[Cite as Hanahan v. DPA Dev., L.L.C., 2022-Ohio-3843.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY

JANICE M. HANAHAN, EXECUTOR 

OF THE ESTATE OF JAMES P. 

MCCLOSKEY, DECEASED

Plaintiff-Appellee

v.

DPA DEVELOPMENT, LLC, et al. 

Defendants-Appellants

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Appellate Case No. 29486

Trial Court Case No. 2018-CV-1018

(Civil Appeal from

Common Pleas Court)

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O P I N I O N

Rendered on the 28th day of October, 2022.

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RICHARD L. CARR, JR., Atty. Reg. No. 0003180, 110 North Main Street, Suite 1000,

Dayton, Ohio 45402

 Attorney for Plaintiff-Appellee

 

SCOTT G. OXLEY, Atty. Reg. No. 0039285, 325 N. Main Street, Suite 204, Springboro, 

Ohio 45066

Attorney for Defendants-Appellants

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LEWIS, J.
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{¶ 1} Defendants-Appellants, DPA Development, Inc. (“DPA”) and David D’Amico

(collectively, “Defendants”) appeal from the trial court’s judgment following remand from 

this Court. For the reasons stated below, the trial court’s judgment will be reversed, and 

the matter will be remanded for further proceedings consistent with this opinion. 

I. Facts and Course of Proceedings

{¶ 2} Tim Rash owned a single parcel consisting of two properties known as 

424/428 Littell Avenue in Dayton, Ohio. Both properties had commercial buildings 

located on them. In 2007, Rash leased the 428 Littell property to a company named 

Little Giant Body & Paint Service, but issues between those parties arose and a lawsuit 

was initiated in 2012. As part of the resolution of that lawsuit, on November 7, 2013, 

DPA, of which David D’Amico was a principal member and owner, signed a contract to 

buy the 424/428 Littell Avenue parcel from Rash for $260,000. 

{¶ 3} After DPA contracted with Rash to purchase the parcel, DPA and James 

McCloskey entered into a purchase agreement for 424 Littell dated November 18, 2013

(“November 2013 Purchase Agreement”). DPA and McCloskey intended to split the 

424/428 Littell parcel, with McCloskey receiving the 424 property and DPA keeping the 

428 property. According to the purchase agreement, the property was in the process of 

being split at that time, and a survey identifying the split was attached to the agreement. 

On December 21, 2013, McCloskey paid DPA the full amount of the contract price 

($175,000) for the 424 property. DPA then used some of this money for the down 

payment on its purchase from Rash in order to acquire the full parcel at the closing. On

January 31, 2014, Rash issued a warranty deed for the entire parcel to DPA. 
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{¶ 4} McCloskey died in June 2017. Prior to his death, McCloskey had used the

building located at 424 Littell and DPA had used the building located at 428 Littell. At

the time of McCloskey’s death, DPA was still the titled owner of the whole 424/428 Littell 

parcel, as it had never been split and title had never been transferred to McCloskey. 

{¶ 5} In March 2018, Janice M. Hanahan, as executor of the Estate of James P. 

McCloskey, filed a complaint against D’Amico and DPA alleging that the decedent, 

McCloskey, had contracted to purchase the real estate located at 424 Littell according to 

the November 2013 Purchase Agreement. Despite the fact that McCloskey had paid the 

full purchase price of $175,000 to DPA, no title had ever been transferred to him. After 

McCloskey’s death, D’Amico claimed that DPA had no obligation to transfer the real 

estate to McCloskey or to his estate; he changed the locks on the property and claimed 

possession. Hanahan’s complaint contained eight separate claims: (1) breach of 

contract; (2) specific performance; (3) express trust; (4) constructive trust; (5) wrongful 

eviction; (6) trespass; (7) conversion; and (8) punitive damages. 

{¶ 6} After filings from the parties, the trial court granted summary judgment to 

DPA on the express trust and wrongful eviction claims. In addition, the court granted 

summary judgment to D’Amico on claims for specific performance and breach of contract, 

finding the express trust and wrongful eviction claims against him moot. Thus, the issues 

that remained for trial against both DPA and D’Amico were constructive trust, trespass, 

conversion, and punitive damages. The claims against DPA for breach of contract and 

specific performance also remained. 

{¶ 7} Following a bench trial, the court issued both a final judgment entry and an 
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amended final judgment entry on February 21, 2019. The court granted Defendants’ 

motions to dismiss the counts for conversion and trespass. The court then found in 

Hanahan’s favor on the claims for breach of contract and specific performance, and it 

ordered specific performance as a remedy. In addition, the court awarded Hanahan 

damages of $4,126.22. As an alternate remedy, the court ordered Defendants to hold 

$175,000 in a constructive trust for Hanahan’s benefit. Findings of facts and conclusions 

of law were issued on February 27, 2019. No appeal was taken from the trial court’s 

judgment.

{¶ 8} In August 2019, Hanahan filed a motion to show cause why the property had 

not been transferred in accordance with the court’s February 2019 order. In October 

2019, the parties appeared for a hearing on the motion and informed the court that they 

had reached an agreement. Part of this agreement included the parties’s purportedly 

resolving a dispute concerning a parking license. Although the parties placed an oral 

agreement into the record, no written agreement was submitted. No other challenges to 

the transfer of property were raised at that time. 

{¶ 9} Hanahan filed a second motion to show cause in May 2020. Hanahan noted 

that despite the prior apparent resolution of the parking license, Defendants had failed to 

comply with the trial court’s orders and asked the court to hold Defendants in contempt 

for failing to convey the property, hold $175,000 for Hanahan’s benefit, and pay damages 

of $4,126.22. The trial court held a hearing after which it found Defendants in contempt;

it issued an order requiring Defendants to comply with the trial court’s prior orders and 

reflecting the court’s interpretation of the parties’ settlement agreement. 
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{¶ 10} The July 13, 2020 entry ordered, in pertinent part, that:

3. The parties shall execute the Parking License Agreement submitted to 

the Court as a portion of Plaintiff’s Exhibit 4. 

4. Said Parking License Agreement, at paragraph 12(B) shall read in full 

as follows:

Licensor may assign its rights, obligations and/or interests with 

Licensee’s prior written consent, which may not be unreasonably 

withheld. However, such assignment shall not infringe upon 

Licensee’s Option to Purchase as specifically stated in 

paragraph 19 of the Purchase Agreement entered into and 

between DPA Development LLC and James McCloskey on or 

about November 18, 2013. Licensee acknowledges that 

Licensor, being an estate, will be transferring its right to the 

estate’s heir, the James P. McCloskey Trust, and that said Trust 

will be transferring its rights to its beneficiary, Janice M. 

Hanahan, and/or an entity controlled by Janice M. Hanahan 

and/or the Trust and that all of such assignments are hereby 

consented to and do not trigger Licensee’s said Option to 

Purchase. 

It is the Court’s decision that paragraph 12(b) of the Parking License 

Agreement, Exhibit 4 shall not include a provision that the Option to 

Purchase referenced in that paragraph shall be in effect only during the term 
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of such License. 

5. Plaintiffs shall have a Right of First Refusal To Purchase Real Estate as 

set forth in Plaintiff’s Exhibit 8, which shall be executed by the parties in the 

form originally prepared by Plaintiff’s counsel. The Court expressly finds 

that any additional terms or revisions to the Right of First Refusal as set 

forth in the parties’ prior agreement are implicit in such agreement and do 

not constitute a material deviation from the parties’ agreement.

{¶ 11} Both sides appealed from the July 13, 2020 order. Hanahan v. DPA 

Development, LLC, 2021-Ohio-1212, 171 N.E.3d 462 (2d Dist.). Pertinent to this current 

appeal, Hanahan raised an assignment of error challenging an option to purchase as 

described in paragraph 19 of the November 2013 Purchase Agreement between DPA 

and McCloskey. The provision at issue granted DPA an unlimited right of first refusal to 

purchase the 424 Littell property for $175,000 upon receiving notice of the intent of 

McCloskey or his “representatives, assigns, executor or administrators” to sell the 

property. There was no time limitation placed on DPA’s right to exercise the option, 

which violated the rule against perpetuities. Furthermore, the restriction of the purchase 

price of $175,000, regardless of the land’s value or the offer McCloskey or his assigns 

might receive, ran afoul of Ohio’s laws. We therefore sustained Hanahan’s assignment 

of error and reversed part of the trial court’s judgment. We remanded the case to the 

trial court and ordered that the trial court remove all references in its July 13, 2020 order 

to the “option to purchase” contained in paragraph 19 of the November 2013 Purchase 

Agreement between DPA and McCloskey. We also instructed the trial court to consider 
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whether the contractual term voided by sustaining Hanahan’s assignment of error was

severable, to allow enforcement of the agreement. 

{¶ 12} On remand, a hearing was held regarding the severability of paragraph 19 

from the November 2013 Purchase Agreement between DPA and McCloskey. Hanahan 

argued that the paragraph was severable from the November 2013 Purchase Agreement,

whereas DPA argued that the paragraph was not severable and therefore that the entire 

purchase agreement could not be enforced. 

{¶ 13} On August 9, 2021, the trial court found paragraph 19 of the November 2013 

Purchase Agreement severable. Defendants appealed; however, that appeal was 

dismissed for lack of a final appealable order due to the trial court’s failure to comply with 

this Court’s mandate regarding a second issue addressed in the prior appeal (which is 

not relevant to this appeal). Another judgment entry was entered by the trial court on 

April 29, 2022, satisfying the mandate, and Defendants appealed again.

II. Argument

{¶ 14} Defendants raise one assignment of error that states:

The trial court erred in finding that paragraph 19 of the parties’ 

Purchase Agreement was severable. 

{¶ 15} Defendants argue that the trial court erred in finding that paragraph 19 was

a severable clause in order to enforce the November 2013 Purchase Agreement. They 

further argue that because paragraph 19 was not severable, the entire contract is void. 

{¶ 16} Apparently, the parties and the trial court misconstrued our prior mandate. 

The only trial court decision on appeal at that time was the trial court’s July 13, 2020 order 
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finding Defendants in contempt and resolving the Parking License Agreement. In 

concluding that DPA’s unlimited right of first refusal in paragraph 19 of the November

2013 Purchase Agreement violated the rule against perpetuities, we stated that “while the 

trial court did not err in referring to the contract of purchase, its decision was not based 

on sound reasoning with respect to including the option to purchase in its July 13, 2020 

order.” (Emphasis added.) Hanahan, 2021-Ohio-1212, 171 N.E.3d 462, at ¶ 44. As we 

explained, the trial court was to consider on remand “whether the contractual term voided 

by sustaining Hanahan’s First Assignment of error is severable to allow enforcement of 

the agreement[.]” Id. at ¶ 63. The only agreement in dispute before the court at that 

time was the Parking License Agreement. We further ordered that “[o]n remand, the trial 

court will remove all references in its order to the ‘option to purchase’ contained in 

paragraph 19 of the original purchase contract between DPA and McCloskey.” 

(Emphasis added.) Id. at ¶ 64. Thus, the issue to be resolved by the trial court on remand 

was whether, after removing all references in the July 13, 2020 order to the “option to 

purchase” contained in paragraph 19 of the November 2013 Purchase Agreement, the 

Parking License Agreement could still be enforced or if the removal of the references 

would result in the Parking License Agreement being voided. 

{¶ 17} The issue of whether the November 2013 Purchase Agreement could or 

should be enforced was decided by the trial court in February 2019. The trial court’s 

decision became final when the time for appeal had passed. Thus, the issue regarding 

severability of paragraph 19 of the November 2013 Purchase Agreement was not properly 

before the court upon remand. 
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{¶ 18} Because the trial court did not resolve the issue we mandated in the prior 

appeal, this case must be remanded to the trial court solely to determine whether the 

removal of all references in the July 13, 2020 order to the “option to purchase” contained 

in paragraph 19 of the November 2013 Purchase Agreement would result in the Parking 

License Agreement being enforceable or void. 

III. Conclusion

{¶ 19} The judgment of the trial court is reversed, and the matter is remanded for 

the trial court to determine whether the removal of all references in the July 13, 2020 

order to the “option to purchase” contained in paragraph 19 of the November 2013 

Purchase Agreement between DPA and McCloskey would result in the Parking License 

Agreement being enforceable or void. 

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WELBAUM, J. and DONOVAN, J., concur. 

Copies sent to:

Richard L. Carr, Jr.

Scott G. Oxley

Hon. Timothy N. O’Connell