[Cite as Crocker Park, L.L.C. v. Westlake, 2026-Ohio-2932.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CROCKER PARK, LLC, ET AL., :
Plaintiffs-Appellees, :
No. 115356
v. :
CITY OF WESTLAKE, OHIO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: July 30, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-24-106203
Appearances:
Benesch, Friedlander, Coplan & Aronoff, LLP, Gregory J.
Phillips, and Alayna K. Bridgett, for appellees.
Michael P. Maloney, Westlake Director of Law, and Robin
R. Leasure, Westlake Assistant Director of Law; Seeley,
Savidge, Ebert & Gourash Co., LPA and Christopher M.
Corrigan, for appellant.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant City of Westlake, Ohio (“Westlake” or “the City”)
appeals two orders granting partial motions for summary judgment against Westlake and in favor of plaintiffs-appellees Crocker Park, L.L.C. (“CP”), CP Phase
I Residential Delaware, L.L.C., Crocker Excelsior, L.L.C., CP Commercial Delaware,
L.L.C. (“CP Commercial”), and CP Land, L.L.C. (collectively “plaintiffs”) and thirdparty-defendant-appellee Crocker Park Management, L.L.C. (“CP Management”).
Westlake claims the following errors:
1. The Court of Common Pleas abused its discretion in ordering the
plaintiffs to file summary judgment when pleadings had not been
finalized and discovery had not been conducted on the issues[.]
2. The court erred [in] granting summary judgment when the parties
had not conducted discovery on the facts of the dispute and all
information was not before the court[.]
3. The court erred in granting plaintiffs’ summary judgment on
defendant’s counterclaim for slander of title[.]
4. The court erred [in] granting plaintiffs summary judgment on
defendant’s . . . abuse of process claim[.]
5. The court erred [in] declaring that plaintiffs have not waived their
ability/right to assert its right of first refusal on future offers[.]
We find that the trial court did not err in granting the parties leave to
file motions for summary judgment by March 17, 2025, because the pleadings had
closed by that time, and Westlake could have sought leave for additional discovery
pursuant to Civ.R. 56(F), if additional discovery were needed. We further find that
the trial court properly granted summary judgment in favor of plaintiffs and the
third-party defendant on Westlake’s slander-of-title and abuse-of-process claims.
However, because we find that CP failed to properly exercise its right of first refusal
within a reasonable time, we find that the trial court erred in declaring that CP did not waive its right of first refusal. We, therefore, affirm the trial court’s judgment in
part, reverse it in part, and remand the case to the trial court for further proceedings.
I. Facts and Procedural History
Plaintiffs filed a complaint and a verified amended complaint against
Westlake, alleging the breach of multiple contracts and seeking various forms of
declaratory and injunctive relief as well as money damages.1 The allegations arose
from the parties’ relationship to a mixed-use development located on Crocker Road
in Westlake, Ohio, known as “Crocker Park.”
Crocker Park was developed on multiple contiguous parcels of property
and contains a mix of retail stores, restaurants, office buildings, apartments, and
green spaces. The Crocker Park planners intended the different parcels of property
that compose Crocker Park “to interrelate and function to their mutual advantage
and benefit such that the eventual owners of the parcels, and their permittees, would
have access to certain ‘common areas’ throughout the development.” (Verified
amended complaint ¶ 12.) Thus, CP drafted a “Declaration of Covenants,
Conditions, Restrictions and Easements” (the “Declaration”) governing the use and
ownership of the various parcels that compose Crocker Park.2 The Declaration
1 The allegations in, and the exhibits attached to, the amended complaint were
verified under oath by Steve Coven, the secretary of CP and general counsel of Stark Enterprises, Inc., CP’s agent, exclusive property manager, and leasing agent.
2 The Declaration was verified and submitted with the verified amended complaint
as Exhibit A. Coven also verified the authenticity of the Declaration in an affidavit submitted with plaintiffs and third-party defendant’s motion for partial summary judgment.
identifies CP as the declarant and defines the term “Owner” or “Owners” to mean
“the current and future owners of the parcels comprising Crocker Park.” (Verified
amended complaint, Exhibit A.)
One of the disputes between plaintiffs and Westlake involved the cost
of maintaining and repairing “Common Areas.” Section 1.9 of the Declaration
defines the term “Common Area,” in part, as “all portion of the Project Site available
for the general use, convenience and benefit of all Owners and their respective
Permittees,” subject to some exceptions not relevant to this case.
Section 1.10 of the Declaration defines the term “Common Expenses”
as follows:
The term “Common Expenses” means (i) the cost and expense of
operating, maintaining, repairing and replacing the Common Area
and/or the Public Improvements, including, but not limited to, all costs
and expenses incurred by [CP Management] under the Management
Agreement; (ii) the cost of utilities serving the Common Areas and/or
the Public Improvements, (iii) the cost of garbage and trash removal
for the Project, except special charges that can be specifically identified
as belonging to one Parcel, (iv) the cost, expense, and premium for all
insurance attributed to Common Areas; (v) Real Estate Taxes for the
Common Areas and/or the Public Improvements (if any), and (vi) any
other cost, expense, fee or charge deemed a Common Expense under
this Declaration.
Regarding maintenance and repair of Common Areas, Section 6.2 of the
Declaration provides:
Subject to the payment provisions in Section 6.4 hereof and the
easements, terms, covenants, conditions, restrictions and rights
granted, declared and/or reserved hereunder, the Common Areas shall
at all times be maintained and managed by Declarant except that each
Owner is required to provide security for the Common Areas located
within its respective Parcel and Declarant shall have the obligation and
responsibility to keep, maintain, manage and operate the Common
Areas in good, clean operating condition, order and repair consistent
with the operation of similar first-class mixed-use developments
located in the State of Ohio and shall keep the Common Areas clean
and (as applicable) reasonably clear of snow and ice. Notwithstanding
the foregoing, Declarant agrees that the Public Improvements, if
constructed, may be maintained and managed by [CP Management] in
accordance with standards established under applicable Port Authority
Agreements. Declarant shall (and [CP Management], as to the Public
Improvements, may) manage, calculate and coordinate among the
Owners the payment of Common Expenses.
Section 6.4 of the Declaration governs payment of Common Expenses
and states, in relevant part: “Each Owner shall pay to Declarant (or [CP
Management] as to the Public Improvements), pursuant to the provisions of this
Section 6.4, its share of the Common Expenses, calculated based on the Budget and
such Owner’s Proportionate Share.” Section 1.50 defines the term “Proportionate
Share” as “the percentage assigned by Declarant from time to time with respect to
each Parcel/Owner.” (Declaration p. 8.) Section 6.4(b) requires that “[e]ach
Owner’s share of the Common Expenses shall be paid in equal monthly installments
in such amounts as are reasonably estimated and billed by Declarant.” The
Declaration was recorded with the Cuyahoga County Recorder on December 8,
2003. (Verified amended complaint ¶ 29.)
In March 2014, CP and Westlake executed the “Market Square
Development Agreement” (the “Development Agreement”) whereby CP agreed to
“convey to the City, at no cost to the City, approximately two (2) acres of land within [Crocker Park].”3 (Verified amended complaint ¶ 32; development agreement p. 1.)
In exchange for the free land, Westlake “agreed to construct on the Parcels, at the
City’s cost, a market square with improvements to be designed and adjacent open
space.” (Verified amended complaint ¶ 33; development agreement p. 1.) The land
conveyed to Westlake, together with its improvements, is known as “Market
Square.” (Verified amended complaint ¶ 35.) Westlake accepted deeds to the land
subject to “any reservations, restrictions, limitations, easements, and conditions of
title[,]” including the conditions of title outlined in the Declaration. (Verified
amended complaint ¶ 37-38.) Hence, Westlake became an owner of Crocker Park
subject to the covenants, conditions, and restrictions set forth in the Declaration.
Market Square was constructed and became operational in 2015.
(Verified amended complaint ¶ 47.) It is comprised of an indoor event space, a halfacre outdoor green space, and two restrooms with entrances on the exterior of the
building. The restrooms have been open to all “Permittees” since they were
constructed.4 (Verified amended complaint ¶ 49.) Plaintiffs allege that “Market
Square’s greenspace and restrooms constitute Common Areas as defined in the
Declaration.” (Verified amended complaint ¶ 50.) They also allege that “Market
Square’s common restrooms must remain open and accessible to other Owners and
3 The Development Agreement is attached to the verified amended complaint as
Exhibit B.
4 Section 1.42 of the Declaration defines the term “Permittees” to include “all
occupants, including tenants, of the Parcels and their and each Owner’s respective officers, directors, employees, agents, partners, contractors, customers, visitors, invitees, licensees and concessionaries.”
their Permittees in order for Crocker Park to comply with local zoning and building
codes.” (Verified amended complaint ¶ 51.)
In September 2015, Westlake entered into an Operation and
Maintenance Agreement (“O&M Agreement”) with CP Management, a wholly
owned subsidiary of CP.5 Under the O&M Agreement, CP Management agreed to
operate and manage Market Square. Section 3(b) of the O&M Agreement provides,
among other things, that CP Management will perform “all maintenance and repairs
to [Market Square].” The O&M Agreement further states that “[i]n the event that
revenues in any year are insufficient to pay in full all out-of-pocket expenses from
the operation of [Market Square], [CP Management] will be obligated to pay the
unpaid portion of such out-of-pocket expenses.” (Verified amended complaint ¶ 57;
O&M Agreement, Section 3(c).)
CP Management operated Market Square for eight years until
Westlake terminated the agreement in December 2023. Plaintiffs allege there were
insufficient revenues to pay for out-of-pocket expenses related to the operation of
Market Square, including its proportionate share of the Common Expenses, during
the eight years that CP Management managed Market Square. (Verified amended
complaint ¶ 60-61.) As a result, CP Management paid the out-of-pocket expenses,
including Common Expenses, for the eight years it managed Market Square.
5 The O&M Agreement is attached to the original complaint as Exhibit D.
Plaintiffs allege that after the O&M Agreement terminated on
December 31, 2023, CP Management was no longer responsible for paying
Westlake’s proportionate share of Common Expenses as required under the
Declaration. (Verified amended complaint ¶ 63-64.) In March 2024, CP sent a letter
to Westlake advising it of its obligation to pay Common Expenses as required by the
Declaration. (Plaintiffs and third-party defendant’s partial motion for summary
judgment filed on March 17, 2025, Exhibit B-9.) Along with the letter, CP enclosed
a proposed 2024 budget for the Common Expenses. On April 5, 2024, the City
replied with a letter stating, in relevant part:
The City of Westlake disputes your client’s claim that the City owes a
common area maintenance fee as a result of terminating the Market
Square Management Agreement. . . . [T]he City disagrees that it is
obligated to pay these maintenance fees, and therefore declines to pay
the same.
(Verified amended complaint ¶ 70; plaintiffs and third-party defendant’s motion for
summary judgment filed on March 17, 2025, Exhibit B-10.)
Thereafter, on April 30, 2024, Steven Coven (“Coven”) sent a letter to
Westlake advising it that it was in default of the Declaration for failing to pay its
proportionate share of the Common Expenses for Market Square from January
through March 2024.6 (Verified amended complaint ¶ 74; R. 52, Exhibit B-12.) CP
Commercial claimed the City owed $22,367.37 in Common Expenses for the first
three months of 2024. In a letter from Westlake’s mayor dated May 7, 2024, the
6 As previously stated, Coven is general counsel of Stark Enterprises, Inc., CP’s
agent and exclusive property manager and leasing agent.
City again repudiated the claimed expenses. (Plaintiffs and third-party defendant’s
motion for summary judgment filed on March 17, 2025, Exhibit B-13.) As a result,
plaintiffs placed a lien on Market Square, for the outstanding Common Expenses in
the amount of $22,367.37.
On October 8, 2024, CP sent the City another default notice regarding
its outstanding proportionate share of Common Expenses for Market Square from
April through September 2024, totaling $36,974.41. (Verified amended complaint
¶ 75; plaintiffs and third-party defendant’s motion for summary judgment filed on
March 17, 2025, Exhibit B-15.) In November 2024, Westlake sent CP letters and
checks totaling $70,525.45, for “the common expenses allegedly owed by the City of
Westlake.” (Verified amended complaint ¶ 76; plaintiffs and third-party defendant’s
motion for summary judgment filed on March 17, 2025, Exhibit B-16-17.) Plaintiffs
allege that Westlake paid the outstanding Common Expenses in order to release the
lien because it wanted to sell the property. (Verified amended complaint ¶ 78.)
On October 1, 2024, the mayor of Westlake sent CP a letter notifying
it that the City had received an offer from E&C Sports Group, L.L.C. (the “buyer” or
“E&C”) to purchase Market Square. (Verified amended complaint ¶ 80, Exhibit L.)
The letter acknowledged that under the parties’ Development Agreement, CP
retained a right of first refusal. The letter further stated, in relevant part:
Please notify me, in writing, by October 15, 2024, if Crocker Park, L.L.C.
is exercising its right to acquire the Markert Square Property . . . .
Failure to exercise the right of first refusal at this time will be deemed
a waiver of said right in the future.
(Verified amended complaint, Exhibit L.) Plaintiffs allege that the City’s letter
unilaterally imposed a temporal restriction on CP’s right of first refusal because the
Development Agreement did not contain such a restriction. (Verified amended
complaint ¶ 84.) They also allege that the letter “incorrectly stated that CP’s right of
first refusal requires it to obtain Market Square under ‘the same terms and
conditions’ as those set out in the proposed agreement between the City and its
third-party buyer.” (Verified amended complaint ¶ 85.) Plaintiffs allege that Section
9 of the Development Agreement only requires that CP agree to “the same price
offered by such third party” and that no other conditions related to the third party
are binding on CP. (Verified amended complaint ¶ 85.)
Plaintiffs allege that the City did not inform the buyer of its obligations
under the Declaration to pay its proportionate share of the Common Expenses as
the owner of Market Square before E&C made its original offer. They allege that the
City only informed the buyer of this approximately $70,000 per year obligation after
the City informed CP of the proposed sale. Nevertheless, CP communicated to the
City that it intended to exercise its right of first refusal to purchase Market Square.
The City acknowledged receipt of the communication in a letter dated November 5,
2024. The November 5, 2024 letter instructed CP to “deliver a formal and detailed
written offer to [the Mayor] and the City of Westlake within seven (7) days of this
letter.” (Verified amended complaint ¶ 105, Exhibit O.) Plaintiffs allege this sevenday deadline was manufactured by Westlake and was not required under the terms
of the Development Agreement. (Verified amended complaint ¶ 105.)
Plaintiffs responded in a letter dated November 7, 2024, stating that
[w]hile CP disagrees with the City’s characterization of the parameters
of CP’s right of first refusal, and further denies that any third-party
offer to date has activated CP’s right of first refusal, CP intends to make
an offer on the Market Square property. CP would like to discuss this
offer with the City at the City’s earliest convenience.
(Verified amended complaint ¶ 108, Exhibit P.)
CP asked to discuss the purchase of Market Square with the City’s
mayor and council president. Plaintiffs allege the City’s counsel refused to allow
direct talks with the mayor and council president and represented to them that any
requested meeting would be with the City’s counsel over the phone. (Verified
amended complaint ¶ 110-112.) CP also asked that Westlake remove the deadline
for exercising its right of first refusal and now claims the City refused.
On November 21, 2024, CP sent a letter to Westlake offering to
purchase the Market Square property for $2,600,000, the same price offered by
E&C, subject to certain conditions, including that (1) the property would be exempt
from property tax, and (2) “the Purchase Price will be eligible for reimbursement
from the Crocker Park Phase 3 waterfall.” (Verified amended complaint, Exhibit Q.)
According to the amended counterclaim, CP knew the conditions set forth in the
November 21, 2024 letter are not contemplated by Section 9 of the Development
Agreement and that they are not legally permissible since R.C. 5709.40 does not
allow tax increment financing and payments in lieu of taxes. (Verified amended
complaint ¶ 114, Exhibit Q.)
The City rejected the offer in a letter dated November 21, 2024, stating
that CP’s offer was untimely and it did not match the material terms of the buyer’s
offer. (Verified amended complaint ¶ 115, Exhibit R.) CP responded in a letter that
same day, stating that “[t]he City’s rejection of [CP]’s exercise of its ROFR is legally
erroneous and ignores the plain language of the Development Agreement.”
(Verified amended complaint ¶ 117, Exhibit S.)
On November 7, 2024, the City began the process of submitting its
agreement with E&C to the city council for approval. (Verified amended complaint
¶ 111.) Plaintiffs assert that the City’s failure to accept CP’s exercise of its right of
first refusal to purchase Market Square constitutes a breach of contract.
In their prayer for relief, plaintiffs requested declaratory judgments
declaring that (1) the Market Square property is subject to the terms and conditions
of the Declaration, (2) the City is an “Owner” obligated to pay Common Expenses
under Section 6.4(a) of the Declaration, (3) Market Square contains Common Areas
as defined by the Declaration, including the common restrooms and green space, (4)
the Development Agreement does not set a temporal restriction on CP’s ability to
exercise its right of first refusal, and (5) under the Development Agreement, CP is
only obligated to match the purchase price proposed by a third-party buyer to
exercise its right of first refusal and nothing else.
Plaintiffs further requested a preliminary and permanent injunction
enjoining the City from selling Market Square until the issues raised in their verified amended complaint are resolved.7 Plaintiffs also sought monetary damages in
excess of $25,000.
Westlake answered plaintiffs’ verified amended complaint and
asserted counterclaims for abuse of process, slander of title, quiet title, and for
declaratory relief. The City alleged in the third-party complaint that, under the
direction of CP, CP Management did not pay revenues to the City and refused to
provide financial records for the operations of Market Square to the City. (Amended
counterclaim ¶ 7-8.) It also alleged that the mayor informed CP that it intended to
sell Market Square in December 2023. (Amended counterclaim ¶ 9.)
It is undisputed that in June 2024, CP Commercial filed a lien on the
Market Square property to cover Common Expenses, in the amount of $ 22,367.37.
Westlake alleged that the City paid all outstanding Common Expenses in November
2024, that CP Commercial deposited the funds from Westlake without objection,
but it nevertheless refused to withdraw the lien on the property. (Amended
counterclaim ¶ 13-17.) The City contends that representatives of CP Commercial
7 On January 24, 2025, while the lawsuit was pending, CP and E&C executed the
“Market Square Right of First Refusal Agreement and Mutual Release” (the “E&C Market Square Agreement”) wherein CP agreed to forbear exercising its right of first refusal as set out in the Development Agreement and allow the City to proceed with the sale of Market Square to E&C. (Verified amended complaint ¶ 37.) On that same day, plaintiffs withdrew their claims for injunctive relief. In executing the E&C Market Square Agreement, E&C expressly acknowledged and agreed that the Market Square property is subject to the terms and conditions of the Declaration, including the obligation requiring each owner to pay its proportionate share of the common expenses incurred for the maintenance of common areas.
made the removal of the lien part of the negotiations to force Westlake to accept CP’s
terms and conditions even though the lien was paid. (Amended counterclaim ¶ 18.)
The City acknowledged in the amended counterclaim that the mayor
sent a letter to CP on October 1, 2024, requesting that CP inform Westlake “in
writing” by October 15, 2024, if it was going to exercise its right of first refusal.
(Amended counterclaim ¶ 25.) The mayor subsequently extended the deadline to
October 31, 2024. (Amended counterclaim ¶ 25-26.)
Regarding any temporal restrictions on CP’s right of first refusal,
Westlake quoted language from Section 11(f) of the Development Agreement, which
states that “[t]ime is of the essence with respect to all time periods and dates for the
performance of the City’s and [CP]’s respective obligations under this Agreement.”
(Amended counterclaim ¶ 23.) The City alleges that it was waiting for a response as
to whether CP was going to exercise its right of first refusal when plaintiffs filed their
initial complaint on October 28, 2024.
When CP did not submit an offer to purchase the Market Square
property by the October 31, 2024 deadline, Westlake, through counsel, sent a letter
to Coven, dated November 5, 2024, asking that CP either make a written offer by
end of business November 12, 2024, or inform it that it was not going to exercise its
right of first refusal. (Amended counterclaim ¶ 31, Amended verified complaint,
Exhibit O.) The November 5, 2024 letter advised CP that if Westlake did not receive
a matching offer from CP by the end of business November 12, 2024, the City would
proceed with the sale to E&C. (Amended counterclaim ¶ 32.) The November 5, 2024 letter states, in part, that “[t]ime is of the essence in this matter because E&C Sports,
L.L.C., has made an acceptable offer and would like to proceed with the purchase,
as would the City of Westlake.” (Verified amended complaint, Exhibit O.)
Westlake alleges that because CP did not submit an offer to purchase
the Market Square property by the deadline, and it did not request additional time
beyond the deadline, the City placed the purchase agreement with the buyer on the
city council’s agenda to begin the approval process. (Amended counterclaim ¶ 40-41.)
On January 30, 2025, Westlake filed a third-party complaint against
CP Management, alleging that CP Management breached its obligation under the
M&O Agreement by failing to timely provide monthly operating statements and
year-end financial statements to Westlake. (Third-party complaint ¶ 12-14.)
Based on the allegations set forth in the amended counterclaim,
Westlake asserted an abuse-of-process claim against CP, alleging that CP
improperly initiated this lawsuit in order to interfere with Westlake’s pending
contract with E&C while CP was not willing to match C&E’s offer. In the second
count, Westlake sought a declaratory judgment declaring that CP’s offer was not a
legitimate offer under the Development Agreement because the Agreement does not
contemplate CP’s request to make the property exempt from property taxes. It also
sought a declaration that CP’s request for a tax exemption violates R.C. 5709.40.
In the third count, Westlake asserted a claim for slander of title
against CP Commercial, alleging that CP Commercial illegally maintained a lien on the property after the debt, which was the subject of the lien, had been paid.
Westlake also asserted an abuse-of-process claim against CP Commercial, alleging
that it illegally maintained the lien on the property in order to compel Westlake to
sell the property to CP on CP’s terms. And, Westlake asserted a claim for quiet title
to remove the lien on the property pursuant to R.C. 5303.01.
On January 29, 2025, the trial court granted the parties leave to file
cross-motions for summary judgment by March 17, 2025. The parties each filed
motions for summary judgment, and plaintiffs, over objection, filed a supplemental
motion for summary judgment. On June 22, 2025, the trial court granted plaintiffs’
motions for partial summary judgment and denied Westlake’s motion for partial
summary judgment. The trial court found that the Declaration applied to Westlake
and that it was required to pay its proportionate share of Common Expenses. It also
found that green space and the exterior restrooms on the Market Square property
are Common Areas as defined in the Declaration.
On July 13, 2025, the trial court granted plaintiffs’ supplemental
motion for summary judgment as to Westlake’s claim for declaratory judgment. The
trial court declared that CP did not waive its right of first refusal on any offers to
purchase the Market Square property. In its order, the court declared there was no
just cause for delay. This appeal followed.
II. Law and Analysis
A. Pleadings and Discovery
In the first assignment of error, Westlake argues the trial court erred
in granting summary judgment in favor of plaintiffs before the close of the pleadings
and without allowing the parties to conduct discovery. In the second assignment of
error, Westlake argues the trial court erred in granting summary judgment in favor
of plaintiffs before the parties had an opportunity to conduct discovery. We discuss
these assigned errors together because they are interrelated.
On January 29, 2025, the trial court issued a journal entry granting
the parties leave until March 17, 2025, to file motions for summary judgment. One
day later, on January 30, 2025, Westlake filed its amended answer and
counterclaims as well as its third-party complaint against CP Management. Thus,
the court granted the parties leave to file motions for summary judgment prior to
the close of the pleadings. However, the record shows that the parties actually filed
their motions for summary judgment after the pleadings closed.
Civ.R. 56 governs summary judgment and states, in relevant part, that
“[a] party may move for summary judgment at any time after the expiration of the
time permitted under these rules for a responsive motion or pleading by the adverse
party, or after service of a motion for summary judgment by the adverse party.”
Civ.R. 56(A). Nothing in the rule prevents the trial court from granting parties leave
to file summary-judgment motions before the close of pleadings as long as the motions are filed after “the expiration of the time permitted under these rules for a
responsive motion or pleading by the adverse party[.]” Civ.R. 56(A).
As previously stated, Westlake filed its amended answer, amended
counterclaims, and third-party complaint on January 30, 2025. Plaintiffs filed their
response to Westlake’s amended counterclaims on February 13, 2025, and CP
Management filed its answer to the third-party complaint on February 27, 2025. At
that point, the pleadings were closed. The parties filed their respective motions for
summary judgment on March 17, 2025, more than two weeks after the pleadings
closed. Therefore, the motions for summary judgment were filed in accordance with
the requirements of Civ.R. 56(A). Westlake has not cited any legal authority to
support its assertion that the trial court erred in granting the parties leave to file
summary-judgment motions prior to the close of pleadings when the motions were
filed after the pleadings were closed, nor have we found any. We, therefore, find no
error in the trial court’s January 29, 2025 judgment entry, granting the parties leave
to file motions for summary judgment by March 17, 2025.
Westlake nevertheless contends that the trial court erred in ordering
motions for summary judgment to be filed before the parties completed discovery.
However, “the remedy for a party who must respond to a summary judgment motion
before he or she has completed adequate discovery is a motion under Civ.R. 56(F).”
Reigles v. Urban, 2010-Ohio-4427, ¶ 12 (11th Dist.). And, “‘a party who fails to seek
relief under Civ.R. 56(F) in the trial court does not preserve its rights thereto for
purposes of appeal.’” Maschari v. Tone, 2004-Ohio-5342, ¶ 20, quoting Taylor v. Franklin Blvd. Nursing Home, Inc., 112 Ohio App.3d 27, 30 (8th Dist. 1996).
Therefore, because Westlake failed to seek additional discovery as provided in
Civ.R. 56(F), it forfeited this argument for purposes of appeal.
Accordingly, the first and second assignments of error are overruled.
B. Summary Judgment
In the third and fourth assignments of error, Westlake argues the trial
court erred in granting summary judgment in favor of plaintiffs on its counterclaims
for slander of title and for abuse of process. In the fifth assignment of error,
Westlake argues the trial court erred in granting summary judgment in favor of CP
on its declaratory-judgment claim seeking a decree that Westlake has the right to
transfer title of the property to E&C because CP waived its right of first refusal.
1. Standard of Review
Appellate review of summary judgments is de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary
judgment is appropriate when (1) there is no genuine issue of material fact; (2) the
moving party is entitled to judgment as a matter of law; and (3) reasonable minds
can come to but one conclusion and that conclusion is adverse to the nonmoving
party, the party being entitled to have the evidence construed most strongly in his
or her favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679 (1995), paragraph
three of the syllabus.
The party moving for summary judgment bears the burden of showing
that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).
Once the moving party satisfies its burden, the nonmoving party “may not rest upon
the mere allegations or denials of the party’s pleadings, but the party’s response, by
affidavit or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio
St.3d 383, 385 (1996).
2. Slander of Title
In the third assignment of error, Westlake argues the trial court erred
in granting summary judgment in favor of CP Commercial on Westlake’s slanderof-title claim.
To prevail on a slander-of-title claim, a plaintiff must prove “‘(1) there
was a publication of a slanderous statement disparaging claimant’s title; (2) the
statement was false; (3) the statement was made with malice or made with reckless
disregard of its falsity; and (4) the statement caused actual or special damages.’” N.
Royalton Ct. Condo. Owners’ Assn. v. Stadul, 2024-Ohio-1280, ¶ 27 (8th Dist.),
quoting Green v. Lemarr, 139 Ohio App.3d 414, 430 (2d Dist. 2000).
In support of plaintiffs and third-party defendant’s motion for
summary judgment, they submitted an affidavit from Coven in which he averred
that although CP repeatedly reminded Westlake of its obligation under the
Declaration to pay its proportionate share of Common Expenses, the City refused to
pay its proportionate share of the Common Expenses. (Coven affidavit ¶ 11.)
Section 19.11(a) of the Declaration governs liens and enforcement
thereof and states, in part, that “[e]ach Owner’s obligation to pay its Proportionate
Share of the Common Expenses or any charge or payment provided in this
Declaration shall, to the extent permitted by law, constitute a lien on each Owner’s
respective Parcel.” Section 19.11(b) further states:
If an Owner of a Parcel shall fail to pay its Proportionate Share of the
Common Expenses or any other sum which becomes due under this
Declaration within thirty (30) days following receipt of the bill
therefore . . . the other Owners shall, to the extent now or hereafter
permitted by law, have the right and power to enforce the lien imposed
by Section 19.10(a).
According to Coven, Westlake “repudiated its obligations under the
Declaration” and expressly disputed plaintiffs’ claim that Westlake was obligated to
pay its proportionate share of Common Expenses incurred for maintenance of
Common Areas. (Coven affidavit ¶ 12.) Coven further averred that on April 30,
2024, CP notified Westlake that it was in default of the Declaration for failing to pay
its share of Common Expenses from January through March 2024, totaling
$22,367.37. Thereafter, CP Commercial filed the lien on June 12, 2024, in an effort
to collect the outstanding principal balance and interest as contemplated by Section
6.4(b) of the Declaration, which provides that each owner’s share of Common
Expenses “shall be paid in equal monthly installments in such amounts as are
reasonably estimated and billed . . . at the beginning of each calendar year according
to the Budget[.]” Section 6.4(b) further states, in relevant part:
If any installment of Common Expenses remains unpaid after the tenth
(10th) day of any calendar month, such Owner shall be deemed to be a
Defaulting Owner and shall incur interest at the per annum rate equal
to two percent (2%) in excess of the announced “prime” or “base” rate
of interest reported in the Money Returns column or comparable
section of The Wall Street Journal as the rate then in effect for
corporate loans at large U.S. money center commercial banks, whether
or not such rate has actually been charged by any such bank (the
“Default Interest Rate”) from the date said installment was actually due
until the date actually paid.
It is undisputed that, in November 2024, Westlake paid the
$22,367.37 that it owed for the first three months of Common Expenses. CP
Commercial argues that Westlake continued to owe unpaid interest that accrued on
the outstanding debt and that it, therefore, had a legitimate basis for maintaining
the lien on the Market Square property after Westlake paid the $22,367.37. (Coven
affidavit ¶ 19.) Therefore, CP Commercial argues, Westlake cannot demonstrate
that the lien was false or slanderous.
Westlake, however, argues that when CP Commercial cashed
Westlake’s check for $22,367.37, its acceptance of that payment constituted an
accord and satisfaction of the City’s entire debt. An accord is a contract between a
debtor and a creditor in which the creditor’s claim is settled in exchange for sum of
money other than the amount that is allegedly due. Allen v. R.G. Indus. Supply, 66
Ohio St.3d 229, 231 (1993). “‘If a party against whom a claim for damages is made
can prove accord and satisfaction, that party’s debt is discharged by operation of
law.’” Byars v. RLG Builder, Inc., 2010-Ohio-2869, ¶ 31 (5th Dist.), quoting Allen at
231.
When an accord and satisfaction is pled by the defendant as an
affirmative defense, the court’s analysis must be divided into three
distinct inquiries. First, the defendant must show that the parties went
through a process of offer and acceptance — an accord. Second, the
accord must have been carried out — a satisfaction. Third, if there was
an accord and satisfaction, it must have been supported by
consideration.
Two essential safeguards built into the doctrine of accord and
satisfaction protect creditors or injured parties from overreaching
debtors or tortfeasors: (1) there must be a good-faith dispute about the
debt, and (2) the creditor must have reasonable notice that the check is
intended to be in full satisfaction of the debt.
Allen at 231, paragraphs one and two of the syllabus. See also M&T Elec. Co. v.
LLLJ, Ltd., 2024-Ohio-5678, ¶ 19 (8th Dist.) (“[T]he claim is discharged if the
defendant proves that the instrument or accompanying written communication
contained a conspicuous statement to the effect that the instrument was tendered as
full satisfaction of the claim.”).
On November 15, 2024, Westlake sent a letter with a check payable to
CP Commercial in the amount of $22,367.37, the amount of unpaid Common
Expenses. The letter that accompanied the check stated, in relevant part:
Enclosed is a $22,367.37 check payable to CP Commercial Delaware,
LLC as payment in full of the common area expenses owed by the
City of Westlake through April 2024.
This payment is satisfaction of your lien filed on June 12, 2024,
against the Market Square Property[.]
(Emphasis added.)
The parties dispute whether Westlake owed interest on the
outstanding debt for Common Expenses. CP Commercial asserts that Westlake’s
November 15, 2024 letter did not constitute full satisfaction of Westlake’s debt
because it did not include the accrued interest. Westlake argues that its letter clearly states that the enclosed payment constituted “payment in full of the common area
expenses” and that the payment “is satisfaction of your lien.” Taken together, these
statements provide notice that the enclosed payment was intended to satisfy the full
amount of Westlake’s debt.
However, there is no evidence that any consideration was provided in
exchange for the alleged discharge of Westlake’s debt. A preexisting duty to perform
an obligation cannot serve as consideration for a contract. Przylepa v. Przylepa, 77
Ohio App.3d 808, 811 (3d Dist. 1991), citing Shannon v. Universal Mtge. & Discount
Co., 116 Ohio St. 609, 621 (1927).
“An accord and satisfaction is the result of an agreement between the
parties, and this agreement, like all others, must be consummated by a
meeting of the minds of the parties. Mere cashing of the check d[oes]
not bring the transaction within the rule of accord and satisfaction.”
Lightbody v. Rust, 2003-Ohio-3937, ¶ 22 (8th Dist.), quoting Warner Elevator Mfg.
Co. v. Higbee, 53 Ohio App. 546, 548 (1st Dist. 1935).
At the very least, the parties disagree as to whether the debt was
discharged, and there was no meeting of the minds. Therefore, the City cannot
establish that CP Commercial maliciously or recklessly refused to remove the lien in
order to interfere with sale of the property to the buyer. In the absence of any
evidence of malice or recklessness on part of CP Commercial, the City cannot
establish the third element of its slander-of-title claim.
The third assignment of error is overruled.
3. Abuse of Process
In the fourth assignment of error, Westlake argues the trial court erred
in granting summary judgment in favor of plaintiffs on its two counterclaims for
abuse of process. In the first claim, Westlake alleged that CP improperly initiated
this lawsuit in order to interfere with Westlake’s pending contract with E&C. In the
second claim, Westlake alleged that CP Commercial refused to remove the lien on
the Market Square property in order to compel Westlake to sell the property to CP
on CP’s terms.
To prevail on an abuse-of-process claim, the claimant must establish
that (1) a legal proceeding has been set in motion in proper form and with probable
cause, (2) the proceeding has been perverted to accomplish an ulterior purpose for
which it was not designed, and (3) damage resulted from the wrongful use of the
process. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294
(1994), paragraph one of the syllabus.
“[T]he ‘ulterior motive’ component of an abuse-of-process claim
‘occurs where someone attempts to achieve through use of the court that which the
court is itself powerless to order.’” Murphy v. Ditech Fin., L.L.C., 2018-Ohio-5041,
¶ 6 (8th Dist.), quoting Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d
264, 271 (1996). “‘[T]here is no liability [for abuse of process] where the defendant
has done nothing more than carry out the process to its authorized conclusion, even
though with bad intentions.’” Yaklevich at 298, quoting Prosser and Keeton on the
Law of Torts, § 121, 898 (5th Ed. 1984).
Regarding Westlake’s first abuse-of-process claim, the City alleged
that CP “filed suit, issued subpoenas, filed the motion for an injunction and took
other delay tactics and made personal attacks on the purchasers in the pleadings for
the primary purpose of dissuading [the buyer] and other potential purchasers from
pursuing the purchasing of the Market Square Property.” (Amended counterclaim
¶ 56.) It further alleged that CP filed suit “for the purpose of eliminating the pool of
potential purchasers of the Market Square Property and drive down the purchase
price of the Market Square Property.” (Amended counterclaim ¶ 57.)
According to the verified amended complaint, plaintiffs initiated this
lawsuit to protect CP’s right of first refusal and to collect the City’s proportionate
share of unpaid Common Expenses. In its merit brief on appeal, Westlake asserts
that instead of responding to Westlake’s offer of additional time to match the buyer’s
offer, it “filed suit against Westlake and issued subpoenas to the potential purchaser
to harass it.” (Appellant’s brief p. 14.) However, Westlake does not cite any evidence
in the record to establish that CP’s actions drove away potential purchasers or drove
down the purchase price. Under App.R. 16(A)(7), an appellant must include not
only arguments presented for review, but the appellant must also support the
arguments in its brief with “‘citations to the authorities, statutes, and parts of the
record on which appellant relies.’” Victor v. Kaplan, 2020-Ohio-3116, ¶ 101 (8th
Dist.), quoting App.R. 16(A)(7).
CP presented evidence demonstrating that CP subsequently agreed to
forbear its right of first refusal and allow the City to execute its proposed sale of the Market Square property to the buyer, E&C Sports Group, L.L.C. (Coven affidavit
¶ 38.) And, E&C subsequently purchased the Market Square property for the
originally agreed upon price of $2.6 million (Phillips affidavit ¶ 2-3, plaintiffs and
third-party defendant’s motion for partial summary judgment, Exhibit E.).
Therefore, the City failed to establish that it sustained damage as a result of CP’s
actions. It also failed to produce any evidence that plaintiffs filed the lawsuit for an
ulterior purpose. Therefore, the trial court properly granted summary judgment in
favor of plaintiffs on Westlake’s first abuse-of-process claim.
Regarding Westlake’s second abuse-of-process claim, Westlake cites
no legal authority to support its claim that filing a lien constitutes a “legal
proceeding” that could be subject to an abuse-of-process claim. In any case, we have
already determined that CP Commercial had a legitimate basis for maintaining its
lien on the Market Square Property because the uncontroverted evidence
established that Westlake owed outstanding interest on its debt for Common
Expenses. The City has not produced any evidence that CP Commercial used the
lien for any other purpose. Therefore, the trial court properly concluded that CP was
entitled to summary judgment on the City’s abuse-of-process claim.
Accordingly, the fourth assignment of error is overruled.
4. Declaration Regarding CP’s Right Of First Refusal
In its fifth assignment of error, Westlake argues the trial court erred
in finding that CP did not waive its right of first refusal because plaintiffs did not
request such a declaration in the verified amended complaint.
However, in its amended counterclaim, Westlake alleged that it “is
entitled to an expedient declaration that Crocker Park has waived its rights under
Section 9 and 11(f) of the Market Square Development Agreement.” (Amended
counterclaims ¶ 71.) In its prayer for relief, Westlake requested, among other things,
a “decree that . . . Crocker Park, LLC, has waived its right to acquire Market Square.”
CP moved for summary judgment on Westlake’s claim for declaratory judgment as
part of its defense against the claim.
Civ.R. 56(B) provides that a party against whom a declaratory
judgment is sought may “move . . . for a summary judgment in the party’s favor as
to all or any part of the . . . declaratory judgment.” Similarly, R.C. 2721.02(A), which
governs the force and effect of declaratory judgments, states that “courts of record
may declare rights, status, and other legal relations whether or not further relief is
or could be claimed” and that “[t]he declaration may be either affirmative or
negative in form and effect.” Therefore, when a party moves for summary judgment
on claim for declaratory judgment, the court ruling on the motion for summary
judgment must declare the rights of the parties. Shell Oil Co. v. Huttenbauer Land
Co., 1993 Ohio App. LEXIS 1785, fn. 2 (1st Dist. Mar. 31, 1993.). Therefore, in ruling
on plaintiffs’ motion for summary judgment, the trial court was legally authorized
to declare judgment in favor of CP even though it did not specifically request the
declaration.
Westlake nevertheless argues the trial court erred in finding that CP
did not waive its right of first refusal to purchase the Market Square property. The City argues that CP waived its right of first refusal by failing to accept the offer to
purchase the property by its deadlines and because when it eventually made an offer,
the offer was subject to certain conditions.
On October 1, 2024, Westlake sent a letter to CP notifying it that the
City received an offer from the buyer. The letter instructed CP to notify the City if it
intended to exercise its right of first refusal under the same terms and conditions as
the buyer by October 15, 2024. Thus, the City set a two-week deadline by which CP
had to exercise its right of first refusal.
Section 9 of the Development Agreement provides CP’s right of first
refusal, and it does not impose a two-week deadline. Therefore, Westlake
unilaterally imposed the two-week deadline. However, Section 11(f) provides that
“[t]ime is of the essence with respect to all time periods and dates for the
performance of the City’s and the Company’s respective obligations under this
Agreement.”
“When it is said that time is of the essence, the proper meaning of the
phrase is that the performance by one party at the time specified in the
contract or within the period specified in the contract is essential in
order to enable him to require performance from the other party.”
(Emphasis changed.) Lake Ridge Academy v. Carney, 66 Ohio St.3d 376, 378
(1993), quoting 6 R. Lord, Williston on Contracts, § 846, at 181 (3d Ed. 1962).
“[W]hen a contract does not state the time for performance, then the
law implies a reasonable time for performance, and a factfinder must
determine whether the time spent performing is reasonable under the
circumstances.”
Sai Hosp., Inc. v. RCVV, Inc., 2025-Ohio-4596, ¶ 35 (7th Dist.), quoting Treadway
Gallery, Inc. v. Baylor, 2023-Ohio-3642, ¶ 11 (1st Dist.); see also Garofoli v.
Whiskey Island Partners Ltd., 2014-Ohio-5433, ¶ 35 (8th Dist.), quoting Lewis v.
DR Sawmill Sales, Inc., 2006-Ohio-1297, ¶ 18 (10th Dist.) (holding that “‘[w]hen
the performance period of a contract is undefined, the law implies a term assuming
that the parties intended that performance take place within a reasonable time’”).
Although the Market Square Development Agreement states that
“time is of the essence,” the contract does not provide a specified time for
performance. The question, therefore, is whether CP exercised its right of refusal
within a reasonable time under the circumstances. Id. “The issue of ‘[w]hat
constitutes a reasonable time for performance is an issue of fact to be determined by
the conditions and circumstances under which the parties executed their agreement
and contemplated performance.’” Garofoli at ¶ 35, quoting Lewis at ¶ 19. See also
Koon v. Hoskins, 1996 Ohio App. LEXIS 346, *19 (4th Dist. Jan. 24, 1996), citing 18
Ohio Jur.3d, [Contracts] § 197 (1980) (“Whether the question of what is a reasonable
time is a factual question or a legal question depends upon the nature of the
transaction, but it is usually a question of fact for the jury.”). Therefore, whether CP
exercised its right of first refusal is a fact question not conducive to resolution by
summary judgment.
We nevertheless find that the City’s second argument, regarding the
additional conditions provided with CP’s offer, is dispositive of this assigned error.
A right of first refusal is generally defined as “a promise to present
offers to buy property made by third parties to the promisee in order to afford the
promisee an opportunity to match the offer.” Latina v. Woodpath Dev. Co., 57 Ohio
St.3d 212, 212 (1991). A right of first refusal is a contract term subject to ordinary
contract principles. Halpern v. Smith, 2023-Ohio-1370, ¶ 21-22 (8th Dist.).
Ordinarily, a right of first refusal is a right to match all the terms and conditions
offered by a third-party buyer, not merely the stated price. W. Texas Transmission,
L.P. v. Enron Corp., 907 F.2d 1554, 1565 (5th Cir. 1990).
When the holder of a right of first refusal receives notice that the
property owner intends to sell the property to a third party, “the rightholder’s right
of first refusal matures into an option for which the third-party offer generally
dictates the terms.” W. Texas Transmission at 1565. See also 77 Am.Jur.2d, Vendor
and Purchaser, § 49 (1975).
However, some courts have allowed purchasers to exercise their
preemptive rights solely by matching the price term offered by a third party.
W. Texas Transmission at 1564. “In most of those cases, however, the contract
which created the preemptive right specified that price would be the only relevant
term.” Id., citing Kroehnke v. Zimmerman, 171 Colo. 365, 467 P.2d 265 (1970) (“If
during the term of this lease . . . the lessors . . . should desire to sell said demised
premises, then the lessees . . . shall have the privilege of purchasing the same for the
same price for which the lessors would be willing to sell to any other person.”); Schmidt v. Downs, 775 P.2d 427, 430 (Utah App. 1989); Wilson v. Whinery, 37
Wash.App. 24, 678 P.2d 354 (1984).
The right of first refusal at issue here, states in relevant part:
The City shall have the right at any time following the completion of the
Project to convey the Parcels and the Project to an unrelated third
party, provided that the [CP] shall have a right of first refusal to acquire
the Parcels and Project from the City at the same price offered by such
third party.
This is a “price-only” provision because it does not expressly require acceptance of
all the terms provided in the third-party buyer’s offer. If the parties had intended
acceptance of all the terms and conditions in the third-party buyer’s offer, it could
have written such a requirement into the agreement, but it did not. Therefore, CP
could have exercised its right of first refusal solely by matching E&C’s price.
CP matched E&C’s price, but its offer included additional terms and
conditions that were not provided in either E&C’s offer or in the right of refusal.
When a holder of a right of first refusal purports to accept a sale price but modifies
or adds other nonprice conditions, “the preemptive lapses because the rightholder
has failed to make a valid acceptance.” W. Texas Transmission at 1564. A
rightholder’s purported acceptance of the purchase price that “modifies, adds to or
otherwise qualifies the terms of the offer, generally constitutes a rejection of the
option and a counter-offer.” Id., citing Austin Presbyterian Theological Seminary
v. Moorman, 391 S.W.2d 717 (Tex. May 19, 1965); Hutcherson v. Cronin, 426
S.W.2d 638 (Tex. 12th Dist. Mar. 28, 1968); Lambert v. Taylor Tel. Co-Operative,
276 S.W.2d 929 (Eastland Tex. Mar. 11, 1955); Brownies Creek Collieries, Inc. v. Asher Coal Mining Co., 417 S.W.2d 249, 252 (Ky. June 30, 1967); N.W. Television
Club v. Gross Seattle Inc., 96 Wash. 2d 973 (Wa. Oct. 1, 1981); Matson v. Emory, 36
Wash. App. 681 (Feb. 21, 1984).
The rationale behind this strict rule is both practical and structural.
The rule allows the seller to remain “master of the conditions under which he will
relinquish his interest.” W. Texas Transmission at 1563. Allowing selective
matching on the part of a rightholder would undermine the seller’s ability to obtain
the full value of the bargain negotiated with the third party. See Miller v. LeSea
Broadcasting, Inc., 87 F.3d 224 (1996) (holding that without the requirement of
exact matching, the right of first refusal “is an impediment to the marketability of
property, because it gives the holder of the right a practical power to impede a sale
to a third party by refusing to match the third party’s offer exactly and then arguing
that the discrepancy was immaterial”).
In exercising its right of first refusal, CP sent a letter to Westlake,
dated November 20, 2024, offering to purchase the Market Square property for
$2,600,000, the same price offered by E&C. However, the right of first refusal
included the conditions that (1) the property would be exempt from property tax,
and (2) “the Purchase Price will be eligible for reimbursement from the Crocker Park
Phase 3 waterfall.” (Verified amended complaint, Exhibit Q.) These additional
terms and conditions constituted (1) a rejection of the offer that was based on the
third-party buyer’s price and (2) a counteroffer to purchase the property with
additional terms. Because CP never accepted the offer to purchase the property for $2,600,000, reasonable minds can only conclude that CP failed to properly exercise
its right of first refusal within a reasonable time. Therefore, the trial court erred as
a matter of law when it declared that CP did not waive its right of first refusal.
Accordingly, the fifth assignment of error is sustained.
The trial court’s judgment is affirmed in part and reversed in part. The
case is remanded to the trial court for further proceedings.
It is ordered that appellees and appellant share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
MARY J. BOYLE, J., CONCUR