[Cite as Taylor v. Taylor, 2018-Ohio-1571.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




JANIS TAYLOR, TRUSTEE,                              :
                                                          CASE NOS. CA2017-05-061
        Plaintiff-Appellant,                        :               CA2017-05-067

                                                    :            OPINION
    - vs -                                                        4/23/2018
                                                    :

JAMES W. TAYLOR, JR., et al.,                       :

        Defendants-Appellees.                       :



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. 2015-CV-07-1709



Robinson & Jones Co., LPA, Tara R. Jones, 14 West Park Place, Suite D, Oxford, Ohio
45056 and Martin, Browne, Hull & Harper, PLL, One Main Street, Suite 800, P.O. Box 1488,
Springfield, Ohio 45501-1488, for plaintiff-appellant, Janis Taylor

Taft Stettinius & Hollister LLP, Patrick J. Krebs, 200 Public Square, Suite 3500, Cleveland,
Ohio 44114 and Jonathan O. Nerenberg, 246 High Street, Hamilton, Ohio 45011, for plaintiff-
appellant, Three Valley Conversation Trust

Stephen C. Lane, 7419 Kingsgate Way, Suite A, West Chester, Ohio 45069, for defendants-
appellees, James W. Taylor, Jr. and Susan Taylor



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, Janis Taylor, appeals the decision of the Butler County Court

of Common Pleas granting partial summary judgment in favor of defendants-appellees,

James Taylor and Susan Taylor. In addition, the Three Valley Conservation Trust ("Trust")
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appeals the grant of partial summary judgment in favor of appellees. For the reasons

detailed below, we reverse the decision of the trial court and remand for further proceedings.

         {¶ 2} Janis and appellees are the tenant-in-common owners of certain land

("Property") in Oxford Township located in Butler County, Ohio. The approximate 76.68-acre

Property is encumbered by a conservation easement, dated July 31, 2003 in favor of the

Trust.

         {¶ 3} Janis commenced this action seeking appraisal and sale of the Property. In her

complaint, Janis alleged that this partition action was necessary because the Property cannot

be "divided" because it is subject to the conservation easement owned by the Trust. The

conservation easement provides, in pertinent part:

               1. Grant of Easement. Pursuant to the laws of Ohio, and in
               particular Sections 5301.67 through 5301.70 of the Ohio Revised
               Code, Grantor hereby voluntarily grants and conveys to Grantee
               a conservation easement in perpetuity over the Property of the
               nature and character and to the extent hereinafter set forth
               ("Easement").

               2. Purpose. It is the purpose of this Easement to assure that the
               Conservation Values of the Property will be preserved, and that
               the Property will be retained forever in its natural and agricultural
               condition; and to prevent any use of the Property that will
               significantly impair or interfere with the Conservation Values of
               the Property or that are consistent with the purpose of this
               Easement.

               ***

               5. Prohibited Uses. Except to the extent that activities and uses
               are authorized in this Easement, any activity on or use of the
               Property inconsistent with the Conservation Values, or with the
               purpose of this Easement, is prohibited. Without limiting the
               generality of the foregoing, the following activities and uses are
               expressly prohibited throughout the Property unless they are
               permitted elsewhere in this agreement.

               ***

               5.4 Subdivision - The legal subdivision of the Property,
               recording of a subdivision plan, partition, or any other division of
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              the Property into two or more parcels, is prohibited.

              ***

              17. General Provisions.

              ***

              17.2 Liberal Construction. Any general rule of construction to
              the contrary notwithstanding, this Easement shall be liberally
              construed in favor of the grant to effect the purpose of this
              Easement and the policy and purpose of Sections 5301.67
              through 5301.70 of the Ohio Revised Code. If any provision in
              this instrument is found to be ambiguous, an interpretation
              consistent with the purpose of this Easement that would render
              the provision valid shall be favored over any interpretation that
              would render it invalid.

              17.3 Severability. If any provision of this Easement, or the
              application thereof to any person or circumstance, is found to be
              invalid, the remainder of the provisions of this Easement, or the
              application of such provision to persons or circumstances other
              than those as to which it is found to be invalid, as the case may
              be, shall not be affected thereby.

       {¶ 4} On January 4, 2017 appellees moved for partial summary judgment. In their

motion, appellees argued that the conservation easement's restriction on subdivision

contained in paragraph 5.4 is an invalid and unreasonable restraint on alienation under Ohio

law because it does not contain a reasonable temporal limitation. Janis and the Trust filed

separate memoranda in opposition.

       {¶ 5} Following review, the trial court granted partial summary judgment in favor of

appellees after concluding that "perpetual restrictions on partition are unenforceable."

Therefore, the court reasoned that the subdivision restriction contained in paragraph 5.4 was

invalid. As a result, the trial court applied the severability clause contained in paragraph 17.3

of the conservation easement to "permit the invalid portion [paragraph 5.4] to be stricken

while the remainder of the easement remains in full force and effect." The trial court

reasoned:


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

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

the Trust raises two assignments of error.

      {¶ 7} Janis' sole assignment of error:

      {¶ 8} THE TRIAL COURT ERRED BY FINDING THAT THE RESTRICTION IN

PARAGRAPH 5.4 OF THE CONSERVATION EASEMENT IS UNENFORCEABLE AS A

MATTER OF LAW BECAUSE IT IS NOT LIMITED IN DURATION.

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

      {¶ 10} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

FAVOR OF APPELLEES BECAUSE PERPETUAL SUBDIVISION RESTRICTIONS

CONTAINED IN CONSERVATION EASEMENTS ARE VALID AND ENFORCEABLE UNDER

OHIO LAW.

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

      {¶ 12} THE TRIAL COURT EXCEEDED ITS AUTHORITY UNDER CIV.R. 56(C)

WHEN IT WEIGHED EVIDENCE, RESOLVED DISPUTED ISSUES OF MATERIAL FACT,

AND GRANTED SUMMARY JUDGMENT AGAINST TVCT.

      {¶ 13} All assignments of error are interrelated and will be addressed together.

Following review, we find the trial court erred by granting partial summary judgment in favor

of appellees.

      {¶ 14} This court reviews summary judgment decisions de novo, which means we
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review the trial court's judgment independently and without deference to the trial court's

determinations, using the same standard in our review that the trial court should have

employed. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008,

2014-Ohio-5493, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)

there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as

a matter of law, and (3) the evidence submitted can only lead reasonable minds to a

conclusion which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82

Ohio St.3d 367, 369-70 (1998).

        {¶ 15} The moving party bears the initial burden of informing the court of the basis for

the motion and demonstrating the absence of a genuine issue of material fact. Robinson v.

Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden is

met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is

some genuine issue of material fact yet remaining for the trier of fact to resolve. Id. In

determining whether a genuine issue of material fact exists, the evidence must be construed

in favor of the nonmoving party. Vanderbilt v. Pier 27, L.L.C., 12th Dist. Butler No. CA2013-

02-029, 2013-Ohio-5205, ¶ 8.

        {¶ 16} As noted above, the trial court found that paragraph 5.4 of the conservation

easement was a "perpetual restriction on the right to partition the property" that was neither

"valid in general, [n]or even necessary." As a result, the trial court found that the restriction

prohibiting subdivision was unenforceable. The practical effect of the trial court's decision is

that the single parcel of land may be subdivided into two parcels and separately sold with

each parcel subject to the conservation easement.1

        {¶ 17} Janis maintains the subdivision restriction contained in the conservation


1. The trial court did not resolve whether the Property should be divided into two or more parcels, but merely that
it could. That issue is stayed pending this appeal.
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easement prohibits the division of the Property into two or more parcels. As a result, Janis

sought partition under R.C. Chapter 5307. Janis requests that the court appoint an appraiser

to determine the value of the Property, which would then allow either cotenant to purchase

the remaining fractional interest or provide for the sale of the Property as a whole.

       {¶ 18} The Trust also contends that the conservation easement prohibits the division

of the Property into two or more parcels. The Trust asserts that the Property is essentially

divided into four areas: (1) a woodland/riparian corridor area, (2) an agricultural area, (3) an

area for a potential residence, and (4) a transitional greenspace area. In order to achieve the

stated purpose of the conservation easement, the Trust has the right to enter the Property to

ensure compliance with the conservation easement. The trust maintains that the subdivision

restriction is essential for the purposes of the conservation easement:

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

       {¶ 19} The trial court's decision relied on Raisch v. Schuster, 47 Ohio App. 2d 98 (1st

Dist.1975). In that case, the First District Court of Appeals found that an agreement

restricting the right to partition property was impermissible.

       {¶ 20} Raisch involved a property owned by 21 cotenants. Id. Each cotenant agreed

that any decision relating to the property, including the decision to sell, required a majority

vote of the 21 cotenants. Id. at 98-99. Though the court recognized that a cotenant may

agree to limit the right to partition or sell property, the court found that any such agreement

was subject to "reasonable temporal limitations on the duration of the restriction." Id. at 100.
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A reasonable temporal limitation may be expressed or inferred from the purpose of the

restriction. Id. at 101. As a result, the court held:

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

Id. at 102.

       {¶ 21} The First District revisited that opinion in Head v. Evans, 1st Dist. Hamilton No.

C-790831, 1981 Ohio App. LEXIS 13840 (Feb. 11, 1981). In Head, the court distinguished

its prior holding in Raisch after noting that the agreement in Raisch effectively prohibited the

sale or partition of real property without the consent of the majority. Id. at *14. Such an

agreement operated as an absolute restraint upon alienability unless there was majority

agreement. Id. The court found that the restriction in Raisch was "void as against public

policy because there was no evidence of the purpose of the underlying agreement and, thus,

no way to determine a reasonable duration by which to measure its enforceability." Id.

       {¶ 22} In contrast to the restriction in Raisch, the agreement in Head involved an

original tract of land that was subdivided into four separate tracts. Id. at *2. The first tract

contained a restriction that only one single family residence with "necessary outbuildings"

could be built on the tract. Id. Several years later, the owner of the first tract of land

constructed a guesthouse on the tract. Id. at *3.

       {¶ 23} The owners of the adjoining tracts of land initially brought suit to halt the

construction of the guesthouse, but following negotiations, the parties agreed that the

guesthouse could be built, but only on condition that the guesthouse could not be conveyed

separately from the first tract of land. Id.

       {¶ 24} Years later, the owner of the first tract attempted to sell the guesthouse

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separately in violation of the prior agreement. Id. at *5. The attempted purchaser of the

guesthouse, citing Raisch, argued that the prior agreement was against public policy as an

undue restraint on alienability. Id. at *13.

       {¶ 25} The First District disagreed with the attempted purchaser and held that the

prior agreement was not unenforceable. Id. at *15. In so doing, the court distinguished

Raisch as involving "an absolute restraint upon alienability," and stated:

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

Id. at *14-15.

       {¶ 26} The conservation easement in this case is more akin to the restrictive

covenant in Head than the absolute restraint on alienability in Raisch. In this case, the

conservation easement does not restrict the sale of the Property, but merely prohibits the

division of the Property into two or more parcels. Furthermore, unlike Raisch, in this case the

parties expressly stated the conservation easement was for the purpose of conservation of

the land and was to extend in perpetuity. In exchange for this perpetual easement right, the

Trust agreed to pay James Taylor $30,000 as consideration.

       {¶ 27} We similarly find Raisch to have limited applicability to this case, as it was

decided prior to the adoption of Ohio's conservation easement statutes. Janis and appellees

expressly granted and conveyed the conservation easement to the Trust "pursuant to the

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laws of Ohio, and in particular Sections 5301.07 through 5301.70 of the Ohio Revised Code."

The parties also agreed in paragraph 17.2 that the conservation easement "shall be liberally

construed in favor of the grant to effect the purposes of this Easement and the policy and

purpose of Sections 5301.67 through 5301.70 of the Ohio Revised Code."

       {¶ 28} No party disputes that the Trust holds a valid conservation easement on the

Property. The term "conservation easement" is defined in R.C. 5301.67(A), which states:

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

(Emphasis added.) R.C. 5301.69(B) further provides that charitable organization like the

Trust may hold a conservation easement for "the preservation of land areas for public

outdoor recreation or education, or scenic enjoyment; the preservation of historically

important land areas or structures; or the protection of natural environmental systems."

       {¶ 29} In sum, a review of the pertinent statutes reveals that the Legislature enacted

these provisions for the "public purpose of retaining land, water, or wetland areas

predominantly in their natural, scenic, open, or wooded condition." Considered in light of the

conservation easement statutes, the agreement restricting subdivision of the Property would

not be contrary to public policy or inconsistent with the public policy expressed in the

legislation. Moreover, the subdivision restriction does not amount to an undue restraint on

alienability. The subdivision restriction contained in paragraph 5.4 merely prohibits the owner

from dividing the parcel into two or more parcels.


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       {¶ 30} As a result, we find the trial court erred by relying on Raisch and finding that

the subdivision restriction contained in paragraph 5.4 of the conservation easement was

invalid. Therefore, we sustain Janis' and the Trust's first assignments of error.

       {¶ 31} The Trust's second assignment of error alleges the trial court improperly

weighed evidence in resolving this matter on summary judgment. However, in light of our

resolution of Janis' and the Trust's first assignments of error, that issue is now moot.

       {¶ 32} Judgment reversed and remanded.


       PIPER and M. POWELL, JJ., concur.




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