nos. 41305 and 41306. The
term “any” is used to qualify “affected portions” of the northern section. The easement is
for the extension of Ring Road to connect the northern and the southern sections of the
Triangle. From the context written, it is apparent that the phrase “any affected portions”
refers to one portion of the northern section that would be affected by the extension of the
internal roadway to the southern section of the Triangle. To find otherwise would render
the preceding alternative of “subsequent owners” meaningless because that alternative
would be one and the same as the owners of “any affected portions thereof.”
{¶ 26} Based on the clear and unambiguous language of the agreement, we find that
under Section 5.1 of the development agreement, Wal-Mart, as the owner of “any affected
portion,” had the right to grant the easement for the completion of Ring Road. Ring
Road is located on the Wal-Mart parcel in the northern section of the Triangle, which
would be affected by the extension of the internal roadway to the properties in the southern
section of the Triangle. The evidence in the record reveals that Lewanski and Lowe’s, as
owners of the southern section of the Triangle, executed and delivered a “mutually
acceptable” agreement to Wal-Mart, which Wal-Mart also executed. This is all that is
required under Section 5.1 since this section uses the term “or” in the disjunctive and
Wal-Mart is one of the owners of the affected portion of the northern parcel.
{¶ 27} We note that in its findings, the trial court referred to Wal-Mart as “the most
directly affected owner” rather than “the owner of any affected portion.” The dissent
contends that by using the phrase “the most directly affected owner” the trial court
“impermissibly inserted terms into an unambiguous contract.” We find, however, that the
trial court’s word choice did not alter the contract, because Wal-Mart is an owner of the
affected portion. Therefore, we find that the trial court’s determination that Wal-Mart
had the right to grant the easement was consistent with the language of Section 5.1.
{¶ 28} The second condition of Section 5.1 requires as follows:
(ii) [T]he use of the adjoining properties to the south of the Property, in
the reasonable judgment of the Developer or the subsequent owners of the
Property or any affected portions thereof, is not offensive or detrimental to
the Property or any portion thereof.
{¶ 29} Here again, we find that the phrase “any affected portions” encompasses any
one owner of the northern section that would be affected by the extension of the internal
roadway to the properties in the southern section of the Triangle. Because Wal-Mart is
an affected property, Wal-Mart rightfully determined that use of the adjoining properties to
the south is not offensive or detrimental to its property.
{¶ 30} Home Depot argues that the completion of Ring Road would be “offensive
or detrimental” to it because the completion would result in increased competition from
Lowe’s and a potential loss of sales to it. However, as the trial court correctly stated,
“Section 5.1 of the development agreement does not contain a use restriction or
anti-competition provision.” The trial court considered the evidence and the testimony
presented and found that “none of the witnesses established any potential physical harm to
the property, only speculative losses to Home Depot. Additionally, by completing the
Ring Road there is no offensive use of the property. The combined northern and
southern areas at issue constitute a large commercial shopping area with abundant
parking.” We find that these factual determinations were supported by competent,
credible evidence in the record. In fact, the evidence in the record demonstrated that the
completion of Ring Road would bring more customers to the shopping center.
{¶ 31} Therefore, we conclude that the trial court properly determined that
Wal-Mart had the right to grant the easement under the terms of Section 5.1 of the 1994
development agreement, and that the 1994 ECR did not prohibit the grant of the easement.
{¶ 32} Accordingly, the sole assignment of error is overruled.
Judgment affirmed.
KILBANE, A.J., concurs.
GALLAGHER, J., dissents.
SEAN C. GALLAGHER, Judge, dissenting.
{¶ 33} I respectfully dissent from the majority opinion. Rather than enforcing the
clear terms of a contractual agreement between property owners, the majority applies a
constrained interpretation to uphold the trial court’s decision.
{¶ 34} I believe that the trial court’s interpretation of the required conditions for the
granting of an access easement under the 1994 ECR is contrary to the clear language
expressed by the parties. Further, the trial court impermissibly inserted terms into the
unambiguous agreement. While Wal-Mart may be a superstore, it does not possess rights
that are superior to those of other property owners under the 1994 ECR.
{¶ 35} Pursuant to the 1994 ECR, Wal-Mart could not grant the requested easement
unless the terms of Section 5.1 of the development agreement were met. The first
condition requires that owners of properties in the southern section execute and deliver a
“mutually acceptable easement agreement” to one of several alternatives. The first two
alternatives were not satisfied as the easement agreement was not delivered to the
“developer” of the northern section or to the “subsequent owners” of the northern section,
which is written in the plural. Thus, in order for the first condition to have been satisfied,
a “mutually acceptable” easement agreement must have been delivered to “any affected
portions” of the northern section.
{¶ 36} The majority acknowledges that “the word ‘any’ may mean ‘all,’ ‘some,’ or
‘one,’ depending on the context.” In re Wyrock (June 5, 1980), Cuyahoga App. Nos.
41305 and 41306. I do not believe that under the context written, it can be construed to
mean “one” or, in this case, “the most directly affected portion.”
{¶ 37} Indeed, the term “any” is used to qualify “affected portions” of the northern
section, which is written in the plural form. The easement is for the extension of Ring
Road to connect the northern and the southern sections of the Triangle. Logically, the
parties would have intended that any properties in the northern section that would be
affected by the easement be provided with a mutually acceptable easement agreement.
From the context written, it is apparent that the word “any” is an inclusive term and that
the phrase “any affected portions” encompasses all portions of the northern section that
would be affected by the extension of the internal roadway to the southern section of the
Triangle.
{¶ 38} This construction does not render the preceding alternative of “subsequent
owners” meaningless, because that alternative would include Outlots A and B in the
northern section, which are not asserted to be “affected” by the Ring Road extension.
Also, I do not find it to be determinative that the easement would physically exist on
Wal-Mart’s property as the 1994 ECR creates and limits property rights for the granting of
access easements. The clear and unambiguous language of the agreement does not
provide the unilateral power to any one affected portion to grant an easement. Rather, a
mutually acceptable easement agreement must be executed and delivered to any property
in the northern section that would be affected by the extension of the internal roadway.
{¶ 39} The trial court found that “under Section 5.1 of the development agreement,
Wal-Mart, as the most directly affected owner, had the right to grant the easement for the
completion of the ring road.” (Emphasis added.) In doing so, the trial court
impermissibly inserted terms into an unambiguous contract. “[A] court may not delete or
add words to a contract when determining the parties’ rights and obligations under it.”
Merz v. Motorists Mut. Ins. Co., Butler App. No. CA2006-08-203, 2007-Ohio-2293, ¶ 54,
citing DiMarco v. Shay, 154 Ohio App.3d 141, 2003-Ohio-4685, 796 N.E.2d 572.
Moreover, a court “is not permitted to alter a lawful contract by imputing an intent
contrary to that expressed by the parties.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d
216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 12.
{¶ 40} Accordingly, the trial court’s determination that Wal-Mart had the right to
grant the easement as “the most directly affected” portion was inconsistent with the
unambiguous language of Section 5.1. Ring Road is located on the Home Depot and
Wal-Mart parcels in the northern section of the Triangle. Both parcels clearly would be
affected by the extension of the internal roadway to the properties in the southern section
of the Triangle. The owners of the southern section of the Triangle were required to
execute and deliver a “mutually acceptable” agreement to Wal-Mart as well as HDSP and
Home Depot for this alternative to be satisfied.
{¶ 41} The second condition requires a determination, in the reasonable judgment
of “any affected portions,” that the use of the adjoining properties to the south is not
offensive or detrimental to its property. This provision clearly expresses an intent to
encompass all portions of the northern section that would be affected by the extension of
the internal roadway to the properties in the southern section of the Triangle. Indeed, it
would be illogical to allow only one property in the northern section to exercise the
judgment of other affected properties. Rather, “any affected portions” have the right to
determine whether the use of the adjoining properties would be offensive or detrimental to
their property.
{¶ 42} Because Home Depot is an affected property, HDSP and Home Depot had
the right to determine, in their reasonable judgment, whether any use of the adjoining
properties to the south is offensive or detrimental to their property. Wal-Mart could not
exercise the judgment of Home Depot in this regard. Rather, HDSP and Home Depot
had the right, in the first instance, to make a use determination under the agreement.
Further, while Section 5.1 does not contain a use-restriction or anticompetition provision,
this does not alter the conditions required for the granting of an easement under the 1994
ECR.
{¶ 43} The word “reasonable” is defined as “possessing good sound judgment.”
Webster’s Third New International Dictionary (1986) 1892. “A decision is unreasonable
if there is no sound reasoning process that would support that decision.” AAAA Ents.,
Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157,
161, 553 N.E.2d 597; see also Cedar Bay Const., Inc. v. Fremont (1990), 50 Ohio St.3d
19, 22, 552 N.E.2d 202 (“Unreasonable” means “irrational”). The term “detrimental” has
been defined as “causing detriment” and “harmful, damaging.” Webster’s Third New
International Dictionary (1986) 617.
{¶ 44} The trial court found that the evidence established only speculative losses to
Home Depot and that by completing Ring Road there is no offensive use. I agree that
these factual determinations were supported by competent, credible evidence in the record.
However, the trial court did not explicitly determine whether HDSP and Home Depot
exercised their reasonable judgment. Instead, the court effectively allowed Wal-Mart, as
“the most directly affected owner,” to make a unilateral determination to grant the
easement.
{¶ 45} This is a declaratory-judgment action to determine the “rights, status, or
other legal relations” of the parties under a contract. R.C. 2721.02(A) and 2721.03. Here,
the issue is whether Wal-Mart had the legal right to grant the easement for the Ring Road
extension pursuant to the 1994 ECR. The Lewanski parties, Lowe’s, and the city are not
parties to that agreement.
{¶ 46} Under the plain and unambiguous terms of the 1994 ECR, Wal-Mart did not
have the authority to grant an easement without compliance with the conditions of Section
5.1 of the 1994 development agreement. I would find that those conditions could not be
unilaterally satisfied by Wal-Mart, because Home Depot is included in the phrase “any
affected portions.” Further, Section 2.1F of the 1994 ECR requires an amendment to the
1994 ECR to provide for the Ring Road extension upon satisfaction of the requisite
conditions.
{¶ 47} Accordingly, I believe that the trial court erred in determining that Wal-Mart
had the right to grant the easement under the terms of Section 5.1 of the 1994 development
agreement and in determining that the 1994 ECR did not prohibit the grant of the
easement. I would reverse the judgment of the trial court and enter a declaratory
judgment in favor of HDSP and Home Depot. I would declare as follows: The 1994
ECR generally prohibits Wal-Mart from granting access easements for the benefit of
properties outside the northern section of the Triangle; under the 1994 ECR, Wal-Mart
agreed to comply with the terms of Section 5.1 of the 1994 development agreement and to
amend the 1994 ECR to provide for the extension of Ring Road upon satisfaction of the
requisite conditions; Home Depot is included in the meaning of the phrase “any affected
portions” under Section 5.1; and pursuant to these provisions, Wal-Mart did not have the
right to unilaterally grant the Lewanski–Wal-Mart Easement.