Cleveland Botanical Garden v. Drewien

153 N.E.3d 700

2020 Ohio 1278

CLEVELAND BOTANICAL GARDEN, Plaintiff-Appellee,

v.Staci K. Worthington DREWIEN, et al., Defendants-Appellants.

No. 108536

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: April 2, 2020

Hahn, Loeser & Parks, L.L.P., Stephen J. Knerly, Jr., Eric B. Levasseur, Dennis R. Rose, and Sarah K. Lewis, Cleveland, for appellee Cleveland Botanical Garden.

Squire Patton Boggs, L.L.P., Steven A. Friedman, and Sean L. McGrane, Cleveland, for appellee University Circle, Inc.

Barbara A. Langhenry, Director of Law, L. Stewart Hastings, Jr., Assistant Director of Law, for appellee City of Cleveland.

Strauss Troy Co., L.P.A., Matthew W. Fellerhoff, William K. Flynn, Amy L. Hunt, and Stephen E. Schilling, Cincinnati, for appellants heirs or beneficiaries of Wade Trust.

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, J.:

{¶ 1} Defendants-appellants, the trustee, heirs, and beneficiaries of the Jeptha H. Wade Trust (collectively referred to as "the heirs"), appeal from the trial court's declaratory judgment in favor of plaintiff-appellee, Cleveland Botanical Garden ("Botanical Garden"), determining that: (1) Botanical Garden's imposition of admission and parking fees, and limited hours of operation do not violate the "Public Park for the benefit of all people" ("park use") and "open at all times to the public" ("open") restrictions in the 1882 deed of Wade Park to Cleveland; (2) the deed's "fence restriction" is enforceable only by adjacent landowners; and (3) the heirs' reversionary interest was extinguished by operation of the Marketable Title Act, R.C. 5301.47, et seq. The heirs assign the following errors for our review:

I. The trial court erred by granting summary judgment to [Botanical Garden] by holding the Marketable Title Act, R.C. 5301.47, et seq., extinguished [the heirs'] reversionary interest created in the root of title conveying Wade Park to the City of Cleveland in trust [under the Wade deed].

II. The trial court erred by granting summary judgment to [Botanical Garden] by holding [that Botanical Garden's] admission and parking fees do not violate the conditions of the [Wade deed].

III. The trial court erred by granting summary judgment to [Botanical Garden] because it is undisputed that Wade Park is not "open at all times to the public."

IV. The trial court erred by granting summary judgment to [Botanical Garden] by holding: the [Wade deed] created a fee simple subject to a condition subsequent; but then holding the open wrought-iron fence condition is a restrictive covenant enforceable only by adjacent landowners.

V. The trial court erred by conducting an in camera review without giving [the heirs] the benefit of a privilege log.

{¶ 2} For the sake of clarity, we will address the assigned errors out of this predesignated order. Having reviewed the record and the controlling case law, we reverse the court's determination that the heirs' reversionary interest was extinguished by operation of the Marketable Title Act, we affirm the trial court's decision that Botanical Garden is not in violation of the "park use" and "open" restrictions in the deed, and we reverse the determination that the deed's "fence restriction" is enforceable only by adjacent landowners.

{¶ 3} In 1882, Jeptha H. Wade granted 73 acres of property, known as Wade Park, to the city of Cleveland for a park "to be kept open" to the public. In relevant part, the 1882 Wade deed provides:

Know all men by these presents that I, Jeptha H. Wade of the City of Cleveland, County of Cuyahoga and State I, Jeptha H. Wade of the City of Cleveland, * * * being desirous of securing to the citizens of Cleveland for all time the opportunity of re-creating, having, improving and maintaining a beautiful and attractive Public Park therein for the benefit of all the people and being the owner of lands suitable for this purpose situated near the place where several important institutions of learning are about to be permanently located and on which grounds larger expenditures with a view to such a Park have already been made, do hereby freely give, grant and convey unto the said City of Cleveland and the successors, to have and to hold forever, [a 73-acre parcel].

This conveyance is made to the said City of Cleveland forever in trust for the following purposes and upon the express conditions following to wit: * * * The said grounds at all times thereafter to be kept and maintained by said City in such repair and condition as to make it an attractive and desirable place of resort — as a Public Park to be open at all times to the public. The abutting land owners, their heirs and assigns, to have free ingress and egress through the same, subject forever to all rules and regulations prescribed by the Park Commissioners. To be for no other purpose than a public park and to be called and known forever by the name of Wade Park; If fencing shall ever be placed on said Park grounds except along the westerly and southerly boundary, it shall be open wrought-iron fence.

I also reserve the right for myself and my heirs forever to place and maintain a Street Railroad in and along the Avenues forming the easterly and northerly boundaries of said Park. Said Railroad to be subject to laws and ordinances of the City, and stipulate that the abutting property owners, their heirs and assigns forever, may connect with any water pipe the City may place in said Park at the most proper and convenient places, subject however to water rules and regulations prescribed by the City, and may make all necessary drives and walks to connect with said easterly and northerly Avenue, and if the grounds aforesaid or any part thereof shall be perverted or diverted from the public purposes and uses herein expressed, the said property and every part thereof to revert to me or my heirs forever.

{¶ 4} After its founding in the 1930s, Botanical Garden was granted permission to occupy a converted boathouse on the Wade Park Lagoon. At this time, Botanical Garden assured the heirs that it would "not interfere with the adequate and reasonable use of said Wade Park" by the public.

{¶ 5} In 1964, Cleveland entered into a lease with Botanical Garden that incorporated all "conditions, restrictions or limitations and covenants" in the Wade deed. The lease provided that Botanical Garden would not "close" off or "barricade" the park, or any part of the park, and would not charge admission "for entrance" to the Botanical Garden apart from special event fees. In 1966, Botanical Garden moved to its present location.

{¶ 6} In 1971, Cleveland entered into a lease with appellee University Circle Incorporated ("UCI"). UCI assumed maintenance obligations for the Wade Oval portion of the park. This lease expressly incorporated the terms of the 1882 Wade deed, and provides that UCI shall only use the property in a manner that is "consistent with any conditions, restrictions or limitations and covenants contained in [that] deed." By 2001, Botanical Garden subleased additional parcels from UCI in accordance with the terms of the 1971 lease. The 2001 sublease permitted Botanical Garden to install an underground parking garage. Botanical Garden currently occupies ten acres of Wade Park.

{¶ 7} By 2003, Botanical Garden undertook an expansion that quadrupled its building space and included a glass conservatory. The cost of the expansion was $70 million. Approximately $50 million of this sum was paid by contributions, and Botanical Garden planned to pay the remaining balance with bonds that would be paid from admission fees to a ten-acre section of the property. Fencing for the area includes a "wall" along portions of East Boulevard, chain-link fencing along portions of East Boulevard, and areas of wooden fencing. On a select few days of the year, admission is free.

{¶ 8} In 2010, Botanical Garden refinanced its bond debt, borrowing $11.5 million from Huntington Bank and giving Huntington Bank a "Leasehold Mortgage" on its interest in Wade Park. Huntington Bank later sold the loan, and the lease was in turn assigned to The Holden Arboretum.

{¶ 9} By 2019, Botanical Garden collected approximately $13 million from parking and admission fees. The heirs subsequently asserted a "reversionary interest," complaining that the "park use," "open," and fencing restrictions in the deed were violated.

{¶ 10} Botanical Garden filed this declaratory judgment action, seeking judicial determinations that: (1) its use, operation, and maintenance of the property is consistent with the deed restrictions; (2) it may, consistent with the 1882 deed, charge admission fees to a portion of its facilities and exhibits; (3) it may charge parking fees; (4) it may erect and maintain fencing. In opposition, the heirs asked the court to enjoin Botanical Garden from charging admission into the gardens and the parking facility, and order Botanical Garden to remove all but the limited wrought-iron fencing authorized in the 1882 deed.¹

{¶ 11} The parties filed opposing motions for partial summary judgment. Botanical Garden maintained that the 1882 deed gave the heirs a right of entry, and that the heirs failed to preserve it in accordance with the Marketable Title Act. Botanical Garden also argued that the operation of a botanical garden, the charging of fees, regulating hours of operation, operation of a parking facility, and installation of fencing do not violate the terms of the deed or trigger a reversion to the heirs. In opposition, the heirs maintained that they possess a possibility of reverter that was not extinguished by the Marketable Title Act because it was both created in the "root of title" and incorporated in the 1964 and 1971 leases. The heirs further argued that Botanical Garden violated the "park use," "open," and "fencing restrictions" provisions of the 1882 deed by imposing admission and parking fees, installing prohibited fencing, closing the area all but "24.5 [percent] of the year," and charging admission all...