source: Caselaw Access Project

author: RINGLAND, J.

license: Public Domain

text:
    Janis TAYLOR, Trustee, Plaintiff-Appellant, v. James W. TAYLOR, Jr., et al., Defendants-Appellees.
    NOS. CA2017-05-061 CA2017-05-067
    Court of Appeals of Ohio, Twelfth District, Butler County.
    April 23, 2018
    Robinson & Jones Co., LPA, Tara R. Jones, 14 West Park Place, Suite D, Oxford, Ohio 45056 and Martin, Browne, Hull & Harper, PLL, One Main Street, Suite 800, P.O. Box 1488, Springfield, Ohio 45501-1488, for plaintiff-appellant, Janis Taylor
    Taft Stettinius & Hollister LLP, Patrick J. Krebs, 200 Public Square, Suite 3500, Cleveland, Ohio 44114 and Jonathan O. Nerenberg, 246 High Street, Hamilton, Ohio 45011, for plaintiff-appellant, Three Valley Conversation Trust
    Stephen C. Lane, 7419 Kingsgate Way, Suite A, West Chester, Ohio 45069, for defendants-appellees, James W. Taylor, Jr. and Susan Taylor
   RINGLAND, J.

{¶ 1} Plaintiff-appellant, Janis Taylor, appeals the decision of the Butler County Court of Common Pleas granting partial summary judgment in favor of defendants-appellees, James Taylor and Susan Taylor. In addition, the Three Valley Conservation Trust ("Trust") appeals the grant of partial summary judgment in favor of appellees. For the reasons detailed below, we reverse the decision of the trial court and remand for further proceedings.

{¶ 2} Janis and appellees are the tenant-in-common owners of certain land ("Property") in Oxford Township located in Butler County, Ohio. The approximate 76.68-acre Property is encumbered by a conservation easement, dated July 31, 2003 in favor of the Trust.

{¶ 3} Janis commenced this action seeking appraisal and sale of the Property. In her complaint, Janis alleged that this partition action was necessary because the Property cannot be "divided" because it is subject to the conservation easement owned by the Trust. The conservation easement provides, in pertinent part:

1. Grant of Easement . Pursuant to the laws of Ohio, and in particular Sections 5301.67 through 5301.70 of the Ohio Revised Code, Grantor hereby voluntarily grants and conveys to Grantee a conservation easement in perpetuity over the Property of the nature and character and to the extent hereinafter set forth ("Easement").
2. Purpose . It is the purpose of this Easement to assure that the Conservation Values of the Property will be preserved, and that the Property will be retained forever in its natural and agricultural condition; and to prevent any use of the Property that will significantly impair or interfere with the Conservation Values of the Property or that are consistent with the purpose of this Easement.
* * *
5. Prohibited Uses . Except to the extent that activities and uses are authorized in this Easement, any activity on or use of the Property inconsistent with the Conservation Values, or with the purpose of this Easement, is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited throughout the Property unless they are permitted elsewhere in this agreement.
* * *
5.4 Subdivision -The legal subdivision of the Property, recording of a subdivision plan, partition, or any other division of the Property into two or more parcels, is prohibited.
* * *
17. General Provisions .
* * *
17.2 Liberal Construction . Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed in favor of the grant to effect the purpose of this Easement and the policy and purpose of Sections 5301.67 through 5301.70 of the Ohio Revised Code. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid.
17.3 Severability . If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby.

{¶ 4} On January 4, 2017 appellees moved for partial summary judgment. In their motion, appellees argued that the conservation easement's restriction on subdivision contained in paragraph 5.4 is an invalid and unreasonable restraint on alienation under Ohio law because it does not contain a reasonable temporal limitation. Janis and the Trust filed separate memoranda in opposition.

{¶ 5} Following review, the trial court granted partial summary judgment in favor of appellees after concluding that "perpetual restrictions on partition are unenforceable." Therefore, the court reasoned that the subdivision restriction contained in paragraph 5.4 was invalid. As a result, the trial court applied the severability clause contained in paragraph 17.3 of the conservation easement to "permit the invalid portion [paragraph 5.4] to be stricken while the remainder of the easement remains in full force and effect." The trial court reasoned:

The Court has considered all the facts in favor of Plaintiff and [the Trust]. As a matter of law, perpetual restrictions on partition are unenforceable. Neither Plaintiff nor [the Trust] set forth any contractual provision, legal authority or even underlying policy purpose contra the conservation purpose set forth in U.S.C.A. 170(h)(4) which allows the Court to find a perpetual restriction on the right to partition the property to be valid in general, or even necessary in this case. While the conservation easement itself is valid, and may continue in perpetuity, the portion of the easement specifically restricting partition (¶ 5.4) is not, pursuant to Raisch v. Schuster and its progeny.

{¶ 6} Janis and the Trust both appeal. Janis raises one assignment of error, while the Trust raises two assignments of error.

{¶ 7} Janis' sole assignment of error:

{¶ 8} THE TRIAL COURT ERRED BY FINDING THAT THE RESTRICTION IN PARAGRAPH 5.4 OF THE CONSERVATION EASEMENT IS UNENFORCEABLE AS A MATTER OF LAW BECAUSE IT IS NOT LIMITED IN DURATION.

{¶ 9} The Trust's first assignment of error:

{¶ 10} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES BECAUSE PERPETUAL SUBDIVISION RESTRICTIONS CONTAINED IN CONSERVATION EASEMENTS ARE VALID AND ENFORCEABLE UNDER OHIO LAW.

{¶ 11} The Trust's second assignment of error:

{¶ 12} THE TRIAL COURT EXCEEDED ITS AUTHORITY UNDER CIV.R. 56(C) WHEN IT WEIGHED EVIDENCE, RESOLVED DISPUTED ISSUES OF MATERIAL FACT, AND GRANTED SUMMARY JUDGMENT AGAINST TVCT.

{¶ 13} All assignments of error are interrelated and will be addressed together. Following review, we find the trial court erred by granting partial summary judgment in favor of appellees.

{¶ 14} This court reviews summary judgment decisions de novo, which means we review the trial court's judgment independently and without deference to the trial court's determinations, using the same standard in our review that the trial court should have employed. Ludwigsen v. Lakeside Plaza, L.L.C. , 12th Dist. Madison No. CA2014-03-008, 2014-Ohio-5493, 2014 WL 7014717, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) the evidence submitted can only lead reasonable minds to a conclusion which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 369-70, 696 N.E.2d 201 (1998).

{¶ 15} The moving party bears the initial burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Robinson v. Cameron , 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, 2015 WL 1774358, ¶ 9. Once this burden is met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is some genuine issue of material fact yet remaining for the trier of fact to resolve. Id. In determining whether a genuine issue of material fact exists, the evidence must be construed in favor of the nonmoving party. Vanderbilt v. Pier 27, L.L.C. , 2013-Ohio-5205, 2 N.E.3d 966, ¶ 8.

{¶ 16} As noted above, the trial court found that paragraph 5.4 of the conservation easement was a "perpetual restriction on the right to partition the property" that was neither "valid in general, [n]or even necessary." As a result, the trial court found that the restriction prohibiting subdivision was unenforceable. The practical effect of the trial court's decision is that the single parcel of land may be subdivided into two parcels and separately sold with each parcel subject to the conservation easement.

{¶ 17} Janis maintains the subdivision restriction contained in the conservation easement prohibits the division of the Property into two or more parcels. As a result, Janis sought partition under R.C. Chapter 5307. Janis requests that the court appoint an appraiser to determine the value of the Property, which would then allow either cotenant to purchase the remaining fractional interest or provide for the sale of the Property as a whole.

{¶ 18} The Trust also contends that the conservation easement prohibits the division of the Property into two or more parcels. The Trust asserts that the Property is essentially divided into four areas: (1) a woodland/riparian corridor area, (2) an agricultural area, (3) an area for a potential residence, and (4) a transitional greenspace area. In order to achieve the stated purpose of the conservation easement, the Trust has the right to enter the Property to ensure compliance with the conservation easement. The trust maintains that the subdivision restriction is essential for the purposes of the conservation easement:

[T]he subdivision restriction helps ensure that the property has only one residence and related infrastructure in order to minimize impacts on the property, that the property will be managed by one owner in order to eliminate conflicts about land management between multiple owners, and that the property will not be developed for any residential, industrial, or commercial purposes. It also reduces the administrative costs required to monitor the property. Thus, the subdivision restriction is an appropriate measure to achieve the purposes listed in R.C. 5301.67(A) of retaining the property in its "natural, scenic, open, or wooded condition" and as a "suitable habitat for fish, plants, or wildlife."

{¶ 19} The trial court's decision relied on Raisch v. Schuster , 47 Ohio App. 2d 98, 352 N.E.2d 657 (1st Dist.1975). In that case, the First District Court of Appeals found that an agreement restricting the right to partition property was impermissible.

{¶ 20} Raisch involved a property owned by 21 cotenants. Id. Each cotenant agreed that any decision relating to the property, including the decision to sell, required a majority vote of the 21 cotenants. Id. at 98-99, 352 N.E.2d 657. Though the court recognized that a cotenant may agree to limit the right to partition or sell property, the court found that any such agreement was subject to "reasonable temporal limitations on the duration of the restriction." Id. at 100, 352 N.E.2d 657. A reasonable temporal limitation may be expressed or inferred from the purpose of the restriction. Id. at 101, 352 N.E.2d 657. As a result, the court held:

[W]e hold that in order to sustain the validity and enforceability of an agreement not to sell or partition realty, where no period of duration is expressly set forth in the writing, the agreement must contain evidence of the purpose for the restraint against sale or partition sufficient to permit the determination of a duration reasonably necessary to accomplish such purpose.

Id. at 102, 352 N.E.2d 657.

{¶ 21} The First District revisited that opinion in Head v. Evans , 1st Dist. Hamilton No. C-790831, 1981 WL 9628 (Feb. 11, 1981). In Head , the court distinguished its prior holding in Raisch after noting that the agreement in Raisch effectively prohibited the sale or partition of real property without the consent of the majority. Id. at *5. Such an agreement operated as an absolute restraint upon alienability unless there was majority agreement. Id. The court found that the restriction in Raisch was "void as against public policy because there was no evidence of the purpose of the underlying agreement and, thus, no way to determine a reasonable duration by which to measure its enforceability." Id.

{¶ 22} In contrast to the restriction in Raisch , the agreement in Head involved an original tract of land that was subdivided into four separate tracts. Id. at *1. The first tract contained a restriction that only one single family residence with "necessary outbuildings" could be built on the tract. Id. Several years later, the owner of the first tract of land constructed a guesthouse on the tract. Id. at *1.

{¶ 23} The owners of the adjoining tracts of land initially brought suit to halt the construction of the guesthouse, but following negotiations, the parties agreed that the guesthouse could be built, but only on condition that the guesthouse could not be conveyed separately from the first tract of land. Id.

{¶ 24} Years later, the owner of the first tract attempted to sell the guesthouse separately in violation of the prior agreement. Id. at *1. The attempted purchaser of the guesthouse, citing Raisch , argued that the prior agreement was against public policy as an undue restraint on alienability. Id. at *5.

{¶ 25} The First District disagreed with the attempted purchaser and held that the prior agreement was not unenforceable. Id. at *5. In so doing, the court distinguished Raisch as involving "an absolute restraint upon alienability," and stated:

The Restriction in Raisch is thus clearly distinguishable from that in the instant cause. Here, the 1962 agreement did not impose anything approaching an absolute restraint upon the conveyance of the burdened property; it simply prohibited the owner of the tract from carving out a smaller parcel including the guest house and conveying that parcel to a separate purchaser. Such a restriction without doubt affected the value of the property and the manner in which it could be transferred, but we cannot say that its impact unreasonably restrained alienability, and thus violated public policy. Viewing it in its proper context as a restrictive covenant equitably running with the land, we are convinced that the failure to provide for a finite period of duration did not prevent its enforcement in the absence of a material change in circumstances.

Id. at *5.

{¶ 26} The conservation easement in this case is more akin to the restrictive covenant in Head than the absolute restraint on alienability in Raisch . In this case, the conservation easement does not restrict the sale of the Property, but merely prohibits the division of the Property into two or more parcels. Furthermore, unlike Raisch , in this case the parties expressly stated the conservation easement was for the purpose of conservation of the land and was to extend in perpetuity. In exchange for this perpetual easement right, the Trust agreed to pay James Taylor $30,000 as consideration.

{¶ 27} We similarly find Raisch to have limited applicability to this case, as it was decided prior to the adoption of Ohio's conservation easement statutes. Janis and appellees expressly granted and conveyed the conservation easement to the Trust "pursuant to the laws of Ohio, and in particular Sections 5301.07 through 5301.70 of the Ohio Revised Code." The parties also agreed in paragraph 17.2 that the conservation easement "shall be liberally construed in favor of the grant to effect the purposes of this Easement and the policy and purpose of Sections 5301.67 through 5301.70 of the Ohio Revised Code."

{¶ 28} No party disputes that the Trust holds a valid conservation easement on the Property. The term "conservation easement" is defined in R.C. 5301.67(A), which states:

[A]n incorporeal right or interest in land that is held for the public purpose of retaining land, water, or wetland areas predominantly in their natural, scenic, open, or wooded condition , including, without limitation, the use of land in agriculture when consistent with and in furtherance of the purpose of retaining those areas in such a condition, or retaining their use predominantly as suitable habitat for fish, plants, or wildlife; that imposes any limitations on the use or development of the areas that are appropriate at the time of creation of the conservation easement to achieve one or more of those purposes ; and that includes appropriate provisions for the holder to enter the property subject to the easement at reasonable times to ensure compliance with its provisions.

(Emphasis added.) R.C. 5301.69(B) further provides that charitable organization like the Trust may hold a conservation easement for "the preservation of land areas for public outdoor recreation or education, or scenic enjoyment; the preservation of historically important land areas or structures; or the protection of natural environmental systems."

{¶ 29} In sum, a review of the pertinent statutes reveals that the Legislature enacted these provisions for the "public purpose of retaining land, water, or wetland areas predominantly in their natural, scenic, open, or wooded condition." Considered in light of the conservation easement statutes, the agreement restricting subdivision of the Property would not be contrary to public policy or inconsistent with the public policy expressed in the legislation. Moreover, the subdivision restriction does not amount to an undue restraint on alienability. The subdivision restriction contained in paragraph 5.4 merely prohibits the owner from dividing the parcel into two or more parcels.

{¶ 30} As a result, we find the trial court erred by relying on Raisch and finding that the subdivision restriction contained in paragraph 5.4 of the conservation easement was invalid. Therefore, we sustain Janis' and the Trust's first assignments of error.

{¶ 31} The Trust's second assignment of error alleges the trial court improperly weighed evidence in resolving this matter on summary judgment. However, in light of our resolution of Janis' and the Trust's first assignments of error, that issue is now moot.

{¶ 32} Judgment reversed and remanded.

PIPER and M. POWELL, JJ., concur.

      The trial court did not resolve whether the Property should be divided into two or more parcels, but merely that it could. That issue is stayed pending this appeal.


author: KLATT, J.

text:
    JDS SO CAL, LTD., Plaintiff-Appellee, v. OHIO DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant.
    No. 16AP-665
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered March 29, 2018
    On brief: Cooper & Elliott, LLC, Rex H. Elliott, Charles H. Cooper, Jr., and Sean R. Alto, Columbus, for appellee. Argued: Rex H. Elliott.
    On brief: Michael DeWine, Attorney General, and Christopher P. Conomy, Columbus, for appellant. Argued: Christopher P. Conomy.
    DECISION
   KLATT, J.

{¶ 1} Defendant-appellant, the Ohio Department of Natural Resources ("ODNR"), appeals a judgment of the Franklin County Court of Common Pleas that granted plaintiff-appellee, JDS So Cal, Ltd. ("JDS"), summary judgment and denied ODNR summary judgment. For the following reasons, we reverse that judgment and remand for the trial court to enter summary judgment in ODNR's favor.

{¶ 2} In 1996, Morno Holding Company ("Morno") deeded to ODNR a 17.85-acre parcel of undeveloped property abutting Sawmill Place Boulevard (hereinafter "the Sawmill property"). Morno added to the deed a restrictive covenant that provided that the conveyance was "granted and accepted on the condition that the real property be used and occupied solely for public purposes." (Pl.'s Ex. 2, June 1, 2016 Pl.'s Mot. for Summ. Jgmt.) Apparently, Morno included the public-use restriction in the deed to support a charitable tax deduction.

{¶ 3} After receiving the property, ODNR named it the "Sawmill Wetland Education Area" and opened it to school groups so students could study the wetlands contained in the property. The Sawmill property, however, was little utilized for educational purposes. Moreover, security concerns forced ODNR to fence the property and only allow access to the general public by reservation.

{¶ 4} Between 2006 and 2011, ODNR repeatedly offered the Sawmill property to the Columbus Recreation and Parks Department ("Parks Department"). While the Parks Department expressed some interest in acquiring the Sawmill property, the Parks Department ultimately declined to take the property. The Parks Department did not want the responsibility for paying the common-area-maintenance charges imposed on the property by a restrictive covenant in the original subdivision plat documents.

{¶ 5} In 2012, ODNR entered into a contract with JDS to swap the Sawmill property for a 43.33-acre property located on the west bank of the Olentangy River (hereinafter "the Olentangy property"). While JDS did not own the Olentangy property, it had an option to purchase the property. ODNR wanted the Olentangy property due to its larger size, proximity to the Olentangy River and Highbanks Metro Park, and the variety and uniqueness of the wildlife inhabiting the property. JDS wanted the Sawmill property in order to develop it for commercial use.

{¶ 6} The dispute in this case largely centers on Section 4(d)(1) of the land-swap contract. Pursuant to that provision, JDS agreed to obtain a release of the public-use restriction in the Sawmill property's deed prior to the property transfer. ODNR agreed to work cooperatively with JDS to obtain that release. If JDS did not obtain a release, it could either terminate the contract or waive the requirement that it obtain a release. If JDS chose to waive the release requirement, it was bound to indemnify ODNR for any breach of the public-use restriction.

{¶ 7} In total, the contract included three contingencies to be satisfied prior to the property transfer. Specifically, the contract stated:

(d) Unless waived by [JDS], the following contingencies shall be satisfied by 5:00 p.m., Eastern Standard Time, on the date which is Three Hundred and Sixty (360) Days after the Effective Date (the "Deed Contingency Period").
(1) [JDS] obtaining the release of the current "public use" restriction encumbering the [Sawmill] Property. [JDS] and [ODNR] shall both work cooperatively to obtain the executed release of such encumbrance. Unless requested by [JDS], all communications with grantor of the deed in which the "public use" restriction originates shall be exclusively conducted by [JDS]. To the extent that this contingency is not timely satisfied, [JDS] may elect to terminate this Agreement pursuant to Section 6(a)(iii) in the exercise of its sole and absolute discretion or waive the contingency. Absent a timely written notice of termination, [JDS] shall be deemed to have waived this contingency. In the event that [JDS] elects to waive the contingency for the release of the current "public use" restriction or is deemed to have waived pursuant to the immediately prior sentence, [JDS] shall indemnify and hold harmless [ODNR] from any and all claims, losses, liabilities, causes of action, fines, penalties, or expenses, including, but not limited to, reasonable attorney's fee[s] and expenses, arising from or related to the continuation of the "public use" restriction after the conveyance of the [Sawmill] Property to [JDS], its successors and assigns.
The foregoing indemnification and hold harmless agreement of [JDS] shall survive the expiration or termination of this Agreement.
(2) [JDS] (and/or its valid designee) has taken record title to the [Olentangy] Property, with any and all costs as to this pre-condition to be paid for by [JDS].
(3) Any title or survey objection of [ODNR] or [JDS] shall have been cured.

(Pl's. Ex. 1 at Section 4(d)(1) through (3), June 1, 2016 Pl.'s Mot. for Summ. Jgmt.)

{¶ 8} In addition to setting forth contingencies, the contract scheduled a closing, at which ODNR would assume possession of the Olentangy property and JDS would assume possession of the Sawmill property. The closing had to occur "on a date determined by [JDS], not less than ten (10) days after written notice is given to [ODNR] but not later than thirty (30) days after the end of the Deed Contingency Period." (Pl.'s Ex. 1 at Section 3(a), June 1, 2016 Pl.'s Mot. for Summ. Jgmt.)

{¶ 9} The deed contingency period began on April 12, 2012, the date on which the contract was fully executed. Consequently, JDS had until April 7, 2013 to satisfy the contingencies contained in Section 4(d). At the very latest, the closing had to occur on May 7, 2013, provided JDS gave ODNR notice by April 27, 2013.

{¶ 10} By June 2012, news of the land-swap deal had reached the public, and environmental groups began expressing their opposition to the deal. Also in June 2012, JDS learned that its title insurer would issue a title commitment without a release of the public-use restriction from Morno, if ODNR "release[d] the restriction on their end at closing." (Pl.'s Ex. 10, Ruma Dep.) To address these developments, JDS drafted an amendment to the parties' contract.

{¶ 11} In the draft amendment, JDS agreed to incorporate into the Sawmill property's deed a restrictive covenant requiring JDS to preserve 3.08 acres of the Sawmill property as a wetland. JDS added this change to appease the environmental groups who objected to any commercial development of the Sawmill property. The draft agreement also included a provision requiring ODNR to state in the Sawmill property's deed that it was "releas[ing] and discharg[ing] of record the Use Restriction and any and all rights it may have to enforce the Use Restriction for the [Sawmill] Property." (Def.'s Ex. 6A at Ex. C to the Purchase Agreement, Section 1, June 15, 2016 Def.'s Memo in Opp. to Pl.'s Mot. for Summ. Jgmt.) This alteration of the contract would allow JDS to acquire title insurance even if it could not obtain a release of the public-use restriction from Morno.

{¶ 12} While ODNR considered whether it would agree to the amendment, JDS approached Morno and requested that it release the public-use restriction. Morno agreed to review the matter.

{¶ 13} In August 2012, ODNR's director and the attorney general executed the amendment. The amendment then went to the governor's office, as it was not binding without the governor's signature.

{¶ 14} From summer 2012 through winter 2012/2013, ODNR officials spoke about the land-swap deal with representatives of various environmental groups, including the Ohio Environmental Council, The Nature Conservancy, and the Friends of the Sawmill Wetlands. These groups opposed the land-swap deal and wanted to work with ODNR to arrive at an alternate disposition for the Sawmill property. In short, these groups wanted the Sawmill property preserved in its undeveloped state.

{¶ 15} On December 12, 2012, Karl Gebhardt, then a deputy director of ODNR, spoke with Kate Hastings, a resident of the Sawmill area. Hastings told Gebhardt that she had attended a meeting held by the Friends of the Sawmill Wetlands the previous evening. During that meeting, a representative of the City of Columbus ("City") expressed interest in acquiring the Sawmill property. Hastings asked Gebhardt if ODNR would speak with the City about its interest. Gebhardt responded that, if the City "wanted to offer a proposal [to take possession of the Sawmill property,] [ODNR] would talk with them[,] but it need[ed] to be an official offer very soon which [ODNR] would evaluate." (Pl.'s Ex. 7, June 1, 2016 Pl.'s Mot. for Summ. Jgmt.) Later, when questioned as to why he expressed openness to an "official offer" from City, Gebhardt explained that he "didn't think there was any reason why the City couldn't have [made an offer]. If they wanted to, that was up to them. Whether we accepted it or what we did with it, I mean, that's a whole different situation. But if the City was really interested like we heard, then put something on the table." (Gebhardt Dep. at 99.)

{¶ 16} Two days after Gebhardt's conversation with Hastings, Allen McKnight, the director of the City's Parks Department sought a meeting with Gebhardt. Gebhardt and Fred Shimp, an assistant director of ODNR, met with McKnight soon thereafter to determine if the City actually wanted the Sawmill property. Gebhardt figured, "If they were or were not [interested], we would be able to convey that * * * if we were * * * asked by the environmental [groups,] [']Why aren't you working with the City[?'] We could convey to them we did, we were talking with the City, they're not interested." Id. at 104. According to Gebhardt, McKnight "said that there could be interest on the part of the City but there were some issues that obviously had to be addressed." Id. at 101. Gebhardt and Shimp told McKnight "where [ODNR] w[as] with [the deal with JDS], [and] [McKnight] understood it. He did not want to get really in the middle * * * of this deal that's already been going forward but he said if * * * something happened where it didn't go forward, they may have an interest. But it wasn't a real firm commitment on their part." Id.

{¶ 17} Despite McKnight's equivocacy in the meeting, the City joined with The Nature Conservancy to make a formal offer regarding the Sawmill property. In a letter dated January 4, 2013, McKnight proposed that the Parks Department would assume permanent ownership of the Sawmill property and manage it for the public's benefit. The Nature Conservancy would provide recommendations for protecting the wetlands and donate up to $50,000 as a match for contributions from individuals, foundations, and corporations wishing to help preserve the site.

{¶ 18} On January 8, 2013, Josh Knights, the executive director of The Nature Conservancy, met with James Zehringer, ODNR's director, Shimp, and Gebhardt. After the meeting, Knights sent Zehringer an email thanking him for the "frank discussion" regarding the Sawmill property. (Pl.'s Ex. 16, Gebhardt Dep.) Knights also stated:

As mentioned, our intention in submitting a proposal about the property was to provide you with an additional option as our impression was that you were "looking at options" prior to the holidays. My sense from our meeting is that your options are limited at this point and that preserving the property as it exists is not one. We understand your decision to divest the property given its location and resource constraints.

Id. Shimp later confirmed Knights' impression of ODNR's position when he stated in his deposition that, in January 2013, ODNR was not entertaining any options for the Sawmill property other than transferring the property to JDS pursuant to the parties' contract.

{¶ 19} Although the environmental groups' lobbying of ODNR did not succeed, ODNR was not the only entity that the environmental groups targeted. In conjunction with lobbying ODNR, the environmental groups also appealed to Morno. Both the Ohio Environmental Council and the Sierra Club requested that Morno enforce the public-use restriction in the deed to prevent the commercial development of the Sawmill property. In response to both the environmental groups and JDS, Morno pronounced that it had no interest in the Sawmill property and, thus, had nothing to enforce or release. Morno wanted nothing to do with the land-swap deal or the controversy over the potential development of the Sawmill property.

{¶ 20} After Morno announced that it would not release the public-use restriction, the contract amendment pending before the governor assumed greater importance. JDS wanted to develop the Sawmill property for commercial use, so it needed to eliminate, or at least neutralize, the public-use restriction. With Morno refusing to provide a release, JDS urged ODNR to agree, as stated in the amendment, to release and remove the public-use restriction from the deed. However, ODNR became concerned that it, alone, lacked the legal authority necessary to release the public-use restriction.

{¶ 21} In late 2012 or early 2013, Shimp and Paul Baldridge, the chief of ODNR's office of real estate and land management, met with James Schrim, the managing member of JDS, and James Samuel, a lobbyist JDS had hired. According to Shimp, he told Schrim and Samuel that ODNR was conducting a legal analysis into whether it could unilaterally release the public-use restriction and that analysis "would have a very, very strong impact whether or not [ODNR] would be able * * * to fully sign the amendment." (Shimp Dep. at 58.) Baldridge recalls Shimp expressing "concerns about the viability of [the land-swap deal] moving forward" given the legal question that had arisen regarding whether ODNR, alone, could release the public-use restriction. (Baldridge Dep. at 34.)

{¶ 22} Schrim remembers this meeting very differently. According to Schrim, Shimp said "that the State did not want the [Olentangy] property, and did not want to go forward with the [land-swap] transaction." (Schrim Dep. at 8.) Schrim also recalls Shimp stating, "We're the government, we can do anything we want. We don't want the [Olentangy] property. But if you find somebody to take it, we might go forward with the transaction." Id. at 114. Finally, according to Schrim, "ODNR * * * said[,] ['W]e don't want to close on the transaction and we're killing the deal.[']" Id. at 99.

{¶ 23} Samuel's recollection of the meeting does not fully correspond with Schrim's recollection. In Samuel's memory, "the feeling of the discussion [was] that the deal might not be brought to a successful conclusion." (Samuel Dep. at 48.) However, he does not recall any ODNR representative stating that ODNR would not perform its obligations under the contract or that ODNR did not want the Olentangy property. He also does not recollect Shimp stating, "We're the government, we can do anything we want," but he does remember Shimp making a similar statement in a heated moment of the meeting.

{¶ 24} After this meeting, Shimp contacted Samuel and told him that, based on the legal advice ODNR had received regarding the public-use restriction, ODNR was recommending that the governor not sign the amendment. Although Samuel cannot specifically remember this conversation, he generally recalls a conversation in which Shimp communicated to him that "the deal would probably not go through." Id. at 50. Samuel cannot recollect whether Shimp was referring to the land-swap deal or the execution of the amendment.

{¶ 25} Based on his meeting with Shimp and Baldridge, Schrim believed that ODNR had reneged on the parties' contract. JDS, however, continued to pursue the land-swap deal. In a letter dated March 6, 2013, JDS asked ODNR to grant an extension of the deed contingency period, which was set to expire on April 7, 2013.

{¶ 26} ODNR responded to JDS' letter with a March 14, 2013 letter. In that letter, ODNR refused to grant the requested extension. ODNR also stated that it was "not willing to amend the Agreement to, in any manner, assume any obligations with respect to the removal and/or release of the 'public-use' restriction." (Def.'s Ex. 24 at 1, June 22, 2016 Def.'s Mot. for Summ. Jgmt.) However, ODNR "st[ood] ready to consummate the transaction according to the terms of the Agreement." Id. at 2.

{¶ 27} Additionally, in the March 14, 2013 response letter, ODNR referred to the two options before JDS if it wanted the Sawmill property: (1) obtain a release of the public-use restriction from Morno or (2) agree to acquire the property "as is." Butler and Samuel discussed these two options in a text message conversation on March 17, 2013. Butler texted to Samuel, "The only thing [ODNR] need[s] is a response to the [March 14, 2013] letter. There are two choices or paths ahead. What's the path that [JDS] think[s] is viable[?]" (Pl.'s Ex. 45, June 1, 2016 Pl.'s Mot. for Summ Jgmt.) Samuel replied that "[t]here is an 'as is' path (like in the letter) but it takes a discussion." Id. Butler then stated, "If [the Sawmill property] is taken [']as is[,'] we will expect it not to be developed and be forced to protect the deed." Id. Samuel responded, "Ok-then that is the deal killer." Id.

{¶ 28} Five days later, in a letter dated March 22, 2013, JDS formally replied to ODNR's March 14, 2013 letter. In summarizing JDS' position regarding the public-use restriction, the letter stated:

[ODNR] and the Governor's staff ha[ve] asked [JDS] to get a release from Morno Holding Co. * * * of "Morno's interest in the Deed." [JDS] has repeatedly told them that such a release is not attainable because Morno has nothing to release and that what they are asking for is not needed to close the transaction. Morno has consistently demonstrated that it has no remaining interest in the [Sawmill] Property, repeatedly communicated that it has no interest in this transaction, and that it wants to be left entirely out of this matter. * * * [JDS] sought a release from Morno, none could be given and they moved on with trying to close the transaction.
Specifically with respect to the "public-use" restriction, [JDS] advised [ODNR] that it had received a title commitment from Stewart Title on August 16th, 2012, indicating that Stewart Title would not require a "release" of the "public-use" restriction from Morno to obtain title insurance and therefore marketable title. * * * At that time, Stewart Title informed [JDS] that it would only require [ODNR] to release its interest (if it has any) in the public-use restriction. Stewart is only requesting comfort that [ODNR], itself, would not attempt to enforce the public-use restriction post-swap. * * *
That concept of a "Release" by [ODNR] was incorporated into the "Release, Declarations of Easements, Covenants and Restrictions" document provided to ODNR on July 19th, 2012, as part of the First Proposed Amendment at the request of [ODNR]. * * * [T]here may be numerous other ways to satisfy the substance of Stewart Title's request. It really is as simple as satisfying Stewart Title that [ODNR], itself, has no continuing or springing right in the Property post-closing.
* * *
[JDS] hereby waives its rights under Section 4(d)(1) of the Agreement and hereby agrees to indemnify [ODNR] in accordance with the terms of that provision. In your parlance, [JDS] is willing to accept the property "as is" with respect to the public-use restriction, so long as the Governor's Deed is constructed to allow for Stewart Title to insure marketable title for [JDS'] intended use of the property.

(Emphasis sic.) (Def.'s Ex. 27 at 3-4, June 22, 2016 Def.'s Mot. for Summ Jgmt.)

{¶ 29} In a response letter dated April 3, 2013, ODNR refused to "waive the effectiveness, if any, of the 'public use' restriction (without a complete release of the same from the party who placed the restriction of record and/or the final determination that the restriction is not effective from a court of appropriate jurisdiction) or waive or condition [ODNR's] right to enforce the 'public use' restriction." (Def.'s Ex. 28 at 1, June 22, 2016 Def.'s Mot. for Summ. Jgmt.) ODNR also declined to acknowledge JDS' waiver of its obligation under Section 4(d)(1) because that waiver was "based on [ODNR's] agreement to execute a Governor's deed that contain[ed] a release of [ODNR's] right to enforce or recognize the 'public use' restriction, which (as noted above) [ODNR] w[ould] not do." Id. at 1-2. However, ODNR repeated that it "st[ood] ready to consummate this transaction in accordance with the terms of the Agreement on the closing date determined under Section 3(a) of the Agreement." Id. at 1.

{¶ 30} JDS did not give ODNR written notice of the closing by April 27, 2013, as required by Section 3(a) of the contract. On May 1, 2013, ODNR sent JDS a letter stating that, due to the lack of timely notice, ODNR "consider[ed] [JDS] in breach of its obligations under the Agreement and the Agreement incapable of being consummated." (Def.'s Ex. 32, June 22, 2016 Def.'s Mot. for Summ. Jgmt.) The property swap contemplated in the contract never occurred.

{¶ 31} On December 16, 2014, JDS filed suit in the trial court against ODNR, alleging a claim for breach of contract. JDS sought specific performance for the conveyance of the Sawmill property from ODNR to JDS free of all liens and encumbrances.

{¶ 32} After conducting discovery, both JDS and ODNR moved for summary judgment. JDS argued that ODNR had breached Section 4(d)(1) of the contract because it failed to work cooperatively with JDS to obtain a release of the public-use restriction. ODNR disputed this argument and maintained that Section 4(d)(1) did not require it to unilaterally release the public-use restriction.

{¶ 33} In a judgment entered September 2, 2016, the trial court granted JDS summary judgment and denied ODNR summary judgment. The trial court ordered ODNR to transfer, convey, and deliver to JDS the deed to the Sawmill property.

{¶ 34} ODNR appeals the trial court's September 2, 2016 judgment, and it assigns the following errors:

1. The trial court erred in granting Plaintiff-Appellee's Motion for Summary Judgment on the issue of breach of contract.
2. The trial court erred in denying Defendant-Appellant's Motion for Summary Judgment on the issue of breach of contract.
3. The trial court erred in finding that the contract language and equity require Defendant-Appellant to transfer valuable land to Plaintiff-Appellee for nothing in return (denying Defendant-Appellant's Motion to Dismiss, filed on January 20, 2015, Defendant-Appellant's Motion for Partial Summary Judgment, filed September 22, 2015, and Defendant-Appellant's Motion for Summary Judgment, filed June 22, 2016; and granting Plaintiff-Appellee's Motion for summary judgment, filed June 1, 2016).

{¶ 35} We will begin our analysis with the first two assignments of error, which we will address together. These two assignments of error challenge the trial court's decision to grant JDS summary judgment on its breach-of-contract claim and deny ODNR summary judgment on the same claim. A trial court must grant summary judgment under Civ.R. 56 when the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion when viewing the evidence most strongly in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc. , 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29 ; Sinnott v. Aqua-Chem, Inc. , 116 Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶ 29. Appellate review of a trial court's ruling on a motion for summary judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an independent review, without deference to the trial court's determination. Zurz v. 770 W. Broad AGA, L.L.C. , 192 Ohio App.3d 521, 2011-Ohio-832, 949 N.E.2d 595, ¶ 5 (10th Dist.) ; White v. Westfall , 183 Ohio App.3d 807, 2009-Ohio-4490, 919 N.E.2d 227, ¶ 6 (10th Dist.).

{¶ 36} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The moving party does not discharge this initial burden under Civ.R. 56 by simply making conclusory allegations. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. If the moving party meets its burden, then the nonmoving party has a reciprocal burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R. 56(E) ; Dresher at 293, 662 N.E.2d 264. If the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Dresher at 293, 662 N.E.2d 264.

{¶ 37} To establish a cause of action for breach of contract, a plaintiff must prove: (1) the existence of a contract, (2) performance by the plaintiff, (3) breach by the defendant, and (4) damages or loss resulting from the breach. Lucarell v. Nationwide Mut. Ins. Co. , 152 Ohio St.3d 453, 2018-Ohio-15, 97 N.E.3d 458, ¶ 41 ; Jarupan v. Hanna , 173 Ohio App.3d 284, 2007-Ohio-5081, 878 N.E.2d 66, ¶ 18 (10th Dist.). A defendant breaches a contract when it fails, without legal excuse, to perform a promise that forms the whole or part of the contract. National City Bank v. Erskine & Sons, Inc. , 158 Ohio St. 450, 110 N.E.2d 598 (1953), paragraph one of the syllabus; accord Jarupan at ¶ 18, quoting Little Eagle Properties v. Ryan , 10th Dist. No. 03AP-923, 2004-Ohio-3830, 2004 WL 1607045, ¶ 15 ("In order to prove a breach by the defendant, a plaintiff must show that the defendant 'did not perform one or more of the terms of a contract.' ").

{¶ 38} This case implicates three theories on which ODNR arguably breached the contract between the parties: (1) ODNR breached a specific term of the contract, i.e., Section 4(d)(1) and/or Section 4(g); (2) ODNR committed an anticipatory breach, or repudiation, of the contract; and (3) ODNR breached the implied duty of good faith and fair dealing. We will address each theory in turn.

{¶ 39} Section 4(g) of the contract required ODNR to "cooperate in every reasonable manner with [JDS] in the obtaining of any governmental approvals, wetland mitigation permits, and grants/project assistance and permits for [JDS'] desired development and use of the [Sawmill] Property." (Pl's. Ex. 1 at Section 4(g), June 1, 2016 Pl.'s Mot. for Summ. Jgmt.) In its summary judgment briefing, JDS did not mention Section 4(g), much less argue that ODNR breached Section 4(g). Nevertheless, the trial court grouped Section 4(g) with Section 4(d)(1) and concluded that ODNR breached both "cooperation clauses" by refusing "to assist JDS in resolving" the public-use restriction. (Sept. 2, 2016 Decision & Entry at 3, fn. 3, and 9.)

{¶ 40} To the extent that the trial court found a breach of Section 4(g), it erred. A party moving for summary judgment must specifically delineate the basis upon which it seeks summary judgment to allow the opposing party a meaningful opportunity to respond. Mitseff v. Wheeler , 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus. Granting summary judgment on a basis not raised deprives the party opposing summary judgment of any opportunity to respond. Consequently, a trial court commits reversible error if it awards summary judgment on a ground not specified in the motion for summary judgment. State ex rel. Sawicki v. Court of Common Pleas , 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 27 ; Mannion v. Lake Hosp. Sys., Inc. , 11th Dist. No. 2016-L-015, 2016-Ohio-8428, 2016 WL 7626258, ¶ 22 ; Daily Servs., LLC v. Ohio Bur. of Workers' Comp. , 10th Dist. No. 13AP-509, 2013-Ohio-5716, 2013 WL 6843944, ¶ 15 ; Ware v. King , 187 Ohio App.3d 291, 2010-Ohio-1637, 931 N.E.2d 1138, ¶ 17 (3d Dist.). Here, JDS did not seek summary judgment on the ground that ODNR breached Section 4(g) of the contract, and, consequently, the trial court erred in granting JDS summary judgment on that ground.

{¶ 41} Moreover, JDS' failure to argue in the trial court that ODNR breached Section 4(g) has an additional consequence. Generally, a party waives the right to appeal an issue that the party could have, but did not, raise before the trial court. Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 144 Ohio St.3d 549, 2015-Ohio-4837, 45 N.E.3d 968, ¶ 14 ; Niskanen v. Giant Eagle, Inc. , 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 34. Because JDS did not contend in its summary judgment briefing that ODNR breached Section 4(g), it waived its ability to raise that contention on appeal. We, therefore, will not review whether ODNR breached Section 4(g).

{¶ 42} As we stated above, Section 4(d)(1) of the contract required JDS to "obtain[ ] the release of the current 'public use' restriction encumbering the [Sawmill] Property." (Pl's. Ex. 1 at Section 4(d)(1), June 1, 2016 Pl.'s Mot. for Summ. Jgmt.) It further required JDS and ODNR to "work cooperatively to obtain the executed release of such encumbrance." Id. ODNR has consistently argued that Section 4(d)(1) only obligated it to cooperate with JDS' efforts to obtain an executed release of the public-use restriction from Morno. In other words, ODNR contends that it agreed to assist JDS in getting Morno to release the public-use restriction; it did not agree to unilaterally release the public-use restriction itself.

{¶ 43} JDS never argued below an alternate interpretation of Section 4(d)(1). Now, on appeal, it has conceded that ODNR's interpretation of Section 4(d)(1) is correct. We agree with the parties' joint interpretation because it is consistent with the law governing releases of restrictive covenants.

{¶ 44} A "restrictive covenant" is a " 'private agreement, usu[ally] in a deed or lease, that restricts the use or occupancy of real property, esp[ecially] by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put.' " Canton v. State , 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 28, quoting Black's Law Dictionary 371 (7th Ed.Rev.1999). Restrictive covenants create rights and duties between the original promising parties. 9 Wolf, Powell on Real Property , Section 60.01[2] (2001 Ed.). One party, the covenantor, agrees to do or refrain from doing something enforceable by the other party, the covenantee. Lynch v. Pelham , 167 N.H. 14, 20-21, 104 A.3d 1047 (2014) ; Waikiki Malia Hotel, Inc. v. Kinkai Properties Ltd. Partnership , 75 Haw. 370, 382, 862 P.2d 1048 (1993). Thus, a restrictive covenant imposes a burden on the covenantor and imparts a benefit to the covenantee. Waikiki Malia Hotel at 382, 862 P.2d 1048 ; accord Powell on Real Property , Section 60.01[2] ("The covenantee's rights are called the 'benefit' of the covenant, while the covenantor's duties are called the 'burden.' ").

{¶ 45} " 'A person entitled to enforce the benefit of a covenant may extinguish this right by means of a written and recorded release.' " Ashley v. Kehew , 992 A.2d 983, 987 (R.I.2010), quoting Powell on Real Property , Section 60.10[1]. Termination by release is based on fundamental principles of contract law, as a person entitled to enforce a promise may relieve the promisor of his or her obligation. Heltman v. Catanach , 148 N.M. 67, 69, 229 P.3d 1239 (App.2009), quoting Korngold, Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes , Section 11.03, at 386-87 (1990). Notably, a release is a unilateral action taken by the person entitled to enforce the restrictive covenant. Korngold, Section 11.03, at 386; accord 7 Thomas, Thompson on Real Property , Section 61.07(b)(2)(i), at 627 (2d Ed.2006) ("Those benefiting from a covenant may * * * act unilaterally (release) in terminating fully or partially the covenant.").

{¶ 46} Here, ODNR, the covenantor, promised to use and occupy the Sawmill property solely for public purposes. As the other party to this promise, Morno, the covenantee, had the right to enforce the public-use restriction. Thus, Morno-not ODNR-had the legal authority necessary to release the public-use restriction. Construing Section 4(d)(1) to correlate with the law, therefore, results in the conclusion that Section 4(d)(1) solely obligated ODNR to cooperate with JDS to obtain a release from Morno.

{¶ 47} Applying this interpretation of Section 4(d)(1) to the facts of this case, we must conclude that the trial court erred in finding that ODNR breached the contract. Because Section 4(d)(1) required nothing of ODNR beyond cooperation in obtaining a release from Morno, ODNR did not violate that section when it rejected JDS' request that it unilaterally release the public-use restriction, or when it refused to waive or release any rights it might have to enforce the public-use restriction. Likewise, ODNR did not breach Section 4(d)(1) when it informed JDS that it would protect the deed if JDS acquired the property "as is," i.e., without a release of the public-use restriction from Morno, or when it declined to waive the effectiveness of the public-use restriction absent a release from Morno.

{¶ 48} The trial court also found that ODNR breached Section 4(d)(1) when Gebhardt told Hastings in December 2012 that, if the City "wanted to offer a proposal [to take possession of the Sawmill property,] [ODNR] would talk with them[,] but it need[ed] to be an official offer very soon which [ODNR] would evaluate." (Pl.'s Ex. 7, June 1, 2016 Pl.'s Mot. for Summ. Jgmt.) The trial court concluded that "encourag[ing] third parties to purchase the [Sawmill] Property out from under JDS" violated ODNR's "specific obligations to cooperate with JDS under the contract." (Sept. 2, 2016 Decision & Entry at 8-9.) This conclusion, however, too broadly construes Section 4(d)(1). That contractual term obligated ODNR to cooperate with obtaining a release from Morno. Indicating willingness to entertain an "official offer" from the City did not contravene that obligation.

{¶ 49} Next, we review whether ODNR committed an anticipatory breach, otherwise known as a repudiation, of the contract. Before the trial court, JDS repeatedly disclaimed that it sought to hold ODNR liable for an anticipatory breach of the contract. (June 22, 2016 Pl.'s Reply in Support of its Mot. for Summ. Jgmt. at 1-2 ("ODNR breached the contract, plain and simple, and JDS is not advancing an anticipatory repudiation argument."); id. at 6 ("JDS' claim is a straightforward breach of contract claim, not anticipatory breach."); July 6, 2016 Pl.'s Memo in Opp. to Def.'s Mot. for Summ. Jgmt. at 8 ("No matter how many times ODNR says that JDS is arguing anticipatory repudiation, it does not make it so."); id. at 9 ("JDS' claim is a straightforward breach of contract claim, not anticipatory breach.") ). From these statements, we determine that JDS

knew that it could have claimed that ODNR committed an anticipatory breach, and it intentionally chose not to advance that claim. JDS, therefore, waived a claim for anticipatory breach of the contract. See Glidden Co. v. Lumbermens Mut. Cas. Co. , 112 Ohio St.3d 470, 2006-Ohio-6553, 861 N.E.2d 109, ¶ 49 ("Waiver is a voluntary relinquishment of a known right and is generally applicable to all personal rights and privileges, whether contractual, statutory, or constitutional.").

{¶ 50} Even if JDS had not waived a claim for anticipatory breach, that claim would fail on its merits. An anticipatory breach of contract occurs when one party to a contract gives notice to the other party that it will not perform a contractual duty due in the future. Haman Ents., Inc. v. Sharper Impressions Painting Co. , 2015-Ohio-4967, 50 N.E.3d 924, ¶ 23 ; Daniel Terreri & Sons v. Bd. of Mahoning Cty. Commrs. , 152 Ohio App.3d 95, 2003-Ohio-1227, 786 N.E.2d 921, ¶ 48 (7th Dist.). To prevail on a claim for anticipatory breach, a plaintiff must establish that the parties had entered into a contract containing some duty of performance not yet due and, by word or deed, the defendant refused future performance, causing damage to the plaintiff. Qutifan v. Shafiq , 2016-Ohio-4555, 70 N.E.3d 43, ¶ 25 ; Haman Ents. at ¶ 23. Anticipatory breach requires "an overt communication of an intention or an action which renders performance impossible or demonstrates a clear determination not to continue with performance." Willson v. Bd. of Trustees , 10th Dist. No. 91AP-144, 1991 WL 274862 (Dec. 24, 1991) ; accord Cambridge Co. v. Telsat, Inc. , 9th Dist. No. 23935, 2008-Ohio-1056, 2008 WL 649582, ¶ 8 ("Anticipatory repudiation of a contract has been found where there is an overt action indicating that performance will not be tendered. * * * Indirect inferences are not sufficient."). The communication or action must indicate a clear and unequivocal refusal to perform. Willson ; accord Haman Ents. at ¶ 23 (holding that a repudiation of a contract must be expressed in clear and unequivocal terms). Mere expressions of doubt as to willingness or ability to perform do not repudiate a contract. Qutifan at ¶ 25 ; Haman Ents. at ¶ 23.

{¶ 51} In the case at bar, JDS argues that ODNR committed an anticipatory breach of the contract when it refused to perform its penultimate duty-to transfer the Sawmill property to JDS-prior to the date set in the contract for the property transfer. JDS asserts five instances wherein it alleges that ODNR repudiated its obligation to transfer the Sawmill property: (1) the governor's decision not to go forward with the land swap, (2) ODNR's indication that it was open to an "official offer" from the City to acquire the Sawmill property, (3) ODNR's internal investigation into whether all parties had performed under the contract, (4) ODNR's refusal to waive the effectiveness of the public-use restriction and Butler's statement that ODNR would protect the deed if JDS acquired the Sawmill property "as is," and (5) Shimp's statements to Schrim and Samuel that ODNR did not want to proceed with the land swap.

{¶ 52} JDS' first basis for asserting an anticipatory breach fails because JDS did not present any evidence that a state official or employee communicated the governor's decision to JDS prior to the time for the transfer of the properties arrived. Without communication of the governor's decision prior to the transfer date, JDS had no notice of the governor's alleged intention to commit a total breach of the contract. Thus, an anticipatory breach could not occur.

{¶ 53} JDS' second and third bases for asserting an anticipatory breach fail because JDS did not show that ODNR's actions overtly demonstrated an intent to not perform the property transfer. The record contains no evidence that JDS knew of either action prior to the time for the property transfer. Moreover, neither action amounts to a clear and unequivocal refusal to perform at the contractually appointed time.

{¶ 54} JDS' fourth basis for asserting an anticipatory breach fails because ODNR's position regarding the public-use restriction did not clearly and unequivocally evince an intent to refuse to transfer the Sawmill property to JDS. Neither ODNR's refusal to waive the effectiveness of the restriction nor its pledge to protect the deed would have precluded conveyance of the property. ODNR only denied JDS the ability to acquire the property free of the complications caused by the public-use restriction.

{¶ 55} JDS' fifth basis for asserting an anticipatory breach requires a more in-depth analysis. As we stated above, the parties discussed whether ODNR would transfer the Sawmill property as required by the contract during the meeting between Shimp, Baldridge, Schrim, and Samuel. According to Schrim, at that meeting, Shimp said, (1) "[T]he State did not want the replacement property, and did not want to go forward with the [land-swap] transaction" (Schrim Dep. at 8), and (2) "We're the government, we can do anything we want. We don't want the replacement property. But if you find somebody to take it, we might go forward with the transaction" (Schrim Dep. at 114). Finally, according to Schrim, "ODNR * * * said[,] ['W]e don't want to close on the transaction and we're killing the deal.[']" Id. at 99.

{¶ 56} Read together, these statements do not express doubt regarding ODNR's willingness or ability to consummate the land swap; they instead communicate a blatant refusal to perform. However, the record also contains the testimony of the other attendees at the meeting, who do not recall Shimp communicating so definitively. Baldridge and Samuel remember Shimp only expressing concern about the viability of the land swap. Given this conflicting testimony, we conclude that a question of fact exists as to whether Shimp clearly and unequivocally repudiated ODNR's contractual obligation, then not yet due, to complete the land swap.

{¶ 57} A pending question of fact normally would preclude summary judgment for both parties. ODNR, however, resists that outcome. ODNR requests that we assume that an anticipatory breach occurred. It then argues that, even assuming the existence of an anticipatory breach, it is entitled to summary judgment because it nullified the anticipatory breach by retracting its repudiation of the contract. We agree.

{¶ 58} If a party commits an anticipatory breach, the injured party has the option of (1) immediately terminating the contract and suing on the breach, or (2) continuing the contract and suing the breaching party after the time for performance has passed. Haman Ents., Inc. , 2015-Ohio-4967, 50 N.E.3d 924, at ¶ 29. If the non-repudiating party decides to continue with the contract, then the repudiating party has " 'an opportunity to repent and to resume the contract' " by retracting its repudiation. Vision Entertainment Worldwide, LLC v. Mary Jane Prods., Inc. , S.D.N.Y. No. 13 Civ. 4215 (AT), 2014 WL 5369776 (Oct. 17, 2014), quoting Deforest Radio Tel. & Tel. Co. v. Triangle Radio Supply Co. , 243 N.Y. 283, 293, 153 N.E. 75 (1926). A repudiating party may retract its repudiation as long as the non-repudiating party has not materially changed its position in reliance on the repudiation or indicated that it considers the repudiation final. Crosspoint Seven v. Mfrs. Life Ins. Co. , 148 Fed.Appx. 535, 538 (7th Cir.2005) fn. 1 ; Edwards v. Wyatt , 335 F.3d 261, 274 (3d Cir.2003) ; Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc. , 862 F.2d 597, 604 (6th Cir.1988) ; Restatement of the Law 2d, Contracts, Section 256(1) (1981) ; accord 13 Lord, Williston on Contracts , Section 39:42, at 760-61 (4th Ed.2014) ("[T]he repudiating party has the right and the power to retract as long as the other party has not substantially or materially changed its position in reliance on the repudiation, and thus, the nonrepudiating party who continues to urge performance by the repudiator is merely extending the time within which the retraction may occur.").

{¶ 59} "The principal way for a repudiating party to nullify its repudiation is by making a statement retracting it." Homeland Training Ctr., LLC v. Summit Point Auto. Research Ctr. , 594 F.3d 285, 295 (4th Cir.2010). To be effective, the retraction must be clear and unequivocal in evincing the repudiating party's intention to honor its obligations under the contract. Arlington LF, LLC v. Arlington Hospitality, Inc. , 637 F.3d 706, 715 (7th Cir.2011) ; Anderson Excavating & Wrecking Co. v. Sanitary Improvement Dist. No. 177 , 265 Neb. 61, 69, 654 N.W.2d 376 (2002) ; Vahabzadeh v. Mooney , 241 Va. 47, 51, 399 S.E.2d 803 (1991). After a retraction, the contract is reinstated, which nullifies any claim for total breach that arose with the repudiation. Williston on Contracts , Section 39:42, at 762, and Section 43:19, at 22 ; Restatement, Section 256(1), Comment a; accord Vision Entertainment Worldwide ("If the repudiating party retracts its repudiation, the non-repudiating party once again becomes obligated to perform its obligations under the contract."); Gilmore v. Duderstadt , 125 N.M. 330, 335-36, 961 P.2d 175 (App.1998) ("A retraction, if effective, restores the contract to its original condition and places the parties in the same legal position as before the repudiation.").

{¶ 60} In the case at bar, JDS admits that, after the meeting between Shimp, Baldridge, Schrim, and Samuel, it "continued to take whatever steps it could to try and get the deal done." (Appellee's Brief at 18.) JDS' decision to proceed with the contract gave ODNR the opportunity to retract its repudiation.

{¶ 61} ODNR points to two statements as evidence of its retraction. First, in the March 14, 2013 letter, ODNR stated that it "st[ood] ready to consummate the transaction according to the terms of the Agreement." (Def.'s Ex. 24 at 2, June 22, 2016 Def.'s Mot. for Summ. Jgmt.) Second, in the April 3, 2013 letter, ODNR reiterated that it "st[ood] ready to consummate this transaction in accordance with the terms of the Agreement on the closing date determined under Section 3(a) of the Agreement." (Def.'s Ex. 28 at 1, June 22, 2016 Def.'s Mot. for Summ. Jgmt.) We agree with ODNR that these two statements clearly and unequivocally indicate that ODNR intended to comply with its contractual obligation to swap the Sawmill property for the Olentangy property. ODNR, therefore, retracted its repudiation.

{¶ 62} The trial court determined that ODNR's retraction did not matter because, concomitantly with the retraction, ODNR breached the contract by refusing to assist JDS in resolving the public-use restriction. However, as we concluded above, ODNR did not breach the contract by rebuffing JDS' insistence that ODNR unilaterally release the public-use restriction or waive whatever rights it had under the restriction. Consequently, ODNR effectively retracted its repudiation, which nullified JDS' claim for total breach of the contract.

{¶ 63} Next, we must consider JDS' argument that ODNR breached the implied duty of good faith and fair dealing. Although JDS asserts this argument in its appellate brief, it did not present it to the trial court. JDS, therefore, waived its right to raise the argument on appeal. See Columbus City Schools Bd. of Edn. , 144 Ohio St.3d 549, 2015-Ohio-4837, 45 N.E.3d 968, at ¶ 14 ; Niskanen , 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, at ¶ 34.

{¶ 64} Moreover, JDS has failed to allege any facts that could establish a breach of the implied duty of good faith and fair dealing. That duty is not violated "unless there is a breach of a specific obligation imposed by the contract, such as one that permits a party to exercise discretion in performing a contractual duty or in rejecting the other party's performance." Lucarell , 152 Ohio St.3d 453, 2018-Ohio-15, 97 N.E.3d 458, at ¶ 43. No such breach occurred here. Consequently, JDS cannot prevail on a claim for breach of the implied duty of good faith and fair dealing.

{¶ 65} In sum, we conclude that the evidence in the record demonstrates that ODNR did not breach the parties' contract, and ODNR is entitled to judgment as a matter of law. The trial court, therefore, erred in granting JDS summary judgment and denying ODNR summary judgment. Accordingly, we sustain ODNR's first and second assignments of error.

{¶ 66} By its third assignment of error, ODNR argues that the trial court erred in awarding JDS specific performance. Our determination that ODNR did not breach the parties' contract renders the remedy issue moot. Accordingly, we do not decide ODNR's third assignment of error.

{¶ 67} For the foregoing reasons, we sustain ODNR's first and second assignments of error, which renders moot the third assignment of error. We reverse the judgment of the Franklin County Court of Common Pleas, and we remand this case to that court so that it may enter summary judgment in ODNR's favor.

Judgment reversed; cause remanded with instructions.

SADLER and BRUNNER, JJ., concur.

      By the time ODNR reached this conclusion, the question of whether the governor would sign the amendment may have become moot. Craig Butler, then an assistant policy director to the governor, had spoken with the governor regarding the land-swap deal, and the governor had decided that he did not favor going forward with the deal. Butler, therefore, did not present the amendment to the governor for his signature.

      JDS also named The Nature Conservancy as a defendant in its suit. However, on January 28, 2016, after a settlement between JDS and The Nature Conservancy, the trial court entered an order dismissing JDS' claim against The Nature Conservancy.

      On appeal, JDS delayed raising an argument based on Section 4(g) until oral argument. Thus, even if we were inclined to consider this argument, the paucity of the argument would hinder our review.

      The trial court actually stated that "ODNR encouraged third parties to purchase the Replacement [i.e., Olentangy] Property out from under JDS." (Emphasis added.) (Sept. 2, 2016 Decision & Entry at 8.) We reject ODNR's contention that this statement demonstrates that the trial court misunderstood the evidence. Rather, reading the statement in context, we conclude that the trial court merely made a typographical error in referring to the Olentangy property, rather than the Sawmill property.

      Additionally, during oral argument, JDS conceded that the governor's decision did not constitute an anticipatory breach.


author: MARY J. BOYLE, P.J.:

text:
    Norman MILLSTEIN, Plaintiff-Appellant v. Kevan MILLSTEIN, et al., Defendants-Appellees
    No. 106270
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 29, 2018
    Kevin G. Robertson, Kendall Kash, Baker & Hostetler, L.L.P., 127 Public Square, Suite 2000, Cleveland, Ohio 44114, Terry Brennan, Baker & Hostetler, L.L.P., 3200 National City Center, 1900 East 9th Street, Cleveland, Ohio 44114-3485, Gregory G. Guice, Jonathan Krol, Franklin C. Malemud, Reminger Co., L.P.A., 1400 Midland Building, 101 Prospect Avenue, West, Cleveland, Ohio 44115, Adriann S. McGee, Reminger Co., L.P.A., 200 Civic Center Drive, Suite 800, Columbus, Ohio 43215, ATTORNEYS FOR APPELLANT
    Fred N. Carmen, 27800 Cedar Road, Beachwood, Ohio 44122, Steven A. Friedman, Damond R. Mace, Squire Patton Boggs (US) L.L.P., 4900 Key Tower, 127 Public Square, Cleveland, Ohio 44114, Alana Millstein, pro se, 11095 E. Verbena Lane, Scottsdale, Arizona 85255, Alec Millstein, pro se, Ethan Millstein, pro se, 10265 East Hualatal, Scottsdale, Arizona 85255, Bernard Millstein, pro se, 27060 Cedar Road, Suite 306, Beachwood, Ohio 44122, Dianne F. Millstein, pro se, 16801 North 94th Street, # 1012, Scottsdale, Arizona 85260, Joshua Millstein, 2583 Butterwing Road, Pepper Pike, Ohio 44124, For Kevan Millstein, et al.
    BEFORE: Boyle, P.J., S. Gallagher, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, P.J.:

{¶ 1} Plaintiff-appellant, Norman Millstein, appeals from a judgment of the Cuyahoga County Court of Common Pleas, Probate Division, granting summary judgment to defendants-appellees, Norman's son, Kevan Millstein, as trustee of the Kevan Millstein Trust ("KMT") and the Al-Jo Trust ("AJT"), as well as the two trusts. Norman raises one assignment of error for our review:

The trial court erred by granting Defendant-Appellee Kevan Millstein's motion for summary judgment on claim one, for an accounting of the Kevan-Millstein Trust, and claim three, for an accounting of the Al-Jo Trust, of Plaintiff-Appellant Norman Millstein's Amended Complaint.

{¶ 2} Finding no merit to his appeal, we affirm.

I. Procedural History and Factual Background

{¶ 3} In his amended complaint filed in September 2014, Norman sought a "fiduciary accounting" of the KMT and AJT from 1997 to the present (Counts 1 and 3), and a declaratory judgment that Bernard Millstein (Norman's brother) had no power as a trust advisor under the KMT because his power was "illusory and void ab initio" (Count 2).

{¶ 4} Norman established two irrevocable gift trusts for the benefit of his children and their successors: the AJT in 1987 and the KMT in 1988. When he did so, he was the grantor and trustee of both trusts. In 1997, however, Norman transferred control of both trusts to Kevan when he resigned as trustee of the KMT and AJT and made Kevan the sole trustee of both trusts.

{¶ 5} Norman alleged that Kevan's administration of the KMT was inconsistent with Norman's intentions that he made clear in a 1988 memorandum ("the 1988 memo"), which Norman authored when he was both the grantor and trustee of the KMT (although in a somewhat circular argument, Norman asserted that he had no recollection of writing or reading the 1988 memo and alleged that Kevan was using it against him). Norman claimed that Kevan had a fiduciary duty to consider Norman's intentions that were set forth in the memo, "including the prospect of offsetting income attributable to Norman, when making trust administration decisions."

{¶ 6} Norman further alleged in the complaint that both trusts "pass income to Norman," making it financially onerous to him. Norman asserted that he was entitled to a "fiduciary accounting" because he "has been saddled with millions of dollars of income tax liability" due to "the administration and activities" of the KMT. Norman further claimed that under the KMT, he was entitled to "at least annually a full financial report."

{¶ 7} In December 2014, Kevan moved for summary judgment on Norman's complaint, arguing that Norman was not entitled to a financial accounting of the trusts and that if he ever was entitled to an annual full financial report per the trusts, he had released that right when he entered into an agreement with Kevan in 2005. Kevan further argued that Norman's declaratory judgment claim regarding Bernard (Count 2) had no merit. In May 2015, the probate court agreed with Kevan's argument with respect to Bernard, namely, that Bernard had been a trust advisor for the KMT since its inception. Norman did not appeal this decision and, thus, Count 2 is not part of the present appeal.

{¶ 8} Subsequently, Norman's attorney was disqualified from the case due to a conflict. Norman later obtained new counsel, who filed an opposition to Kevan's remaining arguments in his summary judgment motion that were related to Counts 1 and 3 of Norman's complaint. In August 2017, the probate court granted summary judgment to Kevan. It is from this judgment that Norman appeals.

II. Summary Judgment Standard

{¶ 9} We review an appeal from summary judgment under a de novo standard. Baiko v. Mays , 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. , 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).

{¶ 10} Civ.R. 56(C) provides that before summary judgment may be granted, a court must determine that (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) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. State ex rel. Duganitz v. Ohio Adult Parole Auth. , 77 Ohio St.3d 190, 191, 672 N.E.2d 654 (1996).

{¶ 11} The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary judgment is not appropriate, but if the movant does meet this burden, summary judgment will be appropriate only if the nonmovant fails to establish the existence of a genuine issue of material fact. Id. at 293, 662 N.E.2d 264.

III. Analysis

{¶ 12} In his sole assignment of error, Norman raises three issues regarding his argument that the trial court erred in granting summary judgment to Kevan.

A. Trust Provisions

{¶ 13} In his first issue, Norman argues that the "explicit, unambiguous terms of the KMT and AJT agreements provide that he is entitled to 'a full financial report of the trust assets at least annually.' " Kevan maintains that the trust provisions do no such thing.

{¶ 14} Interpreting a trust is akin to interpreting a contract. With both, the role of courts is "to ascertain and give effect to the intent of the parties." Arnott v. Arnott , 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 14, citing Saunders v. Mortensen , 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d 452. The construction of a written contract is a matter of law that we review de novo. Arnott at ¶ 23, citing Saunders . "The same is true of the construction of a written trust." Arnott at ¶ 14, citing In re Trust of Brooke , 82 Ohio St.3d 553, 697 N.E.2d 191 (1998).

{¶ 15} One of the fundamental tenets for the construction of a will or trust is to ascertain, within the bounds of law, the intent of the testator, grantor, or settlor. Domo v. McCarthy , 66 Ohio St.3d 312, 314, 612 N.E.2d 706 (1993). When the language in a trust is unambiguous, the grantor's intent can be determined from the express terms of the trust itself. Id. When a trust agreement is unambiguous, no judicial construction or interpretation is required unless the purpose of the trust is illegal or against public policy.

Saunders at ¶ 9, citing Aultman Hosp. Assn. v. Community Mut. Ins. Co. , 46 Ohio St.3d 51, 544 N.E.2d 920 (1989).

{¶ 16} Both the KMT and AJT contain a provision entitled "Trustee's Duties and Powers" under the trust declarations. It provides:

Books of Account. The trustee shall keep full books of account showing the condition of the trust, which shall be open at all reasonable times to the inspection of the beneficiary of the trust. Furthermore, during [Norman's] lifetime, the trustee shall deliver to [Norman], at least once annually, a full financial report of the trust assets held hereunder.

{¶ 17} Norman argues that this provision under the Trust Declarations makes it "clear that the trust provisions of the Grantor Trusts require that [Kevan] provide [him] with an accounting of the Grantor Trusts." Norman contends that the accounting is a "full financial report," or the "Book of Account." Kevan counters that if Norman, the grantor, intended that he be entitled to a full accounting, the trust would have stated that the beneficiaries and the grantor are entitled to inspect the full books of account. We agree with Kevan.

{¶ 18} The Trust Declaration at issue makes a distinction between what the beneficiaries are entitled to and what Norman is entitled to. Under the trust, the beneficiaries are entitled to the "full books of account." Norman, on the other hand, is entitled to "a full financial report of the trust assets." A full financial report of the trust assets is not the same as the "full books of account showing the condition of the trust," which is what the beneficiaries are entitled to.

{¶ 19} R.C. 5808.13(C), which establishes the duty of a trustee to keep beneficiaries under the trust "reasonably informed about the administration of the trust," provides in part:

A trustee of a trust that has a fiscal year ending on or after January 1, 2007, shall send to the current beneficiaries, and to other beneficiaries who request it, at least annually and at the termination of the trust, a report of the trust property, liabilities, receipts, and disbursements, including the source and amount of the trustee's compensation, a listing of the trust assets, and, if feasible, the trust assets' respective market values.

{¶ 20} Under this statute, the trustee owes a fiduciary duty to the beneficiaries of a trust, not to the grantor. Norman does not point to any other statute that mandates that a trustee owes a duty to the grantor.

{¶ 21} The official comment to R.C. 5808.13 states that "The Uniform Trust Code employs the term 'report' instead of 'accounting' in order to negate any inference that the report must be prepared in any particular format or with a high degree of formality." Kevan maintains that this comment "makes a clear distinction between the terms 'report' and 'accounting' and demonstrates that the requirement that a trustee provide a report is a lesser and dissimilar standard than is required of a trustee who is obligated to provide an accounting." We agree.

{¶ 22} In his complaint, Norman sought "a fiduciary accounting" of the trusts, not a "full financial report." Under the trust, Norman is entitled to "a full financial report of the trust assets." Norman is not entitled to a "fiduciary accounting" of the trusts, which would include not only trust assets but also details of the trust administration and liabilities as well.

{¶ 23} Kevan alternatively argued in his summary judgment motion that in 2005 (as well as in several other subsequent agreements), Norman signed an agreement and release of all claims (the "2005 Agreement"), current or future, against Kevan, individually and as trustee. Norman, Kevan, the trusts, businesses owned by the trusts, and Norman's other six children were all parties to the 2005 Agreement.

{¶ 24} The 2005 Agreement provided, inter alia, that Norman would receive (1) a substantial lump sum upon execution of the agreement and the remainder within 30 days of execution, (2) a monthly salary for the remainder of his life, (3) health insurance for life, (4) a condominium unit for his personal use in Florida or in any other location that he desires, (5) a monthly lease of a unit in the Hampton Apartments in Beachwood for life, and (5) a suite in Las Vegas.

{¶ 25} The 2005 Agreement stated that Norman acknowledged that Kevan "has had and continues to have the full authority and responsibility for the operation and control of all of the Millstein Legal Entities and agrees in the future to forego any right to contest such authority." Norman also "irrevocably and unconditionally" agreed to "release and discharge Kevan in his individual capacity and representative capacity for all claims and actions and covenanted not to sue him except with respect to a breach of the agreement."

{¶ 26} As evidenced by other documents attached to Kevan's summary judgment motion, Norman continued to demand and receive more benefits pursuant to additional agreements between the parties. As part of these additional agreements where Norman received more benefits, Norman continually agreed not to sue Kevan.

{¶ 27} After review, we agree with Kevan that Norman is prohibited from bringing any action against Kevan pursuant to the 2005 Agreement, as well as the additional agreements.

{¶ 28} Norman argues, however, that even under the 2005 Agreement, he is entitled to a full financial accounting of the trusts. He contends that because Kevan breached the 2005 Agreement by not providing him with this accounting, he is not prevented from bringing this lawsuit. We disagree. The 2005 Agreement provided that "[a]s they are prepared, there will be delivered to Norman Millstein all current monthly and annual operating and financial statements for all companies, trusts and other entities in which he was involved in as of the date of this Agreement and Release." But notably, as of the date of the release, Norman had not been "involved in" the trusts at issue in the case since 1997-when he transferred all control of the trusts to Kevan.

{¶ 29} Norman's first issue has no merit.

B. Federal Income Tax Law

{¶ 30} In his second issue, Norman contends that he is entitled to a "financial accounting" under federal tax law. He claims that Kevan should provide him with a financial accounting of the trust so that he, as the grantor, "has the requisite information to accurately, fully, and truthfully file his personal income tax returns."

{¶ 31} Norman cites to Treasury Regulation Section 1.671-4 in support of his argument that he is entitled to an accounting of the trusts. This provision provides in relevant part that the trustee has an "[o]bligation to furnish [a] statement" to "grantor or other person treated as the owner of the trust" that:

(i) Shows all items of income, deduction, and credit of the trust for the taxable year;
(ii) Provides the grantor or other person treated as the owner of the trust with the information necessary to take the items into account in computing the grantor's or other person's taxable income; and
(iii) Informs the grantor or other person treated as the owner of the trust that the items of income, deduction and credit and other information shown on the statement must be included in computing the taxable income and credits of the grantor or other person on the income tax return of the grantor or other person.

{¶ 32} Kevan contends, however, that he has complied with the relevant tax regulations and has provided Norman with an annual grantor tax letter with the required information each year. Norman does not dispute this fact. Instead, Norman argues that he still needs a full accounting to "verify the accuracy of the annual tax information Kevan has provided to Norman."

{¶ 33} After review, however, we agree with Kevan that this provision does not give Norman the right to a full financial accounting of the trusts. Moreover, this court does not have jurisdiction over federal tax claims. If Norman truly believes that Kevan has not furnished him with the proper tax information, Norman should contact the Internal Revenue Service.

{¶ 34} Norman's second issue has no merit.

C. Equity

{¶ 35} In his final issue, Norman contends that under the principles of equity, Kevan should provide him with a financial accounting because Norman is the one responsible for paying the taxes. Norman, however, did not raise this issue below and, thus, we will not address it for the first time on appeal. See State v. Peagler , 76 Ohio St.3d 496, 499, 668 N.E.2d 489 (1996) ("Generally, an appellate court will not consider any error that counsel could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court.").

{¶ 36} Norman's third issue has no merit.

{¶ 37} After review, we overrule Norman's sole assignment of error because the three issues that he raises are without merit. Accordingly, we conclude that the trial court did not err when it granted summary judgment to Kevan because there are no genuine issues of material fact remaining in the case.

{¶ 38} Judgment affirmed.

SEAN C. GALLAGHER, J., and ANITA LASTER MAYS, J., CONCUR

      Norman filed his original complaint in August 2014. After receiving the complaint, Kevan's attorney sent an 11-page letter to Norman demanding that the complaint be dismissed due to factual inaccuracies and that it "was not legally supportable." Norman subsequently filed his amended complaint, removing many of the original facts and claims.