[Cite as JLP-Orange, L.L.C. v. Tuller Square Northpointe, L.L.C., 2024-Ohio-2236.]

COURT OF APPEALS

DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JLP-ORANGE, LLC JUDGES:

Hon. Patricia A. Delaney, P.J.

 Plaintiff-Appellant Hon. William B. Hoffman, J.

Hon. John W. Wise, J.

-vsCase No. 23 CAE 11 0098

TULLER SQUARE NORTHPOINTE, LLC

 Defendant-Appellee O P I N I O N

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of 

Common Pleas, Case No. 23 CV H 01 

0507

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 11, 2024

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JAMES D. ABRAMS JENNIFER BATTLE

ANDREW M. MARTIN JOEL E. SECHLER 

Taft Stettinius & Hollister, LLP Carpenter Lipps and Leland, LLP

41 South High Street, Suite #1800 280 North High Street, Suite #1300

Columbus, Ohio 43215 Columbus, Ohio 43215
Delaware County, Case No. 23 CAE 11 0098 2

Hoffman, J.

{¶1} Plaintiff-appellant JLP-Orange LLC (“JLP-Orange”) appeals the October 23, 

2023 Judgment Entry entered by the Delaware County Court of Common Pleas, which 

granted judgment on the pleadings to defendant-appellee Tuller Square Northpointe LLC 

(“Northpointe”).

STATEMENT OF THE FACTS AND CASE

{¶2} JLP-Orange owns a planned commercial development along U.S. Rte 23 in 

Delaware County, Ohio (“the JLP Property”). The JLP Property lies directly north of 

Northpointe’s previously developed property (“the Northpointe Property”). The 

Northpointe Property includes, along its northern border, a private drive. The drive is 

constructed entirely on the Northpointe Property and runs east-west between U.S. Rte 23 

and Highfield Drive.

{¶3} In a correspondence dated May 4, 1998 (“May 4, 1998 Correspondence”), 

sent to the Planning & Program Administrator of the Ohio Department of Transportation 

(“ODOT”), Richard Solove, the General Partner of Tuller Square Partnership (“the 

Partnership”), outlined his understanding of an April 29, 1998 conversation between 

ODOT and the Partnership regarding the then-planned development of what is now the 

Northpointe Property. The May 4, 1998 Correspondence set forth the Partnership’s 

commitment to construct a 30-foot-wide non-dedicated private roadway which would 

connect the property at the northern boundary line to the point of ingress and egress at a 

planned intersection along the western boundary line of the Northpointe Property. The 

roadway is separate and distinct from the private drive also on the Northpointe Property.
Delaware County, Case No. 23 CAE 11 0098 3

{¶4} The May 4, 1998 Correspondence further noted the roadway would be 

opened to the public once the following five conditions were completed to the 

Partnership’s “sole satisfaction:”

1. The traffic signal at the Intersection [to be located north of U.S. 

Rte. 23/N. High Street and Meadow Park Avenue at the main entrance to 

the Northpointe Property] is installed and operating.

2. [The Partnership obtains] a cross-easement in a form acceptable 

to [it] for ingress and egress through the property to the north of [its] site 

owned by Continental/Schottenstein, Ltd. (“Continental Property”) granting 

access to the traffic signal to be installed at an intersection on High Street 

at the lot line between the Continental property and The Glimcher Co. 

property, which is immediately north of the Continental property 

(“Continental/Glimcher intersection”).

3. [The Partnership obtains] a cross-easement in a form acceptable 

to [it] for ingress and egress through the Continental property granting 

access to a right-in/right-out turn at a mutually agreeable point on High 

Street, immediately north of [the Northpointe Property].

4. The traffic signal at the Continental/Glimcher intersection is 

installed and operating.

5. Highfield Drive is extended through the Continental property to its 

northern boundary.

May 4, 1998 Correspondence.
Delaware County, Case No. 23 CAE 11 0098 4

{¶5} At this time, the JLP Property was owned by Continental/Schottenstein. Ltd. 

(“Continental/Schottenstein”), which was neither a signatory to nor a recipient of the May 

4, 1998 Correspondence. On February 12, 1999, Continental/Schottenstein deeded the 

JLP Property to Schottenstein Professional Asset Management Corporation 

(“Schottenstein Professional”) pursuant to a limited warranty deed. The limited warranty 

deed did not mention the May 4, 1998 Correspondence or either of the proposed 

easements across the Northpointe Property described therein. On September 26, 2008, 

Schottenstein Professional deeded the JLP Property to JLP-Orange pursuant to a limited 

warranty deed. The limited warranty deed provided the JLP Property was conveyed to 

JLP-Orange “subject to easements, conditions, covenants, restrictions, reservations and 

encumbrances of record.” The May 4, 1998 Correspondence is not referenced in the 

limited warranty deed.

{¶6} ODOT constructed the traffic signals contemplated in conditions one and 

four of the May 4, 1998 Correspondence. In addition, as contemplated in condition five, 

Highfield Drive was extended through the JLP Property to the property’s northern 

boundary. JLP-Orange contends, but Northpointe denies, the 30-foot-wide nondedicated private roadway, as described in the May 4, 1998 Correspondence, has been 

constructed. 

{¶7} On July 19, 2023, JLP-Orange filed a complaint against Northpointe, 

alleging breach of contract, declaratory judgment, and unjust enrichment, and seeking 

preliminary and permanent injunctive relief. Under the breach of contract theory, JLPOrange asserted it was an intended third-party beneficiary of the May 4, 1998 

Correspondence and Northpointe breached the contract by failing to provide JLP-Orange 
Delaware County, Case No. 23 CAE 11 0098 5

with a cross-easement for ingress and egress through the Northpointe Property along the 

30-foot-wide non-dedicated private roadway. In the alternative, JLP-Orange argued it 

was entitled to damages under an unjust enrichment theory as the result of Northpointe’s 

refusal to provide the cross-easement. JLP-Orange also sought a declaration Northpointe 

was obligated to provide JLP-Orange with the cross-easement as well as an injunction 

requiring Northpointe to grant the cross-easement to JLP-Orange.

{¶8} On September 5, 2023, Northpointe filed an answer as well as a motion for 

judgment on the pleadings. JLP-Orange filed a memorandum contra on October 3, 2023. 

Northpointe filed a reply on October 12, 2023. 

{¶9} Via Judgment Entry filed October 24, 2023, the trial court granted 

Northpointe’s motion for judgment on the pleadings. 

{¶10} It is from this judgment entry Appellant appeals, asserting the following as 

error:

I. THE TRIAL COURT ERRED IN GRANTING JUDGMENT ON THE 

PLEADINGS AS TO JLP-ORANGE’S BREACH OF CONTRACT AND 

DECLARATORY JUDGMENT CLAIMS.

II. THE TRIAL COURT ERRED IN GRANTING JUDGMENT ON THE 

PLEADINGS AS TO JLP-ORANGE’S ALTERNATIVE CLAIM OF UNJUST 

ENRICHMENT.

III. THE TRIAL COURT ERRED IN DISMISSING JLP-ORANGE’S 

CONTRACT CLAIMS WITH PREJUDICE, BY WAY OF JUDGMENT ON 

THE PLEADINGS.
Delaware County, Case No. 23 CAE 11 0098 6

Standard of Review

{¶11} Civ. R. 12(C) provides, “After the pleadings are closed but within such time 

as not to delay the trial, any party may move for judgment on the pleadings.” As the 

reviewing court, our review of a dismissal of a complaint based upon a judgment on the 

pleadings requires us to independently review the complaint and determine if the 

dismissal was appropriate. Rich v. Erie County Department of Human Resources, 106 

Ohio App.3d 88, 91, 665 N.E.2d 278 (1995). A reviewing court need not defer to the trial 

court's decision in such cases. Id.

{¶12} A motion for a judgment on the pleadings, pursuant to Civ. R. 12(C), 

presents only questions of law. Peterson v. Teodosio, 34 Ohio St.2d 161, 165–166, 297 

N.E.2d 113 (1973). The determination of a motion under Civ. R. 12(C) is restricted solely 

to the allegations in the pleadings and the nonmoving party is entitled to have all material 

allegations in the complaint, with all reasonable inferences to be drawn therefrom, 

construed in its favor. Id. Evidence in any form cannot be considered. Conant v. Johnson, 

1 Ohio App.2d 133, 135, 204 N.E.2d 100 (1964). In considering such a motion, one must 

look only to the face of the complaint. Nelson v. Pleasant, 73 Ohio App.3d 479, 597 

N.E.2d 1137 (1991).
Delaware County, Case No. 23 CAE 11 0098 7

I

{¶13} In its first assignment of error, JLP-Orange submits the trial court erred in 

granting judgment on the pleadings as to its breach of contract and declaratory judgment 

claims. 

{¶14} “[A] breach of contract occurs when a party demonstrates the existence of 

a binding contract or agreement; the nonbreaching party performed its contractual 

obligations; the other party failed to fulfill its contractual obligations without legal excuse; 

and the nonbreaching party suffered damages as a result of the breach.” Phillips v. Spitzer 

Chevrolet Company, et al., Stark App. No. 2006CA00002, 2006-Ohio-4701, at ¶ 17, citing 

Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 108 (1995).

{¶15} “The existence of a contract is a question of law.” Zelina v. Hillyer, 165 Ohio 

App.3d 255, 846 N.E.2d 68, 2005–Ohio–5803, at ¶ 12, citing Telxon Corp. v. Smart Media 

of Delaware, Inc., 9th Dist. Nos. 22098 and 22099, 2005-Ohio-4931, 2005 WL 2292800, 

at ¶ 40. “A contract is generally defined as a promise, or a set of promises, actionable 

upon breach. Essential elements of a contract include an offer, acceptance, contractual 

capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation 

of mutual assent and legality of object and of consideration.” Kostelnik v. Helper, 96 Ohio 

St.3d 1, 770 N.E.2d 58, 2002–Ohio–2985, at ¶ 16, quoting Perlmuter Printing Co. v. 

Strome, Inc. (N.D. Ohio 1976), 436 F.Supp. 409, 414. 

{¶16} JLP-Orange alleges the “terms of the 1998 Letter Agreement support, the 

(1) existence of a sufficiently definite, binding contract between [Northpointe] and ODOT, 

(2) of which JLP-Orange is a third-party beneficiary, and (3) as to which the only 

obligations that went unfulfilled are those [Northpointe] owed to JLP-Orange – thereby 
Delaware County, Case No. 23 CAE 11 0098 8

supporting the viability of JLP’s breach of contract and declaratory judgment claims.” Brief 

of Appellant at p. 7.

{¶17} Initially, we must determine whether the May 4, 1998 Correspondence was 

an offer capable of acceptance.

{¶18} “An offer is the manifestation of willingness to enter into a bargain, so made 

as to justify another person in understanding that his assent to that bargain is invited and 

will conclude it.” Garrison v. Daytonian Hotel, 105 Ohio App.3d 322, 325, 663 N.E.2d 

1316 (2d Dist. 1995), citing 1 Restatement of the Law 2d, Contracts (1981), Section 24.

“[C]onduct sufficient to show agreement, including performance, is a reasonable mode of 

acceptance.” Tlg Electronics, Inc. v. Newcome Corp., 10th Dist. Franklin No. 01AP—821, 

2002-Ohio-882, 2002 WL 338203, *2, citing Central Transport, Inc. v. Cleveland 

Metallurgical Supply Co., 8th Dist. Cuyahoga App. No. 63055, 1993 WL 266924, *3, citing 

American Bronze Corp. v. Streamway Products, 8 Ohio App.3d 223 (1982), paragraph 

two of the syllabus.

{¶19} In its October 24, 2023 Judgment Entry, the trial court found:

While the 1998 Letter resembles an offer in that [Northpointe] 

committed to constructing and opening to the public a 30-foot-wide roadway 

upon the satisfaction of the enumerated conditions, that obligation would 

only arise upon the satisfaction of conditions that include steps that only 

[Northpointe] itself could satisfy. Conditions (2) and (3) of the 1998 Letter 

pertain to cross-easements between the neighboring properties. In no way 

could ODOT have acted to satisfy these conditions and, therefore, accept 
Delaware County, Case No. 23 CAE 11 0098 9

the offer because those conditions, by definition, could be satisfied only by 

[Northpointe] and the owner of the northern property. * * * In effect, viewing 

the 1998 Letter as an offer with conditions for acceptance that only 

[Northpointe] could satisfy renders the contract illusory.”

Id. at pp. 5-6.

{¶20} We agree, in part, with the trial court’s finding the May 4, 1998 

Correspondence is an illusory contract.

{¶21} “A contract is illusory only when by its terms the promisor retains an 

unlimited right to determine the nature or extent of his performance; the unlimited right, in 

effect, destroys his promise and this makes it merely illusory.” Imbrogno v. Mimrx.com, 

Inc., 10th Dist. Franklin No. 03AP–345, 2003–Ohio–6108, ¶ 8, citing Century 21 Am. 

Landmark, Inc. v. McIntyre, 68 Ohio App.2d 126, 427 N.E.2d 534, paragraph one of the 

syllabus (1st Dist. 1980). (Emphasis in original). Illusory contracts are not enforceable. Id.

{¶22} The May 4, 1998 Correspondence provided the roadway would be opened 

to the public once the five conditions were completed to Northpointe’s “sole satisfaction.” 

Because Northpointe alone retained the right to determine if the conditions were 

completed to its satisfaction, the May 4, 1998 Correspondence was illusory, in part.

{¶23} We also find the May 4, 1998 Correspondence was not an offer which 

ODOT could accept through the performance of all five of the conditions. “As long as both

parties contemplate that something remains to be done to establish contractual 

relationship, no contract has been made.” Bibb v. Home Sav. & Loan Co., 6th Dist. Huron 

No. H-87-26, 1991WL1572, *4, citing General Motors Corp. v. Keener Motors, Inc. (1952), 
Delaware County, Case No. 23 CAE 11 0098 10

194 F.2d 669, 676, 63 Ohio Law Abs. 392 (1952). ODOT’s construction of the 

intersections and extension of Highfield Drive fulfilled only three (3) of five (5) conditions 

which had to be satisfied before Northpoint would create the public roadway. ODOT was 

unable to satisfy two (2) of those conditions, specifically, granting cross-easements over 

the JLP-Orange and Northpointe Properties.

{¶24} We now turn to the issue of whether the May 4, 1998 Correspondence was 

enforceable as a contract with conditions precedent.

{¶25} A condition precedent is a condition that must be performed before the 

obligations in the contract become effective. M3 Producing, Inc. v. Tuggle, 5th Dist. Stark 

No. 2017CA00036, 2017-Ohio-9123, 91 N.E.3d 805, ¶ 14, citing Kern v. Clear Creek Oil 

Co., 149 Ohio App.3d 560, 2002-Ohio-5438, 778 N.E.2d 115 (2002), citing Troha v. 

Troha, 105 Ohio App.3d 327, 663 N.E.2d 1319 (1995). Essentially, a condition precedent 

requires that an act “must take place before a duty of performance of a promise arises. 

Id. If the condition is not fulfilled, the parties are excused from performing.” Id. Whether a 

provision of a contract is a condition precedent is a question of the parties' intent. Id. Intent 

is ascertained by considering not only the language of the particular provision but also 

the language of the entire agreement and its subject matter. Id.

{¶26} The trial court found Northpointe’s “pledge to open the 30-foot-wide 

roadway [was] a promise with no corresponding return promise,” which rendered the 

alleged contract void for lack of consideration. October 24, 2023 Judgment Entry at p. 7. 

We disagree. We find conditions 1, 4, and 5 set forth in the May 4, 1998 Correspondence 

once performed by ODOT, contractually obligated Northpointe to open the 30-foot 

roadway to the public, which Northpointe did, in fact, do. Had Northpointe not opened the 
Delaware County, Case No. 23 CAE 11 0098 11

roadway to the public, we find ODOT would have had a legal remedy to require 

Northpointe to do so based upon ODOT’s performance of the conditions precedent. 

However, we sever those conditions from conditions 2 and 3, which are clearly illusory as 

between ODOT and Northpointe, and cannot, in any manner, be said to constitute a 

contract. 

{¶27} “Consideration may consist of either a detriment to the promisee or a benefit 

to the promisor.” Adams v. Morningstar, 4

th Dist. Pickaway No. 21CA5, 2022-Ohio-918, ¶ 

26, citing Williams v. Ormsby, 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 16. 

“A benefit may consist of some right, interest, or profit accruing to the promisor, while a 

detriment may consist of some forbearance, loss, or responsibility given, suffered, or 

undertaken by the promisee.” Id.

{¶28} ODOT’s installation of the traffic signals, which created the corresponding 

intersections, (and the extension of Highfield Drive) were conditions precedent to 

Northpointe’s opening of the public roadway, which Northpointe subsequently fulfilled. 

However, ODOT’s actions were separate from, and provided no consideration for, any 

promises between Northpointe and JLP-Orange, rendering the May 4, 1998 

Correspondence illusory as to any rights or obligations between Northpointe and JLPOrange. Conditions 2 and 3, which related to the cross-easements between the 

Northpointe and JLP-Orange Properties, had to be completed to Northpointe’s sole

satisfaction, which leads back to the finding the May 4, 1998 Correspondence is illusory,

and unenforceable between them.
Delaware County, Case No. 23 CAE 11 0098 12

{¶29} Having found the May 4, 1998 Correspondence was a valid contract

between ODOT and Northpointe as to conditions 1, 4, and 5, we must determine whether 

JLP-Orange is a third-party beneficiary to that severed portion of the contract. 

{¶30} “Ohio law thus requires that for a third party to be an intended beneficiary 

under a contract, there must be evidence that the contract was intended to directly benefit 

that third party.” Huff v. FirstEnergy Corp., 130 Ohio St.3d 196, 2011-Ohio-5083, 957 

N.E.2d 3, ¶ 12. “Generally, the parties' intention to benefit a third party will be found in the 

language of the agreement.” Id.

{¶31} In Huff, supra, the Ohio Supreme Court adopted the “intent to benefit” test 

to determine whether a party is an intended beneficiary of a contract. Under that test,

if the promisee * * * intends that a third party should benefit from the 

contract, then that third party is an “intended beneficiary” who has 

enforceable rights under the contract. If the promisee has no intent to 

benefit a third party, then any third-party beneficiary to the contract is merely 

an “incidental beneficiary,” who has no enforceable rights under the 

contract.

Id. at ¶ 11, citing Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio 

St.3d 36, 40, 521 N.E.2d 780 (1988), quoting Norfolk & W. Co. v. United 

States, 641 F.2d 1201, 1208 (6th Cir. 1980).
Delaware County, Case No. 23 CAE 11 0098 13

{¶32} We find the May 4, 1998 Correspondence is devoid of any language which 

evidences JLP-Orange or its predecessors were intended third-party beneficiaries. At 

best, they were potential, incidental beneficiaries.

{¶33} JLP-Orange maintains it is an intended third-party beneficiary to the May 4, 

1998 Correspondence as Condition 2 provides for a cross-easement for ingress and 

egress through the Continental Property. JLP-Orange explains “intent is inherent in the 

word ‘cross,’ and the reciprocal nature of cross-easements more generally. Brief of 

Appellant at p. 11. JLP-Orange further insists, “by agreeing to construct a roadway 

providing access to the new intersection and traffic signal abutting its property, and 

obtaining a ‘cross-easement’ for access across JLP-Orange’s property to another new 

traffic signal * * *, [Northpointe] necessarily committed to providing JLP-Orange with 

reciprocal access to the newly-built roadway that, per [Northpointe’s] promise to ODOT, 

would be ‘open to the public.’ ” Id. at pp. 11-12. We disagree.

{¶34} Condition 2 states, Tuller Square Partnership will “obtain a cross-easement 

in a form acceptable to us for ingress and egress through the property to the north of our 

site owned by Continental/Schottenstein, Ltd. (“Continental property”) granting access to 

the traffic signal to be installed at an intersection on High Street * * *.” May 4, 1998 

Correspondence at p. 1, unpaginated. (Emphasis added).

{¶35} Although not defined, we find the use of the term “cross-easement” in 

condition 2 of the May 4, 1998 Correspondence means an easement across the JLPOrange Property, not a reciprocal easement between Northpointe and JLP-Orange. 

Specifically, the easement would grant Northpointe ingress and egress through the JLPOrange Property. Condition 2 does not refer to Northpointe granting JLP-Orange or its 
Delaware County, Case No. 23 CAE 11 0098 14

predecessors with access across the Northpointe Property. The May 4, 1998

Correspondence does not contemplate reciprocal easements between Northpointe and 

JLP-Orange. In addition, if a reciprocal easement was contemplated, the form of the 

easement condition 2 requires “a cross-easement in a form acceptable to [Northpointe].” 

Such has not occurred.

{¶36} Based upon the foregoing, we find the trial court did not err in granting 

judgment on the pleadings as to JLP-Orange’s breach of contract and declaratory 

judgment claims. 

{¶37} JLP-Orange’s first assignment of error is overruled.

II

{¶38} In its second assignment of error, JLP-Orange argues the trial court erred 

in granting judgment on the pleadings as to its alternative claim of unjust enrichment. 

{¶39} To establish a claim for unjust enrichment a plaintiff must demonstrate: (1) 

a benefit conferred by a plaintiff upon a defendant, (2) knowledge by the defendant of the 

benefit, and (3) retention of the benefit by the defendant under circumstances where it 

would be unjust to do so without payment. Robinette v. PNC Bank, 5th Dist. Licking No. 

15-CA-47, 2016-Ohio-767, 2016 WL 771319, ¶ 23, citing Hambleton v. R.G. Barry Corp.,

12 Ohio St.3d 179, 183, 465 N.E.2d 1298 (1984).

{¶40} The doctrine of unjust enrichment “applies when a benefit is conferred and 

it would be inequitable to permit the benefitting party to retain the benefit without 

compensating the conferring party.” KN Excavation LLC v. Rockmill Brewery LLC, 5th 

Dist. Fairfield No. 2021 CA 00034, 196 N.E.3d 916, 2022-Ohio-3414, ¶ 24, citing GarbKo, Inc. v. Benderson, 10th Dist. Franklin No. 12AP-430, 2013-Ohio-1249, 2013 WL 
Delaware County, Case No. 23 CAE 11 0098 15

1303815, ¶ 25. The purpose of an unjust enrichment claim is not to compensate the 

plaintiff for loss or damage suffered by the plaintiff, but to enable the plaintiff to recover 

the benefit he conferred on the defendant when it would be unjust for the defendant to

retain the benefit. Id., citing Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio4985, 834 N.E.2d 791, ¶ 20.

{¶41} JLP-Orange submits, in its Complaint, it “alleged that it conveyed a benefit 

upon [Northpointe] by its agreement/willingness to agree to the cross-easement which 

facilitated and ultimately resulted in the intersection and traffic signal being installed on 

[Northpointe’s] property” and which Northpointe has “unjustly and knowingly retained [the] 

benefit [therefrom] solely for itself by failing to agree to the cross-easement.” Brief of 

Appellant at p 16. (Emphasis in original). 

{¶42} In its October 24, 2023 Judgment Entry, the trial court found:

The parties agree that Northpointe never accepted an easement 

from JLP-Orange (See [Complaint] ¶ 11; Def.’s 9/5/23 Answer ¶ 31) 

Northpointe could not, therefore, be unjustly enriched by a grant of land 

rights from JLP-Orange to Northpointe. Additionally, nowhere is it alleged 

that JLP-Orange provided funding or labor for the construction of an 

intersection. But even if JLP-Orange can show, as alleged, that its mere 

willingness to provide an easement to Northpointe has resulted in an 

intersection being built to which only Northpointe has access, JLP-Orange 

would not have a valid unjust-enrichment claim because the alleged benefit 

that resulted from that willingness – Northpointe’s access to the intersection 
Delaware County, Case No. 23 CAE 11 0098 16

– is not a benefit that JLP-Orange was ever capable of granting to 

Northpointe, At best, JLP-Orange could show that the benefit it conferred 

on Northpointe resulted in the intersection being built as a mere 

consequence. As a result, under no set of facts could JLP-Orange prove 

that Northpointe has been unjustly enriched by JLP-Orange’s promise.

October 24, 2023 Judgment Entry at pp. 9-10.

{¶43} We agree with the trial court. Northpointe neither requested nor received an 

easement from JLP-Orange. We find JLP-Orange’s readiness and willingness to grant 

an easement to Northpointe is not a benefit conferred on Northpointe; therefore, 

Northpointe was not unjustly enriched. In addition, that Northpointe did not seek the 

cross-easement discussed in conditions 2 and 3 of the May 4, 1998 Correspondence, 

which, according to JLP-Orange, resulted in it being “unable to grant the crosseasement,” does not change the fact JLP-Orange did not confer a benefit on Northpointe. 

We further find Northpointe’s access to the intersection was not a benefit conferred by 

JLP-Orange, but rather by ODOT, which installed the traffic signal creating the 

intersection.

{¶44} Based upon the foregoing, we find the trial court did not err in granting 

judgment on the pleadings in favor of Northpointe on JLP-Orange’s alternative theory of 

unjust enrichment.

{¶45} JLP-Orange’s second assignment of error is overruled.
Delaware County, Case No. 23 CAE 11 0098 17

III

{¶46} In its third assignment of error, JLP-Orange maintains the trial court erred 

in dismissing its contract claims with prejudice. Specifically, JLP-Orange asserts the trial 

court should have provided it with leave to amend its complaint.

{¶47} In a footnote in its Memorandum Contra Defendant’s Motion for Judgment 

on the Pleadings, JLP-Orange remarked:

Although Plaintiff maintains that the facts have been well-pled, and 

that the Court should deny Defendant’s Motion, should the Court disagree, 

Plaintiff respectfully moves the Court to provide Plaintiff with the opportunity 

to amend its Complaint.

Memorandum Contra Defendant’s Motion for Judgment on the 

Pleadings at p. 11, footnote 2. 

{¶48} This Court has previously questioned whether a request for leave to amend 

made in a footnote in a memorandum in opposition to a motion for judgment on the 

pleadings is an appropriate motion for leave to amend the complaint. Sanzo Ent., LLC v. 

Erie Ins. Exchange, 5th Dist. Delaware, 2021-Ohio-4268, 182 N.E.3d 393, ¶68. The trial 

court did not rule on JLP-Orange’s request; therefore, it was implicitly overruled. See, Id. 

Nonetheless, we shall consider whether the trial court abused its discretion in denying 

JLP-Orange’s motion for leave to amend. See, Patterson v. V & M Auto Body, 63 Ohio 

St.3d 573, 576, 589 N.E.2d 1306 (1992) (The denial of leave to amend a pleading is 

reviewed under an abuse-of-discretion standard).
Delaware County, Case No. 23 CAE 11 0098 18

{¶49} “While Civ.R. 15(A) provides that leave to amend should be given freely, a 

trial court properly refuses to grant leave to amend when amendment would be futile.” 

Hensley v. Durrani, 1st Dist. Hamilton No. C–130005, 2013-Ohio-4711, 2013 WL 

5777076, ¶ 14, citing Natl. City Bank v. Citizens Natl. Bank of Southwest Ohio, 2d Dist. 

Montgomery No. 20323, 2004–Ohio–6060, ¶ 26.

{¶50} Based upon our disposition of JLP-Orange’s first assignment of error, we 

find the trial court did not abuse its discretion in denying its motion for leave to amend as 

amendment would be futile. JLP-Orange cannot plead its claims in any other way. The 

claims are predicated on the May 4, 1998 Correspondence, which we found, supra, is an 

illusory contract. We also found, supra, any alleged contract is void for lack of 

consideration. Finally, the May 4, 1998 Correspondence does not identify JLP-Orange as 

an intended third-party beneficiary.

{¶51} JLP-Orange’s third assignment of error is overruled.
Delaware County, Case No. 23 CAE 11 0098 19

{¶52} The judgment of the Delaware County Court of Common Pleas is affirmed. 

By: Hoffman, J.

Delaney, P.J. and

Wise, J. concur