[Cite as LRC Realty, Inc. v. B.E.B. Properties, 2018-Ohio-2887.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                        GEAUGA COUNTY, OHIO


 LRC REALTY, INC.,                                        :        OPINION

                  Plaintiff-Appellee,                     :
                                                                   CASE NO. 2016-G-0076
         - vs -                                           :

 B.E.B. PROPERTIES,                                       :

                  Defendant,                              :

 NEW PAR, d.b.a.                                          :
 VERIZON WIRELESS, et al.,
                                                          :
                  Defendants-Appellees,
                                                          :
         - vs -
                                                          :
 BRUCE BIRD, et al.,
                                                          :
                  Plaintiffs-Appellants.


 Civil Appeal from the Geauga County Court of Common Pleas.
 Case No. 2014 M 000690.

 Judgment: Affirmed in part; reversed in part; remanded.


 James F. Koehler and Timothy J. Fitzgerald, Koehler Fitzgerald LLC, 1301 East Ninth
 Street, Suite 3330, Cleveland, OH 44114 (For Plaintiff-Appellee).

 James P. Schuck, Bricker & Eckler, LLP, 100 South Third Street, Columbus, OH 43215-
 4291; and Christopher M. Ernst, Bricker & Eckler, LLP, 1001 Lakeside Avenue, East,
 Suite 1350, Cleveland, OH 44114-1718 (For Defendant-Appellee New Par, d.b.a.
 Verizon Wireless).

 Robert T. Dove and Robert A. Franco, 1007 Lexington Avenue, Mansfield, OH 44907
 (For Defendant-Appellee 112 Parker Court LLC).
 James B. Rosenthal and Ellen M. Kramer, Cohen Rosenthal & Kramer LLP, 3208 Clinton
 Avenue, Cleveland, OH 44113 (For Plaintiffs-Appellants).




TIMOTHY P. CANNON, J.

       {¶1}   Appellants, Bruce and Sheila Bird (“the Birds”), appeal the decision of the

Geauga County Court of Common Pleas, granting summary judgment in favor of

appellees, 112 Parker Court LLC (“Parker Court”) and LRC Realty, Inc. (“LRC Realty”).

The trial court’s judgment is affirmed in part and reversed in part, and the matter is

remanded.

       {¶2}   On August 27, 2014, LRC Realty filed a complaint (case No. 14M000690)

against B.E.B. Properties, Parker Court, and New Par d.b.a. Verizon Wireless (“New Par”)

“in order to settle and declare the legal rights of the parties hereto to the past and future

rental payments owed and to be paid pursuant to the terms of a certain Option to Lease

and Lease Agreement dated March 14, 1994 and recorded on April 21, 1994 * * * involving

a portion of the real property located at 112 Parker Court, Chardon, OH 44024[.]” LRC

Realty sought a declaratory judgment that it “is and will be entitled to be paid the annual

installments of rental [sic] owed pursuant to the Lease Agreement for the time period

following LRC Realty’s acquisition of legal title to the Parker Court Property on January

18, 2013.” LRC Realty also sought a money only judgment against B.E.B. Properties and

New Par “to recover the annual rental payment to which Plaintiff was entitled in the

amount of $23,688.00 which was due and payable on April 1, 2013 pursuant to the Lease

Agreement[.]”

       {¶3}   On September 5, 2014, the Birds filed a complaint (case No. 14M000717)

against New Par and LRC Realty. The Birds brought a claim for breach of contract


                                             2
against New Par, alleging the anticipatory breach of a lease agreement whereby New Par

was required to make annual payments of rent for the use of a portion of the property

located at 112 Parker Court to build and maintain a cellphone tower. The Birds brought

a claim for tortious interference with contract against LRC Realty, alleging LRC Realty

had “interfered with the contract between the Birds and New Par by instructing New Par

to make the April 2014 lease payment, and future payments, to LRC.” The Birds sought

a declaratory judgment that, “as assignees of the original lessor, B.E.B. Properties,” they

“are entitled to receive the lease payments throughout the duration of the lease[.]”

       {¶4}   New Par filed an answer, counterclaim, and cross-claim in both cases. In

case No. 14M000690, New Par cross-claimed against the Birds for indemnification in the

event New Par was found liable for rental payments made to the Birds. In case No.

14M000717, New Par cross-claimed against LRC Realty for indemnification in the event

New Par was found liable for rental payments made to LRC Realty. In both cases, New

Par made a counterclaim and cross-claim for interpleader, “so that the Court can fairly

adjudicate the rights and obligations of the Birds and LRC and determine who among

them is entitled to future rental payments from New Par.”

       {¶5}   The Birds filed answers to New Par’s cross-claim and to LRC Realty’s

complaint. The Birds also raised a combined counterclaim against LRC Realty and cross-

claim against Parker Court for reformation of deed, seeking to reform a warranty deed for

the transfer of the subject property “to clarify that grantor [Parker Court] did not grant, and

grantee [LRC Realty] did not receive, the right to receive the rental payments from the

New Par Lease, which rights rest with Bruce and Sheila Bird, as assignees of B.E.B.

Properties * * * until the termination of the lease.”




                                               3
       {¶6}    Parker Court filed an answer to LRC Realty’s complaint and an answer to

the Birds’ cross-claim. Parker Court also raised cross-claims against New Par and the

Birds. The first claim was for a declaratory judgment that “112 Parker Court LLC [was]

entitled to receive the annual rental payments owed pursuant to the Lease Agreement for

the time period covering each full year 112 Parker Court LLC held title to the Parker Court

Property, January 2004 until January 2013.” The other claim was for a money only

judgment in an amount of “no less than $170,682, which was due and payable over the

period of January 2004 until January 2013, pursuant to the Lease Agreement[.]”

       {¶7}    The Birds and New Par each filed an answer to Parker Court’s cross-claims.

       {¶8}    LRC Realty filed an answer to the Birds’ complaint, an answer to New Par’s

cross-claim, and a reply to New Par’s and the Birds’ counterclaims.

       {¶9}    On December 23, 2014, both cases were consolidated under case No.

14M000690.

       {¶10} On March 6, 2015, the trial court granted New Par’s unopposed motion to

deposit funds in interpleader, representing the 2015 lease payment of $23,688.00.1

       {¶11} New Par, Parker Court, and LRC Realty, each filed a motion for summary

judgment, and the Birds filed a motion for partial summary judgment. All motions were

duly opposed. The parties also filed a “Stipulation” with the trial court, by which they

stipulated to the authenticity and admissibility of thirteen documents attached thereto,

listed below in chronological order:

               1. Warranty Deed from Geauga Properties, Ltd. to B.E.B. Properties
               (recorded July 23, 1980)

               2. Option to Lease & Lease Agreement between B.E.B. Properties
               and Northern Ohio Cellular Telephone Company [“Northern”]
               (recorded April 21, 1994)

1. New Par has also interpleaded the 2016, 2017, and 2018 lease payments.

                                                 4
             3. Letter from Northern to B.E.B. Properties accepting the option to
             lease (dated February 28, 1995)

             4. Non-exclusive Easement Agreement between B.E.B. Properties
             and Northern (recorded March 3, 1995)

             5. Memorandum of Lease between B.E.B. Properties and Northern
             (recorded March 3, 1995)

             6. Warranty Deed from B.E.B. Properties to Keith R. Baker and
             Joseph E. Cyvas (recorded April 4, 1995)

             7. Assignment from David J. Eardley and Robert Bosler to the Birds
             of their interest in the lease agreement between B.E.B. Properties
             and Northern (signed June 22, 1995)

             8. Memorandum of Assignment from David J. Eardley and Robert
             Bosler of their “right, title and interest” in B.E.B. Properties to the
             Birds (recorded July 12, 1995)

             9. Assignment of Lease and Easement Documents from Northern to
             New Par (recorded January 19, 1999)

             10. Warranty Deed from Baker and Cyvas to Magnum Machine Co.
             (recorded June 7, 1999)

             11. Warranty Deed from Magnum Machine Co. to Parker Court
             (recorded October 31, 2003)

             12. Offer to Purchase and Acceptance Agreement between Parker
             Court and LRC Realty (signed December 14, 2012)

             13. Warranty Deed from Parker Court to LRC Realty (recorded
             January 24, 2013)

      {¶12} On May 10, 2016, the trial court rendered its decision in summary judgment,

making the following findings, which represent undisputed facts:

             Under a recorded 35 year lease, New Par rents space at 112 Parker
             Court, Chardon, Ohio (the ‘property’). The lease requires a single
             yearly rental payment, made to the property owner on or before the
             first of April. New Par has never missed a payment and has paid
             each installment as instructed or ordered. The Birds, LRC, and
             Parker Court LLC all claim entitlement to rent paid and payable by
             New Par.


                                            5
             On March 3, 1995, a lease and easement between defendant then
             property owner B.E.B. Properties (‘BEB’) and New Par’s
             predecessor, Northern Ohio Cellular Telephone Company
             (‘Northern’) were recorded.

             On March 22, 1995, BEB deeded the property to non-parties Keith
             Baker and Joseph Cyvas (‘Baker and Cyvas’) ‘free from all
             encumbrances whatsoever excepting restrictions of record…zoning
             ordinances…and taxes.’ The Northern easement and lease were
             described in the deed; the right to receive rent was not.

             On April 1, 1995, the lease between BEB and Northern commenced.

             In June, 1995, two of BEB’s three partners assigned all of their
             partnership interests to the remaining partner and his wife, the Birds.
             Beginning in 1995 or 1996, Northern paid rent to the Birds. Baker
             and Cyvas did not complain.

             Effective January 1, 1997, Northern assigned its rights to its affiliate,
             defendant partnership New Par.

             On June 2, 1999, Baker and Cyvas deeded the property to their
             company, non-party Magnum Machine Co. (‘Magnum’).

             On October 31, 1999, Magnum deeded the property to Parker Court
             LLC.

             On January 24, 2013, Parker Court LLC deeded the property to LRC.

             On March 15, 2013, New Par paid $23,688.00 in rent for the period
             from April 1, 2013 through March 31, 2014 to the Birds.

             On March 28, 2014, New Par [paid] $23,688.00 in rent for the period
             from April 1, 201[4] through March 31, 201[5] to LRC.

      {¶13} The trial court denied the Birds’ motion for partial summary judgment and

granted New Par’s motion for summary judgment. The court granted in part and denied

in part the motions for summary judgment filed by Parker Court and LRC Realty: with

respect to New Par, the motions were denied; with respect to the Birds, the motions were

granted.

      {¶14} The trial court denied the Birds’ requested reformation of the deed between

Parker Court and LRC Realty on the grounds that they “were never a granting or

                                             6
contracting party.” The court stated it was B.E.B. Properties that “owned the property,

was the granting party under the deed, and the contracting party under the lease” and

that when B.E.B. Properties sold the property to Baker and Cyvas, it did not reserve the

right to receive rent under the lease.

       {¶15} The trial court ordered the Birds to pay Parker Court the rent they received

from New Par ($120,102.00) for the rental periods beginning on April 1, 2007, and ending

on March 31, 2013. The court stated the lease required payment to the “landlord,” which

was described as the owner of the property; the Birds “never owned the property and

never improved the property after it was sold to Baker and Cyvas”; and the “recorded

deeds and lease unambiguously conveyed the right to receive rent to the property owner.”

The court did not require the Birds to pay Parker Court for the rent received for the rental

periods beginning on April 1, 1995, and ending on March 31, 2007, based on the eight-

year statute of limitations for actions brought upon written contracts.

       {¶16} For similar reasons, the trial court ordered the Birds to pay LRC Realty the

rent they received from New Par ($23,688.00) for the rental period beginning April 1,

2013, and ending on March 31, 2014.          LRC Realty was also awarded the money

interpleaded by New Par with the clerk of courts for the rental periods beginning on April

1, 2015, and April 1, 2016.

       {¶17} Finally, the trial court determined that New Par had paid rent as instructed

by the property owner (as had Northern, its predecessor) and, for the future, would pay

rent “according to instructions received from the property owner.”

       {¶18} The Birds filed a notice of appeal from this decision and raise the following

four assignments of error, which are consolidated for the purpose of analysis:

              [1.] The trial court committed prejudicial error in granting summary
              judgment and awarding damages in favor of Appellees 112 Parker

                                             7
              Court and LRC Realty, and denying Appellants Bruce and Sheila
              Bird’s motion for summary judgment, holding that Bruce and Sheila
              Bird, individually and as successors and assigns of B.E.B.
              Properties, never had any right to receive rent from the cellphone
              tower lease and must pay all rent received within 8 years of filing the
              Complaints to past and current owners of the property.

              [2.] The trial court committed prejudicial error in granting judgment
              and awarding damages to Appellees 112 Parker Court and LRC
              Realty, when the Appellees’ direct claims against Appellants Bruce
              and Sheila Bird for money were equitable in nature, and when
              derivative liability was not briefed on summary judgment.

              [3.] The trial court committed prejudicial error in granting judgment to
              Appellee 112 Parker Court, and requiring Appellants Bruce and
              Sheila Bird to pay to Appellee all rent they received from 2007
              through 2012, when undisputed evidence established that 112
              Parker Court had actual knowledge of the reservation of rent to a
              prior owner.

              [4.] The trial court committed prejudicial error in granting judgment to
              Appellee 112 Parker Court, and requiring Appellants Bruce and
              Sheila Bird to pay to Appellee all rent they received from 2007
              through 2012, based on R.C. 2305.06, the statute of limitations for
              written contracts, when the undisputed evidence established no
              contract between the Birds and 112 Parker Court, written or
              otherwise.

       {¶19} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated, (2)

“the moving party is entitled to judgment as a matter of law,” and (3) “it appears from the

evidence * * * that reasonable minds can come to but one conclusion and that conclusion

is adverse to the party against whom the motion for summary judgment is made, that

party being entitled to have the evidence * * * construed most strongly in the party’s favor.”

       {¶20} A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio

St.3d 102, 105 (1996).        “Under this standard, the reviewing court conducts an

independent review of the evidence before the trial court and renders a decision de novo,


                                              8
i.e., as a matter of law and without deference to the conclusions of the lower court.”

Jackson v. Moissis, 11th Dist. Geauga No. 2012-G-3070, 2012-Ohio-5599, ¶20 (citation

omitted).

Reformation of the Deed

       {¶21} The Birds argue the trial court erred in denying their claim for reformation.

LRC Realty and Parker Court contend the Birds do not have standing to seek reformation

of any of the transferring instruments because they never owned the property and

because they were not a party to the deed at issue and, therefore, do not have privity of

contract.

       {¶22} “‘It is well-established that “reformation of an instrument is an equitable

remedy whereby a court modifies the instrument which, due to mutual mistake on the part

of the original parties to the instrument, does not evince the actual intention of those

parties.”’” Mong v. Kovach Holdings, LLC, 11th Dist. Trumbull No. 2012-T-0063, 2013-

Ohio-882, ¶20, quoting Zwaryz v. Wiley, 11th Dist. Ashtabula No. 98-A-0073, 1999 WL

689940, *2 (Aug. 20, 1999), quoting Mason v. Swartz, 76 Ohio App.3d 43, 50 (6th

Dist.1991); see also Greenfield v. Aetna Cas. & Sur. Co., 75 Ohio App. 122, 127-128

(12th Dist.1944), citing 35 Ohio Jurisprudence, Section 2, at 145 (“‘reformation’ is defined

as the remedy afforded by courts possessing equitable jurisdiction to the parties and the

privies of parties, to written instruments which import a legal obligation to reform or rectify

such instruments whenever they fail, through fraud or mutual mistake, to express the real

agreement or intention of the parties”).

       {¶23} “Equity will permit the reformation of a written instrument not only as

between the original parties but also as to parties in privity with them.” Mason, supra, at

49 (citations omitted). “Generally, one is in privity with another if he succeeds to an estate


                                              9
or an interest formerly held by the other * * *, because privity is a succession of interest

or relationship to the same thing.” Columbus v. Union Cemetery Assn., 45 Ohio St.2d 47,

51 (1976) (citations omitted); see also Black’s Law Dictionary (10th Ed.2014) (privity of

estate: “[a] mutual or successive relationship to the same right in property, as between

grantor and grantee or landlord and tenant”).

        {¶24} “[O]ne who is in privity with another because of the transfer of property

‘stands in the same shoes’ as to the rights of the prior owner in the same property, thereby

giving the subsequent owner the same rights and obligation as the original owner had in

regard to the property[,]” including “the right to reformation of a deed if the necessary

elements are present, that is, fraud, error, omission or mutual mistake.” Berardi v. Ohio

Turnpike Comm., 1 Ohio App.2d 365, 370-371 (8th Dist.1965).

        {¶25} The initial relevant transfer of the subject property occurred on March 22,

1995, when B.E.B. Properties sold the property to Baker and Cyvas. That deed, which

was recorded on April 4, 1995, transferred the real estate in fee simple. Baker and Cyvas

subsequently sold the property to Magnum, which sold it to Parker Court, which sold it to

LRC Realty.

        {¶26} The Birds seek to reform the warranty deed transferring the property from

Parker Court to LRC Realty.2 The Birds lack privity with respect to that transaction, as

they do not stand in a mutual or successive relationship to the same rights of property as




2. See Answer, Counterclaim, and Cross-Claim of Bruce and Sheila Bird as Assignees of Defendant B.E.B.
Properties, at ¶18 (“[t]he deed attached hereto as Exhibit 1 [Warranty Deed between Parker Court and LRC
Realty] should be reformed to reflect the true intention of the parties and the true state of affairs that existed
among the parties at the time of transfer to LRC Realty, Inc.”); Motion for Partial Summary Judgment of
Bruce and Sheila Bird, Individually and as Successors to B.E.B. Properties, at p. 16 (“the Court should still
enter judgment in favor of Bruce and Sheila Bird by reforming the current deed to reflect the clear and
unmistakable intent and understanding of 112 Parker Court LLC and LRC Realty, Inc. that their transaction
did not include any right to receive the cellphone tower lease payments, which were assigned to Bruce and
Sheila Bird”).

                                                       10
either Parker Court or LRC Realty. The Birds claim they are predecessors in interest to

Parker Court and LRC Realty, but that claim is untenable.

       {¶27} Because the Birds were not in privity with either Parker Court or LRC Realty,

the remedy of reformation was not available to them with respect to the deed transferring

the property between these parties. The trial court properly granted summary judgment

against the Birds on their claim for reformation.

Right to Receive Rent

       {¶28} The trial court granted New Par’s motion for summary judgment and denied

Parker Court’s and LRC Realty’s motions for summary judgment with respect to their

claims against New Par. The trial court held that “Northern/New Par fulfilled its duty to

pay rent as instructed” and was “not required to pay past rental installments to property

owners who failed to provide payment instructions.” The judgment in favor of New Par

has not been challenged on appeal.

       {¶29} The trial court further rendered summary judgment against the Birds and in

favor of Parker Court and LRC Realty.         The trial court ordered the Birds to pay

$120,102.00 to Parker Court for rent received from New Par during the years 2007

through 2013 and to pay $23,688.00 to LRC Realty for rent received from New Par in the

year 2014. The trial court further held that the Birds were not entitled to future rent

payments from New Par. The trial court stated:

              ‘The right to receive rent…arises by privity of estate rather than by
              contract. A contract fixes the amount of land, the terms of payment
              and the manner of the use of the estate, but the right to recover the
              rent depends upon the ownership of the reversion.’ See Loveless v.
              Erie R. Co., 2 Ohio App. 404, 407 [11th Dist.1914].

              Northern leased the property from its owner, BEB. The lease
              describes ‘landlord’ as the property owner and requires rent to be
              paid to the landlord.


                                            11
              After BEB sold the property, Baker and Cyvas, (and then their
              company Magnum), owned the property, were the landlords, and
              were entitled to the rent. Baker and Cyvas agreed with BEB and the
              Birds not to collect the rent. Baker and Cyvas allowed Northern/New
              Par to pay rent as instructed by BEB and the Birds. These
              agreements, however, do not override the right of the succeeding
              property owners to rely on recorded documents and to receive rent
              according to the recorded lease and deeds.

       {¶30} For the following reasons, we disagree with the trial court’s holding and its

decision to grant summary judgment in favor of Parker Court and LRC Realty on the right

to receive the past rent payments.

       {¶31} The trial court indicates “the lease describes ‘landlord’ as the property

owner and requires rent to be paid to the landlord.” The lease does describe the Landlord

as the property owner (therefore, the Landlord had authority to enter into the lease), but

it also provides that B.E.B. Properties is “hereinafter referred to as ‘Landlord[.]’” Thus,

while the “landlord” was also the “property owner” at the time the lease was executed,

that designation does not define the “property owner” as a party to the lease. The lease

is a contract between B.E.B. Properties and Northern—not between Northern and

whomever the property owner happens to be at a given time. Therefore, the trial court is

incorrect in concluding that Baker and Cyvas (and then Magnum Machine Co.) became

the “landlords” by virtue of becoming the “property owners.”

       {¶32} The trial court also relies on a case that is entirely distinguishable from the

case sub judice, to wit: Loveless v. Erie Ry., 35 Ohio C.C. 87 (11th Dist.1914). Loveless

involved a dispute between the executor of an estate and the devisee of real estate

regarding who was entitled to the rent generated from the property. The issue in Loveless

was “whether rent paid as consideration for a grant or lease of real estate made in the life

time of the testator, but which accrues after the death of the testator, goes to the devisee

of the leased premises, or is an asset of the testator’s estate.” Id. at 89. The Loveless

                                            12
Court cited the following case law, which the trial court adopted: “The right to receive rent

by one from another arises by privity of estate rather than by contract. A contract fixes

the amount of land, and the terms of payment, and the manner of the use of the estate,

but the right to recover the rent depends upon the ownership of the reversion.” Id. at 89-

90, citing West Shore Mills Co. v. Edwards, 24 Ore. 475, 33 P. 987 (1893). Contrary to

Loveless and West Shore Mills, the dispute at issue here does not involve ownership of

a reversion, nor is there a dispute about the accrual of rent after the death of a testator.

This case law is not applicable here.

       {¶33} In their partial motion for summary judgment, the Birds argue that, “[a]t a

minimum, the recorded documents indicate that after Baker and Cyvas acquired the

property, B.E.B. Properties still retained some interest in the lease, which it assigned to

[the Birds], that it involved ‘rental payments,’ and that the reference to rental payments

‘refers to Lease Agreement recorded on April 21, 1994 at Volume 979, Page 1 of the

Geauga County Records.’” On this basis, we agree the trial court erred in granting

summary judgment in favor of Parker Court and LRC Realty.

       {¶34} A recorded leasehold is an encumbrance of land governed by the recording

statutes. See R.C. 317.08(A)(25) (stating the county recorder shall record in the official

records all of the following instruments that are presented for recording, upon payment of

the fees prescribed by law: leases, memoranda of leases, and supplements,

modifications, and amendments thereto); see also Tenbusch v. L.K.N. Realty Co., 107

Ohio App. 133, 137 (8th Dist.1958) (holding that unexpired leases constitute

encumbrances of record). The benefit of a leasehold may be reserved by the grantor

when conveying title to a grantee. “It is undisputed that, generally, in the case of a

reservation, the whole title to the property conveyed passes to the grantee, but the grantor


                                             13
reserves to himself some benefit of the real estate.” Campbell v. Johnson, 87 Ohio

App.3d 543, 547 (2d Dist.1993).

       {¶35} R.C. 5301.25(A) provides:

              All deeds * * * 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 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.

       {¶36} “Pursuant to this statutory provision, a bona fide purchaser for value is

bound by an encumbrance upon land only if he has constructive or actual knowledge of

the encumbrance.” Tiller v. Hinton, 19 Ohio St.3d 66, 68 (1985). “[T]he proper recording

of those instruments referenced in R.C. 5301.25(A) serves as ‘constructive’ notice of that

interest or encumbrance to all who claim through or under the grantor by whom such deed

was executed.” Thames v. Asia’s Janitorial Serv., Inc., 81 Ohio App.3d 579, 587 (1992).

“Statements and references contained in instruments in his chain of title bind the owner

and he is charged with knowledge he would have obtained from reasonable inquiry.”

Ferguson v. Zimmerman, 2d Dist. Montgomery No. 9426, 1986 WL 878, *5 (Jan. 16,

1986), citing Arnoff v. Williams, 94 Ohio St. 145 (1916). “These rules rest on the obvious

reason, that a searcher can be fairly supposed to be made acquainted with the contents

of such deeds only as, in the process of tracing, link by link, his chain of title on the record,

necessarily pass under his inspection.” Blake v. Graham, 6 Ohio St. 580, 584 (1856).

       {¶37} There is no dispute between the parties that the warranty deeds at issue,

as well as the lease, memorandum of lease and easement agreement, were all recorded.

It is also without dispute that these instruments are within LRC Realty’s chain of title on


                                               14
the record as they can all be traced, link by link, from B.E.B. Properties to Baker and

Cyvas to Magnum to Parker Court and, finally, to LRC Realty.

        {¶38} The option to lease and lease agreement between B.E.B. Properties and

Northern was recorded on April 1, 1994. The easement agreement and the memorandum

of lease agreement between B.E.B. Properties and Northern were recorded on March 3,

1995.

        {¶39} The warranty deed from B.E.B. Properties to Baker and Cyvas was

subsequently recorded on April 4, 1995, and provides:

              Said premises being subject to the same restriction as recorded in
              Volume 537, Page 523, Geauga County Records of Deeds which are
              hereby incorporated and made a part of this deed as if fully written
              herein.

              Further subject to an Option to Lease and Lease Agreement dated
              March 14, 1994 and recorded April 21, 1994 at Volume 979, Page 1,
              of the Geauga County Records;

              Further subject to a Non-Exclusive Easement filed March 3, 1995
              referred to in Volume 1009, Page 56 of Geauga County Records;

              Further subject to a Memorandum of Lease filed March 3, 1995,
              referred to in Volume 1009, Page 50 of Geauga County Records.

              And B.E.B. Properties, an Ohio Partnership, the said Grantor, does
              for its self and its successors and assigns, covenant with the said
              Grantees, Keith R. Baker and Joseph K. Cyvas, their heirs and
              assigns, * * * that it will warrant and defend said premises, with the
              appurtenances thereunto belonging, to the said Grantees, their heirs
              and assigns, against all lawful claims and demands whatsoever,
              such premises further to be subject to the specific encumbrances on
              the premises as set forth above.

        {¶40} The warranty deed from Baker and Cyvas to Magnum was later recorded

on June 7, 1999, and sets forth the same “subject to” language. It warrants and defends

said premises “against all lawful claims and demands whatsoever except as hereinbefore

provided.”


                                            15
       {¶41} The fact that the language in the deed does not expressly state B.E.B.

Properties “reserved the right to receive rent” is not dispositive. “The first rule of deed

construction in Ohio is that when the parties’ intentions are clear from the four corners of

the deed, we will give effect to that intention.” Koprivec v. Rails-to-Trails of Wayne Cty.,

Slip Opinion No. 2018-Ohio-465, ¶29, citing Hinman v. Barnes, 146 Ohio St. 497, 508

(1946). The “subject to” language contained within the deed, which is repeated in the

deed from Baker and Cyvas to Magnum, clearly indicates that the parties’ intention was

to reserve the right to receive rent for the benefit of B.E.B. Properties.

       {¶42} Pursuant to the language in these deeds, both Parker Court and LRC Realty

are charged with constructive knowledge of the easement and leasehold encumbrance

that was reserved by B.E.B. Properties and properly recorded within their chain of title.

An examination of the recorded lease agreement and memorandum of lease would have

revealed that B.E.B. Properties was entitled to the rent payments from Northern/New Par.

Therefore, Parker Court and LRC Realty took title subject to the specific reservations and

were bound by the easement and leasehold encumbrance.                Further, no party who

subsequently received the property within this chain of title could transfer the right to

receive rent, the same being reserved to B.E.B. Properties for the length of the lease with

Northern/New Par. The trial court erred in concluding Parker Court and LRC Realty are

entitled to claim the past rent profits from that encumbrance.

       {¶43} The issue that remains is whether the trial court erred in denying summary

judgment in favor of the Birds on their claim of the right to receive past and future rent

profits. Included within the “Stipulation” exhibits filed by the parties is a copy of the

Assignment from Eardley and Bosler, two of the original partners in B.E.B. Properties, to

the third partner and his wife, the Birds. The Assignment was signed by all partners on


                                             16
June 22, 1995, in the presence of two witnesses and notarized. The document provides

the following, in relevant part:

              WHEREAS, said Partnership has entered into a certain Option and
              Lease Agreement with Tenant for approximately 2.983 acres of land
              located on B.E.B. Properties’ premises for the construction of a
              transmission and receiving tower and related facilities; and

              WHEREAS, said Option to Lease and Lease Agreement between
              B.E.B. Properties and Tenant dated March 14, 1994 was recorded
              on April 21, 1994 at Volume 979, Page 1 of the Geauga County
              Records along with a Memorandum of Lease filed March 3, 1995 at
              Volume 1009, Page 50 of Geauga County Records; and

              WHEREAS, B.E.B. Properties has granted unto Tenant a Non-
              Exclusive Easement for ingress and egress to the Tower site, as
              referred to above, filed March 3, 1995 at Volume 1009, Page 56 of
              Geauga County Records; and

              WHEREAS, Assignees are desirous of acquiring Assignor’s rights,
              title and interest in and to said partnership interests as referred to
              above; and

              WHEREAS, Assignors are desirous of assigning their rights, title and
              interest in and to said general partnership to Assignees.

              WHEREFORE, in consideration of Assignees paying to Assignors
              the sum of [$33,333.33] each, said Assignors hereby assign, jointly
              and to the survivor of the Assignees, all of their rights, title and
              interest in and to said partnership interests,

              IT IS FURTHER understood and agreed that this assignment shall
              be reflected in a Memorandum of Assignment to be filed of record on
              the completion of this transaction.

              FURTHER, this instrument along with the Memorandum of
              Assignment shall constitute notice to the Tenant that any and all
              rentals and/or payments, obligations, notices, communications
              and/or rights or claims which may accrue between Tenant and the
              Assignees shall henceforth be submitted to the Assignees effective
              this 6th day of May, 1995. It is further understood that this instrument
              shall be evidence of the transfer of any and all claims or rights
              Assignors may have in and to said partnership interest.

       {¶44} The Memorandum of Assignment was signed, witnessed, and notarized in

conjunction therewith and was duly recorded on July 12, 1995. It provides, in relevant

                                             17
part, that the purpose of recording the Memorandum “is to give notice to the existence of

said assignment and the rights granted therein by the Assignors to the Assignees.”

              This instrument shall be further evidence of the transfer of any and
              all claims or rights Assignors may have in B.E.B. Properties, an Ohio
              General Partnership, and that all rental payments, notices and/or any
              type of communication pertaining to said partnership shall henceforth
              be forwarded to Assignees at the address set forth herein.”

Handwritten below this provision is an instruction to “Refer to Lease Agreement recorded

on April 21, 1994 at Volume 979, Page 1 of the Geauga County Records.”

       {¶45} LRC Realty challenged the effectiveness of this assignment in its motion for

summary judgment. Because, however, LRC Realty is not entitled to the rent payments,

it does not have standing to challenge the assignment between B.E.B. Properties and the

Birds. B.E.B. Properties did not raise a challenge to the assignment in the trial court, and

the document was included in the Stipulated exhibits submitted to the court. Therefore,

the trial court erred in concluding the Birds are not entitled to the past and future rent

payments.

       {¶46} We further note that the record includes a copy of the Offer to Purchase and

Acceptance Agreement that established the terms of LRC Realty’s acquisition of the

property, which indicates it agreed to take title with such exceptions to title as are

approved in writing by LRC Realty. The agreement also provided for remedies if a defect

in title was found in the Title Commitment or Survey, to wit: LRC Realty could either accept

the title subject to the defect or terminate the agreement. While the answer to this entire

conflict is likely contained in those documents, they are not a part of this record and are

not necessary for resolution of this appeal.

       {¶47} The Birds’ assignments of error have merit to the extent indicated.




                                               18
       {¶48} The judgment of the Geauga County Court of Common Pleas is affirmed

with respect to the Birds’ claim for reformation and with respect to all claims against New

Par. The judgment is reversed with respect to the damages claim against the Birds in

favor of Parker Court and LRC Realty; the trial court erred in granting summary judgment

against the Birds.

       {¶49} This matter is remanded for the trial court to enter judgment in favor of the

Birds, as assignees of the interest in B.E.B. Properties, consistent with this opinion.



THOMAS R. WRIGHT, P.J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.


                                 ____________________


DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

       {¶50} To a very limited degree, I concur in the judgment of the majority. I concur

that remedy of reformation is not available to the Birds. I would also reverse and remand

the grant of summary judgment, but for reasons and purposes wholly different from those

of the majority.

       {¶51} The issue that is before this court is whether the Birds/B.E.B. Properties

retained the right to receive rent under the lease with New Par following the sale of the

property to Baker and Cyvas. Every participant in this litigation, from the Birds to 112

Parker Court to LRC Realty to the trial court and their respective attorneys, has

understood that resolution of this issue turns on the following propositions of law: A

“covenant to pay rent * * * runs with the land and vests in the assignee of the reversion

the right to receive the rents accruing during his ownership of the fee.” Smith v. Harrison,


                                            19
42 Ohio St. 180, 185 (1884); Commercial Bank & Sav. Co. v. Woodville Sav. Bank Co.,

126 Ohio St. 587, 186 N.E. 444 (1933), paragraph one of the syllabus (“[t]he right to rents

and profits of real estate follows the legal title”). The right to receive rent, however, may

be preserved in the grantor by a “reservation of rent” in the transferring instrument. Liberal

S. & L. Co. v Frankel Realty Co., 137 Ohio St. 489, 501, 30 N.E.2d 1012 (1940).3

        {¶52} No party to this litigation has maintained that the deed transferring the

property to Baker and Cyvas contained a reservation of the right to receive rent.

        {¶53} Incredibly, i.e., without citation to authority or precedent, the majority

concludes: “The fact that the language in the deed does not expressly state B.E.B.

Properties ‘reserved the right to receive rent’ is not dispositive.” Supra at ¶ 41. Instead

of an actual reservation of the right to receive rent, the majority holds that “[t]he ‘subject

to’ language contained within the deed [transferring the property to Baker and Cyvas] * *

* clearly indicates that the parties’ intention was to reserve the right to receive rent for the

benefit of B.E.B. Properties.” Supra at ¶ 41.

        {¶54} The “subject to” language in question provides that: “B.E.B. Properties * * *

does * * * covenant with the said Grantees [Baker and Cyvas] * * * that it will warrant and

defend said premises * * * against all lawful claims and demands whatsoever, such

premises further to be subject to the specific encumbrances on the premises set forth

above [an Option to lease and Lease Agreement dated March 14, 1994 and recorded

April 21, 1994 at Volume 979, Page 1, of the Geauga County Records].”




3. See the trial court’s May 10, 2016 Decision (“[a]fter BEB sold the property, Baker and Cyvas, (and then
their company Magnum), owned the property * * * and were entitled to the rent”); the Byrds’ Assignments
of Error and Brief, at 12 (“The Law is Not in Dispute / The law holds that rent runs with the land unless it
is expressly reserved in a deed.”); and LRC Realty’s Answer Brief, at 17 (“In Ohio, the long-standing general
rule is that a covenant to pay rent runs with the land.”).

                                                    20
        {¶55} That this boilerplate language should amount to an express reservation of

the right to receive rent was certainly not clear to the lower court judge or the litigants in

the present case, is not clear to this judge, and, as far as this judge has been able to

determine, has not been clear to any court that has considered the significance of

language in a warranty deed that the premises are “subject to * * * specific

encumbrances.” Rather, the plain and ordinary meaning of this language is that B.E.B.

Properties’ covenant with Baker and Cyvas to warrant the premises against third-party

claims acknowledges the existence of certain pre-existing encumbrances.4 In no way

may this language be reasonably construed to mean that B.E.B. Properties was limiting

Baker and Cyvas’ rights in the subject premises by excepting the right to receive under

the lease with New Par. Thames v. Asia’s Janitorial Serv., Inc., 81 Ohio App.3d 579, 590,

611 N.E.2d 948 (6th Dist.1992) (“the statement in the deed following the description of

the land, that the ‘above premises are conveyed subject to’ the mortgage, qualifies the

estate granted, and that it is to that estate, so qualified, that the warranties apply”) (citation

omitted); Davidson Land Co., LLC v. Davidson, 2011 WY 29, 247 P.3d 67, 74, ¶ 25

(Wy.2011) (“[t]he ‘subject to’ language simply put the grantee on notice that the warranty

was limited by any recorded encumbrances”); Birdwood Subdivision Homeowners’ Assn.,

Inc. v. Bulotti Constr., Inc., 175 P.3d 179, 183 (Id.2007) (“[t]he warranty deed * * * stated

that the grant was subject to ‘Taxes, easements, restrictions, reservations, assessments

and encumbrances as             shown of record, if any,’” which “language simply creates

exceptions to the covenants in the warranty deed”).


4. This conclusion is even more evident when the “subject to” language relied upon by the majority is
considered in connection with the immediately preceding language defining the nature of the estate
transferred: “B.E.B. Properties * * * does * * * covenant with the said Grantees [Baker and Cyvas] * * * that
* * * Grantor is well seized of the above described premises, and it has a good and indefeasible estate in
fee simple, * * * and that the same are free from all encumbrances whatsoever, excepting restrictions of
record * * *, and that it will warrant and defend said premises * * * [quotation continues as above].”

                                                    21
        {¶56} Yet the majority construes this language, which merely qualifies B.E.B.

Properties’ warranty that it was conveying a good and indefeasible estate in fee simple,

to hold that “no party who subsequently received the property within this chain of title

could transfer the right to receive rent, the same being reserved to B.E.B. Properties for

the length of the lease with Northern/New Par.” Supra at ¶ 42. This conclusion cannot,

as demonstrated above, rely on the plain and ordinary meaning of the phrase “subject to”

but, rather, appears to rest on such language “indicat[ing] that the parties’ intention was

to reserve the right to receive rent for the benefit of B.E.B. Properties.” Supra at ¶ 41.

The majority thus equates “constructive knowledge of the easement and leasehold

encumbrance” with the expressed intent to reserve the right to receive rent.5 Constructive

or actual knowledge of the lease’s existence, however, does not imply an intent to retain

rights thereunder. “[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

can not [sic] put words into an instrument which the parties themselves failed to do.’”

(Citation omitted.) Am. Energy Corp. v. Datkuliak, 174 Ohio App.3d 398, 2007-Ohio-

7199, 882 N.E.2d 463, ¶ 50 (7th Dist.); McCoy v. AFTI Props., Inc., 10th Dist. Franklin

No. 07AP-713, 2008-Ohio-2304, ¶ 8.6                    In the present case, even the majority

acknowledges that the deed does not contain an express reservation of rights. Recourse


5. Although invariably referred to as a “reservation” of the right to receive rent, “exception” would be the
proper term: “A reservation by definition is a ‘creation of a new right or interest (such as an easement) by
and for the grantor, in real property being granted to another.’ * * * An exception is the ‘retention of an
existing right or interest, by and for the grantor, in real property being granted to another.’” Am. Energy
Corp. v. Datkuliak, 174 Ohio App.3d 398, 2007-Ohio-7199, 882 N.E.2d 463, ¶ 74 (7th Dist.), quoting Black’s
Law Dictionary 1333 and 604 (8th Ed.2004) respectively. In practice, “the two terms are often employed
‘indiscriminately.’” (Citation omitted.) Id. at ¶ 75.

6. Compare Palmer v. Campbell, 333 P.2d 957, 959 (Okl.1958) (“there must be, somewhere in the deed,
appropriate language expressly reserving some interest in and to the grantor, or the grantor’s entire interest
passes by a warranty deed to real estate”); Lipschultz v. Robertson, 95 N.E.2d 357, 359 (Ill.1950) (“[w]hen
the appellees conveyed the property to the city of Chicago by their warranty deed * * *, reserving nothing
to themselves, they conveyed the lease and the right to receive unaccrued rentals”).

                                                     22
to what the majority believes the language of the deed indicates is insufficient to create a

reservation of rights where none exists in the deed.

       {¶57} Although the majority states its conclusion that B.E.B. Properties reserved

the right to receive rent as a matter of law, one suspects the majority actually considers

the deed to be ambiguous on this point, as evidenced by speculation elsewhere in the

opinion that “the answer to this entire conflict is likely contained in [parol] documents

[which] are not a part of this record.” Supra at ¶ 46. Two points should be made. First,

any perceived ambiguity in the language of the deed should be construed in favor of

Baker and Cyvas as grantees. Mong v. Kovach Holding, L.L.C., 11th Dist. Trumbull No.

2012-T-0063, 2013-Ohio-882, ¶ 27 (the rule that “an exception or reservation in a

conveyance is construed in favor of the grantee rather than of the grantor * * * is so

elementary that citation is unnecessary”) (citation omitted). Second, if the “subject to”

language in the present warranty deed is deemed ambiguous or otherwise subject to

novel interpretation, inasmuch as the parties and their attorneys failed to grasp its

significance, then the construction of virtually every warranty deed or property transfer in

the State of Ohio is vulnerable to judicial reinterpretation.

       {¶58} There are legitimate equitable issues regarding 112 Parker Court’s and LRC

Realty’s entitlement to recover damages for the rental payments received by the Birds

from New Par which ought to have precluded the granting of summary judgment in the

present case.     However, to reverse and remand the trial court’s grant of summary

judgment on the grounds that B.E.B. Properties’ warranty of title being subject to specific

encumbrances is the functional equivalent of an express reservation of the right to receive

rents is not a result in which I can join.

       {¶59} For the foregoing reasons, I respectfully dissent.


                                             23
