Petition for Writ of Certiorari — Ottawa OH, LLC, Petitioner v. Pandora Distribution, LLC, et al.
Supreme Court briefAug 31, 2023
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No. 23-________
IN THE SUPREME COURT
OF THE UNITED STATES
_______________________________
OTTAWA OH, LLC,
PETITIONER
v.
PANDORA DISTRIBUTION, LLC; GENESEE & WYOMING,
INC.; PHILIPS ELECTRONICS NORTH AMERICA
CORPORATION; DBI PARTNERS, LLC; AND FIRST
AMERICAN TITLE INSURANCE COMPANY;
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
PAUL W. FLOWERS, ESQ.
Counsel of Record
LOUIS E. GRUBE, ESQ.
FLOWERS & GRUBE
Terminal Tower, 40th Floor
50 Public Square
Cleveland, Ohio 44113
(216) 344-9393
pwf@pwfco.com
i
QUESTION PRESENTED
Is due process denied by holding, contrary to the
laws of every state, that a buyer of land owns things
on land for which the buyer has no title or contract?
ii
CORPORATE DISCLOSURE
Petitioner Ottawa OH, LLC is not owned by a
parent corporation. No publicly owned corporation
owns 10% or more of its shares.
DIRECTLY RELATED PROCEEDINGS
Pandora Distribution, LLC, v. Ottawa OH, LLC,
et al., case no. 3:12-cv-2858, United States District
Court for the Northern District of Ohio. Judgment
entered on Jan. 25, 2021.
Pandora Distribution, LLC, v. Ottawa OH, LLC,
et al., case nos. 21-3127/3158, United States Court of
Appeals for the Sixth Circuit. Judgment entered on
Jan. 20, 2023. Rehearing en banc denied on Apr. 4,
2023.
iii
TABLE OF CONTENTS
QUESTION PRESENTED...........................................i
CORPORATE DISCLOSURE .................................... ii
DIRECTLY RELATED PROCEEDINGS .................. ii
TABLE OF CONTENTS ........................................... iii
REPORTED OPINIONS BELOW .............................. 1
STATEMENT OF JURISDICTION ........................... 4
TEXT OF LAWS .......................................................... 5
UNITED STATES CONSTITUTION ............................. 5
Article 4, § 2, Clause 1. ............................................... 5
Fifth Amendment. ....................................................... 5
Fourteenth Amendment, § 1. ...................................... 5
STATUTES ................................................................ 6
Ohio Rev. Code § 1302.01
Definition of “goods” (UCC 2-105) .............................. 6
Ohio Rev. Code § 1302.03
Goods to be severed from realty – recording
(UCC 2-107). ................................................................ 7
Ohio Rev. Code § 1302.05 Parol evidence rule
(UCC 2-202). ................................................................ 8
Ohio Rev. Code § 1335.04
Interest in land to be granted in writing. .................. 8
Ohio Rev. Code § 1335.05
Certain agreements to be in writing. ......................... 8
Ohio Rev. Code § 5301.07
Real property instrument presumptions.................... 9
Ohio Rev. Code § 5301.25
Recording. .................................................................. 10
iv
Ohio Rev. Code § 5302.08
Limited warranty covenants. .................................... 11
INTRODUCTION ...................................................... 12
STATEMENT OF THE CASE .................................. 13
1. Parties and interests. ................................... 13
2. Underlying dispute. ...................................... 15
3. Decisions below. ............................................ 16
4. Destructive impact. ...................................... 18
REASONS FOR GRANTING THE PETITION ....... 18
1. The Constitution protects realty rights. ..... 18
2. The purported sale of the bridges denies
due process because title records say
nothing about the bridges, easement,
license, or underlying land. .......................... 19
3. The purported sale and assumption of
debt denies due process because no
contract or conveyance exists. ..................... 22
4. Because ownership is the sole issue, this
case is ideal for review. ................................ 24
CONCLUSION .......................................................... 25
APPENDIX
v
TABLE OF AUTHORITIES
CASES
Ardel v. Abbot of Westminster,
13 Edward I fol. 112 SS 189-199 (1285)............. 19
Blake v. Graham,
6 Ohio St. 580 (1856) ............................................ 21
Dobbs v. Jackson Women’s Health Org.,
142 S.Ct. 2228 (2022) .......................................... 19
Emrick v. Multicon Builders, Inc.,
57 Ohio St.3d 107 (1991) .................................... 21
McAfferty v. Conover’s Lessee,
7 Ohio St. 99 (1857) ............................................ 20
Moore v. Vance,
1 OHIO 1 (1821) .................................................. 20
Schmidt v. Weston,
150 Ohio St. 293 (1948) ...................................... 23
Throckmorton v. Moon,
10 OHIO 42 (1840) .............................................. 20
Tiller v. Hinton,
19 Ohio St.3d 66 (1985) ........................................ 21
Tyler v. Hennepin County,
598 U.S. 631 (2023) ............................................. 18
United States v. Causby,
328 U.S. 256 (1946) ............................................. 18
Varwig v. Cleveland, Cincinnati, Chicago & St.
Louis R.R. Co., 54 Ohio St. 455 (1896) .............. 21
Walser v. Farmers Trust Co.,
126 Ohio St. 367 (1933) ...................................... 24
Weir v. Snider Saw Mill Co.,
88 Ohio St. 424 (1913) ........................................ 20
vi
Williams v. Ormsby,
131 Ohio St. 3d 427 (2012) ................................. 23
Yeager v. Tuning,
79 Ohio St. 121 (1908) ........................................ 14
CONSTITUTIONAL PROVISIONS
U.S. Const. Art. 4 § 2 Clause 1 ................................. 18
U.S. Const. 5th Amendment ..................................... 18
U.S. Const. 14th Amendment ................................... 18
STATUTES
Ohio Rev. Code § 1302.01.......................................... 23
Ohio Rev. Code § 1302.03.................................... 23, 24
Ohio Rev. Code § 1302.05.......................................... 22
Ohio Rev. Code § 1335.04 .................................... 22, 23
Ohio Rev. Code § 1335.05 .................................... 22, 23
Ohio Rev. Code § 5301.07.......................................... 20
Ohio Rev. Code § 5301.25.............................. 20, 21, 23
Ohio Rev. Code § 5302.08.......................................... 14
OTHER AUTHORITIES
Domesday Book (1086) ........................................ 19, 20
Magna Carta, 3d ed., 9 Hen. 3 c. 29 (1225) .............. 20
RULES
Fed. R. Civ. P. 8 ........................................................ 17
Ohio Rep. Op. R. 2.2 .................................................. 20
vii
TREATISES
FitzNeale, Richard, Dialogus de Scaccario
[Dialogue on the Exchequer] (ca. 1189) ............... 19
Johnson, Charles, Dialogus de Scaccario, the
Course of the Exchequer, and Constitutio
Domus Regis, the Establishment of the Royal
Household, Oxford U. (1983) .............................. 19
Poole, Austin L., From Domesday Book to Magna
Carta 1087-1216, 2d ed., Oxford U. (1955) ........ 19
Restatement of Property 3d, Servitudes,
vol. 1 (2000) ......................................................... 24
Seipp, David, Legal History: The Year Books
(1268-1535)
https://www.bu.edu/phpbin/lawyearbooks ..... 20
1
REPORTED OPINIONS BELOW
In reverse chronological order:
Sixth Circuit denial of rehearing: Pandora Distribution, LLC v. Ottawa OH, LLC, Nos. 21-3127/3158,
2023 U.S. App. LEXIS 8002 (6th Cir. Apr. 4, 2023)
(below 73a).
Sixth Circuit opinion: Pandora Distribution, LLC v.
Ottawa OH, LLC, Nos. 21-3127/3158, 2023 U.S. App.
LEXIS 1576, 2023 WL 335282 (6th Cir. Jan. 20, 2023)
(below 2a).
R. 357, District Court order granting stipulated
dismissal: Pandora Distribution, LLC v. Ottawa OH,
LLC, No. 3:12-cv-2858, 2021 U.S. Dist. LEXIS 12817,
2021 WL 243186 (N.D. Ohio Jan. 25, 2021)
(below 69a).
R. 345, District Court opinion denying Ottawa’s
motion for leave to file second motion for reconsideration: Pandora Distribution, LLC v. Ottawa OH,
LLC, No. 3:12-cv-2858, 2020 U.S. Dist. LEXIS
171354, 2020 WL 5593205 (N.D. Ohio Sept. 18, 2020)
(below 62a).
R. 334, District Court rehearing opinion on motions
for summary judgment: Pandora Distribution, LLC v.
Ottawa OH, LLC, No. 3:12-cv-2858, 2019 U.S. Dist.
LEXIS 192028, 2019 WL 5729932 (N.D. Ohio Nov. 5,
2019) (below 41a).
R. 317, District Court opinion granting and denying
motions for summary judgment: Pandora Distribution, LLC v. Ottawa OH, LLC, No. 3:12-cv-2858,
2
2019 U.S. Dist. LEXIS 112730, 2019 WL 2924995
(N.D. Ohio July 8, 2019) (below 16a).
R. 311, District Court order denying Ottawa’s motion
for relief due to abandonment by counsel and
Pandora’s motion for a stay: Pandora Distribution,
LLC v. Ottawa OH, LLC, No. 3:12-cv-2858, 2019 U.S.
Dist. LEXIS 44893, 2019 WL 1255206 (N.D. Ohio
Mar. 19, 2019).
R. 285, District Court order denying Ottawa’s motion
to replace, amend, or supplement its motion for summary judgment and denying Philips’ motion for oral
argument: Pandora Distribution, LLC v. Ottawa OH,
LLC, No. 3:12-cv-2858, 2018 U.S. Dist. LEXIS
208743, 2018 WL 6504114 (N.D. Ohio Dec. 11, 2018).
R. 232, District Court order denying Pandora’s motion
to bifurcate and denying First American motion to
strike and dismiss: Pandora Distribution, LLC v.
Ottawa OH, LLC, No. 3:12-cv-2858, 2018 U.S. Dist.
LEXIS 26821, 2018 WL 972457 (N.D. Ohio
Feb. 20, 2018).
R. 208, District Court order granting Ottawa’s motion
to
amend
third-party
complaint:
Pandora
Distribution, LLC v. Ottawa OH, LLC, No. 3:12-cv2858, 2017 U.S. Dist. LEXIS 62535 (N.D. Ohio
Apr. 25, 2017).
R. 203, District Court order granting Pandora’s
motion to amend complaint and denying First
American’s motion for summary judgment: Pandora
Distribution, LLC v. Ottawa OH, LLC, No. 3:12-cv2858, 2017 U.S. Dist. LEXIS 46832, 2017 WL 1165991
(N.D. Ohio Mar. 29, 2017).
3
R. 188, District Court order compelling First American to produce documents: Pandora Distribution,
LLC v. Ottawa OH, LLC, No. 3:12-cv-2858, 2016 U.S.
Dist. LEXIS 139129 (N.D. Ohio Oct. 6, 2016).
R. 187, District Court order granting Ottawa’s motion
to compel in-camera review of First American
documents: Pandora Distribution, LLC v. Ottawa
OH, LLC, No. 3:12-cv-2858, 2016 U.S. Dist. LEXIS
24618 (N.D. Ohio Feb. 29, 2016).
R. 127, District Court order granting leave to First
American to file an amended answer: Pandora Distribution, LLC v. Ottawa OH, LLC, No. 3:12-cv-2858,
2015 U.S. Dist. LEXIS 26495, 2015 WL 968007 (N.D.
Ohio Mar. 4, 2015).
R. 125, District Court order denying First American’s
motion to bifurcate bad faith claims:
Pandora
Distribution, LLC v. Ottawa OH, LLC, No. 3:12-cv2858, 2015 U.S. Dist. LEXIS 26496 (N.D. Ohio
Mar. 4, 2015).
R. 123, District Court order granting leave to Pandora
to file an amended complaint: Pandora Distribution,
LLC v. Ottawa OH, LLC, No. 3:12-cv-2858, 2015 U.S.
Dist. LEXIS 26502, 2015 WL 967980 (N.D. Ohio
Mar. 4, 2015).
R. 122, District Court order denying Philips motion to
dismiss: Pandora Distribution, LLC v. Ottawa OH,
LLC, No. 3:12-cv-2858, 2015 U.S. Dist. LEXIS 26568
(N.D. Ohio Mar. 4, 2015).
4
STATEMENT OF JURISDICTION
The United States Court of Appeals for The Sixth
Circuit entered judgment on January 20, 2023. It
denied rehearing en banc on April 4, 2023.
On June 29, 2023, Justice Kavanaugh extended
the time for this petition from July 3, 2023, until
September 1, 2023. Ottawa OH, LLC v. Pandora
Distribution, LLC, United States Supreme Court No.
22A1119.
This Court has jurisdiction over a timely petition
for a writ of certiorari under 28 U.S.C. § 1254(1).
5
TEXT OF LAWS
UNITED STATES CONSTITUTION
Article 4, § 2, Clause 1.
The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the
several States.
Fifth Amendment.
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or
public danger; nor shall any person be subject for
the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without due
process of law; nor shall private property be taken
for public use, without just compensation.
Fourteenth Amendment, § 1.
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.
6
STATUTES
Ohio Rev. Code § 1302.01
Definition of “goods” (UCC 2-105)
(A) As used in sections 1302.01 to 1302.98 of
the Revised Code, unless the context otherwise
requires:
[Other definitions omitted.]
(8) “Goods” means all things (including specially manufactured goods) which are movable at
the time of identification to the contract for sale
other than the money in which the price is to be
paid, investment securities, and things in action.
“Goods” also includes the unborn young of
animals and growing crops and other identified
things attached to realty as described in section
1302.03 of the Revised Code.
Goods must be both existing and identified
before any interest in them can pass. Goods which
are not both existing and identified are “Future”
goods. A purported present sale of future goods or
of any interest therein operates as a contract to
sell.
There may be a sale of a part interest in
existing identified goods.
An undivided share in an identified bulk of
fungible goods is sufficiently identified to be sold
although the quantity of the bulk is not determined. Any agreed proportion of such a bulk or
any quantity thereof agreed upon by number,
weight, or other measure may to the extent of the
seller’s interest in the bulk be sold to the buyer
who then becomes an owner in common.
7
[Other definitions omitted.]
Ohio Rev. Code § 1302.03
Goods to be severed from realty –
recording (UCC 2-107).
(A) A contract for the sale of minerals or the
like, including oil and gas, or a structure or its
materials to be removed from realty is a contract
for the sale of goods within sections 1302.01 to
1302.98 of the Revised Code, if they are to be
severed by the seller but until severance a
purported present sale thereof which is not
effective as a transfer of an interest in land is
effective only as a contract to sell.
(B) A contract for the sale apart from the land
of growing crops or other things attached to realty
and capable of severance without material harm
thereto but not described in division (A) of this
section or of timber to be cut is a contract for the
sale of goods within sections 1302.01 to 1302.98 of
the Revised Code, whether the subject matter is
to be severed by the buyer or by the seller even
though it forms part of the realty at the time of
contracting, and the parties can by identification
effect a present sale before severance.
(C) The provisions of this section are subject
to any third party rights provided by section
5301.25 of the Revised Code relating to realty
records, and the contract for sale may be executed
and recorded as a document transferring an
interest in land, as provided in section 5301.25 of
the Revised Code, and shall then constitute notice
to third parties of the buyer’s rights under the
contract for sale.
8
Ohio Rev. Code § 1302.05
Parol evidence rule (UCC 2-202).
Terms with respect to which the confirmatory
memoranda of the parties agree or which are
otherwise set forth in a writing intended by the
parties as a final expression of their agreement
with respect to such terms as are included therein
may not be contradicted by evidence of any prior
agreement or of a contemporaneous oral
agreement
but
may
be
explained
or
supplemented:
(A) by course of performance, course of
dealing, or usage of trade as provided in section
1301.303 of the Revised Code; and
(B) by evidence of consistent additional terms
unless the court finds the writing to have been
intended also as a complete and exclusive statement of the terms of the agreement.
Ohio Rev. Code § 1335.04
Interest in land to be granted in writing.
No lease, estate, or interest, either of freehold
or term of years, or any uncertain interest of, in,
or out of lands, tenements, or hereditaments shall
be assigned or granted except by deed, or note in
writing, signed by the party assigning or granting
it, or his agent thereunto lawfully authorized, by
writing, or by act and operation of law.
Ohio Rev. Code § 1335.05
Certain agreements to be in writing.
No action shall be brought whereby to charge
the defendant, upon a special promise, to answer
for the debt, default, or miscarriage of another
9
person; nor to charge an executor or administrator
upon a special promise to answer damages out of
his own estate; nor to charge a person upon an
agreement made upon consideration of marriage,
or upon a contract or sale of lands, tenements, or
hereditaments, or interest in or concerning them,
or upon an agreement that is not to be performed
within one year from the making thereof; unless
the agreement upon which such action is brought,
or some memorandum or note thereof, is in
writing and signed by the party to be charged
therewith or some other person thereunto by him
or her lawfully authorized.
[Rules for medical prognoses omitted.]
Ohio Rev. Code § 5301.07
Real property instrument presumptions.
(A) As used in this section, “real property
instrument” means a deed, mortgage, and
installment contract, lease, memorandum of
trust, power of attorney, or any instrument
accepted by the county recorder under section
317.08 of the Revised Code.
(B)(1) When a real property instrument is
delivered to and accepted by the county recorder
of the county in which the real property is
situated, and is signed and acknowledged by a
person with an interest in the real property that
is described in the instrument, the instrument
raises both of the following:
(a) A rebuttable presumption that the
instrument conveys, encumbers, or is enforceable
against the interest of the person who signed the
instrument;
10
(b) A rebuttable presumption that the
instrument is valid, enforceable, and effective as
if in all respects the instrument was legally made,
executed, acknowledged, and recorded.
(2) The presumptions described in division
(B)(1) of this section may be rebutted by clear and
convincing evidence of fraud, undue influence,
duress, forgery, incompetency, or incapacity.
(C) [Defective execution cure omitted.]
(D) A real property instrument when delivered to the county recorder of the county in which
the real property is situated and filed in the chain
of title to the real property provides constructive
notice to all third parties of the instrument
notwithstanding any defect in the making, execution, or acknowledgment of the real property
instrument.
(E) [Extinguishment, abandonment, or forfeiture provision omitted.]
(F) [Conflict provision omitted.]
(G) [Retroactivity provision omitted.]
Ohio Rev. Code § 5301.25
Recording.
(A) All deeds, land contracts referred to in
division (A) (21) of section 317.08 of the Revised
Code, and instruments of writing properly
executed for the conveyance or encumbrance of
lands, tenements, or hereditaments, other than as
provided in division (C) of this section and section
5301.23 of the Revised Code, shall be recorded in
the office of the county recorder of the county in
which the premises are situated. Until so recorded
11
or filed for record, they are fraudulent insofar as
they relate to a subsequent bona fide purchaser
having, at the time of purchase, no knowledge of
the existence of that former deed, land contract,
or instrument.
(B) [Survey provision omitted.]
(C) [Tax certificate sale provision omitted.]
Ohio Rev. Code § 5302.08
Limited warranty covenants.
In a conveyance of real estate, or any interest
therein, the words “limited warranty covenants”
have the full force, meaning, and effect of the
following words: “The grantor covenants with the
grantee, his heirs, assigns, and successors, that
the granted premises are free from all encumbrances made by the grantor, and that he does
warrant and will defend the same to the grantee
and his heirs, assigns, and successors, forever,
against the lawful claims and demands of all
persons claiming by, through, or under the
grantor, but against none other.”
12
INTRODUCTION
The Sixth Circuit held that Ottawa, a buyer of
land, bought and assumed debt for bridges on land for
which it had no title or contract.
The evidence is not disputed: The court held
deeds did not convey title to the bridges (below 7a). It
held Ottawa had “no agreement concerning ownership or removal of the bridges” (below 4a).
In every state, land and tenement transactions
must be written and recorded. Assumptions of debt
must be express and in writing. No record or writing
in evidence shows a sale of the bridges or an assumption of debt.
The Sixth Circuit denied en banc review. Only this
Court can resolve the conflict with state laws.
As a matter of policy, Uniform Commercial Code
Article 2 was designed to prevent such conflicts.
The decision invites forum shopping.
Businesses will bear the cost of conflicting rules.
Unrecorded rights will harm owners, builders,
brokers, banks, and others who rely on title records.
Savings will be lost. Banks may fail.
This case is ideal for a writ: It is entirely based
on a ruling that Ottawa owns the bridges.
The Sixth Circuit’s summary judgment calls for,
at least, a summary reversal and remand.
13
STATEMENT OF THE CASE
1. Parties and interests.
Petitioner Ottawa OH, LLC (“Ottawa”) bought
land in Ohio.
Two bridges connect Ottawa’s land to land of
Respondent Pandora Distribution, LLC (“Pandora”).
The bridges are on land of Respondent Genesee &
Wyoming, Inc. (with its antecedents “Railroad”).
Antecedents of Respondent Philips Electronics
North America Corporation (with its antecedents
“Philips”) built the bridges on an Easement (below
75a) with a Supplemental Indenture (below 84a),1 and
License (below 87a) that granted rights to Railroad’s
land. The contracts made Philips liable for the
bridges, but made no claims on Philips’ land.
Philips deeded land to Respondent DBI Partners,
LLC (“DBI”), including the above parcels that DBI
then sold to Pandora and Ottawa. DBI has defaulted.
Respondent First American Title Insurance Company (“First American”) through its agent, Borer,
issued title commitments and insured title for the
sales to DBI, Pandora, and Ottawa. First American
denied acting as escrow, but admitted it “may be
liable for [its agents’] acts or omissions in conducting
the closing.” Motion, R. 250-1, PageID 4113.
Philips’ deed promised to all successors, including
Ottawa, through limited warranty covenants that, at
the time of the delivery of that deed, the “premises
These documents are from the Recorder of Putnam
County, Ohio, as shown by the Recorder’s stamps. R. 205-4,
PageID 2175, 2180.
1
14
[were] free from all encumbrances made by the
grantor,” and the grantor “does warrant and will
defend” against such “claims and demands of all
persons claiming by, through, or under the grantor.”
Ohio Rev. Code § 5302.08. Philips thus warranted
against claims by Philips and by related parties that
Ottawa is liable for the Easement and License. Ottawa
sought to enforce that warranty. Motion, R. 314,
PageID 9818; First Brief, A. 47, p. 25.
Ottawa denied that Philips sold the bridges:
1. The Sixth Circuit held the easement and
license had ended (below 7a). A sale could occur only
if Railroad granted new rights. Without new rights,
using the bridges would be a trespass, and a contract
to trespass is void. Third Brief, A. 74, p. 56.
2. The easement and license barred sales. A
license cannot be sold. Yeager v. Tuning, 79 Ohio St.
121, 124, 86 N.E. 657 (1908). The easement was “for
the exclusive use of the Grantee and the Grantee shall
not permit its use by any other party.” Easement § 14
(below 80a). Use by any other party terminates the
easement through abandonment. Id. § 4 (below 77a).
3. Philips never agreed to sell the bridges on
Railroad’s land. The Sixth Circuit held Philips’
contract made “no specific mention of the bridges,”
easement, or license (below 3a). Philips only sold
things “located on the Property.” Motion, R. 256,
PageID 5948 n.3, incorporating Purchase Agreement
§ 1, R. 256-1, PageID 5987. “Property” meant Philips’
land, not Railroad’s land. Agreement Recital A,
Exhibit B, R. 256-1, PageID 5987, 6011.
Ottawa denied buying the bridges. Motion,
R. 257, PageID 6394, 6395; First Brief, A. 47, p. 72;
Third Brief, A. 74, pp. 48, 58. Ottawa only agreed to
15
buy personalty “owned by Seller,” identified in writing, “located on” the described land, and conveyed by
a written bill of sale. Contract §§ 2(c), 5.2, 6.2(f), 13
(below 99a, 101a, 105a, 111a). Ottawa did not buy the
bridges because DBI did not own them; no personalty
was identified; the bridges were not on the described
land; and no bill of sale was delivered. Contract
§ 6.2(a) (below 104a) excluded the bridges from the
sale by requiring title to be as described by the
commitment, which said the bridges were encroachments that DBI did not own. Exceptions ¶¶ 20, 21,
R. 244-1, PageID 2902. The Sixth Circuit recognized
that Ottawa had “no agreement concerning ownership
or removal of the bridges” (below 4a).
2. Underlying dispute.
Borer wrote the Encroachment Agreement
between DBI and Pandora (below 95a) stating that
DBI owned the bridges, and that DBI’s successors
would remove the bridges at Pandora’s request.
Borer told Ottawa exactly the opposite. He told
Ottawa that DBI did not own the bridges. He said the
bridges were encroachments excluded from the sale.
Borer Dep., R. 244-1, PageID 2759. First American’s
title
commitment
said
the
bridges
were
encroachments that DBI did not own. Exceptions
¶¶ 20, 21, R. 244-1, PageID 2902. Borer told Ottawa
it would not be liable for the bridges. Lewis Dep. 1, R.
245-1, PageID 2970.
The Encroachment Agreement described only
Pandora’s land. Borer did not disclose the Agreement
to Ottawa before the sale. Borer Dep., R. 244-1,
PageID 2749, 2766. First American’s commitment did
not disclose the Agreement. First American admitted
16
Ottawa had “no notice” of the Agreement.
R. 246-2, PageID 3596.
Email,
One month after Ottawa’s purchase, Pandora
demanded that Ottawa perform the Encroachment
Agreement. Email, R. 245-1, PageID 3167.
Ottawa promptly delivered an insurance claim to
First American for Pandora’s demand. Letter, R. 2441, PageID 2815. First American accepted the claim
and said insurance counsel would handle it. Letter 220-07, R. 246-1, PageID 3491.
Six years later, First American refused to defend
this action to enforce the Encroachment Agreement.
Letter 2-15-13, R. 246-1, PageID 3555.
3. Decisions below.
Having diversity jurisdiction under 28 U.S.C.
§ 1332, the District Court held Ottawa is not liable
because DBI conveyed the bridges to Pandora by deed,
and because the Encroachment Agreement is outside
Ottawa’s chain of title.
After a timely notice of appeal, the Sixth Circuit
acquired appellate jurisdiction under 28 U.S.C.
§ 1291. It held the deeds did not convey the bridges,
but that Ottawa bought them as personalty
(below 8a). The Sixth Circuit recognized, however,
that Ottawa had “no agreement concerning ownership
or removal of the bridges” (below 4a). It ruled for
Railroad, Philips, and First American on the ground
that Ottawa owns the bridges.
The Sixth Circuit ruled that DBI assumed Philips’
debts (below 3a, 13a). DBI only gave a release by
agreeing to an “as is” sale. Declaration of Philips’
Counsel ¶ 7, R. 256-1, PageID 5983. Philips alleged a
17
release, not an assumption of debt. Defenses ¶ 11,
R. 68, PageID 621. Railroad did not allege an
assumption of debt. Answer, R. 132, PageID 1025.
Philips and Railroad waived assumption of debt
defenses by not pleading them. Fed. R. Civ. P. 8(c)(1).
The Sixth Circuit denied claims against Philips and
Railroad on the ground that Ottawa assumed their
debts (below 13a). Ottawa did not assume anyone’s
debt. Ottawa only gave a release to DBI by agreeing
to an “as is” sale. Contract2 ¶ 7 (below 107a). Ottawa
gave no release to Philips or Railroad.
The Sixth Circuit held Ottawa knew of debts
because “Ottawa had a copy of the 1986 License”
attached to the commitment (below 11a). No copy was
attached.
Lewis Dep. 1 Exh. 46, R. 245-1,
PageID 3132. First American admitted no copy was
attached. Answer ¶ 38, R. 234, PageID 2688 (exhibit
is a “true” copy). Borer could not explain why no copy
was attached. Borer Dep., R. 244-1, PageID 2759.
No evidence showed that Ottawa knew of the
Easement or of any debts created by it.
The Sixth Circuit held Ottawa knew the policy
excepted “claims arising from or based on the bridges”
(below 11a). No such exception exists. Exceptions
exist for claims that “arise by reason of” the license,
not the easement, and for encroachments onto
Ottawa’s land, not Pandora’s land. Policy Exceptions
Introduction, ¶¶ 11-14, R. 244-1, PageID 2935, 2936.
The commitment had the same terms.
The
Encroachment Agreement did not “arise by reason of”
The contract and other documents are in the name of
APTM, Inc., which assigned its interest in the contract to Ottawa
before the sale. Letter, R. 245-1, PageID 3148.
2
18
excepted items. First American’s agent wrote it. First
American admitted there was “no exception for the
Encroachment Agreement.”
Letter, R. 246-1,
PageID 3554.
The Sixth Circuit did not explain how Ottawa’s
knowledge resulted in a sale or assumption of debt.
4. Destructive impact.
Ignoring title records, contract rights, and the
laws of every state imposes high costs on commerce.
It invites forum shopping. Businesses will be subject
to conflicting rules.
The approval of unrecorded interests will harm
owners, builders, brokers, banks, and others who rely
on title records.
REASONS FOR GRANTING THE PETITION
1. The Constitution protects realty rights.
The Constitution protects realty rights based on
history and precedent. Tyler v. Hennepin County, 598
U.S. 631, 638 (2023).
“Property” in the Fifth and Fourteenth Amendments refers to rights as understood by the framers of
the Constitution. Realty thus includes rights defined
by title records. It includes interests in usable
airspace over land like the bridges, easement, and
license. United States v. Causby, 328 U.S. 256, 264
(1946).
The Privileges and Immunities Clause (Const.
Article 4 § 2 Clause 1; Const. 14th Amend. § 1)
protects enumerated rights, like property rights.
19
Dobbs v. Jackson Women’s Health Org., 142 S.Ct.
2228, 2248 n.22 (2022).
The property rights at issue here are also deeply
rooted in our history and tradition (below).
2. The purported sale of the bridges denies
due process because title records say
nothing about the bridges, easement,
license, or underlying land.
Ottawa argued the bridges were not sold because
its chain of title said nothing about the bridges,
easement, license, or underlying land. Motion, R. 257,
PageID 6399; Opp., R. 262, PageID 6467; First Brief,
A. 47, p. 72; Third Brief, A. 74, pp. 58, 62, 69.
Recorded title is the oldest written common law.
When nearly everyone was illiterate and disputes often
led to war, William the Conqueror decreed a written
record of interests in realty. The Domesday Book
(1086) is that record. “Domesday” means “the Day of
Judgment . . . because its decisions, like those of the
Last Judgment, are unalterable.” FitzNeale (aka
FitzNigel), Richard (Treasurer of England), Dialogus
de Scaccario [Dialogue on the Exchequer] (ca. 1189),
translator Johnson, Charles, Dialogus de Scaccario,
the Course of the Exchequer, and Constitutio Domus
Regis, the Establishment of the Royal Household, 64,
Oxford U. (1983).
The first known use of the Domesday Book as
evidence in litigation was as early as 1108. Poole,
Austin L., From Domesday Book to Magna Carta
1087-1216, 2d ed., 1 n. 1, Oxford U. (1955). The first
reported case on the Domesday Book said “we vouch
the record of Domesday.” Ardel v. Abbot of Westminster, 13 Edward I fol. 112 SS 189-199 (1285), no.
20
1285.003ss in Seipp, David, Legal History: The Year
Books (1268-1535), https://www.bu.edu/phpbin
/lawyearbooks (accessed June 6, 2023).
The Magna Carta guards Domesday Book rights:
“No Freeman shall be . . . disseised of his Freehold . . .
but by lawful judgment of his Peers, or by the Law of
the Land.” Magna Carta 3d ed., 9 Hen. 3 c. 29 (1225),
statute at 1297 c. 29 (25 Edw. 1).
The highest courts of all states deem recordation
conclusive unless rebutted by proof of fraud, etc. The
laws existed before the states did. See Moore v. Vance,
1 OHIO 1, 9-11 (1821) (quoting early statutes).
Ohio statutes adopted the rule: A “conveyance or
encumbrance of lands, tenements, or hereditaments
. . . shall be recorded.” Ohio Rev. Code § 5301.25(A).
Recording occurs for land “described in the instrument” and only an instrument describing the land is
presumed valid. Ohio Rev. Code § 5301.07(B)(1). A
recorded instrument not describing the land is void.
Throckmorton v. Moon, 10 OHIO 42, 44 (1840). “[T]he
intention of the parties can not be made to take the
place of a controlling call in a deed.” McAfferty v.
Conover’s Lessee, 7 Ohio St. 99 syl.3 (1857).
Failing to record the Easement, License, and
Encroachment Agreement in Ottawa’s chain of title
“rendered the instrument[s] fraudulent.” Weir v.
Snider Saw Mill Co., 88 Ohio St. 424, 431, 103 N.E.
133 (1913). Unrecorded instruments “for the conveyance or encumbrance of lands, tenements, or hereditaments . . . are fraudulent insofar as they relate to a
subsequent bona fide purchaser having, at the time of
3
Case law includes the syllabus. Ohio Rep. Op. R. 2.2.
21
purchase, no knowledge of” the instrument. Ohio Rev.
Code § 5301.25(A).
To enforce unrecorded claims, claimants must
prove by clear and convincing evidence that Ottawa
had actual, specific knowledge of documents establishing the claims. Emrick v. Multicon Builders, Inc.,
57 Ohio St.3d 107, 110, 566 N.E.2d 1189 (1991).
In Emrick, knowing that a document existed was
not enough. Claimants had to prove actual, specific
knowledge of the contents of a document making
claims. No such proof exists here. The Easement and
Encroachment Agreement were not disclosed. A copy
of the License was not delivered. None of the
documents describes Ottawa’s land.
Knowing of the bridges did not require inquiry, as
the Sixth Circuit required (below 11a). No inquiry is
required even if facts “‘ought to have excited apprehension and inquiry in the mind of a prudent and
reasonable man.’” Emrick at 109 (quoting Varwig v.
Cleveland, Cincinnati, Chicago & St. Louis R.R. Co.,
54 Ohio St. 455, 468, 44 N.E. 92 (1896)).
Constructive notice arises only of a claim which
“‘appear[s] on some deed necessary to the deduction of
his title.’” Blake v. Graham, 6 Ohio St. 580, 584 (1856)
(quoting 2 Sugden on Vendors, ch. 17, note 430). An
unrecorded easement is void against a bona fide
purchaser for value. Tiller v. Hinton, 19 Ohio St.3d 66,
482 N.E.2d 946 syl. (1985).
The documents outside the chain of title are void
against Ottawa. Ottawa had no duty to inquire. The
Sixth Circuit should have treated the documents as
frauds.
The Sixth Circuit decision denied due process by
contradicting title records that define Ottawa’s real
22
property rights at common law, as they had existed
for centuries by the time of the Nation’s founding.
This Court should grant a writ to protect ancient
property rights, to prevent forum shopping, to
preserve the integrity of title records, and to ensure
uniform application of the law.
3. The purported sale and assumption of
debt denies due process because no
contract or conveyance exists.
Ottawa argued that it never bought the bridges.
Motion, R. 257, PageID 6394; First Brief, A. 47, p. 72;
Third Brief, A. 74, p. 58.
The Sixth Circuit identified no conveyance of the
bridges to Ottawa. It held that deeds did not convey
the bridges (below 7a). It held that Ottawa had “no
agreement concerning ownership or removal of the
bridges” (below 4a).
Ottawa agreed to buy things “owned by Seller,”
identified in writing, “located on” the described land,
and conveyed by a written bill of sale (above 14).
The parol evidence rule bars evidence contradicting that agreement. The rule is in the Uniform
Commercial Code Article 2. Ohio Rev. Code § 1302.05.
It applies to “identified things attached to realty.”
Ohio Rev. Code § 1302.01(A)(8). Every state but
Louisiana has adopted Article 2 (some with variations
not relevant here). Louisiana has adopted the rule
separately.
The Statute of Frauds requires signed contracts
for interests in realty and signed assumptions of debt.
Ohio Rev. Code §§ 1335.04, 1335.05. Every state has
adopted those rules on the issues here.
23
The contract “must definitely point out the particular land to be conveyed or must furnish the means
of identifying it with certainty.” Schmidt v. Weston,
150 Ohio St. 293, 82 N.E.2d 284 syl. ¶ 3 (1948). No
contract describes the land under the bridges.
An assumption of debt must be express. It “can
never be presumed.” Williams v. Ormsby, 131 Ohio
St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 18. No
evidence shows an assumption (above 16).
The Statute of Frauds applies even if the bridges
are personalty, as the Sixth Circuit held. Assumptions of debt must be signed whether or not they relate
to realty. Signed, written contracts must exist not
just for land, but also for “any uncertain interest of,
in, or out of,” and any “interest in or concerning,”
“tenements, or hereditaments.” Ohio Rev. Code
§§ 1335.04, 1335.05. The Statute of Frauds thus
applies to contracts for the bridges, easement, and
license.
Uniform Commercial Code Article 2 produces the
same result. “Goods” include “things attached to
realty as described in section 1302.03 of the Revised
Code.” Ohio Rev. Code § 1302.01(A)(8). No contract
to sell the bridges exists under Article 2 because:
1. The bridges were not identified as being sold.
“Goods must be . . . identified before any interest in
them can pass.” Ohio Rev. Code § 1302.01(A)(8).
2. Philips and DBI did not agree to remove the
bridges and Railroad did not grant title. The seller
must agree to remove structures from the land or the
landowner must grant title.
Ohio Rev. Code
§ 1302.03(A).
3. An unrecorded interest would be a fraud on
Ottawa as “provided by section 5301.25” which treats
24
unrecorded documents as frauds.
§ 1302.03(C).
Ohio Rev. Code
Ottawa did not buy or assume debt for the bridges
because no contract exists for a sale or assumption.
If Philips had sold the bridges, it would still be
liable for debts. Taking title subject to a mortgage
does not assume the debt. Walser v. Farmers Trust
Co., 126 Ohio St. 367, 376, 185 N.E. 535 (1933); see
also 1 Restatement of Property 3d, Servitudes § 4.4(1)
(2000). Ottawa argued Philips remains liable. Third
Brief, A. 74, pp. 60-61.
The Sixth Circuit forced a blind, unwilling
purchase and assumption of debt, which the framers
of the Constitution could not have imagined. The
right to own property must carry with it a right not to
acquire property that one does not agree to buy.
4. Because ownership is the sole issue, this
case is ideal for review.
This case is ideal for review because it is based on
a single ruling that Ottawa owns the bridges.
25
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully Submitted,
PAUL W. FLOWERS, ESQ.
Counsel of Record
LOUIS E. GRUBE, ESQ.
FLOWERS & GRUBE
Terminal Tower, 40th Floor
50 Public Square
Cleveland, Ohio 44113
(216) 344-9393
pwf@pwfco.com
Filed September 1, 2023
APPENDIX
1a
APPENDIX
TABLE OF CONTENTS
OPINIONS, ORDERS, FINDINGS, CONCLUSIONS .. 2a
Sixth Circuit Opinion January 20, 2023, granting
judgment against Ottawa. ........................................ 2a
Sixth Circuit Judgment January 20, 2023............. 14a
District Court Opinion and Order July 8, 2019,
for summary judgment (R. 317) .............................. 16a
District Court Judgment Entry July 8, 2019, for
summary judgment (R. 318) ................................... 39a
District Court Opinion and Order November 5,
2019, denying reconsideration (R. 334) .................. 41a
District Court Opinion and Order September 18,
2020, denying leave for further reconsideration
(R. 345) ..................................................................... 62a
District Court Order January 25, 2021,
dismissing remaining claims (R. 357) .................... 69a
District Court Final Judgment Entry January
25, 2021 (R. 358) ...................................................... 72a
ORDER SUBJECT TO REVIEW ............................. 73a
Sixth Circuit Order April 4, 2023, denying
rehearing. ................................................................. 73a
SUPPORTING DOCUMENTS ................................. 75a
Easement ................................................................. 75a
Supplemental Indenture ......................................... 84a
License ..................................................................... 87a
Encroachment Agreement ...................................... 95a
Ottawa’s Purchase Contract ................................... 99a
2a
Opinions, Orders, Findings, Conclusions
Sixth Circuit Opinion January 20, 2023, granting
judgment against Ottawa.
Document: 89-2
NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0045n.06
Case Nos. 21-3127/3158
Filed
Jan 20, 2023
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PANDORA
DISTRIBUTION, LLC,
Plaintiff-Appellee
/Cross-Appellant,
v.
OTTAWA OH, LLC,
et al.,
ON APPEAL FROM
THE UNITED STATES
DISTRICT COURT FOR
THE NORTHERN
DISTRICT OF OHIO
OPINION
Defendant-Appellant
/Cross-Appellee.
Before: BATCHELDER, BUSH, and DAVIS, Circuit
Judges.
ALICE M. BATCHELDER, Circuit Judge.
Railroad tracks separate two warehouses, one owned
by Pandora Distribution, LLC, and the other owned
3a
by Ottawa OH, LLC. A prior owner had obtained an
easement and a license agreement with the Railroad
to connect the two warehouses with overhead bridges
that span the tracks. But neither Pandora nor Ottawa
believed it owned the bridges. When Pandora sued
Ottawa to compel it to remove the bridges, the district
court found that Pandora owned the bridges, and it
entered judgments based on that finding.
Because we find that Ottawa, not Pandora, owns
the bridges, we AFFIRM in part, REVERSE in part,
and REMAND for further proceedings consistent with
this opinion.
I.
Originally, Sylvania Electric Products, Inc., owned both warehouses as part of one large facility. A
railroad line on a 66-foot-wide strip of land bisected
the property from north to south and separated the
two warehouses, one of which is on the east side of the
tracks and the other on the west. In 1970, the
Railroad sold Sylvania an easement (over and across
the 66-foot-wide strip) to construct, use, and maintain
an overhead bridge between the two warehouses. In
1986, the Railroad provided Philips ECG, Inc.
(Sylvania’s successor) a license for a second overhead
bridge.
In 2005, Philips sold the entire facility to DBI
Partners, “as is,” without caveat or limitation. This
included all the real property, personal property
thereon, and attendant property rights and obligations. There was no specific mention of the bridges,
the 1970 Easement, or the 1986 License.
In January 2006, Pandora purchased the warehouse property on the east side of the Railroad strip
(the “Pandora Property”). DBI and Pandora executed
4a
an “Encroachment Agreement,” recorded with the
Pandora Property deed in the County Recorder’s
Office, which says: (1) the two bridges “shall remain
the sole property of DBI”; (2) DBI was responsible for
maintaining the bridges; and (3) Pandora could
demand DBI remove the bridges and repair any
resulting damage to the Pandora Property, but DBI
could remove them only with Pandora’s prior written
consent.
In December 2006, Ottawa purchased the warehouse property on the west side of the Railroad strip
(the “Ottawa Property”). Ottawa bought the property
and everything on it “as is,” without caveat or limitation. So, unlike Pandora’s purchase from DBI, there
was no agreement concerning ownership or removal
of the bridges. The Encroachment Agreement between DBI and Pandora had not been recorded for
Ottawa’s parcel (but only for the Pandora Property),
so it did not appear on the title search, but Ottawa
admits that it had actual knowledge of the bridges.
The same title agent assisted with DBI’s purchase
from Philips in 2005, and then with DBI’s sales to
Pandora and Ottawa in 2006. For each transaction,
the agent issued title insurance commitments and
policies underwritten by First American Title
Insurance Company.
In 2007, Pandora demanded that Ottawa, as the
successor to the Encroachment Agreement, repair the
bridges. Ottawa denied responsibility and refused. In
2012, Pandora sued Ottawa and DBI in federal court
under diversity jurisdiction, raising claims under
Ohio law. Pandora obtained a default judgment
against DBI. Meanwhile, Ottawa counterclaimed,
crossclaimed against DBI, and filed a third-party
complaint against First American, Philips, and the
5a
Railroad. Pandora amended its complaint to add
Philips. And First American counterclaimed against
Ottawa.
Ultimately, Pandora’s claims against Ottawa
were for breach of contract for failure to remove the
bridges pursuant to the Encroachment Agreement;
trespass and nuisance based on Ottawa’s alleged
ownership of the bridges; declaratory judgment
regarding bridge ownership; quiet title and ejectment;
and an unspecified remedy in equity, should legal
relief be unavailable. Pandora’s claims against
Philips were based on Philips’s promises to the
Railroad—in the 1970 Easement and 1986 License—
to remove the bridges when it stopped using them.
Ottawa’s counterclaims against Pandora were for
negligence, trespass, nuisance, mutual mistake, and
declaratory judgment. Ottawa argued that Pandora
purchased the bridges,1 that Ottawa was the victim of
a trespass and nuisance, and that it was not bound by
the Encroachment Agreement. Ottawa’s claims
against Philips and the Railroad were that they had
owned the bridges and were therefore responsible. Its
claims against First American were based on the title
insurance.
When all parties moved for summary judgment,
the district court determined that Pandora owned the
bridges and entered judgment on all claims except
Ottawa’s claims against Pandora for negligence,
trespass, and nuisance. Pandora Distrib., LLC v.
Ottawa OH, LLC, No. 3:12-cv-2858, 2019 WL 2924995
1 Ottawa quickly reversed its position. Beginning with its
first motion for reconsideration and continuing through this
appeal, Ottawa’s revised position is that Pandora did not
purchase and does not own the bridges
6a
(N.D. Ohio July 8, 2019). Pandora and Ottawa each
moved for reconsideration, which the district court
denied. Pandora Distrib., LLC v. Ottawa OH, LLC,
No. 3:12-cv-2858, 2019 WL 5729932 (N.D. Ohio Nov.
5, 2019); Pandora Distrib., LLC v. Ottawa OH, LLC,
No. 3:12-cv-2858, 2020 WL 5593205 (N.D. Ohio Sept.
18, 2020). Ottawa dismissed its remaining claims, and
the district court closed the case. Ottawa appealed
and Pandora cross appealed.
II.
When the district court grants summary judgment, our review is de novo. Goodman v. J.P. Morgan
Inv. Mgmt., Inc., 954 F.3d 852, 859 (6th Cir. 2020).
Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Just like the
district court, we view the evidence “in a light most
favorable to the [nonmoving] party . . . , giving that
party the benefit of all reasonable inferences.” Baker
v. City of Trenton, 936 F.3d 523, 529 (6th Cir. 2019).
The district court’s rulings on the numerous and
varied legal claims all flowed from a single underlying
determination: that Pandora alone owns the bridges.
The court began by finding that the bridges are
fixtures or appurtenances and, therefore, real
property. Under Ohio law, “[i]n a conveyance of real
estate . . . , all . . . appurtenances belonging to the
granted estate shall be included in the conveyance,
unless the contrary is stated in the deed, and it is
unnecessary to enumerate or mention them either
generally or specifically.” O.R.C. § 5302.04. Because
the deed for the Pandora Property did not expressly
except or exclude the bridges, the court held that
Pandora bought the bridges from DBI. Pandora and
7a
Ottawa argued that the deed’s silence about the
bridges could not overcome the Encroachment Agreement, but the court rejected that argument on the
basis that the Encroachment Agreement was not in
the deed.
We disagree with the district court’s determination and find instead that the bridges are not real
property and Pandora does not own them. The bridges
are personal property and Ottawa owns them. Under
Ohio law, the most important requirement for an
article to become a real property fixture is that it must
be “a permanent accession to the freehold.” Teaff v.
Hewitt, 1 Ohio St. 511, 530 (Ohio 1853) (emphasis
added). In Wireman v. Keneco Distributors, Inc., 661
N.E.2d 744, 747 (Ohio 1996), the Ohio Supreme Court
relied on Teaff to find that a vapor recovery system
(VRS) was not a fixture, but was instead personal
property, because “there was never an intention to
make the VRS a permanent accession to the freehold
where it was being used.” A provision in the purchase
agreement “obligat[ed] [the buyer] to remove the
aboveground storage tanks if removal is required by
law. Thus, [the seller] never intended that those tanks
and attached VRS be a permanent part of the
premises where they rested.” Id. The same goes for
the bridges here.
A provision in the 1970 Easement caused it to
terminate automatically if the grantee (Sylvania)
stopped using the bridge, whereupon the grantee was
obligated to remove the bridge. Likewise, the 1986
License provided that either party could terminate
the agreement on 60 days’ notice, whereupon the
licensee (Philips) was required to remove the bridges.
Both agreements anticipated and expressly mandated
the removal of the bridges when the grantee/licensee
8a
stopped using them, demonstrating that these bridges
were not intended to be permanent. They are not realproperty fixtures. See, contra, Dee Cee Assocs. v.
Norfolk & W. Ry. Co., No. H-90-16, 1991 WL 156538,
at *2-3 (Ohio Ct. App. Aug. 16, 1991) (applying Teaff
to find that a bridge was a fixture because it “could
[not] be removed at [one party’s] discretion . . . at some
future time”).
Neither are they appurtenances. Under Ohio law,
an appurtenance is “that which belongs to something
else; . . . [a]n article adapted to the use of the property
to which it is connected, and which was intended to be
a permanent accession to the freehold.” Mid-Ohio
Mech., Inc. v. Carden Metal Fabricators, Inc., 862
N.E.2d 543, 548 (Ohio Ct. App. 2006) (quoting Black’s
Law Dictionary 94 (5th Ed. 1979)); accord BND
Rentals, Inc. v. Dayton Power & Light Co., 158 N.E.3d
993, 1003 (Ohio Ct. App. 2020). As just explained,
theses bridges were never intended to be permanent.
Moreover, the bridges are not affixed to any one
property but rather connect both properties through
the Railroad’s airspace and do not belong exclusively
to any property.
We therefore conclude that the bridges are personal property. So, to determine who owns them, we do
not look to Ohio Revised Code § 5302.04, which
applies to appurtenances to real property. Nor could
the bridges pass by deed as fixtures. In this situation,
we look to the sales contracts to determine who
purchased this personal property from DBI. Although
the contract between DBI and Pandora says that
Pandora “hereby agrees to purchase . . . all
furnishings, fixtures, equipment, and other personal
property,” the Encroachment Agreement says the
bridges “shall remain the sole property of DBI.”
9a
Because the specific trumps the general, Pandora did
not purchase the bridges. Ottawa, however, agreed to
purchase “[a]ll furnishings, fixtures, equipment, and
other personal property . . . contained in or related to
the Land or Project and owned by [DBI].”
We hold that Ottawa owns the bridges. Pandora
does not.
III.
Pandora argues that the district court erred by
granting summary judgment to Ottawa on Pandora’s
claims. The court did so based on its determination
that Pandora and not Ottawa owned the bridges,
which was incorrect. Ottawa owns the bridges.
Therefore, we reverse the judgments on all but the
claim of breach of the Encroachment Agreement.
Ottawa was not a party to the Encroachment
Agreement. For that agreement to bind Ottawa, it
would have to be a covenant that runs with the land.
See Orwell Natural Gas Co. v. Fredon Corp.,
30 N.E.3d 977, 982 (Ohio Ct. App. 2015). “In order for
a restrictive covenant to run with the land, the following three factors must be met: (1) intent for the
restrictive covenant to run with the land; (2) ‘touches
and concerns’ the land; and (3) the parties are in
privity of contract.” BM-Clarence Cardwell, Inc. v.
Cocca Dev. Ltd., 65 N.E.3d 829, 835 (Ohio Ct. App.
2016). Because the bridges are personal property, the
Encroachment Agreement about the bridges does not
touch and concern the land. And because Ottawa has
no obligation under the Encroachment Agreement,
Pandora has no claim against Ottawa for breach of
that agreement.
As to Pandora’s other claims, the district court
may consider them on remand.
10a
IV.
Ottawa argues that the district court erred by
granting summary judgment to First American, the
Railroad, and Philips. None of Ottawa’s arguments
has merit.
A.
The district court granted summary judgment to
First American on all of Ottawa’s claims. On the
coverage claims (i.e., breach of contract and declaratory judgment), the district court found that while
“First American provided Ottawa with a title insurance policy, [] Ottawa offers no evidence there is
anything wrong with its title,” or that the existence of
the bridges is “a matter covered by the title insurance
policy.” Pandora, 2019 WL 2924995, at *8. On the
negligence and fiduciary-duty claims, the district
court found that “Ottawa fails to establish First
American breached any duty it may have had to
Ottawa, or that Ottawa suffered any damage as a
result of any hypothetical breach.” Id. And on the
fraud and bad-faith claims, “Ottawa fails to identify
facts to support its fraud and bad faith claims against
First American.” Id.
In its motion to reconsider, Ottawa argued that
First American had a duty to defend Ottawa in this
litigation, that First American committed fraud
(“participat[ed] in a constructive fraud scheme”)
against Ottawa, and that the district court erred in
finding otherwise. Pandora, 2019 WL 5729932, at *8.
The district court rejected this claim, explaining that:
The contract between Ottawa and First American goes on to state, in a schedule titled
EXCEPTIONS FROM COVERAGE, [that] it
does not insure against loss or damage (and
11a
First American will not pay costs, attorneys’
fees[,] or expenses) which arise by reason of a
License Agreement between Grand Trunk
Western Railroad Company and Philips ECG,
Inc., dated December 18, 1986, relating to the
elevated conveyor bridge and [that there is]
an encroachment by an existing overhead
bridge conveyor onto the premises in question.
Id. at *9 (quotation and editorial marks omitted).
Therefore, the policy alerted Ottawa to the existence of
the bridges and the 1986 License (which was
attached), and expressly excluded coverage for claims
arising from or based on the bridges. Id. The court
characterized Ottawa’s fraud theory as Ottawa’s
“concocting an elaborate story.” Id.
On appeal, Ottawa continues to press its fraud
theory. Certain indisputable facts resolve this claim.
One, prior to its purchase of the warehouse, Ottawa
had actual notice of the physical existence of the
bridges, which connected the east wall of that warehouse to the west wall of the Pandora Property’s
warehouse across the Railroad tracks and property.
Two, Ottawa had a copy of the 1986 License, which
stated the building owner’s commitment concerning
lease, repair, and removal of the second bridge, and
depicted both bridges on its attached plat. And three,
the First American policy excluded coverage for
claims arising from or based on the bridges.
Ottawa chose to purchase the property despite its
knowledge of the bridges and First American’s
express exclusion of those bridges from its title
insurance policy. First American owed no duty to
Ottawa regarding the bridges, so Ottawa cannot
establish that First American breached any duty,
committed any negligence, or improperly denied
12a
coverage. The district court correctly granted summary judgment to First American on Ottawa’s claims.
We affirm.
B.
The district court granted summary judgment to
the Railroad upon finding that, while the Railroad
could have compelled Philips to remove the bridges
pursuant to the 1970 Easement and the 1986 License,
it owed no duty to Ottawa. Pandora, 2019 WL
2924995, at *8. Moreover, the Railroad had no
responsibility for maintaining or removing the
bridges. Id. at *9.
On appeal, Ottawa claims that the Railroad owns
the bridges because the 1970 Easement and 1986
License have ended, both required removal of the
bridges when they ended, and fixtures become the
property of the landlord if the tenant fails to remove
them before the lease expires. Suffice it to say that the
bridges are not fixtures, but more importantly, they
are not fixtures attached to the Railroad’s property.
Nor was the Railroad anyone’s landlord.
Ottawa also argues that the Railroad’s failure to
remove the bridges was negligence because it was
foreseeable that someone could be harmed if the
bridges were not removed, as demonstrated by the
provisions in the Easement and License requiring
removal. But foreseeability alone does not establish
negligence. The first element of negligence is duty.
See Snay v. Burr, 189 N.E.3d 758, 762 (Ohio 2021).
And the Railroad had no duty to remove the bridges.
More to the point, the Railroad owed no duty to
Ottawa, the purchaser and owner of those bridges.
This argument is frivolous. We affirm the district
court’s judgment on this claim.
13a
C.
The district court found that Philips sold the
entire property to DBI, including all rights, interests,
and obligations. Pandora, 2019 WL 2924995, at *9.
Thus, any obligation — such as an obligation to remove the bridges per the 1970 Easement or the 1986
License — is DBI’s obligation, not Philips’s. Id. And
the court found that Philips owed Ottawa no duty.
On appeal, Ottawa argues that Philips’s failure to
remove the bridges was negligence because it was
foreseeable that someone could be harmed if the
bridges were not removed, as demonstrated by the
provisions in the Easement and License requiring
removal.
As with the claim against the Railroad, above, this
argument is frivolous. Philips has no responsibility for
the bridges. We affirm the district court’s judgment on
this claim.
V.
For the forgoing reasons, we AFFIRM in part and
REVERSE in part the judgments of the district court,
and REMAND for further proceedings consistent with
this opinion.
14a
Sixth Circuit Judgment January 20, 2023.
Document: 89-3
Filed
Jan 20, 2023
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 21-3127/3158
PANDORA DISTRIBUTION, LLC,
Plaintiff - Appellee/Cross - Appellant,
v.
OTTAWA OH, LLC,
Defendant - Appellant/Cross - Appellee, DBI
PARTNERS, LLC; PHILIPS ELECTRONICS
NORTH AMERICA CORPORATION, nka
Philips North America LLC; GENESEE &
WYOMING, INC.,
Defendants - Appellees,
FIRST AMERICAN TITLE INSURANCE
COMPANY,
Third Party Defendant - Appellee.
Before: BATCHELDER, BUSH, and DAVIS,
Circuit Judges.
JUDGMENT
On Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
15a
THIS CAUSE was heard on the record from the
district court and was submitted on the briefs without
oral argument.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED for further proceedings consistent with
the opinion of this court.
ENTERED BY ORDER OF THE COURT
s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
16a
District Court Opinion and Order July 8, 2019, for
summary judgment (R. 317)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Pandora Distribution,
LLC,
Plaintiff,
v.
Ottawa OH, LLC, et al.,
Defendants.
Case No. 3:12-cv-2858
MEMORANDUM
OPINION AND ORDER
I. INTRODUCTION
It perhaps is not an exaggeration to say the
parties to this litigation agree on only two things: (1)
there are two conveyer bridges connecting two
warehouses, divided by a railroad track, in Ottawa,
Ohio; and (2) no one wants the bridges to be there
anymore. There is substantial disagreement on nearly
everything else, including the primary questions
presented by the parties’ motions for summary
judgment which are currently before me – who owns
the bridges, who is responsible for removing them,
and who, if anyone, is responsible for compensating
another party for any damage which results from the
presence, removal, or both, of the bridges?
Pandora Distribution, LLC; Ottawa OH, LLC
(“Ottawa”); Philips Electronics North America Corporation (“Philips”); Genessee & Wyoming, Inc.; and,
First American Title Insurance Company each have
filed motions for summary judgment on a variety of
17a
claims, counter-claims, and cross-claims.
No. 250, 251, 252, 256, 257, and 258).
(Doc.
II. BACKGROUND
In 1970, Philips1 entered into an agreement with
the Detroit, Toledo and Ironton Railroad (the “Detroit
Railroad”). Under this agreement, the Detroit
Railroad granted Philips an easement to construct,
use, and maintain a conveyer bridge between two
warehouses in Ottawa, Ohio, which Philips owned
(along with other buildings and additional, adjoining
real property) and which were separated by the
Detroit Railroad’s railroad tracks (the “Easement
Agreement”). (Doc. No. 251-2 at 47-51). The conveyer
bridge was designed to transfer pallets of material
between the two warehouses. The Easement
Agreement approved specific plans for the
construction of the conveyer bridge and required
Philips to make changes to the conveyer bridge if
necessitated by changes made to the railroad tracks.
(Doc. No. 251-2 at 47-51).
In 1986, Philips and the Grand Trunk Western
Railroad Company, which had replaced the Detroit
Railroad as the entity in control of the railroad tracks,
entered into a license agreement for the construction
of a second conveyer bridge between Philips’
warehouses (the “License Agreement”). (Doc. No. 2512 at 43-46). The License Agreement has an initial
term of one year, and automatically renews for
1 The properties involved in this litigation were owned by a
variety of Philips-related entities – eight, by my count. (See Doc.
No. 256 at 13 n.4). The precise route and times of ownership does
not appear to be a subject of dispute in this litigation and, for the
sake of simplicity, I will refer generally to these organizations as
“Philips.”
18a
additional one-year terms, unless the agreement is
terminated upon 60 days’ written notice. (Doc.
No. 251-2 at 43). That agreement also provides that,
upon the termination of the License Agreement, the
Licensee is “to remove all Licensee’s material from the
premises of the [railroad] and to leave the same in a
neat, clean and level condition.” (Id.).
This state of affairs continued without substantial
change until October 11, 2005, when Philips sold all
of the real property it owned at 700 N. Pratt Street in
Ottawa, Ohio, along with all personal property
located on the premises, to DBI Partners, LLC. DBI
then split off a portion of this property, which it sold
to Pandora on January 24, 2006. This portion, which
DBI transferred to Pandora through a limited
warranty deed, is located to the east of the railroad
tracks over which the conveyer bridges pass (the
“Pandora Property”).
DBI and Pandora also executed a document titled
“Encroachment Agreement.” (Doc. No. 251-7). The
Encroachment Agreement was recorded in the
Putnam County, Ohio Recorder’s Office on the same
day as the deed to the Pandora Property, and states
that DBI and Pandora “agree that the two (2) existing
conveyers shown on the Topographic Survey [dated
January 16, 2006 and prepared in connection with the
purchase and sale of the Pandora Property] shall
remain the sole property of DBI .... “ (Doc. No. 251-7
at 1). The Encroachment Agreement also requires
DBI to assume the cost of repairing and maintaining
the conveyer bridges, and to obtain Pandora’s prior
written consent before removing them. (Id.). Further,
the Encroachment Agreement permitted Pandora to
demand DBI remove the conveyer bridges and repair
any resulting damage to the Pandora Property. (Id.).
19a
Subsequently, DBI sold another portion of
property to Ottawa. (Doc. No. 252-10). This portion,
which DBI also transferred through a limited
warranty deed, is located to the west of the railroad
tracks over which the conveyer bridges pass (the
“Ottawa Property”).
Michael Borer, then an attorney and title agent
based in Putnam County, Ohio, assisted with first the
Philips sale to DBI and the later DBI sales to Pandora
and Ottawa. For each transaction, Borer issued title
insurance commitments and title insurance policies
underwritten by First American.
Shortly after Ottawa and DBI completed the
purchase and sale of the Ottawa Property, Pandora
requested that Ottawa repair the conveyer bridges,
asserting Ottawa had assumed DBI’s responsibility to
do so under the Encroachment Agreement. Ottawa
refused, contending it had not purchased the conveyer
bridges and that it did not have any obligations under
the Encroachment Agreement because Ottawa was
not a party to that agreement. Pandora, Ottawa, DBI,
and Borer attempted to resolve the dispute over the
conveyer bridges throughout 2007, but those
discussions ultimately were unsuccessful. By early
2008, DBI ceased participating in the discussions, and
further attempts by Pandora and Ottawa to
informally resolve the dispute also failed.
Pandora subsequently filed suit in November
2012, initiating a stream of pleadings. Pandora
initially named Ottawa and DBI as defendants. (Doc.
No. 1). Ottawa answered the complaint and filed a
counterclaim against Pandora, (Doc. No. 13), but DBI
failed to respond to the complaint and Pandora
obtained a default judgment against DBI. (Doc.
No. 62). Pandora later amended its complaint to add
20a
claims against Philips and Genesee & Wyoming. (Doc.
No. 25). Ottawa amended its counterclaim against
Pandora, added a crossclaim against DBI, and filed a
third-party complaint against First American,
Philips, and Genesee & Wyoming. (Doc. No. 26).
Ottawa later amended its third-party complaint and
its crossclaim. (Doc. No. 48).
Philips asserted a crossclaim against Ottawa,
DBI, and Genesee & Wyoming, and a counterclaim
against Pandora, (Doc. No. 56), but subsequently
dismissed those claims without prejudice. (Doc.
No. 64). Pandora then filed a second amended
complaint, (Doc. No. 65), Ottawa amended its thirdparty complaint against First American, (Doc.
No. 67), and First American asserted a counterclaim
against Ottawa. (Doc. No. 72).
Pandora later filed a third amended complaint,
dropping its claims against Genesee & Wyoming,
after the railroad assigned its claims to Pandora.
(Doc. No. 131). Pandora then filed a fourth amended
complaint, (Doc. No. 205), and Ottawa further
amended its third-party complaint against First
American. (Doc. No. 212).
III. STANDARD
Summary judgment is appropriate if the movant
demonstrates there is no genuine dispute of material
fact and that the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a).
All evidence must be viewed in the light most
favorable to the nonmovant, White v. Baxter
Healthcare Corp., 533 F.3d 381, 390 (6th Cir. 2008),
and all reasonable inferences are drawn in the
nonmovant’s favor. Rose v. State Farm Fire & Cas.
Co., 766 F.3d 532, 535 (6th Cir. 2014). A factual
21a
dispute is genuine if a reasonable jury could resolve
the dispute and return a verdict in the nonmovant’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A disputed fact is material only if its
resolution might affect the outcome of the case under
the governing substantive law. Rogers v. O’Donnell,
737 F.3d 1026, 1030 (6th Cir. 2013).
IV. ANALYSIS
Each remaining party in this litigation has filed
for summary judgment. First American seeks
summary judgment on the claims asserted in
Ottawa’s third-party complaint as well as on First
American’s counterclaim against Ottawa. (Doc.
No. 250). Pandora seeks summary judgment on all
claims in dispute between itself and Ottawa. (Doc. No.
251). Genesee & Wyoming also seeks summary
judgment on Ottawa’s claims against it. (Doc. No.
252). Philips requests summary judgment on all
claims asserted against it by Pandora and Ottawa.
(Doc. No. 256). Ottawa seeks summary judgment on
Pandora’s claims against it, (Doc. No. 257), and on its
claims against First American. (Doc. No. 258).
A. THE BRIDGES
The issue of who owns the conveyer bridges is the
starting point for analyzing any of the parties’ claims,
and the answer to the ownership question begins with
determining the proper characterization of the
conveyer bridges.
While American law has long adhered to the
“simple and natural classification of property into the
obvious and universal distinction of things moveable
and things immovable, things tangible and things
intangible,” Teaff v. Hewitt, 1 Ohio St. 511, 526 (1853),
there remain some items which do not fit neatly into
22a
one category or the other and which in fact may move
between the categories. Property that once was
moveable may be attached to immoveable property in
such a way that the law treats the formerly-moveable
property as immoveable. More specifically, items of
personal property, like metal and rubber, may be
converted into fixtures and then treated as real
property.
Personal property may be converted into a fixture
if the following criteria are met: “(1) [a]ctual
annexation to the realty or something appurtenant
thereto; (2) appropriation to the use or purpose of the
realty with which it is connected; and (3) the intention
of the party making the annexation to make the
article a permanent accession to the freehold.”
Zangerle v. Standard Oil Co. of Ohio, 60 N.E.2d 52,
56 (Ohio 1945).
The first criterion, considered “the least
important,” requires a “very slight” physical connection of the personal property and the real property.
Holland Furnace Co. v. Trumbull Savings & Loan
Co., 19 N.E.2d 273,275 (Ohio 1939). The conveyer
bridges were secured to the warehouses on the
Pandora Property and the Ottawa Property and could
not be easily removed. Therefore, I conclude the
conveyer bridges satisfy the first factor of the fixture
formulation. See, e.g., Masheter v. Boehm, 295 N.E.2d
917, 920 (Ohio Ct. App. 1973) (“Masheter I’’) (noting
“[t]he chattel may be bolted or screwed in place ....”)
(rev’d on other grounds).
The second criterion has received a relativelylower amount of attention from courts applying these
factors, but generally seeks to distinguish “between
chattels primarily devoted to the business conducted
on the premises and chattels devoted primarily to the
23a
realty itself.” Masheter v. Boehm, 307 N.E.2d 533, 538
(Ohio 1974) (“Masheter II”). The conveyer bridges
were not used merely for the idiosyncratic purposes of
Philip’s business. Cf. Wheeling-Pittsburgh Steel Corp.
v. Bd. of Revision, 271 N.E.2d 861 (Ohio 1971)
(holding the caging system of an egg production
facility was personal property, not a fixture); Roseville
Pottery, Inc. v. Cnty. Bd. of Revision, 77 N.E.2d 608
(Ohio 1948) (pottery kilns attached to concrete slabs
were not fixtures). Instead, they were installed for the
general purpose of connecting two buildings and
offered benefits to subsequent owners of the real
property. See, e.g., Zangerle v. Standard Oil,
60 N.E.2d at 54 (citing “driveways” and “bridges” as
an example of property permanently attached to real
property which could benefit later owners even if
those owners were involved in a different business);
Masheter II, 307 N.E.2d at 538 (“[A]rticles annexed to
the premises so as to become a part of it, even though
of benefit to any and all businesses which might be
carried on there, take on the legal characteristics of
real property.”)
The final criterion requires a court to determine
whether the article was intended to be permanently
annexed to the real property. “[I]t is not necessarily
the real intention of the owner of the chattel which
governs. His apparent or legal intention to make it a
fixture is sufficient.” Holland Furnace Co., 19 N.E.2d
at 275. This intention
may be inferred from the nature of the article
affixed, the relation and situation of the party
making the annexation, the structure and
mode of annexation, the purpose and use for
which the annexation is made, the utility in
use or the indispensability of the combination
24a
when the chattel is once attached to the realty
in the use of the whole, and the relationship
of the owner of the chattel to the owner of the
realty and to others who may become
interested in or owners of the property.
Id. at 275-76.
The Holland Furnace Co. discussion conclusively
points the facts of this case to the determination that
the conveyer bridges are fixtures. Philips owned both
of the warehouses when it constructed the conveyer
bridges between those warehouses. It created
openings in the walls of both warehouses in order to
attach the conveyer bridges, and also created a means
of utilizing the conveyer bridges from within both
buildings.
While Pandora argues Philips could not have
intended for the conveyer bridges to be permanent
because the Easement Agreement and the License
Agreement included provisions covering the removal
of the conveyer bridges, (Doc. No. 290 at 11), the case
law is clear that the term “permanence” does not
mean “unending.” A fixture “is not less a fixture
because, having a limited life, it may have to be
eventually replaced, or substantially overhauled.”
Masheter I, 295 N.E.2d at 920. The Easement and
License Agreements provided no more than a
structure for the possible removal of the conveyer
bridges and offer no indication as to whether Philips
or the railroad intended the conveyer bridges to be
real property or personal property. The “[i]ntention to
render a chattel a fixture is ... the determination to
devote the chattel to the use and service of the land or
structure already a part of the land, in such manner
as to enhance the serviceability of the whole as a
permanent unit of property to whatsoever use it may
25a
be devoted.” Zangerle v. Standard Oil Co., 60 N.E.2d
at 58.
A reasonable person viewing the warehouses
together would conclude the conveyer bridges were
part of the buildings – that is, that they were part of
the real property – and were not merely a temporary
addition to the business which the owner intended to
remove. Id. (“Intention to permanently attach must be
inferred from all the surrounding circumstances
which can be objectively observed.”).
B. PANDORA AND OTTAWA
The proper characterization of the bridges quickly
resolves the question of ownership.
1. The Deeds
Fixtures are real property, Teaff, 1 Ohio St. at
527, and they are transferred between parties in the
same manner as real property – by deed. Under Ohio
law, “[i]n a conveyance of real estate ..., all rights,
easements, privileges, and appurtenances belonging
to the granted estate shall be included in the
conveyance, unless the contrary is stated in the deed,
and it is unnecessary to enumerate or mention them
either generally or specifically.” Ohio Rev. Code §
5302.04 (emphasis added).
The conveyer bridges first passed from Philips to
DBI. Philips transferred all of its “right, title, and
interest” in the warehouses and the adjacent property
to DBI by limited warranty deed. (Doc. No. 251-2 at
31-39). This deed did not contain an exception for the
conveyer bridges.
The conveyer bridges next passed from DBI to
Pandora. DBI granted its interest in the Pandora
Property to Pandora by limited warranty deed. (Doc.
26a
No. 251-6). This deed also did not contain an exception
for the conveyer bridges.
Pandora consistently contends it “did not intend
to purchase the conveyers ....” (Doc. No. 251 at 7).
While this may be true, it is not sufficient to overcome
the effect of what Pandora in fact did. The words of
the deed Pandora accepted are clear, and clearly
conveyed to Pandora all real property described in
Exhibit A to the deed. See, e.g., Alexander v. Buckeye
Pipe Line Co., 374 N.E.2d 146, 150 (Ohio 1978)
(“[C]ommon words appearing in a written instrument
are to be given their plain and ordinary meaning
unless manifest absurdity results or unless some
other meaning is clearly intended from the face or
overall contents of the instrument.”); Esteph v.
Grumm, 887 N.E.2d 1248, 1252 (Ohio Ct. App. 2008)
(“When a deed is worded in clear and precise terms
and its meaning is evident upon its face, there is no
need to go beyond the four corners of the document.”
(citing Hinman v. Barnes, 66 N.E.2d 911, 916 (Ohio
1946))).
When the terms of a written document “are clear
and unambiguous, [a] court cannot in effect create a
new contract by finding an intent not expressed in the
clear language employed by the parties.” Alexander,
374 N.E.2d at 150. If, as Pandora contends, it did not
intend to buy the conveyer bridges, it had an
opportunity to insist that DBI amend the language of
the deed to conform to what Pandora describes as the
parties’ agreement. Once it accepted the deed,
however, Pandora became bound by the terms of the
deed. See, e.g., 37 Robinwood Assocs. v. Health Indus.,
Inc., 547 N.E.2d 1019, 1021 (Ohio Ct. App. 1988).
27a
2. The Encroachment Agreement
While it appears Pandora recognized there were
problems with the deed from DBI, Pandora’s attempt
to resolve those problems – the Encroachment
Agreement – was not effective in its apparent
intended goal of relieving Pandora of the burden of
ownership of the conveyer bridges. The Encroachment
Agreement states that DBI and Pandora agreed the
conveyer bridges “shall remain the sole property of
DBI.” (Doc. No. 251-7 at 1). DBI, however, no longer
owned the conveyer bridges; it transferred them by
deed to Pandora.
Further, the Encroachment Agreement does not
contain language which demonstrates the intent to
convey real property from a grantor to a grantee.
Lighthorse v. Clinefelter, 521 N.E.2d 1146, 1148 (Ohio
Ct. App. 1987) (“It is generally held that a conveyance
must contain operative words which indicate the
intention to effect a grant.” (citing 26 Corpus Juris
Secundum (1956) 637, 637- 639, Deeds, Section 28.)).
In interpreting a deed, “a court must analyze the
language used in the deed, ‘the question being not
what the parties meant to say, but the meaning of
what they did say, as courts [cannot] put words into
an instrument which the parties themselves failed to
do.”‘ Am. Energy Corp. v. Datkuliak, 882 N.E.2d
463,474 (Ohio Ct. App. 2007) (quoting Lanvill v.
Farrelly, 8 Ohio App. 356,360 (1918)).
Pandora, having received the conveyer bridges
through the deed from DBI, was required to use words
of conveyance in order to vest ownership of the
conveyer bridges back with DBI. See, e.g., Ohio Rev.
Code. § 5302.03 (“In a conveyance of real estate or any
interest therein, the word “grant” is a sufficient word
of conveyance without the use of more words. No
28a
covenant shall be implied from the use of the word
“grant.”); Lighthorse, 521 N.E.2d at 1148 (“While it is
unnecessary to specifically employ the word ‘grant,’
some word of like import is necessary in order to effect
a conveyance.”). It did not do so. Whatever obligations
DBI may have assumed by executing the
Encroachment Agreement, it did not reacquire
ownership of the conveyer bridges.
Gasely v.
Separtists’ Soc. of Zoar, 13 Ohio St 144, 154 (1862) (If
an attempted transfer is inoperative or void, “the
property necessarily reverts to its former owners ....”).
As a result, the parties’ arguments about whether
Ottawa’s deed sufficiently excluded the conveyer
bridges become moot. At the time of its conveyance of
the Ottawa Property, DBI no longer owned the
conveyer bridges and therefore it could not have
convey them to Ottawa. Pandora bought all fixtures
associated with the Pandora Property and the
Encroachment Agreement is not sufficient to transfer
the conveyor bridges back to DBI.
Further, even if the Encroachment Agreement
could be held to impose the specific obligations
described within that agreement upon DBI, there is
no basis to extend those obligations to Ottawa. As
Ottawa argues, “a bona fide purchaser for value is
bound by an encumbrance upon land only if he has
constructive
or
actual
knowledge
of
the
encumbrance.” Emrick v. Multicon Builders, Inc.,
566 N.E.2d 1189, 1193 (Ohio 1991) (quoting Tiller v.
Hinton, 482 N.E.2d 946, 949 (Ohio 1985)). The
Supreme Court of Ohio’s discussion of the
enforceability of unrecorded land use restrictions in
Emrick applies without difficulty to the duties and
obligations the Encroachment Agreement purportedly would impose on Ottawa as a successor in title to
29a
DBI. (Doc. No. 251-7 at 1). Ottawa cannot be charged
with constructive notice because the Encroachment
Agreement was never recorded in the chain of title for
the Ottawa Property, and Pandora offers no evidence
Ottawa actually knew about the Encroachment
Agreement. Emrick, 566 N.E. 2d at 1193.
As Pandora concedes, “Ottawa apparently did not
itself have direct actual knowledge of the
Encroachment Agreement . . . .” (Doc. No. 290 at 27).
The fact that Borer was involved in both transactions
and drafted the Encroachment Agreement is not
relevant. Borer was not Ottawa’s agent for any and all
purposes; to the extent Borer was Ottawa’s agent, he
was Ottawa’s agent only for the purpose of issuing the
title commitment. There is no basis to impute his
general knowledge of the Encroachment Agreement to
Ottawa, because Borer did not locate the
Encroachment Agreement while performing the title
work for Ottawa, and he “did not recall [the
Encroachment Agreement] at the time [he] issued the
commitment”. (Doc. No. 254-125).
Ohio law is clear that a principal is not deemed to
know everything an agent has ever known. Instead,
“the notice or knowledge, which shall be imputed to
the principal . . . is that only which relates to the . . .
transaction in reference to which that agent is
authorized to act by and for the principal.” First Nat.
Bank of New Bremen v. Burns, 103 N.E. 93, 94 (Ohio
1913). The Eighth District Court of Appeals decision
in Acacia on the Green Condominium Association, Inc.
v. Jefferson, 47 N.E.3d 207 (Ohio Ct. App. 2016), upon
which Pandora relies, does not identify any exception
to this general rule. In that case, the title examiner
discovered a prior mortgage while performing the title
work on behalf of another mortgage company and
30a
actually informed the mortgage company’s title
agency about the prior mortgage. Id. at 209.
Moreover, Pandora fails to demonstrate how
Ottawa’s desire to hold Borer and First American
responsible for any liability Ottawa might have
incurred in this litigation expands the extent of the
agency relationship between Ottawa and Borer. In
any event, as I discuss below, Ottawa’s claims against
First American fall short.
Ottawa’s awareness of the existence of the bridges
does not equate to actual or constructive knowledge of
the requirements contained in the Encroachment
Agreement, and those requirements are not
enforceable against Ottawa. Emrick, 566 N.E.2d at
1194.
3. Resolution of Claims between Pandora
and Ottawa
a. Pandora
Pandora asserts seven claims against Pandora:
breach of the Encroachment Agreement, trespass,
nuisance, a claim for declaratory judgment
concerning ownership of the conveyer bridges, a quiet
title action, an action for ejectment, and a claim for
equitable relief concerning Pandora’s alleged duty to
remove the conveyer bridges. (Doc. No. 205 at 4-14).
Pandora and Ottawa both seek summary judgment on
these claims. (Doc. No. 251 and 257). Pandora’s
ownership of the conveyer bridges undermines the
purported basis for these claims, and Ottawa is
entitled to judgment in its favor on those claims.
A contract is binding only upon the parties to a
contract. Am. Rock Mechanics, Inc. v. Thermex Energy
Corp., 608 N.E.2d 830, 833 (Ohio Ct. App. 1992).
Ottawa is not a party to the Encroachment
31a
Agreement, and it is not bound by the provisions of
that agreement.
“A common-law tort in trespass upon real
property occurs when a person, without authority or
privilege, physically invades or unlawfully enters the
private premises of another whereby damages
directly ensue.” Apel v. Katz, 697 N.E.2d 600, 607
(Ohio 1998) (citations omitted). “One may commit a
trespass by invading the airspace of the property of
another.” Misseldine v. Corp. Investigative Sem., Inc.,
2003-Ohio-2740, 2003 WL 21234928, at *5 (Ohio Ct.
App. May 29, 2003) (citation omitted). A plaintiff who
asserts a claim for a private nuisance must show there
has been “‘a nontrespassory invasion of another’s
interest in the private use and enjoyment of land’ ...
[which is] either (a) intentional and unreasonable or
(b) unintentional but caused by negligent, reckless, or
abnormally dangerous conduct.” Kramer v. Angel’s
Path, L.L.C., 882 N.E.2d 46, 52 (Ohio Ct. App. 2007)
(quoting Brown v. Scioto Cnty. Bd. of Commrs.,
622 N.E.2d 1153, 1158 (Ohio Ct. App. 1993)). Pandora
fails to establish Ottawa has unlawfully invaded
Pandora’s property.
Finally, Pandora cannot maintain a quiet title or
ejectment action, and Pandora is not entitled a
declaratory judgment or to an order in equity
requiring Ottawa to pay for the removal of the
conveyer bridges, because Pandora owns the conveyer
bridges.
Ottawa is entitled to summary judgment on each
of Pandora’s claims against it.
b. Ottawa
Ottawa asserted five claims against Pandora:
negligence, trespass, nuisance, mutual mistake, and
32a
a claim for a declaratory judgment concerning
ownership of the conveyer bridges. (Doc. No. 26 at 1624). Pandora seeks summary judgment on each claim.
(Doc. No. 251). Ottawa did not move for summary
judgment on its claims against Pandora. (Doc.
No. 257-1 at 5).
Pandora claims it is entitled to summary judgment on Ottawa’s negligence, nuisance, and trespass
claims. A plaintiff who asserts a claim for negligence
must show “the existence of a duty, a breach of the
duty, and an injury resulting proximately therefrom.”
Menifee v. Ohio Welding Prod, Inc., 472 N.E.2d 707,
710 (Ohio 1984). Ottawa argues “[a]ll three of the tort
claims call upon the Court to consider whether
Pandora’s maintenance of the bridges it owns, which
are located on property it [possesses] and controls,
and which are defined as encumbrances on the
property of Ottawa[,] have caused Ottawa damage.”
(Doc. No. 262 at 18, n.17). I conclude Pandora has not
demonstrated the absence of a genuine issue of
material fact as to each of the elements of these claims
and is not entitled to summary judgment on them.
Nor is Pandora entitled to summary judgment on
Ottawa’s claim for declaratory judgment. While
Ottawa has not moved for summary judgment on this
claim, Rule 56(f) permits a court to enter summary
judgment in favor of a party who did not move for it
“[a]fter giving notice and a reasonable time to
respond.” Livingston Christian Sch. v. Genoa Charter
Twp., 858 F.3d 996, 1000 (6th Cir. 2017), cert. denied,
138 S. Ct. 1696, 200 L. Ed. 2d 952 (2018). While
granting summary judgment on a claim in the
absence of a motion is “discourage[d],” a court “may do
so in certain limited circumstances, so long as the
losing party was on notice that [it] had to come
33a
forward with all of [its] evidence.” Smith v. Perkins
Bd. of Educ., 708 F.3d 821, 829 (6th Cir. 2013)
(internal quotation marks and citations omitted)
(alterations in original). As I discussed above, I
conclude Pandora owns the conveyer bridges, and
Ottawa is entitled to a declaratory judgment to that
effect.
Pandora, however, is entitled to summary
judgment on Ottawa’s claim for mutual mistake,
regarding the Encroachment Agreement. A claim for
mutual mistake seeks reformation of a written
instrument. Patton v. Ditmyer, 2006-Ohio-7107, 2006
WL 3896780 at *5 (Ohio Ct. App. Dec, 29, 2006).
“Where a statute requires certain formalities for the
execution of an instrument, reformation cannot be
granted to supply these formalities.” Delfino v. Paul
Davies Chevrolet, Inc., 209 N.E.2d 194, 197 (Ohio
1965). The Encroachment Agreement lacks
statutorily-required words of conveyance and the
doctrine of reformation may not be used to add such
words.
C. FIRST AMERICAN
First American is entitled to summary judgment
on each of Ottawa’s claims against it. (Doc. No. 212).
The policy First American provided does not protect
against every source of damage to Ottawa’s property.
(See, e.g., Doc. No. 250-1 at 26-27). As Ottawa
acknowledges, First American’s policy “insures
Ottawa against ‘title being vest other than as stated”
in the title commitment. (Doc. No. 268 at 12). First
American provided Ottawa with a title insurance
policy, and Ottawa offers no evidence there is
anything wrong with its title. Ottawa fails to provide
evidence that the possibility that Ottawa’s property
may be worth less than Ottawa paid for it, because of
34a
the presence of the conveyer bridges, is a matter
covered by the title insurance policy. As a result,
Ottawa fails to establish a genuine dispute of material
fact concerning its breach of contract claim or its
declaratory judgment claim against First American,
and First American is entitled to summary judgment
as a matter of law.
First American also is entitled to summary
judgment on Ottawa’s negligence and fiduciary duty
claims, because Ottawa fails to establish First
American breached any duty it may have had to
Ottawa, or that Ottawa suffered any damage as a
result of any hypothetical breach. Finally, Ottawa
fails to identify facts to support its fraud and bad faith
claims against First American, and First American is
entitled to summary judgment on those claims as
well.
D. GENESEE & WYOMING
Genesee & Wyoming seeks summary judgment on
Ottawa’s claims for negligence, trespass, private
nuisance, and declaratory judgment. (Doc. No. 252).
Ottawa’s tort claims fall short because Genesee &
Wyoming owes no duty to Ottawa. Ottawa claims
Genesee & Wyoming is liable because it could have
required that Philips remove the bridges but failed to
do so. (Doc. No. 263 at 24). Even if Genesee &
Wyoming previously could have required Philips to
remove the bridges, it no longer can do so because, as
I discuss below, Philips no longer has any obligations
under the Easement Agreement or the License
Agreement. Further, and as Genesee & Wyoming
argues, “[i]f having a contractual right vis-à-vis
another party is all that is required to create a duty
to third parties, the exception would swallow the rule
35a
and create unexpected and unwelcome exposure that
would be difficult, and in some cases, impossible, to
predict at the time of contracting.” (Doc. No. 288 at
14).
Finally, Genesee & Wyoming is entitled to
summary judgment on Ottawa’s declaratory judgment claim, (Doc. No. 48 at 23-24), because there is no
evidence that Genesee & Wyoming has any
responsibility for maintaining or removing the
conveyer bridges.
E. PHILIPS
Pandora asserts claims against Philips for
equitable relief, negligence, breach of contract, a
third-party beneficiary breach of contract claim based
upon the contract between Philips and the Detroit
Railroad, and for declaratory relief. (Doc. No. 205).
Pandora, pursuant to a settlement and assignment
agreement with Genesee & Wyoming, (Doc. No. 2057), also asserts claims on behalf of the railroad against
Philips. (Doc. No. 205 at 15). Ottawa asserts claims
against Philips for negligence, trespass, nuisance, and
for declaratory judgment. (Doc. No. 48). Philips seeks
summary judgment on all of these claims. (Doc.
No. 256).
Philips sold all of its rights to and interest in the
property located at 700 N. Pratt in Ottawa, Ohio,
including all improvements, appurtenances, fixtures,
and “personal property of every kind”, to DBI. (Doc.
No. 251-2 at 1-23). While Pandora alleges Philips has
a duty to maintain and remove the conveyer bridges
under the Easement Agreement and the License
Agreement, Pandora is unable to point to any facts or
law which would justify separating contractual
obligations from the property rights covered by those
36a
agreements.
Unless otherwise stated, the sale of a dominant
tenement includes the usage rights formalized by an
easement. See, e.g., Pence v. Darst, 574 N.E.2d
548,551 (Ohio Ct. App. 1989) (“Once an easement
becomes part of the chain of title of the dominant
property, such easement passes with the transfer of
the property.”). “[A]n easement holder may not
impose additional burdens upon the servient estate by
engaging in additional usage of the easement.”
Goralske v. Parsell, 59 N.E.3d 730, 738-39 (Ohio Ct.
App. 2016) (citation omitted).
Pandora fails to establish a basis for the necessary
conclusion that some restrictions contained in the
Easement Agreement – such as the limitation that the
easement be used only for the operation of a conveyer
bridge – pass from one owner of the dominant
tenement to the next, but other restrictions – such as
the conditions of the removal of the conveyer bridges
or the indemnification provisions – remain with the
initial owner of the dominant tenement, who no
longer holds any property interest in either the
dominant or servient tenements. Further, what
Pandora advocates would enlarge the easement,
because it would permit subsequent owners to use the
easement without the express conditions imposed by
the easement’s grantor.
Pandora and Ottawa also fail to establish Philips
has any remaining obligations under the License
Agreement. As an initial matter, the License
Agreement did not require Philips to “tear down the
conveyer.” (Doc. No. 269 at 8). Instead, that
agreement required the “Licensee . . . to remove all of
Licensee’s material from the premises of the
Licensor.” (Doc. No. 251-2 at 43). Once Philips
37a
completed its transaction with DBI, Philips no longer
owned any material on or around the railroad’s
property – DBI did.
Moreover, the License Agreement granted Philips
a revocable license to use the air rights over the
railroad tracks, and that agreement terminated when
Philips sold the warehouses to DBI. Countrywide
Landfill Inc. v. Charton, 1993 WL 437748, at *2 (Ohio
Ct. App. Oct. 25, 1993) (“A license which does not run
with the land is terminated when the purpose has
been accomplished or by conveyance of the property.”)
(citing Fowler v. Delaplain, 87 N.E. 260 (Ohio 1909),
and 36 O.Jur.3d, Easement and Licenses, Sections
114, 115, p. 523-24).
The License Agreement also contains no indication that the parties intended for the indemnification
provision to survive the termination of the contract,
and Pandora and Ottawa fail to show it would be
appropriate for me to conclude now that the parties in
fact had such an intention. See, e.g., Chicago W.
Pullman Corp. v. Quinn, No. 98CA007048, 1999 WL
74628, at *3 (Ohio Ct. App. Feb. 9, 1999) (noting a
court “in effect create[s] a new contract by finding an
intent not expressed in the clear language employed
by the parties”) (quoting Alexander, 374 N.E.2d at
150).
Finally, Ottawa’s tort claims against Philips fail
for the same reasons as its tort claims against First
American. Ottawa fails to identify evidence to support
the conclusion that Philips owed a duty to Ottawa, or
that it breached any duty it hypothetically owed.
Philips is entitled to summary judgment on each
of the claims asserted against it.
38a
V. CONCLUSION
For the reasons stated above:
(a) Pandora’s motion for summary judgment,
(Doc. No. 251), is granted in part and denied in part.
The motion is granted as to Ottawa’s claim for mutual
mistake, and denied on all other grounds;
(b) Ottawa’s motion for summary judgment as to
Pandora’s claims against Ottawa, (Doc. No. 257), is
granted, and its motion for summary judgment as to
Ottawa’s claims against First American, (Doc.
No. 258), is denied;
(c) First American’s motion for
judgment, (Doc. No. 250), is granted;
summary
(d) Genesee & Wyoming’s motion for summary
judgment, (Doc. No. 252), is granted;
(e) Philips’ motion for summary judgment, (Doc.
No. 256), is granted; and
(f) Having concluded the record evidence and
applicable law conclusively establish that Pandora
owns the conveyer bridges, I enter summary
judgment on Ottawa’s claim for declaratory judgment
as to the ownership of the conveyer bridges. Ottawa’s
negligence, nuisance, and trespass claims remain
outstanding.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
39a
District Court Judgment Entry July 8, 2019, for
summary judgment (R. 318)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Pandora Distribution,
LLC,
Plaintiff,
v.
Ottawa OH, LLC, et al.,
Defendants.
Case No. 3:12-cv-2858
JUDGMENT ENTRY
Pandora Distribution, LLC; Ottawa OH, LLC;
Philips Electronics America Corporation; Genessee &
Wyoming, Inc.; and First American Title Insurance
Company each have filed motions for summary
judgment on a variety claims, counter-claims, and
cross-claims. (Doc. No. 250, 251, 252, 256, 257, and
258). For the reasons stated in the Memorandum
Opinion and Order filed contemporaneously:
(a) Pandora’s motion for summary judgment,
(Doc. No. 251), is granted in part and denied in part.
The motion is granted as to Ottawa’s claim for mutual
mistake, and denied on all other grounds;
(b) Ottawa’s motion for summary judgment as to
Pandora’s claims against Ottawa, (Doc. No. 257), is
granted, and its motion for summary judgment as to
Ottawa’s claims against First American, (Doc.
No. 258), is denied;
(c) First American’s motion for summary judgment, (Doc. No. 250), is granted;
40a
(d) Genesee & Wyoming’s motion for summary
judgment, (Doc. No. 252), is granted;
(e) Philips’ motion for summary judgment, (Doc.
No. 256), is granted; and
(f) Having concluded the record evidence and
applicable law conclusively establish that Pandora
owns the conveyer bridges, I enter summary
judgment on Ottawa’s claim for declaratory judgment
as to the ownership of the conveyer bridges. Ottawa’s
negligence, nuisance, and trespass claims remain
outstanding.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
41a
District Court Opinion and Order November 5, 2019,
denying reconsideration (R. 334)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Pandora Distribution,
LLC,
Plaintiff,
v.
Ottawa OH, LLC, et al.,
Defendants.
Case No. 3:12-cv-2858
MEMORANDUM
OPINION AND ORDER
I. INTRODUCTION
Pandora Distribution, LLC (“Pandora”) and Ottawa OH, LLC (“Ottawa”) have filed motions for
reconsideration of my opinion ruling on summary
judgment motions filed by Pandora, Ottawa, Philips
Electronics North America Corporation (“Philips”),
Genessee & Wyoming, Inc., and First American Title
Insurance Company on a variety of claims, counterclaims, and cross-claims. (Doc. No. 320 and Doc.
No. 323). Ottawa subsequently filed a “corrected”
motion for reconsideration in order to provide
documents of greater clarity, which I appreciate. (Doc.
No. 331). The briefing on the motions for
reconsideration is complete. For the reasons stated
below, I deny both motions.
II. BACKGROUND
I laid out the factual and procedural history of this
litigation in my earlier summary judgment opinion.
See Pandora Distribution, LLC v. Ottawa OH, LLC, et
42a
al., No. 3:12-cv-2858, 2019 WL 2924995 (N.D. Ohio
July 8, 2019) (“Pandora I’’). Briefly, this case involves
contract and tort claims regarding two warehouses in
Ottawa, Ohio, which are separated on the surface by
railroad tracks operated by Genesee & Wyoming but
connected by two conveyer bridges. The eastern
warehouse is owned by Pandora (the “Pandora
Property”) and the western warehouse is owned by
Ottawa (the “Ottawa Property”). Pandora and Ottawa
each purchased their respective properties from DBI
Partners, LLC, in separate transactions. Ottawa
purchased the Ottawa Property approximately 11
months after Pandora had purchased the Pandora
Property. Pandora subsequently sued Ottawa and
DBI, seeking to require one or both to pay for the
removal of the conveyer bridges.
I previously concluded the conveyer bridges are
fixtures which, pursuant to Ohio Revised Code
§ 5302.04, DBI conveyed to Pandora during the purchase of the Pandora Property. Pandora I, 2019 WL
2924995, at *3-5. On that basis, I concluded (a)
Ottawa was entitled to summary judgment on each of
Pandora’s claims against it and on Ottawa’s
declaratory judgment claim against Pandora; (b)
Pandora was entitled to summary judgment on
Ottawa’s claim for mutual mistake but not on Ottawa’s tort claims against Pandora; (c) First American
was entitled to summary judgment on each of Ottawa’s claims against it; (d) Genesee & Wyoming was
entitled to summary judgment on Ottawa’s claims
against it; and (e) Philips was entitled to summary
judgment on all claims against it. Id. at *6-10.
Pandora and Ottawa both requested leave to file
motions for reconsideration. (Doc. No. 319). As First
American points out, (Doc. No. 325 at 1), Ottawa
43a
requested “leave to raise arguments for clarification
of my ruling concerning its claims against First
American Title Insurance Company, specifically First
American’s alleged duty to defend Ottawa in this
litigation.” (Doc. No. 319 at 2). Instead, Ottawa filed a
motion for reconsideration of all of my rulings
concerning its claims against First American as well
as my rulings against Pandora and those in Ottawa’s
favor. While Ottawa exceeded the scope of the leave I
granted, I conclude that does not warrant dismissing
Ottawa’s motion for reconsideration as being
untimely and without leave of court. Had Ottawa
accurately described its intentions, I likely would
have granted Ottawa leave to file its motion.1 Now
that the motion has been filed and fully briefed, the
principles promoting resolution of claims on their
merits weighs in favor of resolving the motion as filed.
Pandora challenges (1) my rejection of Count Ten
of its Complaint, which seeks equitable relief against
Ottawa, Philips, or both; and (2) my conclusion that
ownership of the conveyer bridges transferred to
Pandora pursuant to the deed Pandora received when
it purchased the Pandora Property from DBI. (Doc.
No. 320).
For its part, Ottawa challenges my conclusion
that First American did not breach its promises to
defend Ottawa or to indemnify Ottawa for dishonesty,
fraud, or a failure to deliver requested documents.
(Doc. No. 331). Ottawa also challenges my rulings
1 Notwithstanding the fact that Ottawa’s response to
Pandora’s motion for reconsideration amounts to its third
request for reconsideration of my opinion denying its motions for
leave to file new summary judgment motions. (Doc. No. 285; Doc.
No. 311; Doc. No. 316).
44a
that the conveyor bridges were fixtures that were
conveyed by deed from Philips to DBI and then from
DBI to Pandora, and my ruling that Philips has no
duty to indemnify Pandora for the cost of removing
the conveyor bridges. (Doc. No. 322).
III. STANDARD
While “[d]istrict courts have inherent power to
reconsider interlocutory orders,” Mallory v. Eyrich,
922 F.2d 1273, 1282 (6th Cir. 1991), the bar for
granting a motion for reconsideration is set high. See,
e.g., Reich v. Hall Holding Co., 990 F. Supp. 955, 965
(ND. Ohio 1998) (citing Petition of U.S. Steel Corp.,
479 F.2d 489,494 (6th Cir. 1973)) (“The major grounds
justifying reconsideration of interlocutory orders are
an intervening change of controlling law, the
availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.”).
Motions for reconsideration under Rule 59(e) are
not intended to give a party “an opportunity to relitigate matters already decided . . . [or to be] a substitute
for appeal.” Turner v. City of Toledo, 671 F. Supp. 2d
967, 969 (N.D. Ohio 2009) (quoting Roger Miller
Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383,
395 (6th Cir.2007)). “Whatever may be the purpose of
Rule 59(e) it should not be supposed that it is intended
to give an unhappy litigant one additional chance to
sway the judge.” Dana Corp. v. United States, 764 F.
Supp. 482, 489 (N.D. Ohio 1991) (quoting Durkin v.
Taylor, 444 F. Supp. 879 (E.D. Va. 1977)).
IV. ANALYSIS
A. THE BRIDGES
In ruling on the various summary judgment
motions filed by the parties, I concluded the conveyor
bridges were fixtures which passed by deed from
45a
Philips, which constructed them, to DBI when DBI
purchased the real property that underlies this
litigation. Pandora I, 2019 WL 2924995, at *3-5. I also
concluded the conveyor bridges passed by deed from
DBI to Pandora through the deed to the Pandora
Property and that the Encroachment Agreement
between DBI and Pandora did not nullify the transfer
or transfer the conveyor bridges back to DBI. Id. at
*5-6. Pandora and Ottawa argue I made a clear error
of law in reaching these conclusions.
1. Fixtures
Ottawa claims the conveyor bridges were Philips’
personal property, not fixtures, and did not transfer
pursuant to the deeds and that the easement agreement and license agreement between Philips and the
railroad could not have transferred to DBI, or
subsequently to Pandora or Ottawa, because they
involve personal rights, not property rights. (Doc.
No. 320 at 10-24).
“Personal property may be converted into a fixture if the following criteria are met: ‘(1) [a]ctual
annexation to the realty or something appurtenant
thereto; (2) appropriation to the use or purpose of the
realty with which it is connected; and (3) the intention
of the party making the annexation to make the
article a permanent accession to the freehold.”
Pandora I, 2019 WL 2924995, at *3 (quoting Zangerle
v. Standard Oil Co. of Ohio, 60 N.E.2d 52, 56 (Ohio
1945)). I applied these criteria to the facts of this case
and concluded the conveyor bridges are fixtures.
Ottawa argues I got every one of these factors
wrong. (Doc. No. 322 at 19).
First, Ottawa contends the conveyor bridges are
not fixtures because they are not located on land,
46a
seeing that they cross the railroad’s air rights. (Id. at
19-20). According to Ottawa, “[t]he bridges are on the
Railroad’s land because the contracts say so and
because the Railroad owns air rights above its land.”
(Doc. No. 320 at 20).
Ottawa’s argument quickly falls apart, even in the
light of the Ohio Court of Common Pleas case upon
which it relies. As Ottawa notes, in Cleveland Electric
Illuminating Co. v. Continental Express, 733 N.E.2d
328 (Ohio Com. Pl. 1999), the court held “power poles
were fixtures on an easement, not on the properties
served.” (Doc. No. 322 at 20). In that case, “the utility
pole and the attached equipment” are annexed to the
real property because the utility pole is secured to the
ground. Cleveland Elec. Illum. Co., 733 N.E.2d at 329.
The plaintiff had been granted an easement in the
land from the city of Cleveland, and the plaintiff, not
the city of Cleveland, had standing to bring a cause of
action for damages caused to the fixtures. Id. at 32829.
If the grantee of an easement maintains ownership rights in property that has been erected within
the easement, then the conveyer bridges plainly do
not belong to the railroad. Bridges are appurtenant to
the land to which they connect, not the air through
which they pass. See, e.g., Mid-Ohio Mech., Inc. v.
Carden Metal Fabricators, Inc., 862 N.E.2d 543, 548
(Ohio Ct. App. 2006) (An appurtenance is “‘[a]n article
adapted to the use of the property to which it is
connected, and which was intended to be a permanent
accession to the freehold. A thing is deemed to be
incidental or appurtenant to land when it is by right
used with the land for its benefit, as in the case of a
way, or watercourse, or of a passage for light, air, or
heat from or across the land of another.’” (quoting
47a
Black’s Law Dictionary 94 (5th Ed.1979)); Sandusky
Bay Bridge Co. v. Fall, 181 N.E. 112, 113 (Ohio Ct.
App. 1931) (holding that the status of a bridge and its
approaches as fixtures to real property was not
affected by the partial construction of the bridge in air
space over navigable waters); Citizens’ Sav. & Tr. Co.
v. Cincinnati & D. Traction Co., 140 N.E. 380, 391
(Ohio 1922) (“The underlying principle of the law of
fixtures is that ‘whatever is annexed to the soil
becomes a part thereof.’”).
Second, Ottawa argues the conveyor bridges are
not fixtures because they “were designed and built to
avoid interfering with the Railroad’s operations . . .
[and therefore] were adaptations to the Railroad’s
land.” (Doc. No. 322 at 20). Ottawa also claims the
conveyer bridges are business fixtures2 under Litton
Systems, Inc. v. Tracy, 728 N.E.2d 389 (Ohio 2000),
not fixtures to real property. (Id.).
I concluded above that Ottawa’s first argument
lacks merit. In its second argument, Ottawa fails to
acknowledge the evident differences between the
conveyor bridges in this case and the conveyors at
issue in Litton Systems. The conveyors in that case
were installed entirely inside two distribution centers
and simply attached to the pre-existing beams and
supports of the distribution centers. Litton Sys., Inc.,
2 A “business fixture” is “an item of tangible personal
property that has become permanently attached or affixed to the
land or to a building, structure, or improvement, and that
primarily benefits the business conducted by the occupant on the
premises and not the realty.” Ohio Rev. Code Ann. § 5701.03(B).
In essence, a business fixture is property secured to realty which
fails to satisfy the second Teaff factor (which requires the item
benefit the realty and not simply the business conducted on the
realty).
48a
728 N.E.2d at 389. By contrast, the conveyor bridges
between the two warehouses required structural
alterations to the outside of the buildings, and a
subsequent business which owned one or both of the
warehouses could not simply “remove the [conveyor
bridges] and use in another way the space the
[conveyor bridges] occupied.” Id. at 392.
Third, Ottawa argues the conveyor bridges are
not permanent because the easement agreement and
the license agreement gave the railroad the option to
require Philips to remove the conveyor bridges. (Doc.
No. 322 at 21-22). Ottawa then proceeds to support
its argument with a misstatement of my decision in
Pandora I, an erroneous claim that Holland Furnace
Co. v. Trumbull Savings & Loan Co. has been
overruled, and a return to its incorrect argument that
the conveyor bridges are business fixtures and could
never be considered real property. (Id.).
“[W]hile an agreement between the parties is
relevant as to the issue of intent, . . . . an intent to
create a fixture also has an objective component in
that for a chattel to be found to be a fixture, it must
be affixed to the realty in such a manner that it will
indicate to all persons dealing with the realty that it
was the intention and purpose of the owner of the
chattel to make it a permanent attribute of the
realty.” In re Jarvis, 310 B.R. 330, 336 (Bankr. N.D.
Ohio 2004) (citing Holland Furnace Co. v. Trumbull
Sav. & Loan Co., 19 N.E.2d 273 (Ohio 1939)).
A party’s objective or outward-facing intention to
permanently annex a chattel to real property:
may be inferred from the nature of the article
affixed, the relation and situation of the party
making the annexation, the structure and
49a
mode of annexation, the purpose and use for
which the annexation is made, the utility in
use or the indispensability of the combination
when the chattel is once attached to the realty
in the use of the whole, and the relationship
of the owner of the chattel to the owner of the
realty and to others who may become
interested in or owners of the property.
Pandora I, 2019 WL 2924995, at *4 (quoting Holland
Furnace Co., 19 N.E.2d at 275-76). The “intention of
the party making the annexation, . . . being inferred
from the nature of the article affixed, the relation and
situation of the party making the annexation, the
structure and mode of annexation, and the purpose or
use for which the annexation has been made”
objectively demonstrate that Philips, by connecting
two buildings it owned through two openings it
created in those two buildings, intended the conveyor
bridges to be “permanent accession[s].” Teaff v.
Hewitt, 1 Ohio St. 511, 530 (1853) (emphasis in
original).
Further, Ottawa misstates the terms of the easement agreement and the license agreement. Those
agreements did not make removal “mandatory.” (See
Doc. No. 322 at 22). Rather, they set out circumstances in which the railroad could terminate the
license or in which the easement may expire. (Doc.
No. 251-2 at 43-44, 47-48). The railroad’s attempts to
safeguard its ownership interest in its air rights does
not alter the objective circumstances which indicate
Philips intended the conveyer bridges to be fixtures.
Cf. Masheter v. Boehm, 295 N.E.2d 917, 920 (Ohio Ct.
App. 1973), rev’d on other grounds, 307 N.E.2d 533
(Ohio 1974) (Property “is not less a fixture because,
50a
having a limited life, it may have to be eventually
replaced, or substantially overhauled.”).
2. Conveyance
Both Pandora and Ottawa claim that, even if the
conveyor bridges are fixtures, the deed to the Pandora
Property is ambiguous because it did not mention the
conveyor bridges, and therefore the deed must be
construed against DBI, excluding the conveyor
bridges. (Doc. No. 320 at 12; Doc. No. 322 at 25).
Again, § 5302.04 plainly states “all rights, easements,
privileges, and appurtenances belonging to the
granted estate shall be included in the conveyance,
unless the contrary is stated in the deed, and it is
unnecessary to enumerate or mention them either
generally or specifically.” Ohio Rev. Code § 5302.04;
see also Pandora I, 2019 WL 2924995, at *4-5. Neither
Pandora nor Ottawa cites any case law limiting the
effect of this statutory provision, because there is
none. This argument, while essential to Pandora’s
and Ottawa’s desired outcomes for this case, lacks any
merit. The fact that the deed was silent as to the
conveyor bridges means the deed transferred the
conveyor bridges, which are appurtenances to the
Pandora Property. Ohio Rev. Code § 5302.04 (“. . . it is
unnecessary to enumerate or mention them either
generally or specifically” (emphasis added)).
Nevertheless, Ottawa persists, arguing that the
Encroachment Agreement “was part of the deed.”
(Doc. No. 322 at 26). If this were true, of course, one
might expect to find evidence of the Encroachment
Agreement within the four corners of the deed from
DBI to Pandora. No such reference exists, (Doc.
No. 252-10), and therefore Ottawa’s argument lacks
any merit.
51a
3. Severance
Next, Pandora argues I failed to take into account
that the conveyor bridges were “actually a part of both
parcels,” and that the deed to the Pandora Property
could not have transferred the conveyor bridges
because it did not also transfer an interest in the
portion of the Ottawa Property to which the conveyor
bridges attach. (Doc. No. 320 at 11).
Ohio law does not require that a chattel be
irremovable in order to become a fixture. See Teaff, 1
Ohio St. at 528. Nor does it prohibit a fixture from
becoming a chattel again, and later regaining the
status of a fixture once again. Andover Twp. Bd. of
Trustees v. O’Brien, 823 N.E.2d 524, 528 (Ohio Ct.
App. 2004) (“The fact that the property owner could
cut off [a structure] does not make the structure any
less a fixture while it still stands.”). While it requires
great skill and a careful approach, a house may be
removed from its foundation and transported to a new
location, where it may once again be affixed to the real
property.
Further, Ohio law recognizes that, in some circumstances, a fixture may be constructively severed
from real property even though it has not actually
been removed. See, e.g., Masheter, 295 N.E.2d at 92526. Therefore, it is not necessary for the deed to the
Pandora Property to describe some portion of the
Ottawa Property in order for Ohio law to mandate the
conclusion that Pandora purchased the conveyor
bridges. The conveyor bridges remained fixtures on
the Pandora Property after the transfer of that
property constructively severed the conveyor bridges
from DBI’s ownership interest in the other warehouse.
52a
Moreover, the conveyor bridges are no less
fixtures simply because they encroach onto a
neighboring property. See, e.g., Jacks v. Brewington,
896 N.E.2d 226, 227 (Ohio Ct. App. 2008) (The
encroachment of the defendant’s house onto a
neighboring property was evidence of the open and
exclusive possession of a two-foot wide area of the
plaintiffs’ property.); McGuire v. Kashen, No. L-94294, 1995 WL 547781 (Ohio Ct. App. Sept. 15, 1995)
(driveway which encroached onto neighboring
property was an open and adverse use of neighboring
property).
4. Deed Reformation
Both Pandora and Ottawa argue Pandora’s deed
may be reformed to reflect the alleged intent of the
Encroachment Agreement. I previously concluded
“[t]he Encroachment Agreement lacks statutorilyrequired words of conveyance and the doctrine of
reformation may not be used to add such words.”
Pandora I, 2019 WL 2924995, at *8. Pandora and
Ottawa fail to acknowledge this conclusion or offer
any reason why Ohio law does not mandate that
outcome. See Delfino v. Paul Davies Chevrolet, Inc.,
209 N.E.2d 194, 197 (Ohio 1965) (“Where a statute
requires certain formalities for the execution of an
instrument, reformation cannot be granted to supply
these formalities.”).
Nor can the parties belatedly assert a deed
reformation claim concerning the deed to the Pandora
Property. Neither Pandora nor Ottawa pled a claim
seeking reformation of the limited warranty deed
between Pandora and DBI. There is a ten-year statute
of limitations for deed reformation claims, Ohio
Revised Code § 2305.14, and the limitations period
begins to run when the parties execute the deed and
53a
not when they discover an alleged mistake. See, e.g.,
United States v. Skorepa, No. 5:05 CV 750, 2005 WL
3634605, at *7 (N.D. Ohio Dec. 20, 2005).
Further, the exception to the statute of limitations
found in Ohio Revised Code § 2305.22 exists to permit
a purchaser “in possession of real property to have
that property legally conveyed to him.” Freeport
Lodge #415 Free & Accepted Masons of Ohio v. MC
Mineral Co., 120 N.E.3d 422,426 (Ohio Ct. App. 2018).
That exception does not apply in this case because
Pandora does not claim the deed should have included
the bridges and mistakenly did not; rather it seeks to
avoid the consequences of the deed it accepted.
5. Merger by Deed
Pandora also argues I erred in citing to 37
Robinwood Associates v. Health Industries, Inc., 547
N.E.2d 1019 (Ohio Ct. App. 1988), which discusses the
doctrine of merger by deed. (Doc. No. 320 at 12-14).
While concluding the plain language of the deed
between DBI and Pandora transferred the conveyor
bridges to Pandora pursuant to Ohio Revised Code
§ 5302.04, I wrote that if Pandora “did not intend to
buy the conveyer bridges, it had an opportunity to
insist that DBI amend the language of the deed to
conform to what Pandora describes as the parties’
agreement. Once it accepted the deed, however,
Pandora became bound by the terms of the deed.”
Pandora I, 2019 WL 2924995, at *5.
While the merger-by-deed doctrine may not be
directly relevant to the relationship between Pandora
and Ottawa, (Doc. No. 320 at 13), it is relevant to the
relationship between Pandora and DBI. “The doctrine
of ‘merger by deed’ holds that whenever a deed is
delivered and accepted ‘without qualification’
54a
pursuant to a sales contract for real property, the
contract becomes merged into the deed and no cause
of action upon said prior agreement exists.”
37 Robinwood Assocs., 547 N.E.2d at 1021. “[I]f there
is a specific survival clause in the prior contract of
sale, or in a contemporaneous document delivered at
the same time as the deed, which states that its
provisions are to survive the delivery of the deed, then
the merger doctrine does not apply.” V.T. Larney, Ltd.
v. Locust St. Inv. Co., LP, 2019-Ohio-496, ¶ 28, 2019
WL 549646, at *5 (Ohio Ct. App., Feb. 4, 2019).
Neither the purchase agreement for the Pandora
Property nor the Encroachment Agreement contained
the types of survival clauses necessary to avoid the
merger-by-deed doctrine. By accepting the deed from
DBI, Pandora became bound by its plain language,
which I already have concluded mandates the
transfer of the conveyor bridges to Pandora. Further,
DBI’s
obligations
under
the
Encroachment
Agreement are a matter of contract, not real property
law, because, while the language of the Encroachment
Agreement was insufficient to transfer ownership of
the conveyor bridges back to DBI, the contractual
language was sufficient to impose those obligations on
DBI. (See Doc. No. 25 at 5-6).
6. Philips’ Alleged Duty of Indemnification
Finally, Ottawa also claims I erred by ruling
Philips has no duty to indemnify Pandora (through
Genessee & Wyoming’s assignment of rights) because
Philips and the railroad intended the indemnification
clause of the license agreement to survive the
termination of that agreement. (Doc. No. 322 at 2829). Ottawa’s argument relies on an incorrect reading
of the license agreement.
55a
I concluded Philips no longer owned any
“material” on the property in question because it sold
all of its “material” to DBI, and that the license
agreement terminated when Philips completed its
transaction with DBI. Pandora I, 2019 WL 2924995,
at *9-10. Section 5, upon which Ottawa relies, does
not reference the indemnification provision and says
nothing about whether the parties intended for the
indemnification provision to survive termination of
the contract. The phrase in § 5, “[o]n the expiration,
revocation or cancellation [of the license agreement],”
triggers the licensee’s contractual duty to remove all
of its “material from the premises . . . and to leave the
same in a neat, clean and level condition.” (Doc.
No. 251-2 at 43). If the licensee did not do so within
20 days, the licensor could perform the work and was
entitled to be reimbursed by the licensee within 30
days after providing a “bill for same.” (Id.).
The contract’s termination was a condition
precedent to the licensee’s duty to remove “material.”
When a contract does not state a time period in which
a contractual duty must be performed, Ohio law
requires that duty be performed in a “[r]easonable
time . . . to be determined from the surrounding
conditions and circumstances which the parties
contemplated at the time the contract was executed.”
Miller v. Bealer, 608 N.E.2d 1133, 1135 (Ohio Ct. App.
1992). The license agreement contemplated the
licensee could remove “all [its] material” within 20
days of the termination of the agreement, and if the
licensee did not do so, the licensor could do the work
and bill the licensee. (Doc. No. 251-2 at 43). Ottawa
offers no plausible basis to conclude, in view of the
plain terms of the contract, that the licensor’s ability
to choose to do the work and subsequently bill Philips
extends indefinitely.
56a
Further, the indemnification provision is found in
§ 3 of the license agreement, not § 5. (Doc. No. 251-2
at 43). If the parties wanted to provide for the survival
of this provision beyond the termination of the
agreement, they could have done so. See, e.g., Litton
Fin. Printing Div. v. N.L.R.B., 501 U.S. 190, 207
(1991) (stating the general principle that “contractual
obligations will cease, in the ordinary course, upon
termination of the [contract]”). Contrary to Ottawa’s
claim, it is easy to imagine a clear statement of the
parties’ intent on this matter. The contract easily
could have stated that “the parties intend the rights
and responsibilities stated in § 3 to survive the
termination or expiration of this agreement.” It did
not include this or similar language, and the
condition- precedent language of § 5 in no way conveys
an intent to require Philips to indemnify Genesee &
Wyoming indefinitely.
Pandora and Ottawa fail to show I committed a
clear error in concluding Pandora owns the bridges.
B. PANDORA’S CLAIM FOR EQUITABLE
RELIEF
Pandora asserts I “misunderstood” the scope of
Count Ten of its complaint, which purports to assert
a claim for equitable relief against Philips and
Ottawa. (Doc. No. 320 at 8). As Pandora
acknowledges, (id. at 5), Rule 8 requires a party to
offer “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). As Pandora also acknowledges, what
Count Ten says “is more accurately described as
broadly requesting an equitable remedy if a legal one
is unavailable despite the fact that Pandora took
considerable action to ensure it did not purchase the
[conveyor bridges].” (Doc. No. 320 at 3).
57a
There are a number of problems with Pandora’s
arguments, but it is sufficient to discuss two in
resolving Pandora’s motion for reconsideration.
First, Pandora had a legal remedy – a breach of
contract claim against DBI. Pandora made such a
claim and received a judgment in its favor on that
claim, through my entry of a default judgment against
DBI in the amount of $160,000, plus costs. (Doc.
No. 62).
Under
Pandora’s
“more
accurate[]
descri[ption]” of Count Ten, Pandora’s request for
equitable relief is mooted by the fact it obtained legal
relief.
Pandora no doubt will argue that it still has an
equitable claim because it has not been able to collect
on its judgment against DBI. Whatever the relative
merit of this argument may be, Pandora did not plead
a claim for equitable relief. It broadly alleged that
equity should permit Pandora to recover relief in some
form that “was impossible to predict at the pleading
stage . . . .” (Doc. No. 320 at 3). Pleadings which are
“not sufficiently definite or certain to apprise the
defendant of the basis for the relief claimed” do not
state a claim for relief. Blake v. De Vilbiss Co., 118
F.2d 346, 347 (6th Cir. 1941); see also Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (U.S. 2007) (“[T]he
pleading must contain something more ... than ... a
statement of facts that merely creates a suspicion [of]
a legally cognizable right of action”) (quoting 5 C.
Wright & A. Miller, Federal Practice and Procedure§
1216, pp. 235-236 (3d ed.2004)) (emphasis added).
Pandora also argues I made a clear error in
granting summary judgment on Count Ten because
equity should bind Ottawa “by some species of consent
for the conveyors to remain in place.” (Doc. No. 320 at
6). Pandora goes on to discuss implied easements and
58a
an easement by estoppel. (Id at 6-7). Pandora’s
arguments fall short.
“An implied easement or way of necessity is based
upon the theory that without it the grantor or grantee,
as the case may be, [cannot] make use of his land.”
Trattar v. Rausch, 95 N.E.2d 685, 689 (Ohio 1950).
Pandora offers no reason to conclude this type of
necessity exists in this case.
Nor can Pandora show the facts of this case create
an easement by estoppel, as “such an easement cannot
be claimed by one who has not been misled or caused
in any way to change his position to his prejudice.”
Monroe Bowling Lanes v. Woodsfield Livestock Sales,
244 N.E.2d 762, 765 (Ohio Ct. App. 1969). Pandora,
which did not demand anyone remove the conveyor
bridges until after Ottawa completed its purchase of
the Ottawa Property, offers no evidence it was misled
by any party remaining in this litigation.
Pandora fails to show I committed a clear error in
granting summary judgment on Count Ten of its
complaint.
C. OTTAWA AND FIRST AMERICAN
Ottawa claims I committed a clear error in
concluding First American had no duty to defend
Ottawa in this litigation, or to indemnify Ottawa for
damages Ottawa allegedly suffered due to First
American’s participation in a constructive fraud
scheme. (Doc. No. 331 at 8, 16). Ottawa’s arguments
are based on an incorrect statement of the terms of
the title insurance policy.
Insurers have “an absolute duty to defend an
action when the complaint contains an allegation in
any one of its claims that could arguably be covered
by the insurance policy, even in part and even if the
59a
allegations are groundless, false, or fraudulent.”
Sharonville v. Am. Emp’rs Ins. Co., 846 N.E.2d 833,
837 (Ohio 2006) (citing Sanderson v. Ohio Edison Co.,
635 N.E.2d 19 (Ohio 1994)). “Where the provisions of
the policy are clear and unambiguous, courts cannot
enlarge the contract by implication so as to embrace
an object distinct from that originally contemplated
by the parties.” Rhoades v. Equitable Life Assurance
Soc’y of U. S., 374 N.E.2d 643, 644 (Ohio 1978) (citing
Motorists Mut’l Ins. Co. v. Tomanski, 271 N.E.2d 924
(Ohio 1971)). Ottawa has the burden of establishing
coverage under the title insurance policy. Inland
Rivers Serv. Corp. v. Hartford Fire Ins., 418 N.E.2d
1381, 1383 (Ohio 1981).
While the insurer’s duty to defend does not
depend upon the ultimate resolution of the litigation,
a complaint does not trigger the insurer’s duty to
defend “when all the claims are clearly and
indisputably outside of the contracted policy coverage.” Sharonville, 846 N.E.2d at 837. Title insurance
policies limit the extent of the title insurer’s liability
to the insured through the use of exclusions and
exceptions from coverage. Exclusions from coverage
“limit the applicability of the insuring clauses,” while
exceptions from coverage prohibit the insured from
recovering under a policy when “a specific exception is
established even though there would be insurance if a
loss occurred and no exception existed.” Peoples Bldg.
& Loan Co. v. Safeco Title Ins. Co. of Md., No. 10569,
1988 WL 72388, at *8 (Ohio Ct. App. July 5, 1988).
Ottawa incorrectly claims the title insurance
policy does not include any exceptions related to
encroachments. (Doc. No. 331 at 8 (“The Policy has no
exceptions
from
coverage
for
the
alleged
encroachments or the Encroachment Agreement.”)).
60a
The policy plainly does. The policy states it “is a
contract of indemnity against actual monetary loss or
damage sustained or incurred by the insured claimant
who has suffered loss or damage by reason of matters
insured against by this policy and only to the extent
herein described.” (Doc. No. 212-4 at 3, § 7). The
contract between Ottawa and First American goes on
to state, in a schedule titled “EXCEPTIONS FROM
COVERAGE,” it “does not insure against loss or
damage (and [First American] will not pay costs,
attorneys’ fees or expenses) which arise by reason of .
. . a License Agreement between Grand Trunk
Western Railroad Company and Philips ECG, Inc.,
dated December 18, 1986, relating to the elevated
conveyor bridge . . . [and] an encroachment by an
existing overhead bridge conveyor onto the premises
in question . . . .” (Id. at 5-6 (bolding, underlining, and
use of capital letters in original)).
Though these exceptions may be broad, they are
not ambiguous. Ohio law presumes the parties’ intent
is “reflected in the language used in the policy,” and a
policy is not ambiguous simply because the policy does
not define a term. Chicago Title Ins. Co. v. Huntington
Nat’l Bank, 719 N.E.2d 955, 959 (Ohio 1999) (citations
omitted). The “plain and ordinary meaning of the
language used in the policy” is that the policy does not
provide coverage for claims which arise from the
conveyor bridges. Id. Therefore, First American had
no duty to defend Ottawa against Pandora’s claims for
damages it allegedly suffered as a result of the
conveyor bridges.
Ottawa seeks to circumvent the plain language of
the contract it agreed to by concocting an elaborate
story which accuses at least four individuals of
engaging in a scheme of constructive fraud beginning
61a
over ten months prior to Ottawa’s purchase. But,
because Ottawa’s end goal actually is reinstating its
bad-faith claim against First American (for First
American’s alleged failure to notify Ottawa it
purportedly was purchasing the conveyer bridges),
Ottawa’s story must explain why Pandora does not
own the conveyor bridges. As I concluded above,
Ottawa and Pandora fail to show I committed a clear
error of law in concluding Pandora owns the conveyor
bridges.
Ottawa fails to establish I committed a clear error
of law in concluding First American had no duty to
defend Ottawa in this litigation or that First
American is entitled to summary judgment on
Ottawa’s other claims against it.
V. CONCLUSION
For the reasons stated above, I conclude the
motions for reconsideration filed by Pandora, (Doc.
No. 320), and Ottawa, (Doc. No. 331), lack merit.
Therefore, those motions are denied.
So Ordered.
s / Jeffrey J. Helmick
United States District Judge
62a
District Court Opinion and Order September 18,
2020, denying leave for further reconsideration
(R. 345)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Pandora Distribution,
LLC,
Plaintiff,
v.
Ottawa OH, LLC, et al.,
Defendants.
Case No. 3:12-cv-2858
MEMORANDUM
OPINION AND ORDER
I. INTRODUCTION AND BACKGROUND
This case involves contract and tort claims
regarding two warehouses in Ottawa, Ohio, owned by
Pandora Distribution, LLC, and Ottawa OH, LLC,
which are separated on the surface by railroad tracks
operated by Genesee & Wyoming, Inc., but connected
by two conveyer bridges. The eastern warehouse is
owned by Pandora (the “Pandora Property”) and the
western warehouse is owned by Ottawa (the “Ottawa
Property”). Pandora and Ottawa each purchased their
respective properties from DBI Partners, LLC, in
separate transactions. Ottawa purchased the Ottawa
Property approximately 11 months after Pandora had
purchased
the
Pandora
Property.
Pandora
subsequently sued Ottawa and DBI, seeking to
require one or both to pay for the removal of the
conveyer bridges. I previously concluded the conveyer
bridges are fixtures which DBI conveyed to Pandora
63a
during the purchase of the Pandora Property. (See
Doc. No. 317; Doc. No. 334).
Ottawa has filed a motion for leave to file another
motion for reconsideration.1 (Doc. No. 336). In this
motion, Ottawa challenges my decision denying its
motion for reconsideration of my earlier opinion
ruling on summary judgment motions filed by
Pandora, Ottawa, Philips Electronics North America
Corporation (“Philips”), Genessee & Wyoming, Inc.,
and First American Title Insurance Company on a
variety of claims, counter-claims, and cross-claims.
(Doc. No. 334). Ottawa asserts my decision violated its
due-process rights to notice and an opportunity to be
heard. (Doc. No. 336 at 2). First American and Philips
filed briefs in opposition to Ottawa’s motion. (Doc.
No. 337; Doc. No. 339). Ottawa filed a brief in reply.
For the reasons stated below, I deny Ottawa’s motion.
II. ANALYSIS
Motions for reconsideration under Rule 59(e) are
not intended to give a party “an opportunity to
relitigate matters already decided . . . [or to be] a
substitute for appeal.” Turner v. City of Toledo, 671 F.
Supp. 2d 967, 969 (N.D. Ohio 2009) (quoting Roger
Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d
383, 395 (6th Cir.2007)). “Whatever may be the
purpose of Rule 59(e) it should not be supposed that it
is intended to give an unhappy litigant one additional
chance to sway the judge.” Dana Corp. v. United
States, 764 F. Supp. 482, 489 (N.D. Ohio 1991)
(quoting Durkin v. Taylor, 444 F. Supp. 879 (E.D. Va.
1977)). Yet, that appears to be precisely Ottawa’s
supposition.
1 (See Doc. No. 285; Doc. No. 311; Doc. No. 316; Doc. No. 323)
64a
Rule 56 expressly incorporates the due-process
principles on which Ottawa relies. Under that Rule,
“[a]fter giving notice and a reasonable time to
respond, the court may grant summary judgment for
a nonmovant, grant the motion on [legal or factual]
grounds not raised by a party, or consider summary
judgment on its own after identifying for the parties
material facts that may not be genuinely in dispute.”
Fed. R. Civ. P. 56(f); see also Fed. R. Civ. P. 56, 2010
advisory committee note.
“The key inquiry is whether the losing party was
on notice that he had to muster the necessary facts to
withstand summary judgment, lest he face the
dismissal of his claims.” Smith v. Perkins Bd. of Educ.,
708 F.3d 821, 829 (6th Cir. 2013) (quoting Excel
Energy, Inc. v. Cannelton Sales Co., 246 F. App’x 953,
959-60 (6th Cir. 2007)). In making this inquiry, a
court looks to “the totality of the proceedings . . . [and]
considers whether the prevailing party moved for
summary judgment; whether the losing party moved
for summary judgment; what issues the parties
focused on in their briefs; what factual materials the
parties submitted to the court; and whether motions
were filed by co-defendants.” Smith, 708 F.3d at 829
(quoting Turcar, LLC v. I.R.S., 451 F. App’x 509, 513
(6th Cir. 2011)); see also Everest Stables, Inc. v.
Rambicure, 803 F. App’x 819, 822 (6th Cir. 2020).
Ottawa begins with an objection to my remark
that “the conveyor bridges between the two
warehouses required structural alterations to the
outside of the buildings.” (Doc. No. 334 at 6). This
unremarkable observation simply alludes to a fact no
party has yet disputed in this litigation – that Philips
caused someone to create openings in the sides of the
warehouses (whether by blowtorch, metal shears, or
65a
some other tool) to permit tangible property to be
moved from inside the warehouse through the
conveyer bridges. (See also Doc. No. 334 at 7-8 (Philips
“connect[ed] two buildings it owned through two
openings it created in those two buildings . . . .”)). In
short, the structure had to be altered in order for the
conveyer bridges to serve their intended purpose.
Ottawa fails to explain how it might have been
unaware of this fact.
Next, Ottawa contends I erred when I concluded
exceptions in the title insurance policy First American
issued to Ottawa prohibit Ottawa from recovering
under that policy. Ottawa does not attempt to explain
how I violated its due-process rights with this
conclusion, perhaps implicitly conceding it could not
justifiably be surprised by my decision of and ruling
on legal and factual grounds Ottawa itself raised. (See
Doc. No. 258-1 at 11; Doc. No. 331 at 9-10). Ottawa
asserts nothing more than its conviction that I
incorrectly resolved its claims against First American.
Motions for reconsideration are not “a substitute for
appeal,” Turner, 671 F. Supp. 2d at 969, no matter
how those motions are framed.
Ottawa then contends it did not have notice that
I would reject its attempt to do an end-run around the
plain language of the title insurance policy. (See Doc.
No. 334 at 17 (“Ottawa seeks to circumvent the plain
language of the contract it agreed to by concocting an
elaborate story which accuses at least four individuals
of engaging in a scheme of constructive fraud beginning over ten months prior to Ottawa’s purchase.”)).
Ottawa argues I denied it due process by not
identifying “any misstatement of fact by Ottawa.”
(Doc. No. 336 at 2); (see also Doc. No. 338 at 2 (“Not
66a
giving notice of specific, intentional misstatement of
fact denies due process.”)).
This argument arises from an apparent
misreading of my opinion. I did not, at any point,
accuse Ottawa of engaging in fraud when it attempted
to establish a basis for relief in the face of the
contractual language it agreed to before purchasing
the Ottawa Property. I expressed no opinion as to
whether the individual factual assertions underlying
Ottawa’s theory were accurate or inaccurate. What I
concluded was that “Ottawa’s story must explain why
Pandora does not own the conveyor bridges . . . [and]
Ottawa and Pandora fail[ed] to show I committed a
clear error of law in concluding Pandora owns the
conveyor bridges.” (Doc. No. 334 at 17).
Even if Ottawa could show it lacked notice as to
any of these points, it cannot make the required
showing that it was prejudiced as a result. Smith, 708
F.3d at 830-31 (“In addition to lack of notice, a losing
party must also demonstrate that it was prejudiced by
the district court’s failure to provide an opportunity to
respond with more evidence.”). Ottawa already has
filed a comprehensive motion for reconsideration of
my summary judgment decision. (See Doc. No. 331).
Ottawa identifies no additional arguments it might
have raised or other evidence it might have produced.
Therefore, Ottawa cannot establish it suffered
prejudice.
Having addressed these pending matters, I
conclude with a matter of prospective import. While
Ottawa attempts to characterize First American’s
opposition brief as “a masterpiece of misdirection,”
(Doc. No. 338 at 2), it offers no rejoinder to First
American’s assertion that Ottawa’s complaints that
“it did not have notice and an opportunity to be heard
67a
on the very arguments Ottawa advanced [in] its own
summary judgment briefing, and continues to seek
reconsideration of issues upon which Ottawa
prevailed on summary judgment, underscore the bad
faith and vexatious nature of Ottawa’s motion for
leave.” (Doc. No. 337 at 3 (emphasis in original)).
The bar for granting a motion for reconsideration
is set high. See, e.g., Reich v. Hall Holding Co., 990 F.
Supp. 955, 965 (N.D. Ohio 1998). That bar cannot be
reached merely through repeated disagreement with
my analysis and conclusions. As my colleague U.S.
District Judge James G. Carr once ruminated,
“[t]here is a cost to making me listen to songs of that
sort.” Younglove Const., LLC v. PSD Dev., LLC, 767 F.
Supp. 2d 820, 825 (N.D. Ohio 2011).
While disfavored, motions for reconsideration
may have utility in reaching the appropriate
resolution to litigation. Therefore, I will not prohibit
Ottawa from filing any future motions for
reconsideration in this case. Instead, I will offer a
word of warning: if Ottawa files another motion for
reconsideration during this litigation and (after
evaluating the facts, the parties’ arguments, and
applicable caselaw) I conclude that motion is
frivolous, Ottawa will be sanctioned under Rule 11.
Those sanctions will include a fine in an amount up to
$2,000 and an order that Ottawa pay all attorney fees
incurred by any party in responding to that motion.
68a
III. CONCLUSION
For the reasons stated above, I deny Ottawa’s
motion for leave to file a motion for reconsideration.
(Doc. No. 336).
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
69a
District Court Order January 25, 2021, dismissing
remaining claims (R. 357)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Pandora Distribution,
LLC,
Plaintiff,
v.
Case No. 3:12-cv-2858
ORDER
Ottawa OH, LLC, et al.,
Defendants.
Plaintiff Pandora Distribution, LLC, and Defendant Ottawa OH, LLC, have filed a proposed stipulation and order of dismissal. (Doc. No. 350-1). More
specifically, Pandora and Ottawa have agreed to
stipulations concerning (a) deficient allegations in the
pleadings regarding the citizenship of the members of
the three limited liability companies involved in this
litigation; (b) the status of Pandora’s claims against
Defendant Genesee & Wyoming, Inc.; and (c) Ottawa’s
remaining claims against Pandora. (Id. at 1-3).
I previously granted leave to Defendants First
American Title Insurance Company and Philips
Electronics North America Corporation to file briefs
in response to Pandora and Ottawa’s joint proposed
stipulation. (See Doc. No. 349). Both First American
and Philips have done so. (Doc. Nos. 352 and 353).
Pandora and Ottawa filed briefs in reply to those
response memoranda. (Doc. Nos. 354 and 355). Philips
also has filed a motion for leave to file a sur-reply
brief. (Doc. No. 356).
70a
Taking the last matter first, Philips seeks leave to
file a sur-reply to the reply briefs filed by Pandora and
Ottawa because, Philips asserts, those briefs
“contains misstatements of the record and remaining
claims in this case.” (Doc. No. 356 at 1). Philips filed
its proposed sur-reply brief, which reveals that what
Philips describes as “misstatements” are simply a
product of the parties’ differing positions on the
appropriateness of the course of action Pandora and
Ottawa have proposed. (See Doc. No. 356-1 at 2-3).
Philips also reiterates its legal arguments regarding
a Raceway dismissal. (Id. (citing Raceway Properties,
Inc. v. Emprise Corp., 613 F.2d.656 (6th Cir. 1980))).
Philips identifies no new evidence or arguments
in the reply briefs to which it has not had an
opportunity to respond. Key v. Shelby Cnty., 551 F.
App’x 262, 265 (6th Cir. 2014). I am fully aware of the
factual and procedural history of this case and the
type and number of motions Ottawa has filed
throughout this litigation. (See Doc. No. 356-1 at 3).
Ottawa’s conduct, however characterized, does not
provide good cause to file a sur-reply brief in the
absence of new evidence or arguments. Therefore, I
deny Philips’ motion for leave. (Doc. No. 356).
Pandora and Ottawa first stipulate “that, as of the
commencement of this lawsuit in 2012, the two
members of Pandora were and are citizens of Indiana
and Ohio, respectively, that the sole member of Ottawa was and is a citizen of California, and that the sole
member of Defendant DBI Partners, LLC was a
citizen of Texas.” (Doc. No. 350-1 at 1). Because Pandora and Ottawa seek to amend defective jurisdictional allegations rather than deficient jurisdictional facts, Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 831-32 (1989), I accept this stipulation.
71a
Next, Pandora and Ottawa stipulate to the
dismissal of Pandora’s claims against Genesee &
Wyoming, which Pandora agreed to release and
dismiss pursuant to a binding settlement agreement.
(Doc. No. 131-6). I accept this stipulation and order
that Pandora’s claims against Genesee & Wyoming
are dismissed with prejudice. Fed. R. Civ. P. 41(a)(2).
Lastly, Pandora and Ottawa stipulate to the
dismissal with prejudice of the sole remaining claims
in this litigation: Ottawa’s claims against Pandora for
negligence, nuisance, and trespass. (See Doc. No. 317
at 18-19). Ottawa explicitly states its intent to
abandon its remaining claims by dismissing them
with prejudice so that it may appeal my resolution of
the other claims in this case, pursuant to Raceway.
(Doc. No. 350 at 4-7). Because Raceway permits
“parties to stipulate to issues or theories that they are
electing not to pursue” as long as that stipulation
prohibits the dismissing party from “changing [its]
mind,” Innovation Ventures, LLC v. Custom Nutrition
Laboratories., LLC, 912 F.3d 316, 330 (6th Cir. 2018),
I accept this stipulation and order that Ottawa’s
claims against Pandora for negligence, nuisance, and
trespass are dismissed with prejudice.
Having resolved all outstanding causes of actions,
I order the Clerk of Court to close this case.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
72a
District Court Final Judgment Entry January 25,
2021 (R. 358)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Pandora Distribution,
LLC,
Plaintiff,
v.
Ottawa OH, LLC, et al.,
Defendants.
Case No. 3:12-cv-2858
JUDGMENT ENTRY
For the reasons stated in the Order filed contemporaneously, I approve the proposed stipulation
and grant the motion for dismissal by Plaintiff
Pandora Distribution, LLC, and Defendant Ottawa
OH, LLC. (Doc. No. 350). I dismiss with prejudice
Ottawa’s remaining claims against Pandora for
negligence, nuisance, and trespass, as well as all of
Pandora’s claims against Genesee & Wyoming, Inc.
The Clerk of Court shall close this case.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
73a
ORDER SUBJECT TO REVIEW
Sixth Circuit Order April 4, 2023, denying rehearing.
Document: 102-1
Filed
Apr 4, 2023
DEBORAH S. HUNT, Clerk
Nos. 21-3127/3158
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PANDORA DISTRIBUTION, LLC,
Plaintiff-Appellee/Cross-Appellant.
v.
ORDER
OTTAWA OH, LLC, ET AL.,
Defendant-Appellant/Cross-Appellee.
BEFORE: BATCHELDER, BUSH, and DAVIS,
Circuit Judges.
The court received a petition for rehearing en
banc. The original panel has reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of the cases. The petition
then was circulated to the full court.* No judge has
requested a vote on the suggestion for rehearing en
banc.
Therefore, the petition is denied.
74a
ENTERED BY ORDER OF THE COURT
s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
*Judge Nalbandian recused himself from participation in this ruling.
75a
SUPPORTING DOCUMENTS
Easement
(R. 205-4, PageID 2175, R. 212-1, PageID 2294, R.
256-1, PageID 6027, R. 313-2, PageID 9791, R. 314-2,
PageID 9835)
VOL 212 PAGE 815
EASEMENT
THIS INDENTURE, made this 4th day of February A.D. 1970, between the DETROIT, TOLEDO
AND IRONTON RAILROAD COMPANY, a Delaware
corporation, du1y authorized to do business in the
State of Ohio, and having its principal office at 13530
Michigan Avenue, Dearborn, Michigan, 40121,
GRANTOR, and SYLVANIA ELECTRIC PRODUCTS, INC., a Delaware corporation, having its
principal office at 730 Third Avenue, New York, New
York, 10017, GRANTEE,
WITNESSETH:
Grantor, for and in consideration of the sum of
ONE HUNDRED DOLLARS ($100.00) to it in hand
paid by Grantee, receipt of which is hereby confessed
and acknowledged, does hereby grant, bargain, sell,
and convey to the Grantee, its successors and assigns
(all of whom are hereinafter referred to as the Grantee), forever, a right-of-way and easement to place,
construct, erect, operate, maintain, inspect, use and
remove a conveyor bridge over and across Grantor’s
right-of-way and tracks in the Village of Ottawa,
Ohio;
Being at Valuation Survey Station
6995+54.95, Mile Post 111.97 in Section 23,
Town 1 North, Range 7 East, Ottawa Town-
76a
ship, Putnam County, Ohio, as noted on
EXHIBIT “A” dated September 12, 1969,
attached hereto and made a part hereof.
The easement herein granted shall also include
the right to erect, inspect, operate, replace, repair,
patrol and permanently maintain upon, over and
across the above described right-of-way and easement
a 17 foot wide by 22 foot 9 inch high enclosed conveyor
bridge substantially as shown on the attached prints
(marked EXHIBIT “B”) of Drawing No. 1 of Job No.
6266, with necessary appurtenance and attachments,
and such future utility lines as Grantor may approve
in writing (all of which are hereinafter referred to as
the facility) for the purpose of transporting pallets of
television picture tubes and for such other purposes
as Granter shall approve in writing, TOGETHER
WITH the rights, easements, privileges, and
appurtenances in or to said lands, which may be
required for the full enjoyment of the rights herein
granted; the right of ingress and egress to and over
and said above described premises of the Grantor at
all times for the purpose of patrolling, repairing,
renewing or adding to the facility, and for doing
anything necessary
VOL 212 PAGE 816
or useful or convenient for the enjoyment of the
Easement herein granted; also including the privilege
of removing at any time or all of said improvements
erected upon, under, over or across said lands.
The easement granted herein is granted upon the
following terms and conditions:
1. Grantee’s conveyor bridge and all other parts
of the Facility shall be substantially as shown
77a
on the prints marked EXHIBIT “B” attached
hereto and made a part hereof;
2. If, at any time or times hereafter, the Grantor
shall desire to make any changes in its tracks,
structures, roadbed or other appurtenances of
its railroad, or construct new appurtenances
thereto, or use or permit the use of its lands for
railroad or industrial or business purposes, at
the location crossed or in any way affected by
the Facility or any part thereof, then the
Grantee shall, at its own cost and expense,
upon one hundred eighty (180) days notice in
writing to that effect from the Grantor, make
such changes in the location or construction of
said Facility, as in the judgment of the Chief
Engineer of the Grantor, may be necessary to
accommodate any future use, construction,
improvements or changes on the lands of the
Grantor;
3. The title in and to said Facility shall be
invested solely in the Grantee and all taxes
assessed against said Facility shall be paid by
the Grantee;
4. If, at any time, the Grantee shall abandon the
use of the Facility, this easement and all rights
hereby conferred upon the Grantee shall be
deemed abrogated and determined without
other action on the part of either party and in
that event the Grantee at its expense shall,
unless released therefrom in writing by the
Grantor’s Chief Engineer, actually remove or
cause to be removed all of the Facility from and
restore the premises of the Grantor;
78a
5. The Grantee shall obtain in advance, all
licenses and permits required by law and shall
comply with all laws, rules, ordinances and
regulations promulgated by lawful authorities
having jurisdiction in the matter, applicable to
the construction, maintenance or use of the
Facility and agrees to indemnify and save
harmless the Grantor against all expense,
fines, penalties, costs and judgments imposed
upon or suffered by the Grantor for failure to
do so;
6. The installation of appurtenances and attachments to the Facility shall be subject to the
written approval of the Grantor’s Chief
Engineer. In the construction, use, renewal,
maintenance, changing, removal or modification of the Facility, or any part thereof, the
Grantee shall comply with all clearances for
railroad tracks established by law and any
proposed appurtenances below a designed
minimum height of 25.00 feet above the top of
the rails (elevation 762.12’
VOL 212 PAGE 817
established from benchmark of 736.83’ for floor
of Bldg. #5 shown on EXHIBIT “B”) will be
reviewed with the Grantor and the Grantee
agrees to indemnify and save harmless the
Grantor against all expenses, cost, judgments
and liability imposed upon or suffered by the
Grantor for failure to do so;
7. The Grantee agrees to indemnify and save
harmless the Grantor from and against all
liabilities, expenses, judgments, claims and
costs for loss of or damage to Grantee’s
79a
property and property of its agents, servants,
contractors and invitees and injury to or death
of its agents, servants, contractors and
invitees, while on the property of the Grantor
in connection with the performance of the work
contemplated in the easement, except when
such loss of or damage to property or injury to
or death of persons is caused by the sole
negligence of the Grantor, or its agents,
servants, and employees;
8. The Grantee agrees to indemnify and save
harmless the Grantor from and against all
liability, expense, judgments and costs for loss
of or damage to property or injury to or death
of persons caused by or growing out of the
presence or use of the Facility, or the presence
and use of contents thereof upon the premises
of the Grantor;
9. Grantor may employ inspectors, watchmen
and flagmen for the proper and safe protection
of the property, traffic and business of Grantor
during any period of construction or
maintenance of the Facility and Grantee
agrees to reimburse Grantor for the cost
thereof, promptly upon presentation of bills
therefor. Grantee agrees to maintain the
Facility in a safe condition at all times and to
perform promptly any necessary repairs at its
own expense, when so requested in writing by
Grantor’s Chief Engineer. All work done by
Grantee pursuant to this agreement shall be
performed at such time or times, in such
manner and under such conditions as shall be
satisfactory to and approved by the Chief
Engineer of the Grantor. Grantee shall give
80a
Grantor written notice of intention to perform
any work on the Facility and shall not
commence any work until Chief Engineer of
Grantor has approved of method of performing
work and made arrangements for necessary
inspectors, watchmen or flagman;
10. Grantee agrees that any catwalk or walkway
installed on or in the conveyor bridge of the
Facility shall be used for maintenance and
emergency only and that the top of permanent
stairs constructed as shown on EXHIBIT “B”
shall be fenced and normally locked to prevent
use of the bridge as a pedestrian walkway;
11. It understood that Grantee shall reimburse
Grantor for the entire expense incurred in the
relocation of Grantor’s communication and
power lines, necessary to accommodate the
construction of the Facility. Grantee also
agrees that any shifting or supporting of
tracks, drains or other facilities of Grantor,
necessitated by proposed construction, shall
be performed by Grantor at sole expense of
Grantee;
VOL 212 PAGE 818
12. Grantor retains the right to install on and
attach to the said conveyor bridge necessary
bracket and/or crossarms for the support of
Grantor’s signal and communication wires or
cables;
13. This easement shall be in full force and effect
from the date hereof;
14. Said conveyor bridge shall be for the exclusive
use of the Grantee and the Grantee shall not
81a
permit its use by any other party or parties
without first securing the written consent of
the Grantor.
IN WITNESS WHEREOF, the Grantor has
caused this instrument to be executed as of the day
and year first above written.
In the Presence of:
s/ P.J. Freeman
P.J. Freeman
s/ J.E. Berman
J.E. Berman
DETROIT, TOLEDO AND IRONTON RAILROAD
By s/ Charles L. Towle
Charles L. Towle, President
Attest s/ R. C. Courtney
R. C. Courtney, Vice President
STATE OF MICHIGAN
COUNTY OF WAY
)
) ss.
)
On this 4th day of February, 1970, before me
appeared Charles L. Towle, to me personally known,
who being by me duly sworn did say that he is the
President of the DETROIT, TOLEDO AND IRONTON RAILROAD COMPANY, and that the seal
affixed to said instrument is the corporate seal of said
corporation and that said instrument was signed and
sealed in behalf of said corporation by the authority of
its Board of Directors, and that said Charles L. Towle
82a
acknowledged said instrument to be the free act and
deed of said corporation.
Given under my hand this 4th day of February,
1970.
s/ Louise K. White
Notary Public LOUISE K. WHITE
Notary Public, Wayne County, Mich.
My Commission Expires May 18, 1970
VOL 212 PAGE 818
SYLVANIA ELECTRIC PRODUCTS, INC.,
accepts the foregoing easement and agrees to its
terms and conditions.
In the Presence of:
s/
[illegible]
s/
[illegible]
SYLVANIA ELECTRIC PRODUCTS, INC.
By
Title
Attest
Title
[illegible]
[illegible]
[illegible]
[illegible]
96553 OK 96553
-5RECEIVED FOR RECORD
AT 2:30 O’CLOCK P.M.
Recorded February 13, 1970
FEB 11 1970
RECORD no. 212 PAGE 815
s/ [illegible]
RECORDER, PUTNAM COUNTY, OHIO
Fee $700
83a
THIS INSTRUMENT PREPARED BY:
P.J. Freeman
13530 Michigan Avenue
Dearborn, Michigan 48
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