[Cite as Brendamour v. Indian Hill , 202 2
- Ohio
- 4724.]



## IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DOUGLAS BRENDAMOUR , BETH BRENDAMOUR, BETH K. BRENDAMOUR, T rustee, DOUGLAS P. BRENDAMOUR, T rustee ,

a nd TOM KEREIAKES, T rustee , Plaintiff s - Appell ants/Third

- Party Defendants

- Appellees/Third

Party Cross

- A

ppellants ,
VS
. THE CITY OF THE VILLAGE OF INDIAN HILL , Defendant

- Appell ee, and ERIC S. KAHN, ALLISON A. KAHN,
ERIC S. KAHN , Trustee, and ALLISON A. KAHN, T rustee , Intervening Defendants / Third

Part y Plaintiffs

- Appellants /Third

Party Cross

- Appellees, :

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: APPEAL NO S . C

- 210504

C

- 210516 C

- 210517 TRIAL NO. B

- 1 705623

O P I N I O N.OHIO FIRST DISTRICT COURT OF APPEALS

2 vs. KATHRYN ANN WEICHERT KRANBUHL, and
KATHRYN ANN WEICHERT KRANBUHL, Trustee, Third

- Party Defendants. :

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Civil Appeal s From: Hamilton County Court of Common Pleas Judgment s Appealed From Are : Reversed in C

- 21050 4; Affirmed in C

- 210516 ; Appeal D ismissed in C

- 210517 Date of Judgment Entry on Appeal: December 29, 2022 Graydon Head & Ritchey LLP and Michael A. Roberts , for Plaintiff s Appellants/ Third Party Defendants

- Appellee s /Third

- Party Cross

- Appellants Douglas and Beth Brendamour, Douglas and Beth Brendamour, Trustees, and Tom Kereiakes, Trustee , Frost Brown Todd LLC, Scott D. Phillips and Jesse J. Shamp , for Defendant

- Appell ee the City of the Village of Indian Hill,
Law O ffice of Blake R. Maislin, LLC , and Blake R. Maislin , for Intervening Defendants / Third

- Party Plaintiffs

- Appellants /Third

- Party Cross

- Appellees Eric and Allison Kahn, and Eric and Allison Kahn , Trustees.OHIO FIRST DISTRICT COURT OF APPEALS

3 B OCK , Judge. 

### {¶1} These appeals arise from a dispute between neighbors involving the construction of a new house. Intervening defendants/third

- party plaintiffs

appellants /third

- party cross

- appell ees Eric and Allison Kahn, and Eric and Allison Kahn , Trustees , ( collectively the “Kahns”) have appealed in the appeal numbered C

210504 from the entry dismissing their counterclaim , which alleged that plaintiffs

appellants /third

- party defendants

- appellees / third

- party cross - appellants Douglas Brendamour and Beth Brendamour , Douglas and Bet h Brendamour, Trustee s, and
Tom Kereiakes, Trustee , (collectively the “ Brendamours ” ) breach ed a 2003 contract

. The Brendamours have appealed in the appeal numbered C

- 2105 16 from the entry dismissing their complaint , which asserted that defendant

- appellee the City of the Village of Indian Hill (“ Village” ) breach ed the same contract . In the appeal numbered
C

- 210517, t he Brendamours raise only def ensive arguments with respect to the a ppeal numbered C

- 210504. 

### {¶2} Upon our review, we determin e the trial court erred by dismissing the Kahns ’ breach

- of

- contract claim against the Brendamours . But the trial court correctly dismissed the Brendamours ’ breach

- of

- contract claim against the Village

. Accordingly, we reverse the trial court’s judgment in the a ppeal numbered C

- 210504 and affirm it in the appeal numbered C

- 210516. Additionally, because the appeal numbered C

- 210517 does not raise any assignments of error, we dismiss it.

Allegations and Procedural Background 

### {¶3} The Kahns sought to construct a new house on a plot of land (the “Kahn Property”) located in the Village o n “ Holly Hill , ” a roadway near Park Road

. Th oughOHIO FIRST DISTRICT COURT OF APPEALS

4 the Kahn Property previously may h ave had a Park Road address, a s explained below, the Kahn Property does not abut Park Road. The Brendamours and the Kahns’ predecessor

- in

- interest entered into a contract 

### {¶4} The Kahn P roperty was divided from a ten

- acr e lot previously owned by Worthy Tuttle. In 2003, Tuttle, the Brendamours, and the Village entered into an agreement (“the 2003 Agreement”) that required splitting the ten

- acre lot. Tuttle retained a roughly five

- acre , lightning

- bolt shaped lot that became the Kahn Property. The Brendamours, whose property on Park Road adjoins the Kahn Property to the

sou t h , purchased a portion of the other five

- acre lot and restricted the rest with a
conservation easement. 

### {¶5} A s part of th e transaction memori alized in the 2003 Agreement, Tuttle agreed to “release” an access easement to Park Road benefiting what became the Kahn Property and burdening the property acquired by the Brendamours, retain ing for the Kahn Property solely an easement to Park Road “for e xisting utilities.” According to the allegations, the release of the easement was not properly recorded and did not appear in the chain of title for the Kahn Property

. The 2003 Agreement did not specify responsibility for recording the releas e. It assign ed the Village “the cost of document preparation for the Closing” to effectuate the 2003 Agreement. 

### {¶6} T he 2003 Agreement , by an incorporated amendment, contain ed the following provision (“ future

- disputes provision”) relating to future disputes concerning “inad equate lot frontage” on the lot that became the Kahn Property : Brendamour, Trustee and Bliss covenant and agree with Tuttle, her heirs, administrators, successors and assigns, that, as long as any proposed addition to the existing residence located on the TuttleOHIO FIRST DISTRICT COURT OF APPEALS

5 Property, or alternatively the demolition of the existin g residence and the construction of a new residence on the Tuttle Property , otherwise conforms with the Village’s Zoning Ordinance, Brendamour, Trustee, and Bliss will not oppose such use on the basis of inadequate lot frontage. If Brendamour, Trustee, or Bliss breaches this covenant, the breaching party or parties shall be responsible for all expenses, including reasonable attorneys’ fees, which Tuttle or her heirs, administrators, successors, or assigns must expend in order to battle the opposition. Disp utes arose when t he Kahns planned to build a new house 

### {¶7} T he Kahns purchased the Kahn Property and began planning to build a house to replace a structure that had been destroyed by fire years earlier

. In 2017 , they filed an application (“Kahns’ application”) with the Village p lanning c ommission to
construct the new house. The Kahns’ application included a site plan with a ho use that fronted Park Road . As such, the Village ’s zo ning o rdinance “ f ront l ot l ine” requirements would be based on access to the property through Park Road, despite the 2003 Agreement releasing the ingress/egress access easement to Park Road. The Village required the Kahns’ application to be reviewed by the p lanning c ommission. 

### {¶8} The p lanning c ommission heard the Kahn s’ application i n March and May 2017. During this time , they considered an alternative site plan with Holly Hill as the “front lot line.” According to the Kahns’ complaint, the Brendamours opposed the Kahns’ application “on the basis of lot frontage” and for other reasons , including the selection of the “rear lot line” for the oddly

- shaped property.OHIO FIRST DISTRICT COURT OF APPEALS

6 

### {¶9} The p lanning c ommission unanimously approv ed the application for the alternative site plan with Holly Hill as the front lot line. In its June 2017 written decision, the p lanning c ommission found that the Kahn P roperty did not abut Park Road and that the access easement had been vacated in 2003. Further, the p lanning

c ommission found that the Holly Hill site plan was “consistent ” with the Village’s zoning re quirements , including the minimum lot frontage width of 250 feet and the “Rear Lot Line” requirements. 

### {¶10} The Brendamours and Kathryn Ann Weichert Kranbuhl, another neighbor who had opposed the Kahn s’ a pplication , appealed the p lanning

c ommission’s decision t o the Village Council. But in September 2017 , the Village Council passed a r esolution unanimously approving t he p lanning c ommission’s decision

. The Brendamours and Kranbuhl appealed that decision to the Hamilton County Court of Common Pleas. 

### {¶11} About a month later , the Brendamours filed a separate civil action in the Hamilton County Court of Common Pleas against the Village , alleging breach of the 2003 Agreement. The Brendamours also sought an order compelling deed reformation. 

### {¶12} The Village moved to dismiss the complaint on the ground that the Brendamours were merely creating a second front to challenge the Village’s decision approving the Kahns’ development plans, as the 2003 Agreement did not contain any of the obligat i ons that the Brendamours a lleged the Village had breach ed. Further, as

a matter of law, the Village was incapable of effectuating reformation of the deed when it was not a party to the deed. N oting that the Brendamours and Kranbuhl were pursuing an administrative appeal of the zoni ng decision in the Hamilton CountyOHIO FIRST DISTRICT COURT OF APPEALS

7 Court of Common Pleas, the Village further requested that the court consolidate the civil action with the administrative appeal of the zoning decision (the “zoning actio n ”)

. 

### {¶13} The trial court permitted the Kahns to interven e in the Brendamours ’ civil action . They filed an answer and counterclaims against the Brendamours , alleging breach of contract, slander of title, and civil conspiracy (the “counterclaim complaint”)

. The Kahns named Kranbuhl as a third

- party defendant in t heir slander

of

- title and civil

- conspiracy claims. 

### {¶14} The Brendamours moved to dismiss the Kahn s’ counterclaim complaint and later moved for summary judgment on the breach

- of

- contract claim related to the f uture

- disputes agreement. In support of summary judg ment, they submitted an interlocutory decision of a magistrate in the zoning action , which found error in the zoning proceedings involving the rear lot line set back requirements of the Kahns’ application. Taking the position that even if they had raised “inadequate lot frontage” in opposition to the Kahns’ application, they were expressly permitted to do so because other aspects of the application failed to conform to the Village z oning o rdinance. 

### {¶15} Subsequently, the parties filed additional parts of the record from the zoning action. This includ ed the final judgment from this court that upheld the Village’s determination approving the Kahn s’ a pplication because it complied with the Village z oning o rdinance

. See Brendamour v. City Council of the Village of Indian Hill , 1 st Dist. Hamilton Nos. C

- 200023 and C

- 200026 , 2021
- Ohio

- 568. 

### {¶16} In August 2021, t he trial court heard arguments on the pending motions to dismiss . A month later, the tri al court d i smiss ed all counts in th e Brendamours ’ complaint and the Kahns’ counterclaim complaint. It specified that it did not consider any documents outside of the complaint or the counterclaim complaint, includ ing thisOHIO FIRST DISTRICT COURT OF APPEALS

8 court’s final decision in the zoni ng action

. The Brendamours and Kahns both appealed and we consolidated those appeals

. 1 The Brendamours , in a single assignment of error,

a nd the Kahns, in two assignments of error, c halleng e the trial court’s dismissal of their breach

- of

- contract claim s under Civ.R. 12(B)(6)

.

Standard of Review 

### {¶17} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint. See White v. Pitman ,
2020
- Ohio

- 3957, 156 N.E.3d 1026, ¶ 16 ( 1 st Dist. )

. When deciding such a motion, the court must accept factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Id

. A court should not dismiss a complaint for failure to state an actionable claim unless it appears “ beyond doubt from the complaint that the plaintiff can prove no set of facts entitling [ the plaintiff ] to

r ecovery . ” O ’

Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975) , syllabus. This court reviews de novo a trial court’s ruling on a Civ.R. 12(B)(6) motion to dismiss

. Pitman at ¶ 16.
Breach of Contract 

### {¶18} The elements of a breach

- of

- contract claim are (1) the existence of a contract, (2) performance by the plaintiff, (3) breach by t he defendant, and (4) damages resulting from the breach. Pitman at ¶ 37. 

### {¶19} Ohio courts have recognized that “[i]n addition to a contract’s express terms, every contract imposes an implied duty of good faith and fair dealing in the

1 This court by agreed entry dated October 26, 2021, partially dismissed Kranbuhl as an appellee in the appeal numbered C

- 210504 and dismissed Kranbuhl’s cross

- appeal in the appeal numbered C

210510 as moot.OHIO FIRST DISTRICT COURT OF APPEALS

9 performance and enforcement. ” Lucarell v. Nationwide Mut. Ins. Co ., 152 Ohio St.3d 453, 2018

- Ohio

- 15, 97 N.E.3d 458, ¶ 42. “Good faith” refers to an “ ‘implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties.’ ” Ed Schory & Sons, Inc. v. Soc. Natl. Bank , 75 Ohio St.3d 433, 443

- 4 44 , 662 N.E.2d 1074 (1996) , quoting Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting , 908 F.2d 1351, 135 7 (7 th Cir.1990) , quoted in Lucarell at ¶ 42. But “there is no independent cause of action for breach of the implied duty of good faith and fair dealing apart from a breach of the underlying contract.” Lucarell at ¶ 44. 

### {¶20} When a breach

- of

- contract claim is f

ounded upon a written instrument that is attached to the complaint, the complaint should not be dismissed under Civ.R. 12(B)(6) unless the complaint and the written instrument on their face show to a certainty some in surmountable bar to relief as a matter of law. See Slife v. Kundtz Properties, Inc. , 40 Ohio App.2d 179, 186, 318 N.E.2d 557 ( 8 th Dist. 1974)

. 

### {¶21} Contracts are interpreted to carry out the parties’ intent, as evidenced by contractual language. See Aultman Hosp

. Ass n. v. Community Mut. Ins. Co. , 46 Ohio St.3d 51, 53, 544 N.E.2d 920 (1989)

. When a contract is clear and unambiguous, its interpretation is a matter of law, and no issue of fact remains to be determined. See Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978) ; Blosser v. Enderlin , 113 Ohio St. 121, 148 N.E. 393 (1925) , paragraph one of the syllabus. Contract terms are deemed ambiguous if they reasonably can be interpreted in multiple ways

. See B ates v. City of Cincinnati , 2013
- Oh io

- 5893, 7 N.E.3d 521, ¶ 13 (1 st Dist.); Schaffer v. First Merit Bank, N.A. , 186 Ohio App.3d 173, 2009
- Ohio

- 6146 , 927 N.E.2d 15 , ¶ 20 ( 9 th Dist.)

.OHIO FIRST DISTRICT COURT OF APPEALS

10 Brendamours Failed to Allege a Breach - of - Contract Claim


### {¶22} T he Brendamours ’ primary argument in support of reversal on their breach

- of

- contract claim against the Village relates to the duty of good faith and fair dealing. They argue that the allegations in the complaint would make it reasonable to conclude that the Village breached “ the duty of good faith and f air dealing ” by failing to act in accordance with the 2003 A greement ’ s “express terms

— preparing and filing the [Park Road Lot] Easement release so that the relevant rights were released and notice of that release would be evidenc ed from a review of propert y records. ” 

### {¶23} But th os e “express terms” do not exist in the 2003 Agreement

. The 2003 Agreement required the Village to (1) accept two conservation easements, (2) contribute to the purchase of certain property and accept approximately 0.45 acres of property into a Green Areas Trust, (3) remove a driveway and plant certain plants on the property subject to the agreement, (4) obtain a boundary survey and legal descriptions from a surveyor licensed in Ohio for the property subject to the agreement, (5) obtain a title examination of the property subject to the agreement, and (6) bear the cost of document preparation regarding the transaction set forth in the agreement. There is no allegation that the Village failed to fulfill these duties. 

### {¶24} The Brendamours are att empting to recover for an alleged breach of an implied duty apart from a breach of the underlying contract , but such cause of action is not recognized under Ohio law. See Lucarell , 152 Ohio St.3d 453, 2018

- Ohio

- 15, 97 N.E.3d 458, at ¶ 44. 

### {¶25} The Brendamours’ additional arguments in support of a reversal are similarly meritless. Those arguments conflate the Village’s responsibilities for zoning review and approval with contract duties. Accepting the factual allegations in theOHIO FIRST DISTRICT COURT OF APPEALS

11 complaint as true and drawing all reasonable inferences in the Brendamours ’ favor , we hold that the Brendamours failed to state a cause of action for breach of contract against the Village

. The trial court did not err when it dismissed that claim. Accordingly, we overrule t he Brendamours ’ sole assignment of error.

Dismissal of the Kahns’ Breach - of - Contract Claim 

### {¶26} The Kahns’ breach

- of

- contract claim relates to the future

- disputes provision in the 2003 Agreement

. According to the Kahns’ allegations, the Brendamours breached t he express terms of the future

- disputes provision and violated the duty of good faith and fair dealing when they opposed the Kahn s’

a pplication on the “basis of lot frontage” and encouraged others to do so

. These allegations were supported b y exhibits atta ched to and incorporated into the Kahns’ answer and counterclaim complaint

. 

### {¶27} The trial court essentially construed the future

- disputes provision as allowing the Brendamours to contest the Kahn s’ a pplication in the zoning action based

on inadequate lot frontage without breaching the future

- disputes provision as long as the Brendamours also raised additional reasons for contesting it

. And b ecause the Brendamours raised additional grounds along with the lot

- frontage challenges, the trial co urt determined the Kahns’ allegations were insufficient to state a claim upon which relief could be granted

. 

### {¶28} We disagree with the trial court’s interpretation of t he future

- disputes provision , which is akin to a fee

- shifting agreement. The provision provi des that “ a s long as any proposed * * * construction of a new residence on the [] Property * * * otherwise conforms with the Village’s Zoning Ordinance, [the] Brendamour[s] * * * will not oppose such use on the basis of inadequate lot frontage ” and that if theOHIO FIRST DISTRICT COURT OF APPEALS

12 Brendamours “breach[] this covenant,” they “shall be responsible for all expenses, including reasonable attorneys’ fees, which [the current owner] or her * * * successors * * * must expend in order to battle the opposition.” 

### {¶29} When read in its entirety, the only reasonable construction of the provision affords the Kahns the right to recover expenses, including “reasonable attorney fees ,” incurred and proved for defending based on inadequate lot frontage , if at the conclusion of the zoning action the Kahn application is found to otherwise conform with the Village’s zoning ordinance. 

### {¶30} The Brendamours also argue that this court should not reinstate the Kahns’ claim because the Kahns cannot prove any damages caused by the Brendamours’ a lleged breach of the future

- dispute s provision in the 2003 Agreement

. The y assert that the expenses and attorney fees the Kahns incurred to “battle” the ir challenge based on inadequate lot frontage were also necessarily expended to respond to the ir other zoning

- ordinance

- based challenges and Kranbuhl’s lot

- frontage opposition. 

### {¶31} At this stage in the proceedings, we cannot say as a matter of law that there is no set of facts under which the Kahns would be entitled to relief against the Brendamours. On remand, the Kahns will have to prove (among other things) damages that were cause d by any breach of the future

- disputes provision. 

### {¶32} W e hold that the Kahns sufficiently stated a cause of action for breach of the future

- disputes provisio n. Accordingly, we conclude that the trial court erred when it dismissed the Kahns’ breach

- of

- contract counterclaim under Civ.R. 12(B)(6). The Kahns’ first assignment of error is sustained

.OHIO FIRST DISTRICT COURT OF APPEALS

13 Civ.R. 12(B)(6) Tests the Sufficiency of the Complaint 

### {¶33} The Kahns’ second assignment of error asserts that the trial court erred by failing to consider the final decision in the zoning case as “substantial, if not conclusive evidence” that the Brendamours had breached the future

- disputes provision in the 2003 A greement, thereby entitling the Kahns to damages and attorney fees

. This argument is misplaced considering the procedural posture of this case. The trial court ruled on the sufficiency of the allegations, not the merits of the claim. The Kahns ’ assignment of error thus lacks merit, and we overrule it.

Conclusion 

### {¶34} The trial court erred by dismissing the Kahns ’ breach

- of

- contract claim against the Brendamours with respect to the future

- disputes provision in the 2003 Agreement

. The trial court did not err by d ismissing the Brendamours ’ breach

- of

contract claim against the Village. Consequently, w e affirm the trial court’s judgment in the appeal numbered C

- 210516, reverse it in the appeal numbered C

- 21 0504 , and remand the case for further proceedings consistent with the law and this opinion. The appeal numbered C

- 210617 is dismissed. Judgment accordingly

. 

### B ERGERON 

### , P.J., and C ROUSE 

### , J., concur.

Please note : The court has recorded its entry on the date of the release of this opinion

.