Brendamour v. Indian Hill

2022 Ohio 4724, 204 N.E.3d 1085

• Court: Ohio Court of Appeals
• Decided: December 29, 2022
• Docket: C-210504, C-210516, C-210517
• Status: Published

Opinion

[Cite as Brendamour v. Indian Hill, 2022-Ohio-4724.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DOUGLAS BRENDAMOUR, : APPEAL NOS. C-210504 C-210516 BETH BRENDAMOUR, : C-210517 TRIAL NO. B-1705623 BETH K. BRENDAMOUR, Trustee, :

DOUGLAS P. BRENDAMOUR, Trustee, : O P I N I O N.

and :

TOM KEREIAKES, Trustee, :

Plaintiffs-Appellants/Third-Party : Defendants-Appellees/Third- Party Cross-Appellants, :

VS. :

THE CITY OF THE VILLAGE OF : INDIAN HILL, : Defendant-Appellee, : and : ERIC S. KAHN, : ALLISON A. KAHN, : ERIC S. KAHN, Trustee, : and : ALLISON A. KAHN, Trustee, : Intervening Defendants/Third- Party Plaintiffs-Appellants/Third- Party Cross-Appellees, : OHIO FIRST DISTRICT COURT OF APPEALS

KATHRYN ANN WEICHERT : KRANBUHL, : and : KATHRYN ANN WEICHERT KRANBUHL, Trustee, :

Third-Party Defendants. :

Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed in C-210504; Affirmed in C-210516; Appeal Dismissed in C-210517

Date of Judgment Entry on Appeal: December 29, 2022

Graydon Head & Ritchey LLP and Michael A. Roberts, for Plaintiffs- Appellants/Third Party Defendants-Appellees/Third-Party Cross-Appellants Douglas and Beth Brendamour, Douglas and Beth Brendamour, Trustees, and Tom Kereiakes, Trustee,

Frost Brown Todd LLC, Scott D. Phillips and Jesse J. Shamp, for Defendant-Appellee the City of the Village of Indian Hill,

Law Office of Blake R. Maislin, LLC, and Blake R. Maislin, for Intervening Defendants/Third-Party Plaintiffs-Appellants/Third-Party Cross-Appellees Eric and Allison Kahn, and Eric and Allison Kahn, Trustees.

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BOCK, Judge.

{¶1} These appeals arise from a dispute between neighbors involving the

construction of a new house. Intervening defendants/third-party plaintiffs-

appellants/third-party cross-appellees Eric and Allison Kahn, and Eric and Allison

Kahn, Trustees, (collectively the “Kahns”) have appealed in the appeal numbered C-

210504 from the entry dismissing their counterclaim, which alleged that plaintiffs-

appellants/third-party defendants-appellees/third-party cross-appellants Douglas

Brendamour and Beth Brendamour, Douglas and Beth Brendamour, Trustees, and

Tom Kereiakes, Trustee, (collectively the “Brendamours”) breached a 2003 contract.

The Brendamours have appealed in the appeal numbered C-210516 from the entry

dismissing their complaint, which asserted that defendant-appellee the City of the

Village of Indian Hill (“Village”) breached the same contract. In the appeal numbered

C-210517, the Brendamours raise only defensive arguments with respect to the appeal

numbered C-210504.

{¶2} Upon our review, we determine the trial court erred by dismissing the

Kahns’ breach-of-contract claim against the Brendamours. But the trial court correctly

dismissed the Brendamours’ breach-of-contract claim against the Village.

Accordingly, we reverse the trial court’s judgment in the appeal numbered C-210504

and affirm it in the appeal numbered C-210516. Additionally, because the appeal

numbered C-210517 does not raise any assignments of error, we dismiss it.

Allegations and Procedural Background

{¶3} The Kahns sought to construct a new house on a plot of land (the “Kahn

Property”) located in the Village on “Holly Hill,” a roadway near Park Road. Though

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the Kahn Property previously may have had a Park Road address, as explained below,

the Kahn Property does not abut Park Road.

The Brendamours and the Kahns’ predecessor-in-interest entered into a contract

{¶4} The Kahn Property was divided from a ten-acre lot previously owned by

Worthy Tuttle. In 2003, Tuttle, the Brendamours, and the Village entered into an

agreement (“the 2003 Agreement”) that required splitting the ten-acre lot. Tuttle

retained a roughly five-acre, lightning-bolt shaped lot that became the Kahn Property.

The Brendamours, whose property on Park Road adjoins the Kahn Property to the

south, purchased a portion of the other five-acre lot and restricted the rest with a

conservation easement.

{¶5} As part of the transaction memorialized in the 2003 Agreement, Tuttle

agreed to “release” an access easement to Park Road benefiting what became the Kahn

Property and burdening the property acquired by the Brendamours, retaining for the

Kahn Property solely an easement to Park Road “for existing utilities.” According to

the allegations, the release of the easement was not properly recorded and did not

appear in the chain of title for the Kahn Property. The 2003 Agreement did not specify

responsibility for recording the release. It assigned the Village “the cost of document

preparation for the Closing” to effectuate the 2003 Agreement.

{¶6} The 2003 Agreement, by an incorporated amendment, contained the

following provision (“future-disputes provision”) relating to future disputes

concerning “inadequate lot frontage” on the lot that became the Kahn Property:

Brendamour, Trustee and Bliss covenant and agree with Tuttle, her

heirs, administrators, successors and assigns, that, as long as any

proposed addition to the existing residence located on the Tuttle

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Property, or alternatively the demolition of the existing residence and

the construction of a new residence on the Tuttle Property, otherwise

conforms with the Village’s Zoning Ordinance, Brendamour, Trustee,

and Bliss will not oppose such use on the basis of inadequate lot

frontage. If Brendamour, Trustee, or Bliss breaches this covenant, the

breaching party or parties shall be responsible for all expenses,

including reasonable attorneys’ fees, which Tuttle or her heirs,

administrators, successors, or assigns must expend in order to battle the

opposition.

Disputes arose when the Kahns planned to build a new house

{¶7} The Kahns purchased the Kahn Property and began planning to build a

house to replace a structure that had been destroyed by fire years earlier. In 2017, they

filed an application (“Kahns’ application”) with the Village planning commission to

construct the new house. The Kahns’ application included a site plan with a house that

fronted Park Road. As such, the Village’s zoning ordinance “front lot line”

requirements would be based on access to the property through Park Road, despite

the 2003 Agreement releasing the ingress/egress access easement to Park Road. The

Village required the Kahns’ application to be reviewed by the planning commission.

{¶8} The planning commission heard the Kahns’ application in March and

May 2017. During this time, they considered an alternative site plan with Holly Hill as

the “front lot line.” According to the Kahns’ complaint, the Brendamours opposed the

Kahns’ application “on the basis of lot frontage” and for other reasons, including the

selection of the “rear lot line” for the oddly-shaped property.

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{¶9} The planning commission unanimously approved the application for

the alternative site plan with Holly Hill as the front lot line. In its June 2017 written

decision, the planning commission found that the Kahn Property did not abut Park

Road and that the access easement had been vacated in 2003. Further, the planning

commission found that the Holly Hill site plan was “consistent” with the Village’s

zoning requirements, including the minimum lot frontage width of 250 feet and the

“Rear Lot Line” requirements.

{¶10} The Brendamours and Kathryn Ann Weichert Kranbuhl, another

neighbor who had opposed the Kahns’ application, appealed the planning

commission’s decision to the Village Council. But in September 2017, the Village

Council passed a resolution unanimously approving the planning commission’s

decision. The Brendamours and Kranbuhl appealed that decision to the Hamilton

County Court of Common Pleas.

{¶11} About a month later, the Brendamours filed a separate civil action in the

Hamilton County Court of Common Pleas against the Village, alleging breach of the

2003 Agreement. The Brendamours also sought an order compelling deed

reformation.

{¶12} The Village moved to dismiss the complaint on the ground that the

Brendamours were merely creating a second front to challenge the Village’s decision

approving the Kahns’ development plans, as the 2003 Agreement did not contain any

of the obligations that the Brendamours alleged the Village had breached. Further, as

a matter of law, the Village was incapable of effectuating reformation of the deed when

it was not a party to the deed. Noting that the Brendamours and Kranbuhl were

pursuing an administrative appeal of the zoning decision in the Hamilton County

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Court of Common Pleas, the Village further requested that the court consolidate the

civil action with the administrative appeal of the zoning decision (the “zoning action”).

{¶13} The trial court permitted the Kahns to intervene in the Brendamours’

civil action. They filed an answer and counterclaims against the Brendamours, alleging

breach of contract, slander of title, and civil conspiracy (the “counterclaim

complaint”). The Kahns named Kranbuhl as a third-party defendant in their slander-

of-title and civil-conspiracy claims.

{¶14} The Brendamours moved to dismiss the Kahns’ counterclaim complaint

and later moved for summary judgment on the breach-of-contract claim related to the

future-disputes agreement. In support of summary judgment, they submitted an

interlocutory decision of a magistrate in the zoning action, which found error in the

zoning proceedings involving the rear lot line set back requirements of the Kahns’

application. Taking the position that even if they had raised “inadequate lot frontage”

in opposition to the Kahns’ application, they were expressly permitted to do so because

other aspects of the application failed to conform to the Village zoning ordinance.

{¶15} Subsequently, the parties filed additional parts of the record from the

zoning action. This included the final judgment from this court that upheld the

Village’s determination approving the Kahns’ application because it complied with the

Village zoning ordinance. See Brendamour v. City Council of the Village of Indian

Hill, 1st Dist. Hamilton Nos. C-200023 and C-200026, 2021-Ohio-568.

{¶16} In August 2021, the trial court heard arguments on the pending motions

to dismiss. A month later, the trial court dismissed all counts in the Brendamours’

complaint and the Kahns’ counterclaim complaint. It specified that it did not consider

any documents outside of the complaint or the counterclaim complaint, including this

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court’s final decision in the zoning action. The Brendamours and Kahns both appealed

and we consolidated those appeals.1 The Brendamours, in a single assignment of error,

and the Kahns, in two assignments of error, challenge the trial court’s dismissal of

their breach-of-contract claims under Civ.R. 12(B)(6).

Standard of Review

{¶17} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon

which relief can be granted tests the sufficiency of the complaint. See White v. Pitman,

2020-Ohio-3957, 156 N.E.3d 1026, ¶ 16 (1st Dist.). When deciding such a motion, the

court must accept factual allegations in the complaint as true and draw all reasonable

inferences in favor of the nonmoving party. Id. A court should not dismiss a complaint

for failure to state an actionable claim unless it appears “beyond doubt from the

complaint that the plaintiff can prove no set of facts entitling [the plaintiff] to

recovery.” O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327

N.E.2d 753 (1975), syllabus. This court reviews de novo a trial court’s ruling on a Civ.R.

12(B)(6) motion to dismiss. Pitman at ¶ 16.

Breach of Contract

{¶18} The elements of a breach-of-contract claim are (1) the existence of a

contract, (2) performance by the plaintiff, (3) breach by the defendant, and (4)

damages resulting from the breach. Pitman at ¶ 37.

{¶19} Ohio courts have recognized that “[i]n addition to a contract’s express

terms, every contract imposes an implied duty of good faith and fair dealing in the

1This court by agreed entry dated October 26, 2021, partially dismissed Kranbuhl as an appellee in the appeal numbered C-210504 and dismissed Kranbuhl’s cross-appeal in the appeal numbered C- 210510 as moot. 8 OHIO FIRST DISTRICT COURT OF APPEALS

performance and enforcement.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d

453, 2018-Ohio-15, 97 N.E.3d 458, ¶ 42. “Good faith” refers to an “ ‘implied

undertaking not to take opportunistic advantage in a way that could not have been

contemplated at the time of drafting, and which therefore was not resolved explicitly

by the parties.’ ” Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 443-

444, 662 N.E.2d 1074 (1996), quoting Kham & Nate’s Shoes No. 2, Inc. v. First Bank

of Whiting, 908 F.2d 1351, 1357 (7th Cir.1990), quoted in Lucarell at ¶ 42. But “there

is no independent cause of action for breach of the implied duty of good faith and fair

dealing apart from a breach of the underlying contract.” Lucarell at ¶ 44.

{¶20} When a breach-of-contract claim is founded upon a written instrument

that is attached to the complaint, the complaint should not be dismissed under Civ.R.

12(B)(6) unless the complaint and the written instrument on their face show to a

certainty some insurmountable bar to relief as a matter of law. See Slife v. Kundtz

Properties, Inc., 40 Ohio App.2d 179, 186, 318 N.E.2d 557 (8th Dist.1974).

{¶21} Contracts are interpreted to carry out the parties’ intent, as evidenced

by contractual language. See Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46

Ohio St.3d 51, 53, 544 N.E.2d 920 (1989). When a contract is clear and unambiguous,

its interpretation is a matter of law, and no issue of fact remains to be determined. See

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978);

Blosser v. Enderlin, 113 Ohio St. 121, 148 N.E. 393 (1925), paragraph one of the

syllabus. Contract terms are deemed ambiguous if they reasonably can be interpreted

in multiple ways. See Bates v. City of Cincinnati, 2013-Ohio-5893, 7 N.E.3d 521, ¶ 13

(1st Dist.); Schaffer v. First Merit Bank, N.A., 186 Ohio App.3d 173, 2009-Ohio-6146,

927 N.E.2d 15, ¶ 20 (9th Dist.).

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Brendamours Failed to Allege a Breach-of-Contract Claim

{¶22} The Brendamours’ primary argument in support of reversal on their

breach-of-contract claim against the Village relates to the duty of good faith and fair

dealing. They argue that the allegations in the complaint would make it reasonable to

conclude that the Village breached “the duty of good faith and fair dealing” by failing

to act in accordance with the 2003 Agreement’s “express terms—preparing and filing

the [Park Road Lot] Easement release so that the relevant rights were released and

notice of that release would be evidenced from a review of property records.”

{¶23} But those “express terms” do not exist in the 2003 Agreement. The 2003

Agreement required the Village to (1) accept two conservation easements, (2)

contribute to the purchase of certain property and accept approximately 0.45 acres of

property into a Green Areas Trust, (3) remove a driveway and plant certain plants on

the property subject to the agreement, (4) obtain a boundary survey and legal

descriptions from a surveyor licensed in Ohio for the property subject to the

agreement, (5) obtain a title examination of the property subject to the agreement, and

(6) bear the cost of document preparation regarding the transaction set forth in the

agreement. There is no allegation that the Village failed to fulfill these duties.

{¶24} The Brendamours are attempting to recover for an alleged breach of an

implied duty apart from a breach of the underlying contract, but such cause of action

is not recognized under Ohio law. See Lucarell, 152 Ohio St.3d 453, 2018-Ohio-15, 97

N.E.3d 458, at ¶ 44.

{¶25} The Brendamours’ additional arguments in support of a reversal are

similarly meritless. Those arguments conflate the Village’s responsibilities for zoning

review and approval with contract duties. Accepting the factual allegations in the

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complaint as true and drawing all reasonable inferences in the Brendamours’ favor,

we hold that the Brendamours failed to state a cause of action for breach of contract

against the Village. The trial court did not err when it dismissed that claim.

Accordingly, we overrule the Brendamours’ sole assignment of error.

Dismissal of the Kahns’ Breach-of-Contract Claim

{¶26} The Kahns’ breach-of-contract claim relates to the future-disputes

provision in the 2003 Agreement. According to the Kahns’ allegations, the

Brendamours breached the express terms of the future-disputes provision and

violated the duty of good faith and fair dealing when they opposed the Kahns’

application on the “basis of lot frontage” and encouraged others to do so. These

allegations were supported by exhibits attached to and incorporated into the Kahns’

answer and counterclaim complaint.

{¶27} The trial court essentially construed the future-disputes provision as

allowing the Brendamours to contest the Kahns’ application in the zoning action based

on inadequate lot frontage without breaching the future-disputes provision as long as

the Brendamours also raised additional reasons for contesting it. And because the

Brendamours raised additional grounds along with the lot-frontage challenges, the

trial court determined the Kahns’ allegations were insufficient to state a claim upon

which relief could be granted.

{¶28} We disagree with the trial court’s interpretation of the future-disputes

provision, which is akin to a fee-shifting agreement. The provision provides that “as

long as any proposed * * * construction of a new residence on the [] Property * * *

otherwise conforms with the Village’s Zoning Ordinance, [the] Brendamour[s] * * *

will not oppose such use on the basis of inadequate lot frontage” and that if the 11 OHIO FIRST DISTRICT COURT OF APPEALS

Brendamours “breach[] this covenant,” they “shall be responsible for all expenses,

including reasonable attorneys’ fees, which [the current owner] or her * * * successors

* * * must expend in order to battle the opposition.”

{¶29} When read in its entirety, the only reasonable construction of the

provision affords the Kahns the right to recover expenses, including “reasonable

attorney fees,” incurred and proved for defending based on inadequate lot frontage, if

at the conclusion of the zoning action the Kahn application is found to otherwise

conform with the Village’s zoning ordinance.

{¶30} The Brendamours also argue that this court should not reinstate the

Kahns’ claim because the Kahns cannot prove any damages caused by the

Brendamours’ alleged breach of the future-disputes provision in the 2003 Agreement.

They assert that the expenses and attorney fees the Kahns incurred to “battle” their

challenge based on inadequate lot frontage were also necessarily expended to respond

to their other zoning-ordinance-based challenges and Kranbuhl’s lot-frontage

{¶31} At this stage in the proceedings, we cannot say as a matter of law that

there is no set of facts under which the Kahns would be entitled to relief against the

Brendamours. On remand, the Kahns will have to prove (among other things)

damages that were caused by any breach of the future-disputes provision.

{¶32} We hold that the Kahns sufficiently stated a cause of action for breach

of the future-disputes provision. Accordingly, we conclude that the trial court erred

when it dismissed the Kahns’ breach-of-contract counterclaim under Civ.R. 12(B)(6).

The Kahns’ first assignment of error is sustained.

12 OHIO FIRST DISTRICT COURT OF APPEALS

Civ.R. 12(B)(6) Tests the Sufficiency of the Complaint

{¶33} The Kahns’ second assignment of error asserts that the trial court erred

by failing to consider the final decision in the zoning case as “substantial, if not

conclusive evidence” that the Brendamours had breached the future-disputes

provision in the 2003 Agreement, thereby entitling the Kahns to damages and attorney

fees. This argument is misplaced considering the procedural posture of this case. The

trial court ruled on the sufficiency of the allegations, not the merits of the claim. The

Kahns’ assignment of error thus lacks merit, and we overrule it.

Conclusion

{¶34} The trial court erred by dismissing the Kahns’ breach-of-contract claim

against the Brendamours with respect to the future-disputes provision in the 2003

Agreement. The trial court did not err by dismissing the Brendamours’ breach-of-

contract claim against the Village. Consequently, we affirm the trial court’s judgment

in the appeal numbered C-210516, reverse it in the appeal numbered C-210504, and

remand the case for further proceedings consistent with the law and this opinion. The

appeal numbered C-210617 is dismissed.

Judgment accordingly.

BERGERON, P.J., and CROUSE, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.