L.G. Harris Family Ltd. Partnership I v. 905 S. Main St./Englewood, L.L.C.
2014 Ohio 1906
Ohio Ct. App.2014Background
- Larry Harris owned adjacent commercial parcels at 909 and 905 S. Main St.; 905 was sold to SMS for commercial development and 909 later was used by an auto-body shop (Howell) and for storage.
- SMS obtained from Harris a written Common Access Easement and Parking Maintenance Agreement permitting ingress, egress and parking, permitting initial construction and requiring written notice (with cost estimates and bids) to the other party for later modifications; costs thereafter were to be shared equally.
- SMS’s approved development relocated the existing northernmost curb cut (in the easement area) after the City’s traffic engineer recommended consolidating access points for safety; SMS removed the original driveway and created a new single driveway serving the 905 parcel.
- Harris sued after Howell’s business closed, alleging SMS breached the easement by removing the driveway and by failing to provide the contractually required written notice; he sought damages and injunctive relief. SMS defended that City approvals (and safety requirements) made leaving the driveway in place impossible and also asserted a counterclaim.
- A jury found SMS breached the contract (failure to notify and removal/closure of the easement area) and awarded $302,800 ($160,000 loss-of-use/diminution; $142,800 expectation damages). The trial court denied fees; an agreed judgment later awarded Harris attorney fees, and SMS appealed.
Issues
| Issue | Plaintiff's Argument (Harris) | Defendant's Argument (SMS) | Held |
|---|---|---|---|
| Whether SMS was excused by impossibility of performance because City required relocation of driveway | SMS had no right to remove driveway; City requirement did not excuse SMS | City’s conditional approval and traffic-engineer recommendation made leaving driveway impossible | Denied — question for jury; summary judgment improper and jury finding of breach not against weight of evidence |
| Whether relocation of driveway violated easement’s grant for ingress/egress/parking | Easement did not authorize removal of existing curb cut; Harris said he conditioned grant on retaining truck access | Easement language permitted configuration for access/parking; City required change | Denied directed verdict for SMS; factual dispute resolved by jury in favor of Harris |
| Whether SMS breached notice provisions of easement by not providing written notice with bids/costs | Harris: easement required written notice of modifications; SMS failed to comply | SMS: no contribution sought so notice not required; public zoning process provided constructive notice | Denied directed verdict for SMS; jury could reasonably find notice provision was violated |
| Whether damages awarded were legally supported (loss-of-value vs. expectation damages) | Harris: entitled to diminution in value and other expectancy damages (rental expectation) | SMS: damages must be tied to before-and-after market values at time of breach; expectation award was speculative | Partially reversed — jury’s finding of breach affirmed, but damage awards reversed: expectation damages unsupported and loss-of-value evidence failed to show before/after values at time of breach; trial court erred not to direct verdict on damages |
Key Cases Cited
- Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150 (rule that denial of summary judgment can be harmless if trial later shows genuine issues of material fact)
- Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677 (standard for directed verdict/Civ.R. 50)
- Ohio Collieries Co. v. Cocke, 107 Ohio St. (measure of damages for permanent injury is difference in market value before and after injury)
- Martin v. Design Construction Services, Inc., 121 Ohio St.3d 66 (temporary-injury damages and when restoration cost vs. diminution matters)
- Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo, 126 Ohio St. (historical treatment of damages for temporary injury)
- Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137 (expectation damages and requirement of reasonable certainty)
- Winner Brothers, L.L.C. v. Seitz Elec., Inc., 182 Ohio App.3d 388 (elements of breach of contract claim)