[Cite as Perry Cty. Bd. of Commrs. v. Hocking Technical College, 2023-Ohio-3439.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
PERRY COUNTY BOARD OF JUDGES: COMMISSIONERS Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Plaintiff-Appellant Hon. Patricia A. Delaney, J.
-vs- Case No. 22-CA-00009 HOCKING TECHNICAL COLLEGE dba HOCKING COLLEGE
Defendant-Appellee OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of Common Pleas, Case No. 22-CV-00095
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 26, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ANTHONIO C. FIORE PAUL R. KERRIDGE, ESQ. THOMAS P. PANNETT STEVEN C. COFFARO, ESQ. PETER W. STOECKLEIN STEPHANIE M. SCOTT, ESQ. Kegler, Brown, Hill & Ritter, LPA Keating Muething & Klekamp, PPL 65 East State Street – Suite #1800 One East Fourth Street – Suite #1400 Columbus, Ohio 43215 Cincinnati, Ohio 45202 Perry County, Case No. 22-CA-00009 2
Hoffman, P.J. {¶1} Plaintiff-appellant Perry County Board of Commissioners appeals the
October 17, 2022 Order and Entry of Dismissal entered by the Perry County Court of
Common Pleas, which memorialized the court’s September 8, 2022 Decision granting
defendant-appellee Hocking Technical College’s motion to dismiss.
STATEMENT OF THE FACTS AND CASE
{¶2} There are no material facts in dispute. On December 5, 1991, the Perry
County Board of Commissioners (“the Board”) and Hocking Technical College (“the
College”) entered into an agreement whereby the Board agreed to transfer a parcel of
land to the College without cost and to be used exclusively for educational purposes (“the
Agreement”). Pursuant to the Agreement, the parcel of land “basically [consisted] of ten
acres of the land owned by [Perry] County adjacent to the Perry County Infirmary and
fronting on State Route 37.” The Agreement at p. 2, unpaginated. The parcel of land
was to be more specifically surveyed subsequent to the execution of the Agreement. The
Agreement further provided “[a]ny deeds of conveyance made to the College by the Board
shall contain reverter clauses providing that the property conveyed shall revert to the
County of Perry when and if the property is no longer used for educational purposes by
the College.” Id.
{¶3} On September 2, 1993, the Board executed a Warranty Deed (“the Deed”)
which conveyed to the College a single parcel comprised of 25.004 acres of land and
located adjacent to State Route 37 (“the Property”). The Deed contained the reverter
clause contemplated in the Agreement: Perry County, Case No. 22-CA-00009 3
This conveyance is made upon the condition that the [College]
commence construction of a facility for housing governmental offices and
the education activities of [the College] within four (4) years of the date of
execution of the deed. Should the [College], for any reason, fail to
commence construction of said facility, then in such an event, this
conveyance shall be null and void and the property described herein revert
to the ownership of the [Board].
Warranty Deed, dated September 28, 1993, at Vol. 109, Page 817
of the Perry County Official Records.
{¶4} The College began construction of the requisite facility within four years,
and has been using the facility for governmental and educational purposes since 1996.
The Board claims the College has only utilized approximately 25% of the Property
transferred.
{¶5} On March 31, 2022, the College released a request for proposals on
approximately fifteen (15) acres of the Property (“the RFP”). The College desired “to spur
economic development in the area and toward that goal” was considering “[s]elling the
land;” “[l]easing the land;” and/or “[c]reating a partnership to develop the land.” Hocking
Technical College Request for Proposals, attached as Exhibit C to Complaint. The RFP
noted the criteria with which College would evaluate proposals included “[f]inancial benefit
to College” and “[e]conomic impact to Perry County and the local community.” Id. The
Board sent a cease-and-desist letter to Dr. Betty Young, the current president of the
College, on April 27, 2022. Perry County, Case No. 22-CA-00009 4
{¶6} On May 4, 2022, the Board filed a complaint for quite title and reversion of
the unused portion of the Property. The College filed a Civ. R. 12(B)(6) motion to dismiss
on June 21, 2022. With leave of court, the Board filed a memorandum contra on July 18,
2022. The College filed a reply on July 29, 2022.
{¶7} The trial court issued a decision on September 12, 2022. Therein, the trial
court found the Deed was clear and unambiguous, and did not present a need for any
interpretation. The trial court concluded it did not have the authority to change the Deed.
The trial court “declare[d] that the [College was] the rightful holder of title to the entire
property; the [Board had] no estate, right, title or interest in the remainder of the property;
and the Complaint should be dismissed in its entirety with prejudice pursuant to Ohio Civ.
R. 12(B)(6).” September 12, 2022 Decision at p. 3, unpaginated. The trial court ordered
the College to prepare an entry expressing its decision. On October 17, 2022, the trial
court filed its Order and Entry, which reads, in toto:
For the reasons set forth in the Court’s Decision dated September 8,
2022, this action and all claims asserted herein are dismissed, with
prejudice. [The Board] is to bear court costs with each party to bear their
own attorney’s or other fees.
October 17, 2022 Order and Entry.
{¶8} It is from this judgment entry the Board appeals, raising the following
assignments of error: Perry County, Case No. 22-CA-00009 5
I. THE TRAIL COURT ERRED BY FAILING TO FIND THAT A
“SHORT PLAIN STATEMENT” OF THE CLAIM ALLEGING THE FACTS
THAT SUPPORT THE CLAIM IS ALL THAT IS REQUIRED FOR NOTICE
PLEADING IN OHIO.
II. THE TRAIL COURT ERRED BY FAILING TO TAKE JUDICIAL
NOTICE OF PUBLIC DOCUMENTS OR TO CONSIDER A
CONTEMPORANEOUS AGREEMENT TO THE EXECUTED DEED THAT
RAISED SIGNIFICANT ISSUES REGARDING THE INTERPRETATION
OF THE DEED.
III. THE TRIAL COURT ERRED IN DISMISS [SIC] THE
COMPLAINT WHEN THE FACTS BEFORE IT MADE CLEAR THAT
DEFENDANT INTENDED TO USE THE PUBLICLY DEDICATED
PROPERTY FOR PRIVATE GAIN.
IV. THE TRIAL COURT ABUSED ITS DISCRETION BY
ELIMINATING PLAINTIFF-APPELLANT’S MINING AND ACCESS
RIGHTS.
V. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING
DEFENDANT-APPELLEE’S RIGHTS TO THE FULL 25.004-ACRE LOT
DESPITE A RECORDED TRANSFER IN 2021 OF 5 ACRES.
I, II
{¶9} We elect to address the Board’s first and second assignments of error
together. In its first assignment of error, the Board contends the trial court erred in failing Perry County, Case No. 22-CA-00009 6
to find the complaint satisfied the requirement of Civ. R. 8(A) by setting forth “a short plain
statement” of the claim. In its second assignment of error, the Board argues the trial court
erred in failing to take judicial notice of public documents or consider the December 5,
1991 Agreement of the parties as such documents raise significant issues regarding the
interpretation of the Warranty Deed. We disagree with both assertions.
{¶10} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for
failure to state a claim upon which relief can be granted, our standard of review is de
novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44,
¶ 5. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can
be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson
v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992), citing
Assn. for the Defense of the Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116,
117, 537 N.E.2d 1292 (1989). In considering a motion to dismiss, a trial court may not
rely on allegations or evidence outside the complaint. State ex rel. Fuqua v. Alexander,
79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). Rather, the trial court may review only
the complaint and may dismiss the case only if it appears beyond a doubt that the plaintiff
can prove no set of facts entitling the plaintiff to recover. O'Brien v. Univ. Community
Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.
{¶11} In its September 12, 2022 Decision, the trial court found:
Based on the foregoing exhibits,1 the Complaint seeks “a declaration that
the title to the remainder of the Property is vested in [the Board] alone; that
1 The "foregoing exhibits" were the four exhibits attached to the Board's complaint: Exhibit A, the Agreement; Exhibit B, the Deed; Exhibit C, the RFP; and Exhibit D, an affidavit from the Perry County Commissioners, averring the College has only used approximately five (5) of the 25 acre parcel for its facilities and/or education purposes. Perry County, Case No. 22-CA-00009 7
[the College] herein be declared to have no estate, right, title or interest in
the remainder of the Property; that the deed be reformed to reflect [the
Board’s] sole interest in the remainder; and that [the College] be forever
enjoined from asserting any estate, right, title or interest in the remainder
Property.”
On a Rule 12(B)((6) motion to dismiss, the court must accept all the
factual allegations as true and dismiss the action only when it appears from
the face of the complaint that the plaintiff can prove no set of facts entitling
him to relief.
The reverter clause placed in the subject deed requires only that the
College commence construction within four years of the execution of the
deed and that it not make any conveyance of the property during said four-
year period without the prior signed approval of the Board of
Commissioners.
A simple reading of the Complaint makes it clear the College
complied with these conditions.
Now, the [Board] wants the court to consider the minutes of a
meeting of the Commissioners on Dec. 5, 1991, take words from an
Agreement that was entered on that date and insert the words into a deed
that was fully executed and recorded in September, 1993. However, the
court has no authority to change a deed that is clear and unambiguous. Perry County, Case No. 22-CA-00009 8
The deed contains no condition that the College use all of the land
conveyed to hold its facilities or that any unoccupied land be returned to
[the Board].
A well established principle of law holds that a court must presume
that once a deed has been accepted and executed, said deed expresses
the intentions of the parties at the time of the execution. Any prior
agreements cannot be used to change the clear language of the deed.
The deed does not present a need for interpretation. The Complaint
raises no issue of material facts. And it appears from the face of the
Complaint that the [Board] can prove no set of facts that would entitle it to
relief.
September 12, 2002 Decision at p. 2, unpaginated.
{¶12} Contrary to the Board’s assertion, the trial court did not dismiss its complaint
because it did not satisfy the requirement of Civ. R. 8(A) by setting forth “a short plain
statement” of the claim. Rather, the trial court dismissed the complaint because the
complaint failed to establish the Board was entitled to relief, also a requirement of Civ. R.
8(A). The trial court considered the complaint and the Deed in reaching its decision.
{¶13} “A copy of any written instrument attached to a pleading is a part of the
pleading for all purposes”; therefore, the trial court may consider attached written
instruments for purposes of a motion to dismiss. Civ.R. 10(C); Keenan v. Adecco Emp.
Servs., Inc., 3d Dist. No. 1–06–10, 2006–Ohio–3633, ¶¶ 8–9 (Citation omitted).2 A motion
2 “[T]he term ‘written instrument’ in Civ.R. 10(C) has primarily been interpreted to include documents that
evidence the parties’ rights and obligations, such as negotiable instruments, ‘insurance policies, leases, Perry County, Case No. 22-CA-00009 9
to dismiss pursuant to Civ.R. 12(B)(6) should be granted in such cases “only where the
allegations in the complaint show the court to a certainty that the plaintiff can prove no
set of facts upon which he might recover, or where the claim is predicated on some writing
attached to the complaint pursuant to Civil Rule 10(D) and that writing presents an
insuperable bar to relief.” Id. at ¶ 9. “Dismissals under Civ.R. 12(B)(6) are proper where
the language of the writing is clear and unambiguous.” Id.
{¶14} Finding the Deed was clear and unambiguous, the trial court did not have
the authority to consider the Agreement.
{¶15} “The principles of deed construction dictate that a court presumes that a
deed expresses the intentions of the grantor and grantee at the time of execution. * * * A
court cannot interpret the parties' intent in a manner contrary to the clear, unambiguous
language of the deed.” American Energy Corp. v. Datkuliak, 174 Ohio App.3d 398, 2007-
Ohio-7199, ¶ 50, 882 N.E.2d 463. If the terms of the written instrument are clear and
unambiguous, courts must give the words their plain and ordinary meaning and may not
create a new contract by finding the parties intended something not set out in the contract.
Alexander v. Buckeye Pipe Line, 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978).
{¶16} When a deed is delivered and accepted without qualification pursuant to an
agreement in Ohio, no cause of action upon the prior agreement generally exists
thereafter. Miller v. Cloud, 7th Dist. No. 15 CO 0018, 2016-Ohio-5390, 76 N.E.3d 297, ¶¶
71-72; Fuller v. Drenberg, 3 Ohio St.2d 109, 209 N.E.2d 417 (1965), paragraph one of
the syllabus. The purchase contract merges into the deed. Miller, supra at ¶ 72 (Citation
omitted). “The doctrine of merger provides that when a deed is delivered and accepted
deeds, promissory notes, and contracts.’ ” State ex rel. Leneghan v. Husted, 154 Ohio St.3d 60, 2018-Ohio- 3361, 110 N.E.3d 1275, ¶ 17 (Citations and internal quotations omitted). Perry County, Case No. 22-CA-00009 10
without qualification, the underlying purchase contract becomes merged into the deed
and a cause of action no longer exists upon the contract.” Newman v. Group One, Fourth
Dist. No. 04CA18, 2005-Ohio-1582, ¶ 13.
{¶17} Upon review of the Deed, we find there was no condition requiring the
College to use all of the Property for facilities to house governmental offices and the
education activities of the College or the Property would revert to the County of Perry.
The Board could have included such language in the Deed, but chose not to do so.
Without a reverter clause specifying as such, the Board “can prove no set of facts upon
which [it] might recover.” Further, the Deed “presents an insuperable bar to relief.”
{¶18} Based upon the foregoing, the Board’s first and second assignments of
error are overruled.
III
{¶19} In its third assignment of error, the Board argues the trial court erred in
dismissing the complaint when the facts before it clearly established the College intended
to use the publicly dedicated property for private gain.
{¶20} The Board cites to R.C. 307.10 in support of its position. R.C. 307.10, which
is entitled “Procedure in sale or lease of real property; transfers of excess property to
governmental units,” provides, in relevant part:
(A) * * * When a sale of real property as provided by section 307.09
of the Revised Code is authorized, the board may either deed the property
to the highest responsible bidder, after advertisement once a week for four
consecutive weeks in a newspaper of general circulation in the county or as Perry County, Case No. 22-CA-00009 11
provided in section 7.16 of the Revised Code, or offer the real property for
sale at a public auction, after giving at least thirty days' notice of the auction
by publication in a newspaper of general circulation in the county. * * *
(B) The board, by resolution, may transfer real property in fee simple
belonging to the county and not needed for public use to the United States
government, to the state or any department or agency thereof, * * * for public
purposes upon the terms and in the manner that it may determine to be in
the best interests of the county, without advertising for bids. The board shall
execute a deed or other proper instrument when such a transfer is
approved.
R.C 307.10.
{¶21} The Board explains Perry County transferred the Property to the College
without following the advertising and bidding processes in R.C. 307.10(A); “[t]herefore,
for the transfer to be valid Perry County must have transferred the property to Hocking
College ‘for a public purpose” pursuant to [R.C. 307.10(B).” Brief of Appellant at p. 17.
The Board continues, “This is exactly what the parties intended and agreed upon. The
1991 Agreement memorializing the land transfer plainly states that Perry County would
transfer the land “without cost” to Hocking College only “so long as the land is used by
the College for its educational purposes.” Id. (Emphasis in original). The Board contends
because the Property was donated to the College pursuant to R.C. 307.10(B), not R.C.
307.10(A), the College “must use the donated land for a public purpose.” Id. at p. 18.
(Emphasis in original). The Board maintains the College’s recent Request for Proposals Perry County, Case No. 22-CA-00009 12
(“RFP”) for the sale of 15 acres of the Property, of which one of the criteria was “financial
benefit to College,” “should not be permitted.” Id.
{¶22} We need not determine whether the College must use the Property solely
for a public purpose as the College did not sell the 15 acres described in the RFS.
Accordingly, we find the Board’s third assignment of error to be premature.
IV, V
{¶23} In its fourth assignment of error, the Board maintains the trial court abused
its discretion in eliminating Perry County’s mining and access rights. In its fifth
assignment of error, the Board asserts the trial court abused its discretion in granting the
College the rights to the full 25.004-acre parcel despite a recorded transfer of five (5)
acres in 2021.
{¶24} In its September 12, 2022 Decision, the trial court declared:
“the [College] is the rightful holder of the title to the entire property;
the [Board] has no estate, right, title or interest in the remainder of the
property; and the Complaint should be dismissed in its entirety with
prejudice pursuant to Ohio Civ. R. 12(B)(6).
Id. at p. 3, unpaginated.
{¶25} The Board submits the Deed included the reservation of certain rights in
Perry County post transfer, and the trial court failed to consider or misinterpreted these
exceptions and reservation clauses. The Deed provides, in relevant part: Perry County, Case No. 22-CA-00009 13
EXCEPTING AND RESERVING, from this conveyance to the
[Board], all oil and gas and other mineral deposits of any kind whatsoever,
including the right of access to remove the same from said premises and
the use of so much of the surface as may be deemed necessary to exercise
this right.
There is further reserved to the [Board] the right to use the surface
of the premises described above for farming and agricultural purposes until
such time as the [College] commences facility construction.
Warranty Deed, dated September 28, 1993, at Vol. 109, Page 817
{¶26} The Board further maintains the College transferred 5.286 acres of the
25.004-acre parcel back to the Board via quit claim deed on January 20, 2021. The Board
attached the instrument documenting this transfer as Exhibit 1 to its appellate brief.
{¶27} The College counters the Board did not mention either the reservation of
rights or the 5.286-acre transfer in its complaint or its memorandum in opposition to the
College’s motion to dismiss; therefore, such was not properly before the trial court. The
College further asserts the language in the trial court’s September 12, 2022 Decision is
“clearly only referring to the land that is contested between the parties, as it relates to the
rights of whether the unoccupied land reverts back to the Board.” Brief of Appellee at p.
12. Nonetheless, the Board “does not contest that [the Board] owns the mineral and
access rights as well as the 5 Acres – which is why this was never brought to the trial
court’s attention and was not specifically addressed by the Decision.” Id. at p. 13. Perry County, Case No. 22-CA-00009 14
{¶28} However, the trial court’s final judgment entered October 17, 2022, does not
contain the language the Board challenges in the trial court’s September 12, 2022
Decision. While referencing its reasons from that earlier decision, the trial court’s final
judgment merely dismissed the Board’s claims and made no further declaration as to the
parties’ respective rights. As such, we find the Board’s fourth and fifth assignments of
error to be moot.
{¶29} The judgment of the Perry County Court of Common Pleas is affirmed.
By: Hoffman, P.J. Wise, J. concurs Delaney, J. dissents Perry County, Case No. 22-CA-00009 15
Delaney, J., dissents.
{¶30} I respectfully dissent from the majority opinion.
{¶31} This case involves a claim for declaratory relief to reform a deed
executed pursuant to an agreement between a board of county commissioners and
a state entity for the transfer of public lands under R.C. 307.10(B). Because the
Board alleges the Deed does not contain the approved terms of the transfer
Agreement to the College, the complaint states a claim for relief for reformation and
potentially a claim for quiet title.
{¶32} As a creature of statute, a board of county commissioners has only
the powers expressly conferred upon the board by statute or as may be implied
for the purposes of facilitating the exercise of an express power. Geauga Cnty Bd. Of
Comm’rs unn Rd. Sand & Gravel, 67 Ohio St. 3d 579, 582, 621 N.E.2d 696 (1993).
Title to all county property is vested in the board of county commissioners. State
ex rel. Bd. Of Comm’rs, 86 Ohio St 244, 251, 99 N.E. 312 (1912). It is axiomatic that
public money and public lands are held in trust for the public benefit and cannot be
expended without clear authority of law. State ex rel. Smith v. Maharry, 97 Ohio St.
272, 119 N.E. 822 (1918).
{¶33} R.C. 307.10(B) permits a board of county commissioners to transfer
real property, without competitive bidding or public auction, only in limited
circumstances:
The board, by resolution, may transfer real property in fee
simple belonging to the county and not needed for public purpose Perry County, Case No. 22-CA-00009 16
to the United States government, to the state or any
department or agency thereof, to municipal corporations or other
political subdivisions of the state, * * *, for public purposes upon
the terms and in the manner that it may determine to be in the best
interests of the county, without advertising for bids. The board
shall execute a deed or other instrument when such a transfer
is approved. (Emphasis added).
{¶34} In 1991, the county commissioners of Perry County approved the
conveyance of acreage along State Route 37 to Hocking College for “educational
facilities” and this approval appears in the Board’s minutes of December 5, 1991.
The Agreement was to be nullified if the College failed to commence construction
of the educational facilities within 5 years of the date of the agreement.
{¶35} Furthermore, the Agreement expressly states:
4. Any deeds of conveyance made to the College by the
Board shall contain reverter clauses providing that the property
conveyed shall revert to the County of Perry when and if the
property is no longer used for educational purposes by the
College.
5. The Board additionally grants to the College the option
to receive from Perry County additional acreage adjacent to
the conveyance contemplated herein, provided the educational
facilities are then constructed and operating, the exact size and
location to the additional acreage to be determined by Perry County, Case No. 22-CA-00009 17
agreement of the Board and College at the time additional
acreage is requested by the College. Any additional
conveyances made to the College would also be subject to
reverter to Perry County if no longer used for educational
purposes by the College. (Emphasis added)
.
{¶36} Ultimately, the Board transferred approximately 25 acres to the College
in 1993 by warranty Deed. I note that the Deed was not executed by the same
county commissioners who entered into the 1991 Agreement.
{¶37} As it is alleged in the complaint, the Deed does not contain the reverter
clause mandated by the Agreement that the acreage must revert back to the Board if
no longer used for educational purposes. Instead, the Deed only contains reverter
language regarding the timely commencement of a building, which is not the outcome
mandated by the Agreement. Per R.C. 307.10(C), we can infer that the Board
determined the “educational purposes” reverter clauses to be in the “best interest of
the county”.
{¶38} The majority and the trial court conclude there is no authority to consider
the 1991 Agreement, and that its terms and the Deed “present[ ] an insuperable bar
to relief”. I disagree. While generally the terms of a deed control over prior
agreements, this case involves creatures of statute, not private parties. To find
otherwise would eliminate the only authorized terms of the Agreement and be in
abrogation of R.C. 307.10(C). The majority states, “[t]he Board could have included Perry County, Case No. 22-CA-00009 18
such language in the Deed, but chose not to do so.” ¶ 17. In my view, the Board
was statutorily mandated to include the proper reverter clauses in the Deed as
required by the Agreement. Accordingly, the Board has properly stated a claim for
relief under Civ. R. 12(B)(6) to reform the Deed to comply with the statute and to
potentially quiet title.
{¶39} For these reasons, I would reverse the trial court’s judgment.
HON. PATRICIA A. DELANE