John M. Niehaus, Inc. v. TDGGC, L.L.C.

2025 Ohio 1722

• Court: Ohio Court of Appeals
• Decided: May 14, 2025
• Docket: C-240412
• Status: Published

Opinion

[Cite as John M. Niehaus, Inc. v. TDGGC, L.L.C., 2025-Ohio-1722.]

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

JOHN M. NIEHAUS, INC., : APPEAL NO. C-240412 TRIAL NO. A-2104163 Plaintiff-Appellant, :

vs. : JUDGMENT ENTRY TDGGC, LLC, :

Defendant-Appellee, :

and :

HELKIN, LLC, :

Defendant. :

This cause was heard upon the appeal, the record, the briefs, and arguments. The judgment of the trial court is affirmed for the reasons set forth in the Opinion filed this date. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs are taxed under App.R. 24. The court further orders that 1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 5/14/2025 per order of the court.

By:_______________________ Administrative Judge [Cite as John M. Niehaus, Inc. v. TDGGC, L.L.C., 2025-Ohio-1722.]

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

JOHN M. NIEHAUS, INC., : APPEAL NO. C-240412 TRIAL NO. A-2104163 Plaintiff-Appellant, :

vs. : OPINION TDGGC, LLC, :

: Defendant-Appellee, : and : HELKIN, LLC, : Defendant. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 14, 2025

Robbins, Kelly, Patterson & Tucker, LPA, Charles E. Rust and Michael A. Galasso, for Plaintiff-Appellant John M. Niehaus, Inc.,

Dinsmore & Shohl LLP and Matthew J. Bakota, for Defendant-Appellee TDGGC, LLC. OHIO FIRST DISTRICT COURT OF APPEALS

MOORE, Judge.

{¶1} Plaintiff-appellant John M. Niehaus, Inc., (“Niehaus”) sued defendant-

appellee TDGGC, LLC., (“TDGGC”) for breach of contract, alleging that TDGGC

breached the parties’ 7Settlement Agreement and Mutual Release (“Settlement

Agreement”) by building more than 212 units on the Chestnut Park property (the

“Property”) without Niehaus’s approval. The parties do not dispute that defendant

Helkin, LLC., (“Helkin”) which purchased the Property from TDGGC, actually built

the excess units after its purchase.

{¶2} Niehaus filed a motion for summary judgment, arguing that TDGGC

was liable under the plain language of the Settlement Agreement, and the sale to

Helkin did not absolve it of its duty not to build more than 212 units without

permission. TDGGC also moved for summary judgment, asserting that it cannot be

found to be in breach of the settlement agreement because it is undisputed that it did

not build the excess units. The trial court found that there were no genuine issues of

material fact and that TDGGC did not breach the settlement agreement as a matter of

law. Niehaus’s motion was denied.

{¶3} On appeal, Niehaus argues the trial court erred in granting TDGGC’s

motion for summary judgment and denying its summary judgment motion against

TDGGC and its motion for leave to file a third amended complaint. We disagree.

{¶4} For the reasons stated herein, we affirm the trial court’s judgment.

I. Factual and Procedural History

{¶5} In 2000, Niehaus signed a purchase agreement (“Erpenbeck

Agreement”) whereby Niehaus agreed to sell the Property development to Erpenbeck

Company (“Erpenbeck”). Recitals A and B of the Erpenbeck Agreement provided that

if Erpenbeck built more than 200 units on the Property, Niehaus would be paid OHIO FIRST DISTRICT COURT OF APPEALS

$17,000 for each unit over 200. Pursuant to the Erpenbeck Agreement, Niehaus

conveyed the Property to Erpenbeck’s subsidiary, Chestnut Park Builders.

Towne Development Group purchases the Property and transfers interest to TDGGC.

{¶6} In May 2002, Chestnut Park Builders filed for bankruptcy. Towne

Development Group, Ltd., (“TDG”) entered into a sale and purchase agreement

(“SPA”) with Chestnut to purchase the Property through the bankruptcy proceedings.

The bankruptcy court approved the sale in July 2002. The bankruptcy court’s order

stated, in pertinent part, that TDG purchased the Property:

free and clear of all . . . security interests, conditional sale or other title

retention agreements, pledges, liens, judgments, demands,

encumbrances, mechanics liens . . . and of all debts arising in anyway in

connection with any acts, or failures to act, of the Debtor or the Debtor’s

predecessors or affiliates, claims, obligations, demands, guaranties,

options, rights, contractual commitments, restrictions, interests and

matters (sic) of any kind and nature, whether arising prior to or

subsequent to the commencement of these cases and whether imposed

by agreement, understanding, law, equity or otherwise, except for any

such obligations specifically assumed by the Purchaser pursuant to the

SPA.

That same month, TDG assigned its interest in the Property to its subsidiary, TDGGC.

{¶7} Pursuant to the SPA and the bankruptcy court order approving same,

TDGGC completed construction of the swimming pool and clubhouse complex (“the

Complex”) on the Property. TDGGC demanded payment from Niehaus for the costs

associated with the completion of the Complex.

{¶8} In 2003, TDGGC received approval from the Hamilton County Rural

4 OHIO FIRST DISTRICT COURT OF APPEALS

Zoning Commission to build more than 208 units on the Property. Niehaus discovered

that TDGGC sought this approval without its permission and demanded $17,000 for

each additional unit that was built. Niehaus based its demand on the Erpenbeck

Agreement from 2000, which TDGGC was not a party to.

TDGGC sues Niehaus and the parties enter into the Settlement Agreement.

{¶9} TDGGC filed a claim against Niehaus for payment for completing the

Complex. Niehaus filed a counterclaim demanding $17,000 for each “proposed

increase” in the number of units to be built on the Property.

{¶10} The parties ultimately signed the Settlement Agreement, which

increased the permissible number of units to 212 and any units beyond this number

required Niehaus’s written consent. The Settlement Agreement contained a “Mutual

Release of All Known and Unknown Claims” which was to be binding on the parties

and “each of their successors, trustees, legal representatives and assigns.”

{¶11} The Settlement Agreement also contained a confidentiality clause that

restricted either party from sharing the terms of the agreement. To comply with the

terms of the confidentiality clause and to give notice of the unit restriction to

successors and assigns, the parties filed a letter with the Hamilton County Rural

Zoning Commission.

{¶12} The letter explained that TDGGC agreed that it would not build more

than 212 units without Niehaus’s express written consent and that:

The parties agree that this letter shall become part of the permanent

record of the file for Phase 2, Aston Woods in connection with Zoning

Case 98-4; Aston Woods. The parties further agree that the conditions

and obligations contained in this letter and the agreement between the

parties shall be binding upon the party’s successors and assigns.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶13} Neither the Settlement Agreement nor the letter filed with the zoning

commission specify whether, or how much, Niehaus would be compensated for any

units built beyond the 212-unit cap in the Settlement Agreement. There is also no

provision specifying that either party was responsible for giving notice to any

subsequent purchaser.

{¶14} In 2019, TDGGC sold the Property to Helkin. At some point following

the sale, Niehaus discovered Helkin built additional units on the Property. Specifically,

Niehaus learned that the Property now had a total of 226 units, 14 units over the

Settlement Agreement unit cap.

Niehaus files lawsuits after Helkin built more than 212 units.

{¶15} In December 2021, Niehaus filed a complaint against TDGGC for breach

of contract. Niehaus filed an amended complaint the following day to correct an error

stating the incorrect number of units that had been constructed.

{¶16} In January 2022, Niehaus sought leave to file its second amended

complaint to add Helkin as a defendant. Niehaus alleged Helkin tortiously interfered

with its contract with TDGGC. This second amended complaint is the subject of this

appeal.

{¶17} In March 2023, Helkin filed an answer to Niehaus’s second amended

complaint and included a crossclaim against TDGGC for breach of the purchase

contract for the sale of the Property.

{¶18} TDGGC filed a motion for summary judgment on both Niehaus’s and

Helkins’s claims. As to Niehaus’s claims, TDGGC argued it did not breach the

settlement agreement because it did not build more than 212 units. TDGGC also

argued that Helkin had constructive notice of the restriction against building more

than 212 units on the Property because of the letter filed with the zoning commission.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} In December 2023, Niehaus filed a motion for leave to file a third

amended complaint seeking to add several additional defendants and assert claims

under the doctrine of piercing the corporate veil and R.C. Ch. 1336 (the Ohio Uniform

Fraudulent Transfer Act), based on Niehaus’s suspicions that TDGGC and its parent,

TDG, were insolvent.

{¶20} In February 2024, the trial court granted TDGGC’s unopposed motion

for summary judgment against Helkin.1

{¶21} In March 2024, the trial court granted TDGGC’s motion for summary

judgment against Niehaus and denied Niehaus’s motion for summary judgment

against TDGGC. The court also denied Niehaus’s motion for leave to file a third

amended complaint.2 In its entry, the trial court found (1) it was undisputed that

TDGGC did not build more than 212 units, therefore it had not breached the

Settlement Agreement; (2) the Settlement Agreement imposed no obligation on

TDGGC to inform any other party of the restrictions; and (3) TDGGC was not bound

by the recitals in the Erpenbeck Purchase Agreement because TDG purchased the

Property free and clear of any previous obligation and TDGGC’s interest was

transferred to it under the same conditions.

{¶22} This appeal followed.

II. Analysis

{¶23} We review a trial court’s grant of summary judgment de novo. Guthrie

1 Helkin’s counsel withdrew, and Helkin failed to obtain new counsel to defend or further pursue

any claims in this matter. 2 While claims regarding Helkin are not before this court, Niehaus was granted summary judgment

against Helkin. Niehaus asserted for the first time during oral argument that it continued to pursue TDGGC notwithstanding obtaining judgment against Helkin because both parties are jointly and severally liable for building the excess units. Because this argument was raised for the first time at oral argument, it is not properly before the court and will not be addressed. See Effective Shareholder Solutions, Inc. v. Natl. City Bank, 2009-Ohio-6200, ¶ 18 (1st Dist.).

7 OHIO FIRST DISTRICT COURT OF APPEALS

v. Guthrie, 2024-Ohio-5581, ¶ 24 (1st Dist.). Summary judgment is appropriately

granted when (1) no genuine issue as to any material fact remains to be litigated; (2)

the moving party is entitled to judgment as a matter of law; and (3) construing the

evidence in the light most favorable to the nonmoving party, it appears from the

evidence that reasonable minds can come to but one conclusion, and that conclusion

is adverse to the nonmoving party. Id.; Civ.R. 56(C).

{¶24} Pursuant to Civ.R. 56, at the summary-judgment stage, the trial court

may only consider the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of

fact. Environmental Solutions & Innovations, Inc. v. Edge Eng. & Science, LLC,

2023-Ohio-2605, ¶ 6 (1st Dist.).

{¶25} The moving party has the initial burden of informing the trial court of

the basis for its motion and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on the elements of the nonmoving

party’s claim or defense. Id. at ¶ 7. If the moving party meets this initial burden, the

nonmoving party then bears the burden of setting forth “specific facts showing that

there is a genuine issue for trial.” Id.; Civ.R. 56(E). If the nonmoving party fails to do

so, then summary judgment is appropriate and must be entered against the

nonmoving party. Environmental Solutions at ¶ 6.

A. The trial court did not err by granting TDGGC’s motion for summary judgment.

{¶26} To prevail on a breach-of-contract claim, a plaintiff must establish (1)

the existence of a contract, (2) performance by the plaintiff, (3) breach by the

defendant, and (4) damage or loss to the plaintiff. Matthews v. Mark Heflin Ent.,

2012-Ohio-2862, ¶ 22 (1st Dist.).

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶27} The interpretation of a written contract is a question of law, which we

review de novo. Id. at ¶ 25. In construing the terms of a written agreement, the primary

objective is to give effect to the intent of the parties, which can be found in the language

that they chose to employ. Id. Where a contract’s terms are clear and unambiguous, a

court need not go beyond the plain language of the agreement to determine the rights

and obligations of the parties. Id. A settlement agreement is a contract; a contract

designed to terminate a claim by preventing or ending litigation. Warmack v. Arnold,

2011-Ohio-5463, ¶ 24 (1st Dist.). The party seeking to enforce a settlement agreement

bears the burden of proving each element of their claim by a preponderance of the

evidence. Nationstar Mtge., L.L.C. v. Jessie, 2025-Ohio-454, ¶ 27 (8th Dist.).

{¶28} Niehaus argues that it does not matter that TDGGC did not build the

extra units because TDGGC was still obligated to perform under the Settlement

Agreement. TDGGC does not refute that it was obligated to perform; instead, it argues

that it did not breach the agreement.

{¶29} Here, the parties to the Settlement Agreement were Niehaus and

TDGGC. Helkin, the entity that actually built the extra units, was not a party to the

Settlement Agreement. Therefore, Niehaus failed to prove by a preponderance of the

evidence that a party to the Settlement Agreement breached the contract because, as

the trial court correctly found, TDGGC did not build the extra units.

{¶30} The confidentiality clause in the Settlement Agreement prevented

TDGGC from discussing the Settlement Agreement. It did not require either party to

inform any successor, assign, etc., of the restriction on the number of units that could

be built on the Property. Meanwhile, the parties apparently intended to ensure that

any successors and assigns had notice of the unit restriction by filing the letter with

9 OHIO FIRST DISTRICT COURT OF APPEALS

the zoning commission.

TDGGC was not obligated to inform Helkin of the restriction on the number of units to be built.

{¶31} Niehaus asserts that it based its calculations for damages on the

Erpenbeck Agreement, which required Erpenbeck to pay Niehaus $17,000 for each

unit built over 200. It is undisputed that the parties to the Erpenbeck Agreement were

Niehaus and Erpenbeck. Therefore, the trial court correctly found that TDGGC was

not subject to those terms.

{¶32} Further, TDG’s “Sale and Purchase Agreement” and the bankruptcy

court order authorizing TDG’s purchase of the Property through bankruptcy

proceedings states that TDG purchased the Property free and clear of any prior

contractual obligations and liabilities. Accordingly, TDG’s conveyance to TDGGC was

likewise free and clear. See Kohlbrand v. Ranieri, 2005-Ohio-295, ¶ 18 (1st Dist.),

quoting Black’s Law Dictionary (8 Ed. 2004) (Black’s Law Dictionary defines “clear”

as “free from encumbrances and claims.”); Car-Tec, Inc. v. Venture Industries (In Re

Autostyle Plastics), 227 B.R. 797, 800 (Bankr.W.D.Mich 1998) (A bankruptcy court

sale free and clear of liens, claims, and interests bars successor liability claims.).

{¶33} Niehaus failed to show that a genuine issue of material fact existed as to

whether TDGGC breached the Settlement Agreement. Accordingly, the trial court did

not err in granting TDGGC’s motion for summary judgment and denying Niehaus’s

summary-judgment motion.

{¶34} Niehaus’s first assignment of error is overruled.

B. The trial court did not abuse its discretion by denying Niehaus’s third motion for leave to amend its complaint.

{¶35} We review the trial court’s ruling on a motion for leave to amend a

complaint for an abuse of discretion. Henderson v. Dewine, 2022-Ohio-1025, ¶ 15 (1st

10 OHIO FIRST DISTRICT COURT OF APPEALS

Dist.). A trial court abuses its discretion when its judgment is unreasonable, arbitrary

or unconscionable. Meehan v. Mardis, 2022-Ohio-1379, ¶ 4 (1st Dist.). “A decision is

unreasonable if there is no sound reasoning process that would support that

decision.” Id. Further, a trial court abuses its discretion by denying a motion for leave

to amend a complaint where a plaintiff may potentially state a claim upon which relief

may be granted and provides no reason to justify a denial of the motion. Boyd v.

Winton Hills Med. & Health Ctr., Inc., 133 Ohio App.3d 150, 160 (1st Dist. 1999).

{¶36} Civ.R. 15(A) provides that the court shall freely grant leave when justice

so requires. Green v. Peters, 2024-Ohio-6040, ¶ 14 (1st Dist.). When ruling on a

motion to amend, the trial court should consider whether the movant made a prima

facie showing of support for the claims it raises, the timeliness of the motion, and

whether the proposed amendment would prejudice the opposing party. Henderson at

¶ 15. A trial court may liberally grant a Civ.R. 15(A) motion to amend, but it should be

overruled if there is a showing of bad faith, undue delay, or undue prejudice to the

opposing party. Meehan at ¶ 5. Additionally, a trial court properly denies a motion to

amend the complaint when the amendment sought is futile. Green at ¶ 14.

{¶37} The trial court noted that Niehaus filed both a motion for summary

judgment and a motion for leave to file a third amended complaint in its entry denying

both. Although the court did not specify its reasons for denying Niehaus’s motion for

leave to amend, we can glean from the record that the motion was denied based on the

trial court’s conclusion that TDGGC did not breach the Settlement Agreement, which

would make Niehaus’s new claims futile.

{¶38} Niehaus’s second assignment of error is overruled.

III. Conclusion

{¶39} For the foregoing reasons, we affirm the trial court’s judgment.

11 OHIO FIRST DISTRICT COURT OF APPEALS

Judgment affirmed.

KINSLEY, P.J., and ZAYAS, J., concur.