City of Dublin v. Friedman

[Cite as Dublin v. Friedman, 2017-Ohio-9127.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Dublin, :
Plaintiff-Appellee, : No. 16AP-516
(C.P.C. No. 15CV-8664)
v. :
(REGULAR CALENDAR)
Karen Michelle R. Friedman et al., :
Defendants-Appellees, :
CHKRS, LLC, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 19, 2017
On brief: Frost Brown Todd, LLC, Philip K. Hartmann,
Scott D. Phillips, and Yazan S. Ashrawi, for City of Dublin.
Argued: Yazan S. Ashrawi.
On brief: Karen Edwards-Smith; Warner Mendenhall, for
appellant. Argued: Karen Edwards-Smith.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Defendant-appellant, CHKRS, LLC, appeals from a judgment of the
Franklin County Court of Common Pleas, granting the motion of defendant-appellee,
Karen Michelle R. Friedman, to withdraw funds deposited by plaintiff-appellee, city of
Dublin, and holding that Dublin properly exercised its quick-take condemnation
authority. Because (1) CHKRS did not procure on the purchase option pursuant to the
lease, (2) CHKRS's challenge to Dublin's exercise of its quick-take authority is moot, and
No. 16AP-516 2
(3) the trial court did not abuse its discretion in denying CHKRS's motion for leave to
amend its answer, we affirm.
{¶ 2} On September 30, 2015, Dublin filed a complaint for appropriation of an
interest in Friedman's property. Dublin is a municipal corporation, and Friedman is the
owner of real property located at 6310 Riverside Drive, Dublin, Ohio. On February 9,
2015, Dublin City Council passed a resolution declaring Dublin's intent to acquire a
0.100-acre permanent easement and a 0.096-acre temporary easement in Friedman's
property, "for the public purpose of constructing a roundabout at the intersection of State
Route 161 and Riverside Drive and a shared-use path adjacent to Riverside Drive."
(Compl., Ex. A.) The easements on Friedman's property concern the shared-use path
portion of the project; the description of the permanent easement states that it is a "0.100
ACRE PERMANENT BIKE PATH EASEMENT." (Emphasis sic.) (Compl., Ex. D.) On
February 23, 2015, Dublin City Council passed an "emergency" ordinance, authorizing
Dublin's law director to "file a petition for appropriation" of Friedman's property.
(Compl., Ex. B.)
{¶ 3} Dublin asserted in the complaint that it intended "to take immediate
possession of the property interest appropriated." Dublin stated that its independent
appraiser found the value of the easements to be $25,080, and that it had deposited the
$25,080 "in accordance with Chapter 163 of the Ohio Revised Code and the Ohio
Constitution." (Compl., at ¶ 11.)
{¶ 4} After filing the original complaint, Dublin learned that CHKRS had a
leasehold interest in the property pursuant to an unrecorded lease with Friedman. Dublin
filed an amended complaint on October 21, 2015, adding CHKRS as a defendant to the
action.
{¶ 5} On November 20, 2015, Friedman filed an answer to the complaint, denying
that Dublin sought the easements "for roadway purposes." Friedman alleged that Dublin
sought the easements "solely and only to construct a bike path and sidewalk," and that
Dublin did not have the "right to take immediate possession" of the property for such
uses. (Friedman Answer at ¶ 8, 11.)
{¶ 6} On November 23, 2015, CHKRS filed an answer alleging Dublin had already
taken possession of the property, "taken down numerous trees in the permanent and
No. 16AP-516 3
temporary easement areas," and "destroyed the natural beauty of a rocky ravine."
(CHKRS's Answer at ¶ 5.) CHKRS asserted that Dublin's "appropriation of interests in
and portions of Defendant's property to improve a public road [were] not necessary."
(CHKRS's Answer at ¶ 8.)
{¶ 7} On November 30, 2015, Friedman filed a motion for distribution of the
$25,080 deposit. CHKRS filed a brief in response to Friedman's motion for disbursement,
noting it had an "interest in the property" and asking the court to "make distribution of
the deposit accordingly." (CHKRS's Response at 3.) The court scheduled the matter for a
March 4, 2016 pretrial conference.
{¶ 8} On March 9, 2016, the court issued a journal entry regarding the March 4
pretrial conference. The court noted that the conference "was held on the record," and
that counsel "for all parties were present, as were representatives of the parties." The
court noted that, although both defendants challenged "whether the Project qualifies for
'quick take' treatment under the Ohio Constitution," neither defendant "sought an
injunction." (Mar. 9, 2016 Entry at 1.) Friedman and Dublin informed the court they had
"agreed upon a final settlement," if the court ruled that the condemnation award belonged
to Friedman. (Mar. 9, 2016 Entry at 2.) The court concluded, over CHKRS's objection,
that it should "first address which defendant is entitled to the deposit." (Mar. 9, 2016
Entry at 1.)
{¶ 9} The court stated the parties had stipulated to certain "undisputed facts the
court may consider in issuing a ruling on the distribution motion, and to the extent
necessary on the meaning of ¶ 31 of the lease." The parties "stipulated * * * that CHKRS is
current on their rent; and that CHKRS has not exercised the option to purchase." (Mar. 9,
2016 Entry at 2.) Paragraph 31 of the lease, titled "Funds Issued From City of Dublin
and/or ODOT," states that "[a]ny monies dispersed by the City of Dublin or ODOT are
payable to Karen Michelle Friedman until the Lessee has procured on the purchase
option." (CHKRS's Answer, Ex. A ("Lease") at ¶ 31.)
{¶ 10} On March 11, 2016, Friedman filed a brief stating that, as CHKRS had not
"procured on its option to purchase the Property," the lease required that "all of the
monies associated with Dublin's appropriation must be distributed to Friedman."
(Friedman's Brief at 2.)
No. 16AP-516 4
{¶ 11} CHKRS filed a brief in opposition to Friedman's brief on March 18, 2016,
stating that, "on March 7, 2016 CHKRS, LLC exercised the option to purchase the
property." (Emphasis sic.) (CHKRS's Brief in Opposition at 1.) CHKRS asserted that it
now had "a contract to purchase the property," and that Friedman could not convey the
easements to Dublin, as she had "promised to transfer all of the property to CHKRS upon
its exercise of the option." (CHKRS's Brief in Opposition at 1-2.) CHKRS attached the
affidavit of Robert G. Smith to its brief, in which Smith averred that he was "a member of
CHKRS, LLC" and had "exercised CHKRS, LLC's option to purchase 6310 Riverside
Drive." (Smith Aff. at ¶ 1, 2.) A copy of the March 7 e-mail from Smith to Friedman was
attached to Smith's affidavit. The e-mail states, "[l]et this serve as 30 day notice per the
Lease Agreement * * * that CHKRS, LLC, is exercising its option to purchase said
property." (Smith Aff., Ex. 1.)
{¶ 12} On March 31, 2016, CHKRS filed a motion for leave to amend its answer.
CHKRS asserted that, as it had "exercised its option to purchase the property," it had
counterclaims and cross-claims which "matured after the City filed its amended
complaint." (CHKRS's Mot. to Amend Answer at 1.)
{¶ 13} On June 3, 2016, the court issued a journal entry denying CHKRS's motion
for leave to amend its answer, granting Friedman's motion to withdraw the deposit, and
holding that Dublin properly exercised its quick-take authority. Regarding the motion to
withdraw, the court concluded that CHKRS had "not 'procured' the property" pursuant to
¶ 31 of the lease, as "there was never a closing." The court also noted that CHKRS had
stipulated at the March 4, 2016 conference "that the Option had never been exercised and
more importantly asked for no additional time to consider exercising the Option. (Mar. 4,
2016 Tr. at 19)."1 (Decision at 9.)
{¶ 14} Regarding the quick-take, the court observed that an agency is entitled to
quick-take property to make or repair public roads, and that through the project Dublin
was "making or repairing one of the largest and busiest public highway intersections in
this County." The court concluded that the shared-use path was a "meaningful
appurtenance to the 'ordinary' roadway," as it would enhance "safety for motorists and
1 CHKRS did not file a copy of the March 4, 2016 hearing transcript with this court.
No. 16AP-516 5
users of bicycles" by "getting bicycles and other vehicles * * * completely off the motorized
vehicle portion" of the road. (Decision at 12.)
{¶ 15} On June 16, 2016, the court issued a final judgment entry reciting its
findings from the June 3, 2016 entry. The court noted that, pursuant to the settlement
agreement, Dublin had agreed to pay Friedman $47,500 for the easements. The court
ordered Dublin to pay Friedman the additional $22,420 after she received the $25,080
deposit, and ordered Friedman to "convey, transfer, and forever grant a 0.100-acre
permanent easement and a 0.096-acre temporary easement" to Dublin. The court
instructed Dublin to "file a certified copy of this Entry with the [Franklin County]
Recorder at Dublin's cost." (Final Jgmt. Entry at 2.) The entry stated that it was "a final,
appealable order for which there is no just cause for delay." (Final Jgmt. Entry at 4.)
{¶ 16} CHKRS appeals, assigning the following errors for our review:
[I.] The trial court erred in holding that CHKRS, LLC did not
exercise its option to purchase the property under the lease
agreement.
[II.] The trial court erred in construing paragraph 31 of the
lease between Friedman and CHKRS, LLC so as [to] entitle
Friedman to the funds on deposit, to permit her to convey
easements to the City, to settle the eminent domain litigation
and terminate the case.
[III.] The trial court erred in ruling that the City of Dublin has
the authority to utilize the 'quick take' provision of Chapter
163 of [the] Ohio Revised Code to acquire land for a shared
use path as the City does not have the power to appropriate
property for a shared use path; as it is not appropriating the
property for the purpose of making or repairing a road; and as
the City Council's resolution authorizing the appropriation did
not authorize the City to utilize the "quick take provisions."
[IV.] The trial court erred in denying CHKRS, LLC's motion to
amend its answer to incorporate its property interest based on
it's [sic] exercise of the purchase option, as CHKRS, LLC now
is an equitable owner of the property and has a binding
purchase contract.
{¶ 17} Before addressing the assignments of error, we must first address Dublin's
motion to dismiss the appeal as moot. Dublin notes that CHKRS never sought a stay of
No. 16AP-516 6
the June 16, 2016 final judgment entry, and never sought an injunction to prevent Dublin
from constructing the shared-use path on the property. Dublin had the easements
recorded in its name on July 27, 2016. Dublin released all necessary funds to Friedman
and, therefore, argues it has satisfied the judgment. Dublin has now completed
construction of the entire project. (See Mot. to Dismiss at Ex. A.) As such, Dublin argues
that the present appeal is moot.
{¶ 18} Courts will not decide moot cases. In re A.G., 139 Ohio St. 3d 572, 2014-
Ohio-2597, ¶ 37; Tschantz v. Ferguson, 57 Ohio St. 3d 131, 133 (1991). "Actions are moot
'when they are or have become fictitious, colorable, hypothetical, academic or dead. The
distinguishing characteristic of such issues is that they involve no actual genuine, live
controversy, the decision of which can definitely affect existing legal relations.' " In re
L.W., 168 Ohio App. 3d 613, 2006-Ohio-644, ¶ 11 (10th Dist.), quoting Grove City v.
Clark, 10th Dist. No. 01AP-1369, 2002-Ohio-4549, ¶ 11. A moot case " ' "seeks to get a
judgment on a pretended controversy, when in reality there is none, or a decision in
advance about a right before it has been actually asserted and contested, or a judgment
upon some matter which, when rendered, for any reason cannot have any practical legal
effect upon a then-existing controversy." ' " Id., quoting Grove City at ¶ 11, quoting Culver
v. Warren, 84 Ohio App. 373, 393 (11th Dist.1948).
{¶ 19} When an appeal involves a construction project, and "the appellant fails to
obtain a stay of execution of a trial court's ruling or an injunction pending appeal, and
construction commences, the appeal is rendered moot." TP Mechanical Contrs., Inc. v.
Franklin Cty. Bd. of Commrs., 10th Dist. No. 08AP-108, 2008-Ohio-6824, ¶ 20, citing
Redmon v. Columbus City Council, 10th Dist. No. 05AP-466, 2006-Ohio-2199.
Additionally, "[i]t is a well-established principle of law that a satisfaction of judgment
renders an appeal from such judgment moot." Bob Krihwan Pontiac-GMC Truck, Inc. v.
Gen. Motors Corp., 145 Ohio App. 3d 671, 675 (10th Dist.2001). See also Queensgate
Terminals, LLC v. Cincinnati, 1st Dist. No. C-110653, 2013-Ohio-4219, ¶ 13.
{¶ 20} "When a case is deemed moot, the defending party is entitled to a dismissal
as a matter of right." Lund v. Portsmouth Local Air Agency, 10th Dist. No. 14AP-60,
2014-Ohio-2741, ¶ 6, citing United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953).
No. 16AP-516 7
The rules regarding mootness apply to appeals. Cincinnati Gas & Elec. Co. v. Pub. Util.
Comm. of Ohio, 103 Ohio St. 3d 398, 2004-Ohio-5466, ¶ 15.
{¶ 21} However, "[a] cause will become moot only when it becomes impossible for
a tribunal to grant meaningful relief, even if it were to rule in favor of the party seeking
relief." Joys v. Univ. of Toledo, 10th Dist. No. 96APE08-1040 (Apr. 29, 1997). See also
State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St. 3d 407, 2010-Ohio-1844, ¶ 11. Thus,
to ascertain whether the present appeal is moot, we must determine whether it would be
possible to grant CHKRS meaningful relief, if we were to rule in CHKRS's favor.
{¶ 22} CHKRS contends that the appeal is not moot based on R.C. 163.09(B)(2).
By way of background, R.C. Chapter 163 "was enacted effective January 1, 1966, to
establish uniform eminent domain procedure for all appropriations sought by public and
private agencies." Weir v. Wiseman, 2 Ohio St. 3d 92, 93-94 (1982). R.C. 163.01(E) defines
a property "owner" as "any individual, partnership, association, or corporation having any
estate, title, or interest in any real property sought to be appropriated." Accordingly, a
tenant is an "owner" of property for purposes of R.C. Chapter 163. See State ex rel.
Horwitz v. Court of Common Pleas, 65 Ohio St. 3d 323, 326 (1992) (observing that "[b]y
virtue of her leasehold interest, Horwitz [was] a 'property owner' as defined by R.C.
163.01(C)," and that the "General Assembly has already determined that [a lessee] has
standing in [an] appropriation proceeding independent of [their lessor's] interests and
notwithstanding [their lessor's] apparent acquiescence in the matter"). Id. at 327.
{¶ 23} R.C. 163.09(B)(1) states that "[w]hen an answer is filed pursuant to section
163.08 of the Revised Code and any of the matters relating to the right to make the
appropriation, the inability of the parties to agree, or the necessity for the appropriation
are specifically denied in the manner provided in that section, the court shall set a day
* * * to hear those matters." R.C. 163.08 provides that the "agency's right to make the
appropriation, the inability of the parties to agree, and the necessity for the appropriation
shall be resolved by the court in favor of the agency unless such matters are specifically
denied in the answer and the facts relied upon in support of such denial are set forth
therein."
No. 16AP-516 8
{¶ 24} R.C. 163.09(B)(2) provides, in relevant part, as follows:
Except as provided in division (B)(3) of this section, an order
of the court in favor of the agency on any of the matters or on
qualification under section 163.06 of the Revised Code shall
not be a final order for purposes of appeal. An order of the
court against the agency on any of the matters or on the
question of qualification under section 163.06 of the Revised
Code shall be a final order for purposes of appeal. If a public
agency has taken possession prior to such an order and such
an order, after any appeal, is against the agency on any of the
matters, the agency shall restore the property to the owner in
its original condition or respond in damages, which may
include the items set forth in division (A)(2) of section 163.21
of the Revised Code, recoverable by civil action, to which the
state consents.
{¶ 25} R.C. 163.21(A)(2) identifies witness fees, attorney fees, and other actual
expenses as items a property owner may recover. R.C. 163.06 details the quick-take
provisions, which permit "an agency to take immediate possession of property after
making a deposit of the assessed value of the property with the court." Village of Octa v.
Octa Retail, LLC, 12th Dist. No. CA2007-04-015, 2008-Ohio-4505, ¶ 9.
{¶ 26} The Ohio Constitution, Article I, Section 19 provides that, whenever private
property "shall be taken for public use, a compensation therefor shall first be made in
money, or first secured by a deposit of money; and such compensation shall be assessed
by a jury." However, when property is taken "in time of war or other public exigency, * * *
or for the purpose of making or repairing roads, which shall be open to the public, without
charge, a compensation shall be made to the owner, in money." Ohio Constitution, Article
I, Section 19. Thus, " '[p]rivate property may be taken for the purpose of making or
repairing roads without first either compensating the owner or securing such
compensation be made, provided compensation is subsequently determined.' " Village of
Octa at ¶ 8, quoting 38 Ohio Jurisprudence 3d, Eminent Domain, Section 246, at 317
(2003).
{¶ 27} The quick-take provision in R.C. 163.06(B) provides that "[a] public agency
appropriating property for the purpose of making or repairing roads which shall be open
to the public, without charge, * * * may deposit with the court at the time of filing the
petition the value of such property appropriated," as determined by the "agency, and * * *
No. 16AP-516 9
thereupon take possession of and enter upon the property appropriated." After the R.C.
163.06 deposit "is made by the public agency," the property owner "may apply to the court
to withdraw the deposit, and such withdrawal shall in no way interfere with the action."
R.C. 163.06(C). See also R.C. 163.18 (stating that "the court shall hear evidence as to the
respective interests of the owners in the property and may make distribution of the
deposit or award accordingly"); Pokorny v. Internal. Hod Carriers Bldg. & Common
Laborers Union, 38 Ohio St. 2d 177, 179 (1974) (holding that "if there is more than one
interest or estate in land sought to be appropriated, a bifurcated proceeding is required,"
whereby " 'the proper method of fixing the value of each interest or estate is to determine
the value of the property as a whole, with a later apportionment of the amount awarded
among the several owners according to their respective interests' "). Id., quoting Sowers v.
Schaeffer, 155 Ohio St. 454 (1951), paragraph one of the syllabus.
{¶ 28} CHKRS asserts that the last sentence of R.C. 163.09(B)(2) prevents the
appeal from being moot, because, if "the right to take the property is reversed on appeal,
the City must restore the property or answer in damages." (CHKRS's Brief in Opp. to Mot.
to Dismiss at 8.) Indeed, if this court were to rule in CHKRS's favor on the issues
presented on appeal, finding that CHKRS did procure on the purchase option, was
entitled to receive money from Dublin, and that Dublin did not have a right to quick-take
the property, R.C. 163.09(B)(2) provides that Dublin could be ordered to restore the
property to its original condition or respond in damages. Although construction of the
project is complete, and accordingly Dublin could not now restore the property to its
original condition, the ability to award CHKRS's attorney fees and other damages
preserves CHKRS's ability to receive meaningful relief in this appeal. Compare State ex
rel. Cincinnati Enquirer v. Heath, 121 Ohio St. 3d 165, 2009-Ohio-590, ¶ 18 (holding that
"a claim for attorney fees in a public-records mandamus action is not rendered moot by
the provision of the requested records").
{¶ 29} Dublin asserts that the last sentence "R.C. 163.09(B)(2) is not applicable to
[the] present appeal" because "the trial court's decision in Dublin's favor is not a final
appealable order." (Dublin's Reply at 3.) Dublin contends that the last sentence of R.C.
163.09(B)(2) "is only applicable to a decision after an appeal by the taking agency
against which a court has ruled," whereas "an order of the court in favor of the agency
No. 16AP-516 10
on matters or qualifications under R.C. 163.06 * * * is 'not a final order for purposes of
appeal.' " (Emphasis sic.) (Dublin Reply at 4.)
{¶ 30} The final appealable order rules in R.C. 163.09(B)(2) concern the time at
which a party may appeal the trial court's initial ruling on the right or necessity of the
appropriation. Thus, while a "trial court's order in favor of an appropriating agency,
entered pursuant to R.C. 163.09(B), is not subject to immediate appellate review," such an
order is reviewable "after a jury has assessed compensation and damages and the trial
court enters an order, pursuant to R.C. 163.15, which disposes of the whole case."
Cincinnati Gas & Electric Co. v. Pope, 54 Ohio St. 2d 12 (1978), syllabus. See also Horwitz
at 326; Cincinnati v. Dimasi, 1st Dist. No. C-060368, 2006-Ohio-3345, ¶ 5. When a court
rules in favor of the agency on the preliminary issues of right or necessity, "the court shall
set a time for the assessment of compensation by the jury." R.C. 163.09(B)(2). Thus, "the
statutory scheme of R.C. Chapter 163 contemplates that the property owner may obtain
appellate review only after the preliminary issues are decided," and "a jury assesses
compensation." Pope at 17. "The resulting consolidation of issues on appeal thus
precludes piecemeal litigation, thereby fostering the conservation of judicial energy." Id.
{¶ 31} The June 16, 2016 final judgment entry resolved the preliminary issue of
Dublin's right to quick-take the property, but also assessed compensation and disposed of
the entire case. See Cassady v. Columbus, 31 Ohio App. 2d 100, 106 (10th Dist.1972)
(noting that the "constitutional right to have a jury fix the compensation for property
taken may be waived"). Accordingly, as CHKRS appealed from the final judgment entry
disposing of the entire case, and not from the court's ruling on only the preliminary
issues, the appeal bar in R.C. 163.09(B)(2) is inapplicable to the present matter.
{¶ 32} Dublin further asserts that "pursuant to R.C. 163.09(B)(3), CHKRS does not
have a right to appeal the trial court's order in favor of Dublin in the matters CHKRS
denied in its answer," because Dublin appropriated "the property interests for the purpose
of making or repairing roads." (Dublin's Reply at 5.) R.C. 163.09(B)(3) provides that an
owner does have "a right to an immediate appeal" on the preliminary issues, "if the order
of the court is in favor of the agency in any of the matters the owner denied in the answer,
unless the agency is appropriating property * * * for the purpose of making or repairing
roads which shall be open to the public without charge."
No. 16AP-516 11
{¶ 33} R.C. 163.09(B)(3), like (B)(2), concerns the time at which a party may
appeal a court's ruling on the preliminary issues. R.C. 163.09(B)(3) provides an exception
to the general rule of no immediate appeal in (B)(2) when a court rules in favor of the
agency on a matter the owner denied in their answer. The rule reverts to the general rule
of no immediate appeal when the agency is appropriating the property to make or repair a
public road. However, the court's ruling on any preliminary issue is appealable after
compensation has been assessed and the court disposes of the entire case. Pope at
syllabus.
{¶ 34} Based on the foregoing, Dublin's motion to dismiss the appeal is denied.
{¶ 35} CHKRS's first assignment of error asserts the trial court erred in holding
that CHKRS did not exercise its option to purchase the property. CHKRS's second
assignment of error asserts the trial court erred by construing ¶ 31 of the lease to permit
Friedman to receive the funds on deposit and to convey the easements to Dublin. As these
assignments of error both concern the terms of the lease agreement, we address them
jointly.
{¶ 36} "Under Ohio law, 'leases are contracts and, as such, are subject to
traditional rules governing contract interpretation.' " Plaza Dev. Co. v. W. Cooper Ents.,
L.L.C., 10th Dist. No. 13AP-234, 2014-Ohio-2418, ¶ 25, quoting Heritage Court LLC v.
Merritt, 187 Ohio App. 3d 117, 2010-Ohio-1711, ¶ 14 (3d Dist.) "A court's fundamental
purpose in interpreting a contract is to 'determine and carry out the intention of the
parties.' " Id., quoting Merritt at ¶ 14. "In determining the intent of the parties, the court
must read the contract as a whole and give effect to every part of the contract, if possible."
Drs. Kristal & Forche, D.D.S., Inc. v. Erkis, 10th Dist. No. 09AP-06, 2009-Ohio-5671,
¶ 23. Common words are presumed to hold their ordinary meaning unless manifest
absurdity results, or some other meaning is clearly evidenced from the instrument. Plaza
Dev. Co. at ¶ 25.
{¶ 37} "If a contract is clear and unambiguous, then its interpretation is a matter of
law and there is no issue of fact to be determined." Inland Refuse Transfer Co. v.
Browning-Ferris Industries, Inc., 15 Ohio St. 3d 321, 322 (1984), citing Alexander v.
Buckeye Pipeline Co., 53 Ohio St. 2d 241 (1978). "However, if a term cannot be determined
from the four corners of a contract, factual determination of intent or reasonableness may
No. 16AP-516 12
be necessary to supply the missing term." Id., citing Hallet & Davis Piano Co. v. Starr
Piano Co., 85 Ohio St. 196 (1911).
{¶ 38} CHKRS and Friedman entered into a residential lease with an option to
purchase on July 29, 2015; the lease term was from August 1, 2015 to July 31, 2018.
CHKRS had to pay a "non-refundable down payment" of $8,500 before taking possession,
and the down payment would "be applied towards purchase price of home at the end of
the three (3) year lease if lessee chooses to purchase home." (Lease at ¶ 4.)
{¶ 39} Paragraph 30 of the lease, titled "Option to Purchase," states as follows:
A. Lessee shall have the option to purchase said property
anytime during the three year lease agreement with a 30 day
prior notice to lessor. The purchase price shall be One
Hundred Eighty Eight Thousand Dollars ($188,000.00) net
to seller. There shall be no prepayment penalty for paying the
balance of One Hundred Seventy Nine Thousand Five
Hundred Dollars ($179,500.00) net to seller before the end of
the three year lease, after due to Lessor at time of
procurement.
B. All documents and funds pertaining to the purchase of the
Demised Premises shall be deposited in escrow with the
Escrow Agent in time to permit the Closing to occur on a date
which is not later than thirty (30) days after the Option is
exercised.
C. Transfer of Demised Premises shall be by general warranty
deed for the premises free and clear of all encumbrances, with
any dower rights released, conveying to Lessee or Lessee's
nominee fee simple absolute title, free and clear of all liens,
conditions, easements, limitations, covenants, reservations,
claims, restrictions, and encumbrances whatsoever, except
real estate taxes and assessments not then due and payable,
zoning and building ordinances and governmental
regulations, and those recorded easements, covenants and
restrictions existing of record as of the date of this lease. Prior
to depositing the deed in escrow, Lessor shall deliver to Lessee
a true copy thereof. Lessor shall discharge, at Lessor's sole
cost and expense, at or prior to closing, all mortgages, deeds
of trusts, financing statements, and other instruments
evidencing or securing the repayment of debt, judgment liens
and any other liens of a liquidated amount evidencing a
monetary obligation.
No. 16AP-516 13
D. The Escrow Agent shall cause title to the Demised Premises
to be searched by the title company, and if and when the title
company will issue the above-required evidence of title and
escrow agent has received all funds and documents to be
deposited hereunder, escrow agent shall cause the deed to be
filed for record and the funds to be disbursed.
E. Full and exclusive possession of the Demised Premises
shall be delivered by Lessor at Closing.
F. The Lessor shall pay property taxes and keep them in good
standing until Lessee's procurement of Option.
G. This lease agreement and its Option to purchase shall be
assignable/assumable by the sole permission of Lessor.
H. The title company or bank or landing institution
designated by Lessee shall serve as escrow agent for this
transaction. This agreement shall serve as escrow
instructions, subject to the escrow agent's standard conditions
of acceptance to the extent not contrary to any of the terms
hereof.
{¶ 40} CHKRS asserts that it "exercised the option to purchase 6310 Riverside Dr.
from Friedman on March 7, 2016." (CHKRS's Brief at 13.) However, at the March 4, 2016
status conference, CHKRS stipulated to the following fact: "CHKRS has not exercised the
option to purchase." (Mar. 9, 2016 Entry at 2.)
{¶ 41} "A stipulation, once entered into, filed and accepted by the court, is binding
upon the parties and is a fact deemed adjudicated for purposes of determining the
remaining issues in the case." Whitehall ex rel. Fennessy v. Bambi Motel, 131 Ohio
App.3d 734, 742 (10th Dist.1998), citing Horner v. Whitta, 3d Dist. No. 13-93-33
(Mar. 16, 1994). See also Augaitis v. Reichard, 2d Dist. No. 13693 (June 28, 1993) (noting
that "[a] stipulation of facts eliminates the need for proof of the truth of the statement").
"A party who has agreed to a stipulation cannot unilaterally retract or withdraw from it."
Bambi Motel at 742. A party may only withdraw from a stipulation with the "consent of
the other party," or "by leave of court upon good cause." DeStephen v. Allstate Ins. Co.,
10th Dist. No. 01AP-1071 (Apr. 30, 2002) (observing that, as "[n]o where in the record is
there any indication that appellants attempted to withdraw or retract their stipulation,"
the appellants were "bound by their stipulation").
No. 16AP-516 14
{¶ 42} There is nothing in the record demonstrating that CHKRS sought leave of
court or the consent of the parties to permit CHKRS to withdraw or retract its stipulation
of fact. Accordingly, CHKRS did not have the authority to unilaterally retract the
stipulation, and CHKRS was therefor bound by its stipulation. Thus, the fact that CHKRS
had not exercised the option to purchase was a fact deemed adjudicated for purposes of
the present action.
{¶ 43} Moreover, even if we were to ignore the stipulation, CHKRS never procured
on the purchase option. CHKRS contends that based solely on its March 7, 2016 e-mail it
both "exercised its option to purchase the property and has procured on the option to
purchase." (CHKRS's Brief at 22.) However, the lease plainly expresses that exercising the
option and procuring on the purchase option were different events. See Andover Village
Retirement Community v. Cole, 11th Dist. No. 2013-A-0057, 2014-Ohio-4983, ¶ 15
(noting that "[g]enerally in interpreting a statute or a contract, we presume that the use of
different words indicates an intention that the words possess different meanings").
{¶ 44} To procure means "[t]o obtain (something), esp. by special effort or means,"
and to "achieve or bring about (a result)." "Procurement" means that "act of getting or
obtaining something or of bringing something about." Black's Law Dictionary 1401 (10th
Ed.2014). To "exercise" means to "implement the terms of; to execute." Black's at 693.
{¶ 45} "An option is an agreement to keep an offer open for a specified time; it
limits the customary power of an offeror to revoke his offer prior to its acceptance."
Ritchie v. Cordray, 10 Ohio App. 3d 213 (10th Dist.1983), paragraph one of the syllabus. A
real estate option is not itself "a contract to buy and sell the property, but only a contract
whereby the seller agrees to leave his offer to sell open for a time-certain. Confusion often
arises since the option is combined with the main offer to sell and its attendant detailed
terms." Id. at 215. Thus, while an option "is already a binding complete contract to leave
the offer open," the main offer contained in the option "does not become a contract to buy
and sell unless and until its terms are accepted." Id.
{¶ 46} The option specified that CHKRS could purchase the property at any time
during the lease term "with a 30 day prior notice to lessor," and that the documents and
funds pertaining to the purchase had to be deposited in escrow "in time to permit the
Closing to occur on a date which is not later than thirty (30) days after the Option is
No. 16AP-516 15
exercised." (Lease at ¶ 30(A) and (B).) Thus, to exercise the option under the lease,
CHKRS had to notify Friedman that CHKRS intended to implement the terms of the
purchase option over the 30-day period following such notice.
{¶ 47} In contrast, the lease uses the terms "procure" and "procurement" to refer to
the event of CHKRS obtaining the property pursuant to the purchase option. CHKRS had
to pay the balance of the purchase price to Friedman "at time of procurement," and
Friedman was to continue to pay the property taxes "until Lessee's procurement of
Option." (Lease at ¶ 30(A) and (F).) Thus, to have "procured on the purchase option"
pursuant to ¶ 31 of the lease, CHKRS had to obtain the property pursuant to the purchase
option. The purchase option in ¶ 30 detailed the specific steps CHKRS had to take to
procure the property through the option.
{¶ 48} The March 7, 2016 e-mail was merely CHKRS's notice to Friedman that
CHKRS intended to implement the terms of the purchase option over the following 30-
days. However, after sending the e-mail, CHKRS took no steps to implement the terms of
the purchase option. The option obligated CHKRS to initially designate the institution
that would "serve as escrow agent for this transaction," and to then deposit the $179,500
balance of the purchase price with the escrow agent in time to permit a closing to occur
within 30 days of March 7, 2016. (Lease at ¶ 30(H).) There is nothing in the record to
demonstrate that CHKRS attempted to comply with these obligations.2 See Ritchie at 216
(holding that, because the plaintiff "never tendered payment to defendants" pursuant to
the option, the "defendants were under no obligation to convey title to a buyer who, even
though pressed to close the sale, had given no indication that he could or would pay for
the property").
{¶ 49} Accordingly, CHKRS did not procure on the purchase option. As such,
pursuant to ¶ 31 of the lease, CHKRS was not eligible to receive money from Dublin.
{¶ 50} Generally, a tenant does have "a property right in the leasehold and, in the
absence of an agreement to the contrary, is entitled to compensation if it is appropriated
by eminent domain." Carrol Weir Funeral Home v. Miller, 2 Ohio St. 2d 189, 191 (1965).
2 At oral argument before this court, CHKRS's attorney stated that CHKRS "did provide an escrow and
title company." However, there is nothing in the record to support counsel's statement. See App.R.
9(A)(1). Regardless, counsel never asserted that CHKRS attempted to deposit the balance of the purchase
price in escrow.
No. 16AP-516 16
However, "there is nothing to prevent the parties from changing their respective rights by
agreement." Id. Thus, it is "the agreement of the parties that controls whether the lessee
has a compensable property interest in the appropriated property." Cincinnati v.
Spangenberg, 35 Ohio App. 2d 168, 171 (1st Dist.1973). See also ISHA, Inc. v. Risser, 3d
Dist. No. 1-12-47, 2013-Ohio-2149, ¶ 42; State Rd. Assocs. v. Cuyahoga Falls, 9th Dist.
No. 24362, 2009-Ohio-2859, ¶ 19. Through ¶ 31 of the lease, Friedman and CHKRS
provided that CHKRS, as a lessee, would not have a compensable interest if the property
was appropriated by Dublin or Ohio Department of Transportation.
{¶ 51} CHKRS lastly contends that the court erred by "allowing Friedman" to
"settle the eminent domain case and voluntarily convey the easements sought to be
appropriated," as Friedman had "promised to transfer all of the property to CHKRS."
(CHKRS's Brief at 19.) In an eminent domain action, however, "the conveyance [is] not a
voluntary one"; as the property owner has "no choice except to convey" and "rely upon the
constitutional guaranty that full compensation would be made." Cullen & Vaughn Co. v.
Bender Co., 122 Ohio St. 82, 93 (1930). Pursuant to the "doctrine of equitable
conversion," the compensation "paid for the land taken by the exercise of the power of
eminent domain in equity represents the land and is subject to all the rights of persons
who had rights in the land." Id. at paragraph four of the syllabus.
{¶ 52} Based on the foregoing, CHKRS's first and second assignments of error are
overruled.
{¶ 53} CHKRS's third assignment of error asserts the trial court erred in ruling that
Dublin could exercise its quick-take authority to immediately enter the property for the
purpose of constructing a shared-use path. See R.C. 4511.01(PPP) (defining a shared-use
path as "a bikeway outside the traveled way and physically separated from motorized
vehicular traffic by an open space or barrier").
{¶ 54} CHKRS, however, never sought an injunction to halt Dublin's construction
on the property. See Branford Village Condominium Unit Owners' Assn. v. Upper
Arlington, 12 Ohio App. 3d 120, 121 (10th Dist.1983) (observing that, if a defendant cannot
deny the agency's right to take the property in the appropriation action, "a separate
injunction action may be brought to enjoin an abuse of municipal power"); Cleveland v.
Brook Park, 103 Ohio App. 3d 275, 280 (8th Dist.1995) (holding that the "Uniform
No. 16AP-516 17
Eminent Domain Act did not change Ohio law recognizing a separate action to enjoin
appropriation proceedings"); Bd. of Edn. v. Holding Corp. of Ohio, 29 Ohio App. 2d 114,
117 (10th Dist.1971) (noting that, before the enactment of R.C. Chapter 163, "the only issue
that could be tried in an appropriation matter was the matter of compensation," as
property owners had to "challenge necessity * * * by way of injunction").
{¶ 55} In Worthington v. Carskadon, 18 Ohio St. 2d 222 (1969), the city of
Worthington used the quick-take provisions to immediately enter the appellants' property
to construct a drainage ditch. The Supreme Court of Ohio held that the " 'quick take' by
the city, i.e., an immediate entry and seizure of private property prior to any jury verdict,
was illegal and unconstitutional." Id. at 223. The court noted that Ohio Constitution,
Article I, Section 19 "permits immediate entry in time of public exigency and for the
purpose of public roads," while the case before it "involved only a drainage ditch." Id.
{¶ 56} However, the court further concluded that the "illegal seizure [was] a fait
accompli, and the right of the city to do so is now moot. It now owns an easement and the
illegality of its possession has ceased." Id. at 224. The court noted the "proper remedies
for illegal entry upon one's property are criminal trespass and civil damages against the
individuals entering, and injunction against the city and its agents." Id. See also Cassady
at 104-05 (finding that, although the "Columbus 'quick take' ordinance [was]
unconstitutional," this did not "necessitate a reversal of that judgment" as the plaintiffs
"did not seek injunctive relief against the city," the sewer line was constructed, and the
plaintiffs had accepted "the benefits of the 'quick take' " by withdrawing the funds
Columbus deposited); Village of Octa at ¶ 43 (holding that the property owner's R.C.
163.09(B) hearing on remand would be "limited to a determination of whether * * * the
amount taken was excessive," because, although the village did an improper quick-take of
the property, the property owner "did not file for an injunction" and "the village ha[d]
already constructed the newly relocated West Lancaster Road").
{¶ 57} Thus, as CHKRS did not seek an injunction, Dublin completed construction
of the project. Moreover, Dublin now owns the easements on the property and has fully
compensated Friedman for the easements. CHKRS's failure to procure on the purchase
option precludes CHKRS from receiving money dispersed by Dublin. Thus, even if we
were to find that Dublin erred in exercising the R.C. 163.06(B) quick-take authority,
No. 16AP-516 18
CHKRS is not eligible to receive damages from Dublin under R.C. 163.09(B)(2).
Accordingly, there is no relief that we could grant to CHKRS from Dublin's quick-take of
the property. We find no exceptions to the mootness doctrine applicable to this issue. See
Rithy Properties v. Cheeseman, 10th Dist. No. 15AP-641, 2016-Ohio-1602, ¶ 20.
{¶ 58} Based on the foregoing, we find that our ruling on CHKRS's first two
assignments of error renders its third assignment of error moot.
{¶ 59} CHKRS's fourth assignment of error asserts the trial court erred in denying
CHKRS's motion for leave to amend its answer. Civ.R. 15(A) provides that "a party may
amend its pleading only with the opposing party's written consent or the court's leave.
The court shall freely give leave when justice so requires." A trial court's decision to grant
or deny leave to amend a pleading is reviewed under an abuse of discretion standard.
Farmers Prod. Credit Assn. of Ashland v. Johnson, 24 Ohio St. 3d 69, 72 (1986).
{¶ 60} "Prejudice to an opposing party is the most critical factor to be considered
in determining whether to grant leave to amend." Simmons v. Am. Pacific Ents., LLC, 164
Ohio App. 3d 763, 2005-Ohio-6957, ¶ 9 (10th Dist.), citing Frayer Seed, Inc. v. Century 21
Fertilizer & Farm Chemicals, Inc., 51 Ohio App. 3d 158, 165 (1988). Timeliness of the
request is another factor to consider. Id. R.C. 163.22 obligates a trial court to advance
appropriation proceedings "as a matter of immediate public interest and concern," and to
hear such cases "at the earliest practicable moment."
{¶ 61} The trial court concluded that "CHKRS's proposed amended Answer would
prejudice the other parties," as the "tendered amendment arrived late in the case, and
could substantially broaden and complicate the case." The court noted that CHKRS's
"legitimate legal rights in this land appropriation case were appropriately protected by its
original Answer." (Decision at 6.) R.C. 163.22 obligated the court to hear the case at the
earliest practicable moment, and the court concluded that granting CHKRS's late filed
motion for leave would complicate and therefore delay the case. As such, we find no abuse
of discretion in the court's denial of CHKRS's motion for leave to amend its answer.
{¶ 62} CHKRS's fourth assignment of error is overruled.
{¶ 63} On November 30, 2016, Dublin filed a motion to strike CHKRS's reply brief,
asserting that CHKRS impermissibly raised new arguments in its reply brief. The purpose
"of a reply brief is to afford the appellant an opportunity to respond to the appellee's brief,
No. 16AP-516 19
not to raise an issue for the first time." Hadden Co., L.P.A. v. Zweier, 10th Dist. No. 15AP-
210, 2016-Ohio-2733, ¶ 15. See also App.R. 16(C). "A party may not advance new
arguments in its reply brief." Clifton Care Ctr. v. Ohio Dept. of Job & Family Servs., 10th
Dist. No. 12AP-709, 2013-Ohio-2742, ¶ 13.
{¶ 64} Dublin asserts that CHKRS's reply brief raised new arguments concerning
"multiple procedural issues" Dublin failed to comply with before filing its complaint for
appropriation. (Dublin's Motion to Strike at 3.) CHKRS asserts that it did raise the
procedural issues in its initial brief. In light of our foregoing analysis of the assignments of
error, however, the arguments in CHKRS's reply brief regarding Dublin's alleged failure to
comply with certain pre-complaint procedures are not dispositive of the case. Because the
arguments in CHKRS's reply brief "are not dispositive," they need "not be formally
stricken." Black v. Columbus Sports Network, LLC, 10th Dist. No. 13AP-1025, 2014-
Ohio-3607, ¶ 12. Dublin's motion to strike is denied.
{¶ 65} Based on the foregoing, we overrule CHKRS's first, second, and fourth
assignments of error, and render its third assignment of error moot. Dublin's motion to
dismiss the appeal, and motion to strike CHKRS's reply brief are denied. The judgment of
the Franklin County Court of Common Pleas is affirmed.
Motions denied;
judgment affirmed.
BRUNNER and HORTON, JJ., concur.
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