Crocker Park, L.L.C. v. Westlake

Ohio Court of Appeals

Crocker Park, L.L.C. v. Westlake

Ohio Court of Appeals·Decided July 30, 2026·No. 115356·Published

Opinion

[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 third-

party-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

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