Cleveland Botanical Garden v. Drewien , 2020 Ohio 1278 ( 2020 )

[Cite as Cleveland Botanical Garden v. Drewien, 2020-Ohio-1278.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CLEVELAND BOTANICAL GARDEN, :
Plaintiff-Appellee, :
No. 108536
v. :
STACI K. WORTHINGTON DREWIEN,
ET AL., :
Defendants-Appellants.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
RELEASED AND JOURNALIZED: April 2, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CV-13-812284, CV-14-827728, and CV-18-905027
Appearances:
Hahn, Loeser & Parks, L.L.P., Stephen J. Knerly, Jr., Eric
B. Levasseur, Dennis R. Rose, and Sarah K. Lewis, for
appellee Cleveland Botanical Garden.
Squire Patton Boggs, L.L.P., Steven A. Friedman, and
Sean L. McGrane, for appellee University Circle, Inc.
Barbara A. Langhenry, Director of Law, L. Stewart
Hastings, Jr., Assistant Director of Law, for appellee City
of Cleveland.
Strauss Troy Co., L.P.A., Matthew W. Fellerhoff, William
K. Flynn, Amy L. Hunt, and Stephen E. Schilling, for
appellants heirs or beneficiaries of Wade Trust.
PATRICIA ANN BLACKMON, J.:
Defendants-appellants, the trustee, heirs, and beneficiaries of the
Jeptha H. Wade Trust (collectively referred to as “the heirs”), appeal from the trial
court’s declaratory judgment in favor of plaintiff-appellee, Cleveland Botanical
Garden (“Botanical Garden”), determining that: (1) Botanical Garden’s imposition
of admission and parking fees, and limited hours of operation do not violate the
“Public Park for the benefit of all people” (“park use”) and “open at all times to the
public” (“open”) restrictions in the 1882 deed of Wade Park to Cleveland; (2) the
deed’s “fence restriction” is enforceable only by adjacent landowners; and (3) the
heirs’ reversionary interest was extinguished by operation of the Marketable Title
Act, R.C. 5301.47, et seq. The heirs assign the following errors for our review:
I. The trial court erred by granting summary judgment to [Botanical
Garden] by holding the Marketable Title Act, R.C. 5301.47, et seq.,
extinguished [the heirs’] reversionary interest created in the root of title
conveying Wade Park to the City of Cleveland in trust [under the Wade
deed].
II. The trial court erred by granting summary judgment to [Botanical
Garden] by holding [that Botanical Garden’s] admission and parking
fees do not violate the conditions of the [Wade deed].
III. The trial court erred by granting summary judgment to [Botanical
Garden] because it is undisputed that Wade Park is not “open at all
times to the public.”
IV. The trial court erred by granting summary judgment to [Botanical
Garden] by holding: the [Wade deed] created a fee simple subject to a
condition subsequent; but then holding the open wrought-iron fence
condition is a restrictive covenant enforceable only by adjacent
landowners.
V. The trial court erred by conducting an in camera review without
giving [the heirs] the benefit of a privilege log.
For the sake of clarity, we will address the assigned errors out of this
predesignated order. Having reviewed the record and the controlling case law, we
reverse the court’s determination that the heirs’ reversionary interest was
extinguished by operation of the Marketable Title Act, we affirm the trial court’s
decision that Botanical Garden is not in violation of the “park use” and “open”
restrictions in the deed, and we reverse the determination that the deed’s “fence
restriction” is enforceable only by adjacent landowners.
In 1882, Jeptha H. Wade granted 73 acres of property, known as
Wade Park, to the city of Cleveland for a park “to be kept open” to the public. In
relevant part, the 1882 Wade deed provides:
Know all men by these presents that I, Jeptha H. Wade of the City of
Cleveland, County of Cuyahoga and State I, Jeptha H. Wade of the City
of Cleveland, * * * being desirous of securing to the citizens of Cleveland
for all time the opportunity of re-creating, having, improving and
maintaining a beautiful and attractive Public Park therein for the
benefit of all the people and being the owner of lands suitable for this
purpose situated near the place where several important institutions of
learning are about to be permanently located and on which grounds
larger expenditures with a view to such a Park have already been made,
do hereby freely give, grant and convey unto the said City of Cleveland
and the successors, to have and to hold forever, [a 73-acre parcel].
This conveyance is made to the said City of Cleveland forever in trust
for the following purposes and upon the express conditions following
to wit: * * * The said grounds at all times thereafter to be kept and
maintained by said City in such repair and condition as to make it an
attractive and desirable place of resort — as a Public Park to be open at
all times to the public. The abutting land owners, their heirs and
assigns, to have free ingress and egress through the same, subject
forever to all rules and regulations prescribed by the Park
Commissioners. To be for no other purpose than a public park and to
be called and known forever by the name of Wade Park; If fencing shall
ever be placed on said Park grounds except along the westerly and
southerly boundary, it shall be open wrought- iron fence.
I also reserve the right for myself and my heirs forever to place and
maintain a Street Railroad in and along the Avenues forming the
easterly and northerly boundaries of said Park. Said Railroad to be
subject to laws and ordinances of the City, and stipulate that the
abutting property owners, their heirs and assigns forever, may connect
with any water pipe the City may place in said Park at the most proper
and convenient places, subject however to water rules and regulations
prescribed by the City, and may make all necessary drives and walks to
connect with said easterly and northerly Avenue, and if the grounds
aforesaid or any part thereof shall be perverted or diverted from the
public purposes and uses herein expressed, the said property and every
part thereof to revert to me or my heirs forever.
After its founding in the 1930s, Botanical Garden was granted
permission to occupy a converted boathouse on the Wade Park Lagoon. At this time,
Botanical Garden assured the heirs that it would “not interfere with the adequate
and reasonable use of said Wade Park” by the public.
In 1964, Cleveland entered into a lease with Botanical Garden that
incorporated all “conditions, restrictions or limitations and covenants” in the Wade
deed. The lease provided that Botanical Garden would not “close” off or “barricade”
the park, or any part of the park, and would not charge admission “for entrance” to
the Botanical Garden apart from special event fees. In 1966, Botanical Garden
moved to its present location.
In 1971, Cleveland entered into a lease with appellee University Circle
Incorporated (“UCI”). UCI assumed maintenance obligations for the Wade Oval
portion of the park. This lease expressly incorporated the terms of the 1882 Wade
deed, and provides that UCI shall only use the property in a manner that is
“consistent with any conditions, restrictions or limitations and covenants contained
in [that] deed.” By 2001, Botanical Garden subleased additional parcels from UCI
in accordance with the terms of the 1971 lease. The 2001 sublease permitted
Botanical Garden to install an underground parking garage. Botanical Garden
currently occupies ten acres of Wade Park.
By 2003, Botanical Garden undertook an expansion that quadrupled
its building space and included a glass conservatory. The cost of the expansion was
$70 million. Approximately $50 million of this sum was paid by contributions, and
Botanical Garden planned to pay the remaining balance with bonds that would be
paid from admission fees to a ten-acre section of the property. Fencing for the area
includes a “wall” along portions of East Boulevard, chain-link fencing along portions
of East Boulevard, and areas of wooden fencing. On a select few days of the year,
admission is free.
In 2010, Botanical Garden refinanced its bond debt, borrowing $11.5
million from Huntington Bank and giving Huntington Bank a “Leasehold Mortgage”
on its interest in Wade Park. Huntington Bank later sold the loan, and the lease was
in turn assigned to The Holden Arboretum.
By 2019, Botanical Garden collected approximately $13 million from
parking and admission fees. The heirs subsequently asserted a “reversionary
interest,” complaining that the “park use,” “open,” and fencing restrictions in the
deed were violated.
Botanical Garden filed this declaratory judgment action, seeking
judicial determinations that: (1) its use, operation, and maintenance of the property
is consistent with the deed restrictions; (2) it may, consistent with the 1882 deed,
charge admission fees to a portion of its facilities and exhibits; (3) it may charge
parking fees; (4) it may erect and maintain fencing. In opposition, the heirs asked
the court to enjoin Botanical Garden from charging admission into the gardens and
the parking facility, and order Botanical Garden to remove all but the limited
wrought-iron fencing authorized in the 1882 deed.1
The parties filed opposing motions for partial summary judgment.
Botanical Garden maintained that the 1882 deed gave the heirs a right of entry, and
that the heirs failed to preserve it in accordance with the Marketable Title Act.
Botanical Garden also argued that the operation of a botanical garden, the charging
of fees, regulating hours of operation, operation of a parking facility, and installation
of fencing do not violate the terms of the deed or trigger a reversion to the heirs. In
opposition, the heirs maintained that they possess a possibility of reverter that was
not extinguished by the Marketable Title Act because it was both created in the “root
of title” and incorporated in the 1964 and 1971 leases. The heirs further argued that
Botanical Garden violated the “park use,” “open,” and “fencing restrictions”
provisions of the 1882 deed by imposing admission and parking fees, installing
1 The heirs also filed taxpayer actions against Cleveland in order to enforce the
terms of the 1882 deed and the relevant leases. See Cleveland, ex rel. William G. Wade
v. Cleveland, Cuyahoga C.P. Nos. CV-14-827728 and CV-18-905027. The taxpayer
actions were stayed pending decision on the declaratory judgment action.
prohibited fencing, closing the area all but “24.5 [percent] of the year,” and charging
admission all but several days per year.
The trial court ruled that the deed created a “fee simple subject to a
condition subsequent / right of entry,” and not a possibility of reverter, and that the
heirs failed to preserve this interest in accordance with the Marketable Title Act. The
court also concluded that Botanical Garden’s “use and operation of the [Botanical
Garden] Property as a botanical garden is a permissible public park use,” so there
was no violation of the terms of the Wade deed. The court held that the charging of
admission or fees does not violate the “park use” or “open” restrictions in the 1882
deed, because “the term ‘open, at all times to the public’ does not mean ‘free.’”
Similarly, the court held that “having specific hours of operation does not mean that
the property is ‘closed off’ to the public.” The court also ruled that the construction
and operation of parking facilities is consistent with the “park use” restriction in the
1882 deed.
As to the fencing issue, Botanical Garden asserted that the provision
regarding fencing is a restrictive covenant, enforceable only by the adjacent
landowners. In opposition, the heirs argued that the deed language created a fee
simple subject to a condition subsequent. The court held that the deed created a
restrictive covenant, enforceable only by adjacent property owners.
Claimed Violations of the 1882 Deed
A. “Park Use” and “Open” Provisions
In the second and third assigned errors, the heirs argue that the trial
court erred in determining that Botanical Garden is not in violation of the “park use”
and “open” terms of the Wade deed because the facility has limited hours and
charges admission and parking fees.
We review an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). To prevail on a motion
for summary judgment, the movant must first be able to point to evidentiary
materials that demonstrate there is no genuine issue of material fact, and that the
moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio
St.3d 280, 293, 662 N.E.2d 264 (1996). Once the movant overcomes that initial
burden, the nonmoving party may not merely resting upon the allegations contained
in the pleadings to establish a genuine issue of material fact. Civ.R. 56(E). Instead,
it has the reciprocal burden of responding and setting forth specific facts that
demonstrate the existence of a “genuine triable issue.” State ex rel. Zimmerman v.
Tompkins, 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996).
The construction of instruments of conveyance is a matter of law that
is subject to de novo review. Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 313,
667 N.E.2d 949 (1996); Bath Twp. v. Raymond C. Firestone Co., 140 Ohio App.3d
252, 256, 747 N.E.2d 262 (9th Dist.2000). In Ohio, the first rule of deed
construction is that when the parties’ intention is clear from the four corners of the
deed, courts will give effect to that intention. Koprivec v. Rails-to-Trails of Wayne
Cty., 153 Ohio St.3d 137, 2018-Ohio-465, 102 N.E.3d 444, ¶ 29.
Turning to the issue of whether Botanical Garden’s operation of
facilities, buildings, and gardens is consistent with the “park use” restriction, we
note that the Wade deed provides “the opportunity of re-creating, having,
improving, and maintaining a beautiful and attractive Public Park for the benefit of
all the people.” It further states that the “grounds [are] to be kept and maintained
by the City in such repair and condition to make it an attractive and desirable place
of resort.” The operation of botanical gardens has repeatedly been found within the
use of land for park purposes. See Kinney v. Kansas Fish & Game Commn., 238
Kan. 375, 381, 710 P.2d 1290 (1985); Behrens v. Spearfish, 84 S.D. 615, 620, 175
N.W.2d 52 (1970); Bernstein v. Pittsburgh, 366 Pa. 200, 206-208, 77 A.2d 452(1951); Spires v. Los Angeles, 150 Cal. 64, 66, 87 Pac. 1026 (1906); Slavich v.
Hamilton, 201 Cal. 299, 257 Pac. 60 (1927).
With regard to the charging of fees, the trial court held that the term
“open, at all times to the public” does not mean “free.” The court explained:
[Botanical Garden’s] charging of [an] admission fee and having specific
hours of operation does not mean that the property is “closed off” to the
general public. Rather, [Botanical Garden] charges fees in order to
provide an educational, cultural, and recreational botanical experience
to the public. [Botanical Garden’s] charging fees for use of its facilities
is consistent with the Wade deed provision of “re-creating, having,
improving and maintaining a beautiful and attractive Public Park for
the benefit of the people.”
This conclusion is supported by Bernstein. Id. at 209-210. Accord
Mansour v. Monroe, 767 N.Y.S.2d 341, 1 A.D.3d 976 (4th Dept.2003). Moreover,
“open to public use” does not require the area to be open to “everybody all the time.”
Gally v. Delponte, Tolland Jud. Dist. No. 44598, 1991 Conn. Super. LEXIS 3170(Dec. 9, 1991). Right of access is not absolute and hours may be limited. Accord
Wyatt v. Hargadine, C.D. Ill. No. 13-3150, 2013 U.S. Dist. LEXIS 149819 (Oct. 18,
2013).
The provision of parking is also included within permitted park uses.
See Behrens at 621; Bernstein at 204. Further, in Save Our Heritage Organisation
v. San Diego, 237 Cal. App.4th 163, 187 Cal. Rptr.3d 754 (2015), the court upheld
the construction of a for-pay parking facility in an urban park complex where the
land was dedicated to use as a free public park.
In light of our discussion of fencing in the discussion below, we do not
reach the issue of the hours of operation of Botanical Garden.
In accordance with all of the foregoing, the trial court properly
concluded that the challenged terms of the 1882 deed were not violated. The second
and third assigned errors are without merit and are overruled.
B. Fencing Provision
In the second portion of the fourth assigned error, the heirs argue that
the trial court erred in concluding that the fence condition is a restrictive covenant
that is enforceable only by adjacent landowners.
Considering the nature of the fence provision set forth in the deed, we
begin by noting that “‘“A common idiom describes property as a ‘bundle of sticks’—
a collection of individual rights which, in certain combinations, constitute
property.”’” State ex rel. New Wen, Inc. v. Marchbanks, Slip Opinion No. 2020-
Ohio-63, ¶ 24, quoting Dispatch Printing Co. v. Recovery Ltd. Partnership, 2015-
Ohio-381, 28 N.E.3d 562, ¶ 51 (10th Dist.), quoting United States v. Craft, 535 U.S.
274, 278, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002). State law determines which sticks
are in a person’s bundle. Id., citing Craft, 535 U.S. at 278. We therefore consider
the nature of this provision in light of whether the parties’ intention is clear from the
four corners of the deed. Koprivec, 153 Ohio St.3d 137, 2018-Ohio-465, 102 N.E.3d
444, ¶ 29. If the deed restriction is “indefinite, doubtful and capable of contradictory
interpretation, that construction must be adopted which least restricts the free use
of the land.” Corna v. Szabo, 6th Dist. Ottawa No. OT-05-025, 2006-Ohio-2764,
¶ 39.
Additionally, conditions subsequent are not favored in law and are
looked upon with disfavor in equity; conditions subsequent must be clearly
expressed and strictly construed. Second Church of Christ, Scientist v. Le Prevost,
67 Ohio App. 101, 104, 35 N.E.2d 1015 (9th Dist. 1941). Key facts include whether
there are words in the provision creating a reverter. Id.; Wayne Lakes Park, Inc. v.
Warner, 104 Ohio App. 167, 147 N.E.2d 269 (2d Dist.1957). The Ohio Supreme
Court held that the descriptive phrase, “so long as” or the words “during” or “until”
when used in the deed could be sufficient to create a fee simple estate subject to a
reversion. Koprivec at ¶ 31-32. Conversely,
“A restrictive covenant is a ‘private agreement, [usually] in a deed or
lease, that restricts the use or occupancy of real property, [especially]
by specifying lot sizes, building lines, architectural styles, and the uses
to which the property may be put.’” * * * City of Canton v. State, 95
Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 28 (2002), citing
Black’s Law Dictionary 371 (7th Ed.Rev.1999). In the context of
property law, a “covenant” denotes a contract that is either personal or
“runs with the land.” Maasen v. Zopff, 12th Dist. Warren Nos. CA98-
10-135, 1999 Ohio App. LEXIS 3422, 1999 WL 552747, 3 (July 26,
1999).
State Cty. Park Dist. v. Dickerhoof, 2018-Ohio-4319, 122 N.E.3d 608, ¶ 62 (5th
Dist.).
In Dickerhoof, the court considered the following provision:
“Provided always and these presents are upon this express condition, that the said
party of the second part shall construct its railroad on said premises.” The court
concluded that this created a restrictive covenant and not a reversion, explaining as
follows:
Instead of a reversion, this language establishes a restriction or
covenant regarding the use of the land. * * *
The deed contains language expressing the expectation that the grantee
will use the property “to conveniently operate said railroad, and for no
other use or purpose” but it contains no language qualifying the
transfer of the property as being effective only for “so long as” the
property is used to operate the railroad and we cannot add such
language. The intention of the parties is clear and “the first rule of deed
construction in Ohio is that when the parties’ intention is clear from the
four corners of the deed, we will give effect to that intention.” Koprivec,
supra at ¶ 29.
Id. at ¶ 62-63. Accord Giancarli v. Arroyo, 9th Dist. Summit No. 18223, 1997 LEXIS
4751 (Oct. 29, 1997).
Similarly, in this matter, the following language is included as an
“express condition”:
The abutting land owners, their heirs and assigns, to have free ingress
and egress through the same, subject forever to all rules and
regulations prescribed by the Park Commissioners. To be for no other
purpose than a public park and to be called and known forever by the
name of Wade Park; If fencing shall ever be placed on said Park
grounds except along the westerly and southerly boundary, it shall be
open wrought- iron fence.
The reversionary language of the deed provides:
[I]f the said City shall fail to comply with the aforesaid stipulations for
the expenditure of seventy-five thousand dollars if the grounds
aforesaid or any part thereof shall be perverted or diverted from the
public purposes and uses herein expressed, the said property and every
part thereof to revert to me or my heirs forever.
We therefore hold, viewing the fence provision or “stick within the
bundle” conveyed in the deed, that it sets forth a restrictive covenant that runs with
the land in the event that improper fencing is installed. The deed contains language
expressing the expectation that the grantee will limit fencing as specified in the deed,
but this portion of the deed does not contain reversionary language.
As to Botanical Garden’s contention that the restrictive covenant is
only enforceable by abutting landowners, we note that in Dixon v. Van Sweringen
Co., 121 Ohio St. 56, 166 N.E. 887 (1929), the Supreme Court held that:
“Every owner of real property has the right so to deal with it, as to
restrain its use by his grantees within such limits as to prevent its
appropriation to purposes which will impair the value or diminish the
pleasure of the enjoyment of the land which he retains. The only
restriction on this right is, that it shall be exercised reasonably, with a
due regard to public policy, and without creating any unlawful restraint
of trade. Nor can there be any doubt that in whatever form such a
restraint is placed on real estate by the terms of a grant, whether it is in
the technical form of a condition or covenant, or of a reservation or
exception in the deed, or by words which give to the acceptance of the
deed by the grantee the force and effect of a parol agreement, it is
binding as between the grantor and the immediate grantee, and can
be enforced against him by suitable process, both in law and equity.”
(Emphasis added.) Id. at 69-70, quoting Whitney v. Union Railway Co., 11 Gray 359(1860). Accord Morgan Woods Homeowners’ Assn. v. Wills, 5th Dist. Licking No.
11 CA 57, 2012-Ohio-233, ¶ 61-62 (homeowners’ association may enforce restrictive
covenant in deed).
Therefore, we conclude that the restrictive covenant is binding by the
heirs of the grantor and Botanical Garden and therefore enforceable by the heirs. In
this connection, the trial court erred insofar as it held that the restrictive covenant
is enforceable only by the adjacent landowners.
The second portion of the fourth assigned error is well-taken in part
and is sustained.
Marketable Title Act
In the first assigned error, the heirs argue that the trial court erred in
concluding that their asserted reversionary interests expired by operation of the
Marketable Title Act for failure of notice in accordance with R.C. 5301.51.
In Blackstone v. Moore, 155 Ohio St.3d 448, 2018-Ohio-4959, 122
N.E.3d 132, the Ohio Supreme Court explained the Marketable Title Act as follows:
the act provides that a person “who has an unbroken chain of title of
record to any interest in land for forty years or more, has a marketable
record title to such interest.” R.C. 5301.48. The marketable record title
“operates to extinguish such interests and claims, existing prior to the
effective date of the root of title.” R.C. 5301.47(A). (A “root of title” is
“that conveyance or other title transaction in the chain of title of a
person * * * which was the most recent to be recorded as of a date forty
years prior to the time when marketability is being determined.” R.C.
5301.47(E).) The act facilitates title transactions, as the record
marketable title “shall be taken by any person dealing with the land free
and clear of all interests, claims, or charges whatsoever, the existence
of which depends upon any act, transaction, event, or omission that
occurred prior to the effective date of the root of title.” R.C. 5301.50.
Balanced against the desire to facilitate title transactions is the need to
protect interests that predate the root of title. To this end, the act
provides that the marketable record title is subject to interests inherent
in the record chain of title, “provided that a general reference * * * to
* * * interests created prior to the root of title shall not be sufficient to
preserve them, unless specific identification be made therein of a
recorded title transaction which creates such * * * interest.” R.C.
5301.49(A).
Id. at ¶ 7-8.
Effective as of 1961, the purpose of the Marketable Title Act is to
“simplify and facilitat[e] land title transactions by allowing persons to rely on a
record chain of title as described in Section 5301.48 of the Revised Code, subject
only to such limitations as appear in, section 5301.49 of the Revised Code.” R.C.
5301.55.
The applicable definitions of terms used in the Marketable Title Act
are set forth in R.C. 5301.47 as follows:
(A) “Marketable record title” means a title of record, as indicated in
section 5301.48 of the Revised Code, which operates to extinguish such
interests and claims, existing prior to the effective date of the root of
title, as are stated in section 5301.50 of the Revised Code.
(B) “Records” includes probate and other official public records, as well
as records in the office of the recorder of the county in which all or part
of the land is situate.
(C) “Recording,” when applied to the official public records of the
probate or other court, includes filing.
(D) “Person dealing with land” includes a purchaser of any estate or
interest therein, a mortgagee, a levying or attaching creditor, a land
contract vendee, or any other person seeking to acquire an estate or
interest therein, or impose a lien thereon.
(E) “Root of title” means that conveyance or other title transaction in
the chain of title of a person, purporting to create the interest claimed
by such person, upon which he relies as a basis for the marketability of
his title, and which was the most recent to be recorded as of a date forty
years prior to the time when market-ability is being determined. The
effective date of the “root of title” is the date on which it is recorded.
(F) “Title transaction” means any transaction affecting title to any
interest in land, including title by will or descent, title by tax deed, or
by trustee’s, assignee’s, guardian’s, executor’s, administrators, or
sheriff’s deed, or decree of any court, as well as warranty deed, quit
claim deed, or mortgage.
R.C. 5301.49 governs record marketable title and provides:
Such record marketable title shall be subject to:
(A) All interests and defects which are inherent in the muniments of
which such chain of record title is formed; provided that a general
reference in such muniments, or any of them, to easements, use
restrictions, or other interests created prior to the root of title shall not
be sufficient to preserve them, unless specific identification be made
therein of a recorded title transaction which creates such easement, use
restriction, or other interest; and provided that possibilities of reverter,
and rights of entry or powers of termination for breach of condition
subsequent, which interests are inherent in the muniments of which
such chain of record title is formed and which have existed for forty
years or more, shall be preserved and kept effective only in the manner
provided in section 5301.51 of the Revised Code;
(B) All interests preserved by the filing of proper notice or by
possession by the same owner continuously for a period of forty years
or more, in accordance with section 5301.51 of the Revised Code;
(C) The rights of any person arising from a period of adverse possession
or user, which was in whole or in part subsequent to the effective date
of the root of title;
(D) Any interest arising out of a title transaction which has been
recorded subsequent to the effective date of the root of title from which
the unbroken chain of title or record is started; provided that such
recording shall not revive or give validity to any interest which has been
extinguished prior to the time of the recording by the operation of
section 5301.50 of the Revised Code * * *.
The relevant prior interests are set forth in R.C. 5301.50 as follows:
Subject to the matters stated in section 5301.49 of the Revised Code,
such record marketable title shall be held by its owner and shall be
taken by any person dealing with the land free and clear of all interests,
claims, or charges whatsoever, the existence of which depends upon
any act, transaction, event, or omission that occurred prior to the
effective date of the root of title. All such interests, claims, or charges,
however denominated, whether legal or equitable, present or future,
whether such interests, claims, or charges are asserted by a person sui
juris or under a disability, whether such person is within or without the
state, whether such person is natural or corporate, or is private or
governmental, are hereby declared to be null and void.
The preservation of interests is governed by R.C. 5301.51 which
states:
(A) Any person claiming an interest in land may preserve and keep
effective such interest by filing for record during the forty-year period
immediately following the effective date of the root of title of the person
whose record title would otherwise be marketable, a notice in writing,
duly verified by oath, setting forth the nature of the claim. * * *
(B) If the same record owner of any possessory interest in land has been
in possession of such land continuously for a period of forty years or
more, during which period no title transaction with respect to such
interest appears of record in his chain of title, and no notice has been
filed by him on his behalf as provided in division (A) of this section, and
such possession continues to the time when marketability is being
determined, such period of possession is equivalent to the filing of the
notice immediately preceding the termination of the forty-year period
described in division (A) of this section.
We begin by noting that the trial court held that “[i]t is undisputed by
the parties that the root of title is the Wade Deed, recorded in 1882.” Therefore, it
is clear that the heirs’ interests were created “in the root of title” and not “prior to
the effective date of the root title.” Therefore, their interests are not extinguished by
operation of R.C. 5301.50. Accord Blackstone, 2018-Ohio-4959 at ¶ 7; Toth v. Berks
Title Ins. Co., 6 Ohio St.3d 338, 340, 453 N.E.2d 639 (1983).
Botanical Garden maintains, however, that in Carlson v. Koch, 8th
Dist. Cuyahoga Nos. 36497 and 36498, 1978 Ohio App. LEXIS 9501 (Jan. 19, 1978),
this court required the reversionary heirs to comply with the requirements of R.C.
5301.49(A) and 5301.51 even though their reversionary interest was created “in the
root of title.” However, in Carlson, the reversionary interest was in fact created prior
to the root of title, because the court concluded that the heirs’ claimed reversionary
interests were created in deeds from 1896 and 1898, whereas “the root of title was
established at the 1906 annexation of the real estate parcels in question.” The court
therefore held that:
Appellants’ reversionary interest existed prior to the root of title and
specific mention of such interest in the root of title within forty years of
the date upon which marketability was to be discovered would have
served to preserve such interest.
Id.Botanical Garden also notes that in Verona United Methodist Church
v. Shock, 2d Dist. Preble No. CA 252, 1978 Ohio App. LEXIS 10863 (Oct. 13, 1978),
the Second District Court of Appeals held that reversionary heirs were required to
comply with the requirements of R.C. 5301.49(A) and 5301.51 even though their
reversionary interest was created “in the root of title.” However, an unpublished
opinion issued before May 1, 2002, by another judicial district is not controlling case
law. See Rep.Op.R. 4; Watson v. Neff, 4th Dist. Jackson No. 08CA12, 2009-Ohio-
2062, ¶ 16. We decline to follow it herein. Moreover, it is inapposite to this matter
in that it, unlike the instant matter, does not concern land owned by a municipal
corporation as owner or trustee of property for park purposes, pursuant to R.C.
755.19 and did not involve any claimed continuous possession, recorded leases, or
other relevant “title transactions.”
Turning next to the heirs’ argument that the Marketable Title Act does
not extinguish their interests herein because, as a matter of law and pursuant to R.C.
755.19, the Wade deed requires Cleveland to hold the property “in trust for the
benefit of all people” to be maintained as a public park and “for no other purpose
than a public park.”
We note, as a matter of law, that under R.C. 755.19,
In any municipal corporation which is the owner or trustee of property
for park purposes, or of funds to be used in connection therewith, by
deed of gift, devise, or bequest, such property or funds shall be
managed and administered in accordance with the provisions or
conditions of such deed of gift, devise or bequest.
We agree that in light of the statutory mandate that Cleveland manage
and administer the property in accordance with the terms of the Wade deed,
Cleveland is compelled to “hold the property in trust for the benefit of all people,” so
Wade Park cannot be subject to conventional “land title transactions” that are the
general subject of the Marketable Title Act as stated in R.C. 5301.55.
The heirs additionally argue that Cleveland’s continuous possession
of the property in trust for the benefit of all people satisfies the notice provision by
operation of R.C. 5301.49(B) (“All interests preserved by the filing of proper notice
or by possession by the same owner continuously for a period of forty years or more,
in accordance with section 5301.51 of the Revised Code.”). Botanical Garden insists
that this provision is inapplicable because the Wade heirs have not personally been
in continuous possession of the property. However, Cleveland’s continuous
possession of the property “in trust for the benefit of all people” satisfies the notice
provision by operation of R.C. 5301.51(B), which states:
If the same record owner of any possessory interest in land has been in
possession of the land continuously for a period of forty years or more,
during which period no title transaction with respect to such interest
appears of record in his chain of title, and no notice has been filed by
him on his behalf as provided in division (A) of this section, and such
possession continues to the time when marketability is being
determined, the period of possession is equivalent to the filing of the
notice immediately preceding the termination of the forty-year period
described in division (A) of this section.
That is, Cleveland is the “same record owner” in continuous
possession of the property in trust for the benefit of all people, and this satisfies the
notice provision by operation of R.C. 5301.51(B). Likewise, the leases executed in
this matter incorporated the terms of the Wade deed and these “title transactions”
were recorded in the chain of title. R.C. 5301.51(B).
In accordance with the foregoing, the trial court erred insofar as it
held that the interests claimed herein expired by operation of the Marketable Title
Act.
The first assigned error is well-taken and sustained.
In Camera Review Lacking Privilege Log
The fifth assigned error stems from the trial court’s denial of the heirs’
motion to compel discovery of communications between Botanical Garden, UCI,
and their counsel. The heirs assert that the court erroneously conducted an in
camera review, and improperly failed to require Botanical Garden and UCI to
prepare a privilege log before ruling that the communications were not discoverable.
In opposition, Botanical Garden maintains that the heirs agreed to the in camera
review during a pretrial conference, and that no privilege log was needed because
Botanical Garden and UCI apprised the heirs that they were asserting the common-
interest and work-product privileges.
This court employs the de novo standard of review in order to
determine whether information sought is confidential and privileged from
disclosure. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,
909 N.E.2d 1237, ¶ 13.
The common-interest privilege is applicable “‘where two or more
clients, each represented by their own lawyers, meet to discuss matters of common
interest ─ commonly called a joint defense agreement or pooled information
situation.’” State ex rel. Bardwell v. Cordray, 181 Ohio App.3d 661, 2009-Ohio-
1265, 910 N.E.2d 504 (10th Dist.), quoting McCormick, Evidence, Section 91.1, at
413-414 (6th Ed.2006). This privilege “provides a qualified privilege protecting the
attorney’s mental processes in preparation of litigation, establishing ‘a zone of
privacy in which lawyers can analyze and prepare their client’s case free from
scrutiny or interference by an adversary.’” Squire Sanders & Dempsey v. Givaudan
Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 54, quoting
Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.2006).
The purpose of the work-product rule is to protect “the right of
attorneys to prepare cases for trial with that degree of privacy necessary to
encourage them to prepare their cases thoroughly and to investigate not only the
favorable but the unfavorable aspects of such cases” and “to prevent an attorney
from taking undue advantage of his adversary’s industry or efforts.” Jackson v.
Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, ¶ 16, citing Civ.R.
26(A). “To that end, Civ.R. 26(B)(3) places a burden on the party seeking discovery
to demonstrate good cause for the sought-after materials.” Id.In response to a discovery dispute, a trial court may conduct an in
camera review as an accepted procedure for evaluating disputed records. See
generally State ex rel. Essi v. Lakewood, 8th Dist. Cuyahoga No. 104659, 2018-
Ohio-5027 (conducting in camera inspection of documents for consideration of
various privilege claims including common interest privilege and work product).
Here, the court conducted a telephonic conference and then the
parties briefed the issue. Botanical Garden maintained that the communications
were protected by the work-product and common-interest privileges. The court
concluded:
Upon review of the documents produced under seal by UCI for in
camera inspection, the court finds that the common interest exception
applies and that the documents produced are attorney work product,
including emails regarding litigation strategy. The court finds that UCI
and [Botanical Garden] have a common interest in the claims of this
declaratory judgment action, specifically, regarding whether [Botanical
Garden’s] current use of the property is consistent with the 1882 deed.
As the documents are attorney work product and are covered by the
common interest doctrine, [Botanical Garden] and UCI are not
required to produce a privilege log.
We fully concur with this analysis. It is supported in the record, and,
significantly, this contention is supported by a signed Common Interest Agreement
dated August 17, 2015. It is also consistent with UCI and Botanical Garden’s stated
common interest as appellees’ sharing a single brief herein.
Further, because the basis of the parties’ privilege claims was made
clear to the heirs, no prejudicial error occurred due to the absence of a privilege log.
Accord Csonka-Cherney v. ArcelorMittal Cleveland, Inc., 2014-Ohio-836, 9 N.E.3d
515, ¶ 23-24 (8th Dist.) (employee’s challenge to the production of the medical
records was not waived despite not having filed a privilege log under Civ.R.
26(B)(6)(a) because she consistently and unequivocally gave the employers notice
that she was not waiving her right to assert privilege).
The fifth assigned error lacks merit and is overruled.
In accordance with the foregoing, the judgment of the trial court is
affirmed insofar as it determined that the “park use” and “open” restrictions in the
1882 deed of Wade Park to Cleveland have not been violated; it is reversed insofar
as it determined that the fencing restrictions have not been violated; it is reversed
insofar as it determined that the fencing restrictions are enforceable only by adjacent
landowners; and it is reversed insofar as it determined that the heirs’ claimed
interests have been extinguished by operation of the Marketable Title Act
The judgment of the trial court is affirmed in part, reversed in part,
and remanded for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
___
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
KEY WORDS:
Deed restriction; parks; restrictive covenant; fences; Marketable Title Act;
discovery; in camera; privilege log
Trial court properly concluded that Botanical Garden’s use and operation of facility
and underground parking structure did not violate park use restriction in 1882
deed; court properly found that charging admission for some displays and for
parking does not violate the portion of the deed requiring parcel to be open at all
times to the public; fence provision was a restrictive covenant but was enforceable
by grantor’s heirs; trial court erred in concluding that heirs’ claimed interests were
extinguished by the Marketable Title Act; trial court did not err in considering
common interest and work product privilege claims in an in camera hearing.