L.E. Lowry Ltd. Partnership v. R&R JV, L.L.C.


[Cite as L.E. Lowry Ltd. Partnership v. R&R JV, L.L.C., 2022-Ohio-3109.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT THE L.E. LOWRY LIMITED : JUDGES: PARTNERSHIP, : Hon. Earle E. Wise, P.J. : Hon. W. Scott Gwin, J. Plaintiff - Appellant : Hon. Craig R. Baldwin, J. : -vs- : : R&R JV LLC, et al., : Case No. 2021 CA 00105 : Defendants - Appellees : OPINION CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 2021 CV 00664 JUDGMENT: Affirmed in Part; Reversed in Part DATE OF JUDGMENT: September 6, 2022 APPEARANCES: For Plaintiff-Appellant For Defendants-Appellees RICHARD T. RICKETTS GEORGE H. CARR ANDREW C. CLARK RICHARD T. CRAVEN Ricketts & Clerk Co., LPA Sikora Law LLC 50 Hill Road South 737 Bolivar Road, Suite 270 Pickerington, Ohio 43147 Cleveland, Ohio 44115 Licking County, Case No. 2021 CA 0105 2 Baldwin, J. {¶1} Appellant, The L.E. Lowry Limited Partnership, appeals the decision of the Licking County Court of Common Pleas dismissing its complaint for failure to state a claim for which relief may be granted pursuant to Civ. R. 12(B)(6). Appellees are R&R JV LLC, Ronald Sabatino, and P. Eugene D’Agostini. STATEMENT OF FACTS AND THE CASE {¶2} Appellant, L.E. Lowry Limited Partnership (Lowry) entered into an agreement with P. Eugene D’Agostini, “on behalf of an entity to be formed” for the purchase of a certain parcel of property. Lowry agreed to sell “all improvements, fixtures, appurtenant rights, privileges, and easements located in the County of Licking, and the State of Ohio known as: 493 Pike Street SW, Etna, Ohio 43062, being a vacant tract of land, containing 80.00 AC +/-, and more fully described as Licking County Auditors district and parcel number 010-017616-00.000 (the "Real Estate"). {¶3} The price and terms are described in the agreement: The purchase price shall be $44,000.00 (Forty-Four Thousand Dollars and no cents), in cash, per usable acre, less any floodplain, rights of way, wetlands or easements adversely affecting the development of the property, however notwithstanding anything to the contrary, under no circumstance shall the final price be less than $3,388,000.00. Payable as follows: Cash at closing. (Complaint, Exhibit A, ¶¶ 1,2). {¶4} The agreement contained references to an “intended” use of the parcel under the captions Other Contingencies: Economic Incentives and Evidence of Title: Economic Incentives - Buyer shall work with the Etna Township and Licking County Economic Development to achieve a full range of economic incentives for the proposed development including Tax Abatement, TIF, and any other incentives Licking County, Case No. 2021 CA 0105 3 that will assist in the successful implementation and development of the intended industrial park. Buyer shall have an equal time period as referenced above in 4(c)1 above in which to achieve said incentive approvals. Seller must consent to the terms and provisions of the-documents it is requested to sign and/or-agreements for which the Real Estate shall be bound, provided however that its consent shall not be unreasonably withheld. 9. …

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