from the Franklin County Court of Common Pleas (C.P.C. No.
& Elliott, LLC, Rex H. Elliott, Charles H. Cooper, Jr.,
and Sean R. Alto, for appellee.
Michael DeWine, Attorney General, and Christopher P. Conomy,
Christopher P. Conomy.
1} Defendant-appellant, the Ohio Department of
Natural Resources ("ODNR"), appeals a judgment of
the Franklin County Court of Common Pleas that granted
plaintiff-appellee, JDS So Cal, Ltd. ("JDS"),
summary judgment and denied ODNR summary judgment. For the
following reasons, we reverse that judgment and remand for
the trial court to enter summary judgment in ODNRs favor.
2} In 1996, Morno Holding Company
("Morno") deeded to ODNR a 17.85-acre parcel of
undeveloped property abutting Sawmill Place Boulevard
(hereinafter "the Sawmill property"). Morno added
to the deed a restrictive covenant that provided that the
conveyance was "granted and accepted on the condition
that the real property be used and occupied solely for public
purposes." (Pl.'s Ex. 2, June 1, 2016 Pl.'s Mot.
for Summ. Jgmt.) Apparently, Morno included the public-use
restriction in the deed to support a charitable tax
3} After receiving the property, ODNR named it the
"Sawmill Wetland Education Area" and opened it to
school groups so students could study the wetlands contained
in the property. The Sawmill property, however, was little
utilized for educational purposes. Moreover, security
concerns forced ODNR to fence the property and only allow
access to the general public by reservation.
4} Between 2006 and 2011, ODNR repeatedly offered
the Sawmill property to the Columbus Recreation and Parks
Department ("Parks Department"). While the Parks
Department expressed some interest in acquiring the Sawmill
property, the Parks Department ultimately declined to take
the property. The Parks Department did not want the
responsibility for paying the common-area-maintenance charges
imposed on the property by a restrictive covenant in the
original subdivision plat documents.
5} In 2012, ODNR entered into a contract with JDS to
swap the Sawmill property for a 43.33-acre property located
on the west bank of the Olentangy River (hereinafter
"the Olentangy property"). While JDS did not own
the Olentangy property, it had an option to purchase the
property. ODNR wanted the Olentangy property due to its
larger size, proximity to the Olentangy River and Highbanks
Metro Park, and the variety and uniqueness of the wildlife
inhabiting the property. JDS wanted the Sawmill property in
order to develop it for commercial use.
6} The dispute in this case largely centers on
Section 4(d)(1) of the land-swap contract. Pursuant to that
provision, JDS agreed to obtain a release of the public-use
restriction in the Sawmill property's deed prior to the
property transfer. ODNR agreed to work cooperatively with JDS
to obtain that release. If JDS did not obtain a release, it
could either terminate the contract or waive the requirement
that it obtain a release. If JDS chose to waive the release
requirement, it was bound to indemnify ODNR for any breach of
the public-use restriction.
7} In total, the contract included three
contingencies to be satisfied prior to the property transfer.
Specifically, the contract stated:
(d) Unless waived by [JDS], the following contingencies shall
be satisfied by 5:00 p.m., Eastern Standard Time, on the date
which is Three Hundred and Sixty (360) Days after the
Effective Date (the "Deed Contingency Period").
(1) [JDS] obtaining the release of the current "public
use" restriction encumbering the [Sawmill] Property.
[JDS] and [ODNR] shall both work cooperatively to obtain the
executed release of such encumbrance. Unless requested by
[JDS], all communications with grantor of the deed in which
the "public use" restriction originates shall be
exclusively conducted by [JDS]. To the extent that this
contingency is not timely satisfied, [JDS] may elect to
terminate this Agreement pursuant to Section 6(a)(iii) in the
exercise of its sole and absolute discretion or waive the
contingency. Absent a timely written notice of termination,
[JDS] shall be deemed to have waived this contingency. In the
event that [JDS] elects to waive the contingency for the
release of the current "public use" restriction or
is deemed to have waived pursuant to the immediately prior
sentence, [JDS] shall indemnify and hold harmless [ODNR] from
any and all claims, losses, liabilities, causes of action,
fines, penalties, or expenses, including, but not limited to,
reasonable attorney's fee[s] and expenses, arising from
or related to the continuation of the "public use"
restriction after the conveyance of the [Sawmill] Property to
[JDS], its successors and assigns. The foregoing
indemnification and hold harmless agreement of [JDS] shall
survive the expiration or termination of this Agreement.
(2) [JDS] (and/or its valid designee) has taken record title
to the [Olentangy] Property, with any and all costs as to
this pre-condition to be paid for by [JDS].
(3) Any title or survey objection of [ODNR] or [JDS] shall
have been cured.
(Pl's. Ex. 1 at Section 4(d)(1) through (3), June 1, 2016
Pl.'s Mot. for Summ. Jgmt.)
8} In addition to setting forth contingencies, the
contract scheduled a closing, at which ODNR would assume
possession of the Olentangy property and JDS would assume
possession of the Sawmill property. The closing had to occur
"on a date determined by [JDS], not less than ten (10)
days after written notice is given to [ODNR] but not later
than thirty (30) days after the end of the Deed Contingency
Period." (Pl.'s Ex. 1 at Section 3(a), June 1, 2016
Pl.'s Mot. for Summ. Jgmt.)
9} The deed contingency period began on April 12,
2012, the date on which the contract was fully executed.
Consequently, JDS had until April 7, 2013 to satisfy the
contingencies contained in Section 4(d). At the very latest,
the closing had to occur on May 7, 2013, provided JDS gave
ODNR notice by April 27, 2013.
10} By June 2012, news of the land-swap deal had
reached the public, and environmental groups began expressing
their opposition to the deal. Also in June 2012, JDS learned
that its title insurer would issue a title commitment without
a release of the public-use restriction from Morno, if ODNR
"release[d] the restriction on their end at
closing." (Pl.'s Ex. 10, Ruma Dep.) To address these
developments, JDS drafted an amendment to the parties'
11} In the draft amendment, JDS agreed to
incorporate into the Sawmill property's deed a
restrictive covenant requiring JDS to preserve 3.08 acres of
the Sawmill property as a wetland. JDS added this change to
appease the environmental groups who objected to any
commercial development of the Sawmill property. The draft
agreement also included a provision requiring ODNR to state
in the Sawmill property's deed that it was
"releas[ing] and discharg[ing] of record the Use
Restriction and any and all rights it may have to enforce the
Use Restriction for the [Sawmill] Property." (Def.'s
Ex. 6A at Ex. C to the Purchase Agreement, Section 1, June
15, 2016 Def.'s Memo in Opp. to Pl.'s Mot. for Summ.
Jgmt.) This alteration of the contract would allow JDS to
acquire title insurance even if it could not obtain a release
of the public-use restriction from Morno.
12} While ODNR considered whether it would agree to
the amendment, JDS approached Morno and requested that it
release the public-use restriction. Morno agreed to review
13} In August 2012, ODNR's director and the
attorney general executed the amendment. The amendment then
went to the governor's office, as it was not binding
without the governor's signature.
14} From summer 2012 through winter 2012/2013, ODNR
officials spoke about the land-swap deal with representatives
of various environmental groups, including the Ohio
Environmental Council, The Nature Conservancy, and the
Friends of the Sawmill Wetlands. These groups opposed the
land-swap deal and wanted to work with ODNR to arrive at an
alternate disposition for the Sawmill property. In short,
these groups wanted the Sawmill property preserved in its
15} On December 12, 2012, Karl Gebhardt, then a
deputy director of ODNR, spoke with Kate Hastings, a resident
of the Sawmill area. Hastings told Gebhardt that she had
attended a meeting held by the Friends of the Sawmill
Wetlands the previous evening. During that meeting, a
representative of the City of Columbus ("City")
expressed interest in acquiring the Sawmill property.
Hastings asked Gebhardt if ODNR would speak with the City
about its interest. Gebhardt responded that, if the City
"wanted to offer a proposal [to take possession of the
Sawmill property, ] [ODNR] would talk with them[, ] but it
need[ed] to be an official offer very soon which [ODNR] would
evaluate." (Pl.'s Ex. 7, June 1, 2016 Pl.'s Mot.
for Summ. Jgmt.) Later, when questioned as to why he
expressed openness to an "official offer" from
City, Gebhardt explained that he "didn't think there
was any reason why the City couldn't have [made an
offer]. If they wanted to, that was up to them. Whether we
accepted it or what we did with it, I mean, that's a
whole different situation. But if the City was really
interested like we heard, then put something on the
table." (Gebhardt Dep. at 99.)
16} Two days after Gebhardt's conversation with
Hastings, Allen McKnight, the director of the City's
Parks Department sought a meeting with Gebhardt. Gebhardt and
Fred Shimp, an assistant director of ODNR, met with McKnight
soon thereafter to determine if the City actually wanted the
Sawmill property. Gebhardt figured, "If they were or
were not [interested], we would be able to convey that * * *
if we were * * * asked by the environmental [groups, ]
[']Why aren't you working with the City[?'] We
could convey to them we did, we were talking with the City,
they're not interested." Id. at 104.
According to Gebhardt, McKnight "said that there could
be interest on the part of the City but there were some
issues that obviously had to be addressed." Id.
at 101. Gebhardt and Shimp told McKnight "where [ODNR]
w[as] with [the deal with JDS], [and] [McKnight] understood
it. He did not want to get really in the middle * * * of this
deal that's already been going forward but he said if * *
* something happened where it didn't go forward, they may
have an interest. But it wasn't a real firm commitment on
their part." Id.
17} Despite McKnight's equivocacy in the
meeting, the City joined with The Nature Conservancy to make
a formal offer regarding the Sawmill property. In a letter
dated January 4, 2013, McKnight proposed that the Parks
Department would assume permanent ownership of the Sawmill
property and manage it for the public's benefit. The
Nature Conservancy would provide recommendations for
protecting the wetlands and donate up to ...