[Cite as BWIP Recreation Owner, L.L.C. v. Applewood Village Condominium Assn., Inc., 2016-Ohio-1430.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
BWIP RECREATION OWNER, LLC, :
CASE NO. CA2015-07-141
Appellee, :
OPINION
: 4/4/2016
- vs -
:
APPLEWOOD VILLAGE CONDOMINIUM :
ASSOCIATION, INC., et al.,
:
Appellants.
:
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2014-01-0050
Roetzel & Andress, LPA, John J. Rutter and Zachary D. Prendergast, 250 East Fifth Street,
Suite 310, Cincinnati, Ohio 45202, for appellee
Brandabur & Bowling Co., LPA, Kyle M. Rapier, 315 Monument Avenue, Hamilton, Ohio
45011, for appellant, Applewood Village Condominium Association, Inc.
Rex Wolfgang, 246 High Street, Hamilton, Ohio 45011, for appellants, English Meadows
Condominium Association, Inc., Quail Meadows Condominium Association, Inc., and Twin
Lakes Homeowners' Association
S. POWELL, J.
{¶ 1} Defendants-appellants, Applewood Village Condominium Association, Inc.
("Applewood Village"), English Meadows Condominium Association, Inc. ("English
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Meadows"), Quail Meadows Condominium Association, Inc. ("Quail Meadows"), and Twin
Lakes Homeowners' Association ("Twin Lakes"), appeal from the decision of the Butler
County Court of Common Pleas granting summary judgment to plaintiff-appellee, BWIP
Recreation Owner, LLC ("BWIP"), in an action for breach of contract. For the reasons
outlined below, we affirm.
Facts and Procedural History
{¶ 2} As the trial court noted, the parties to this action have a long and litigious
history that stems from an agreement initially entered into in 1991 for the use of recreational
facilities now owned by BWIP. This includes previous litigation regarding that same
agreement, thereby rendering the material facts generally not in dispute. Those undisputed
facts are as follows.
The Agreement
{¶ 3} The recreational facilities at issue were developed in 1973 by Wildwood
Management, Inc. ("Wildwood Management"), a wholly owned subsidiary of Towne
Properties, Inc. ("Towne Properties"), on a portion of land located in Fairfield, Butler County,
Ohio. The recreational facilities consist of two buildings available for social events and
meetings, as well as a swimming pool and tennis courts. The property is also home to
numerous condominium units that have been grouped into several separate condominium
associations, including Applewood Village, Quail Meadows, Twin Lakes, and English
Meadows' predecessor, Wellington Green Condominium Unit Owners' Association
("Wellington Green"). During its ownership of the recreational facilities, Wildwood
Management entered into separate "easement agreements" with the respective associations
that granted the individual residents of those associations the right to utilize the recreational
facilities in exchange for a fee. These "easements" were then recorded in the Butler County
Recorder's Office.
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{¶ 4} Sometime after entering into these agreements, Wildwood Management
conveyed the recreation facilities to another subsidiary of Towne Properties, Wildwood
Recreational Facilities, LLC ("Wildwood Recreational"). Subsequently, on January 1, 1991,
Wildwood Recreational entered into an agreement with Applewood Village, Quail Meadows,
Twin Lakes, and Wellington Green, among others, to modify the prior "easement
agreements" that each had entered into with Wildwood Management. This new agreement
provided for the use of the recreational facilities by the individual residence owners in each
association in exchange for the payment of a $15 monthly fee per residence. The agreement
also provided, in pertinent part, the following:
Section 4.7. Successors and Assigns.
This Agreement and the obligations of the parties concerned
shall bind the property of the Grantor and inure to the benefit of
the parties and their respective successors and assigns, and
shall continue in full force and effect for a term of ten (10) years
from the date on which this Agreement is recorded in the
Recorders Office's (sic) of Butler County, Ohio. Thereafter this
Agreement shall automatically [be] renewed for successive ten
(10) year periods unless amended or terminated by the parties or
their respective successors and assigns.
{¶ 5} The agreement was then recorded with the Butler County Recorder's Office on
February 4, 1992. The agreement was subsequently extended, by default, for another ten
year period beginning on February 4, 2002 after attempts to modify the terms of the
agreement were unsuccessful.
The Litigation
{¶ 6} On April 12, 2002, Wildwood Recreational notified the various associations that
it intended to sell the recreational facilities to Connor & Murphy, Ltd. ("Connor & Murphy").
Shortly after receiving this notice, all of the associations stopped paying their required
monthly user fees. Connor & Murphy then closed on the property on January 29, 2003, and
on April 7, 2004, filed suit against the associations to collect the delinquent fees. Following a
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lengthy legal battle, which included the filing of numerous motions for summary judgment, the
matter was eventually tried to the bench. After taking the matter under advisement, the trial
court issued a decision on August 3, 2007 that it then incorporated into a final judgment entry
on August 27, 2007 finding in favor of Connor & Murphy and awarding it a money judgment
for the unpaid assessments against the associations, including Applewood Village, Quail
Meadows, Twin Lakes, and Wellington Green. The associations then appealed.
The Appeal
{¶ 7} On March 30, 2009, this court issued a decision in Connor & Murphy, Ltd. v.
Applewood Village Homeowners' Assn., 12th Dist. Butler No. CA2007-09-213, 2009-Ohio-
1447, that addressed the validity and enforceability of the disputed agreement, finding the
agreement was a "whole and complete contract binding all the parties thereto."1 Id. at ¶ 50.
In so holding, this court stated, in pertinent part:
The 1991 Agreement sets forth the parties, the terms, and the
consideration. In short, as previously stated, it permits the
residents of the Association members to utilize the recreational
facilities in exchange for a fee. The Agreement also imposes,
upon Connor, the obligations of providing insurance and
maintenance for the facilities. Although the Agreement states
that it is intended to modify the prior easements executed by the
Associations, it also specifically states that it is controlling with
regard to any conflict between it and the easements. Simply put,
regardless of whether it claims to modify the underlying
easements, this Agreement sets forth all terms, and contains all
elements, necessary to create a valid, binding contract.
Therefore, we cannot say that the trial court erred in determining
that the 1991 Agreement is legal and binding in its own right and
without regard to the validity of any prior easements.
Id. at ¶ 53.
{¶ 8} This court further determined that the agreement did not constitute an
easement, but was actually a license to the members of the various associations for the use
1. This court's decision was authored by a panel of judges from the Second District Court of Appeals, sitting by
assignment of the Chief Justice of Ohio, pursuant to Section 5(A)(3), Article IV, of the Ohio Constitution.
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of the recreational facilities in exchange for a fee. Id. at ¶ 67 and 69. As this court stated,
"[s]hould the Associations fail to pay the requisite fee, the privilege of utilizing the recreational
facilities can be suspended[.]" Id. at 68. It is undisputed that no appeal was taken from this
decision.
The Fall of Wellington Green and the Rise of English Meadows
{¶ 9} While the appeal was pending, on January 2, 2008, the owners of Wellington
Green terminated that association and contemporaneously established a new condominium
association, English Meadows. Wellington Green, therefore, never paid on the money
judgment rendered against it by the trial court on August 27, 2007 and subsequently affirmed
by this court on March 30, 2009. As a result, on February 22, 2012, the Connor Group, a
Real Estate Investment Firm, LLC ("Connor Group"), the successor to Connor & Murphy,
filed suit against Wellington Green, English Meadows, and the 41 individual condominium
owners, seeking to collect upon that money judgment based on a theory of successor liability.
{¶ 10} On August 31, 2012, the trial court issued a decision finding English Meadows
could not be held liable under the successor liability doctrine as a matter of law. The Connor
Group, a Real Estate Investment Firm, LLC v. Wellington Green Condominium Unit Owners
Assn., Butler C.P. No. CV2012 02 0718 (Aug. 31, 2012). In so holding, the trial court stated:
Application of the successor liability doctrine to this case initially
requires a finding that English Meadows purchased all or
substantially all of Wellington Green's assets. Plaintiffs did not
allege such a purchase in their complaint, and have not
addressed this requirement in their memorandum. Indeed, there
is no evidence whatever in the record that English Meadows
"purchased" anything from Wellington Green. This court has
conducted substantial research on this issue and has uncovered
no case where the doctrine of successor liability was applied
outside the context of an acquisition of all or substantially all of
the assets by the alleged successor. Because that did not occur
here, plaintiffs' claim for successor liability must fail.
Continuing, albeit in dicta, the trial court then stated that "[i]f the doctrine did apply, the court
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would agree that English Meadows is liable as a successor to Wellington Green because the
'mere continuation' exception to non-liability applies." It is undisputed that no appeal was
taken from this decision.
The Litigation Returns
{¶ 11} On January 29, 2013, BWIP purchased the recreational facilities from Connor
Group, a transaction that once again prompted the various associations to stop paying their
required monthly user fees. Approximately one year later, on January 6, 2014, BWIP filed
suit against Applewood Village, Quail Meadows, and Twin Lakes to collect the unpaid
assessments alleging a breach of contract. In response, Applewood Village, Quail Meadows,
and Twin Lakes, all of whom were original signatories to the agreement, claimed they were
not liable for the unpaid assessment since a license is not assignable, thereby rendering the
agreement void upon BWIP's purchase. BWIP also filed suit against English Meadows, who
admitted in its answer to being a "successor association" to Wellington Green, seeking to
collect the unpaid assessments it had not paid to BWIP after BWIP purchased the
recreational facilities. The parties then filed competing motions for summary judgment.
{¶ 12} On April 21, 2015 and July 2, 2015, the trial court issued two separate
decisions that collectively granted summary judgment to BWIP. In reaching this decision, the
trial court found Applewood Village, Quail Meadows, and Twin Lakes were still bound by the
agreement even after BWIP's purchase since the agreement entered into by the parties was
a valid contract that established an assignable license that was intended to bind their
successors and assigns. In addition, as it relates to BWIP's claims against English
Meadows, the trial court found English Meadows made a judicial admission in its answer that
it was a "successor association" to Wellington Green, thereby also rendering it liable to BWIP
under the agreement for the unpaid assessments it had not paid to BWIP after BWIP
purchased the recreational facilities.
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{¶ 13} Applewood Village, English Meadows, Quail Meadows, and Twin Lakes now
appeal from the trial court's decision granting summary judgment to BWIP, raising three
assignments of error for review.
Summary Judgment Standard of Review
{¶ 14} Summary judgment is a procedural device used to terminate litigation when
there are no issues in a case requiring a formal trial. Roberts v. RMB Ents., Inc., 197 Ohio
App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.). On appeal, a trial court's decision granting
summary judgment is reviewed de novo. Moody v. Pilot Travel Ctrs., L.L.C., 12th Dist. Butler
No. CA2011-07-141, 2012-Ohio-1478, ¶ 7, citing Burgess v. Tackas, 125 Ohio App.3d 294,
296 (8th Dist.1998). In applying the de novo standard, the appellate court is required to
"'us[e] the same standard that the trial court should have used, and * * * examine the
evidence to determine whether as a matter of law no genuine issues exist for trial.'" Bravard
v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, ¶ 9 (12th Dist.), quoting Brewer v.
Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383 (8th Dist.1997).
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT ERRED WHEN IT INTERPRETED THE ASSIGNMENT
LANGUAGE IN FINDING THE CONTRACT IN QUESTION WAS A TRANSFERABLE
LICENSE.
{¶ 17} Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ERRED WHEN IT FOUND THAT A LICENSE THAT IS
NOT COUPLED WITH AN INTEREST CAN BE TRANSFERRED.
{¶ 19} In the first and second assignments of error, the associations argue the trial
court erred by granting summary judgment to BWIP upon finding the disputed agreement
was a valid contract that established an assignable license. The trial court's decision,
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however, properly complies with this court's holding in Connor & Murphy, Ltd. v. Applewood
Village Homeowners' Assn., 12th Dist. Butler No. CA2007-09-213, 2009-Ohio-1447. We
stand by the analysis employed in reaching that decision and decline the associations'
invitation to reconsider this court's decision on the matter. We also decline the associations'
alternative request to treat that decision as an "amendment to the agreement," thereby
eliminating the automatic renewal provision contained in Section 4.7 of the agreement. In
reaching this decision, we reiterate that no appeal was ever taken from that decision, a
decision that has now served as the law of the case for over seven years. Accordingly,
finding no error in the trial court's decision, the first and second assignments of error are
overruled.
{¶ 20} Assignment of Error No. 3:
{¶ 21} THE TRIAL COURT ERRED WHEN IT FOUND THAT THE CLAIMS AGAINST
ENGLISH MEADOWS ARE NOT BARRED BY COLLATERAL ESTOPPEL AND RES
JUDICATA.
{¶ 22} In the third assignment of error, English Meadows argues the trial court erred by
finding BWIP's claims against it were not barred by collateral estoppel and res judicata when
considering the trial court's earlier decision in The Connor Group, a Real Estate Investment
Firm, LLC v. Wellington Green Condominium Unit Owners Assn., Butler C.P. No. CV2012 02
0718 (Aug. 31, 2012).
{¶ 23} However, as a simple review of the record reveals, that case dealt with the
issue of whether Connor Group could hold English Meadows liable under the successor
liability doctrine in order to collect upon the money judgment rendered against its
predecessor, Wellington Green. On the other hand, this case deals with the issue of whether
BWIP could collect unpaid assessments from English Meadows that English Meadows had
not paid to BWIP after BWIP purchased the recreational facilities. These are two separate
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issues relating to two separate claims for which neither collateral estoppel nor res judicata
would apply.
{¶ 24} Moreover, contrary to English Meadows' claim otherwise, simply because the
trial court previously determined that the successor liability doctrine did not apply to English
Meadows as a matter of law does not mean English Meadows was not a "successor" to
Wellington Green as that term is used within Section 4.7 of the agreement. Again, as that
section specifically states, the agreement shall "bind the property" and "inure to the benefit of
the parties and their respective successors and assigns[.]" A "successor," as defined by
Black's Law Dictionary (10th Ed.2014), is defined as "[s]omeone who succeeds to the office,
rights, responsibilities, or place of another; one who replaces or follows a predecessor."
Therefore, because English Meadows admitted to being a "successor association" to
Wellington Green in its answer to BWIP's complaint, we find no error in the trial court's
decision awarding summary judgment to BWIP. Accordingly, the third assignment of error is
also overruled.
{¶ 25} Judgment affirmed.
PIPER, P.J., and HENDRICKSON, J., concur.
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