Jay Realty, L.L.C. v. J.P.S. Properties Diversified, Inc.

[Cite as Jay Realty, L.L.C. v. J.P.S. Properties Diversified, Inc., 2026-Ohio-1192.]


                               COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

JAY REALTY, L.L.C.,                                       :

                 Plaintiff-Appellee/                      :
                 Cross-Appellant,
                                                          :                     No. 115322
                 v.
                                                          :
J.P.S. PROPERTIES DIVERSIFIED,
INC.,                                                     :

                 Defendant-Appellant/                     :
                 Cross-Appellee.


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: April 2, 2026


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-21-946236


                                              Appearances:

                 Tucker Ellis LLP, John P. Slagter, Anthony R. Vacanti,
                 Lindsey E. Sacher, and Hannah M. Smith; Koblentz &
                 Penvose, LLC, and Richard S. Koblentz, for
                 appellee/cross-appellant.

                 Taft Stettinius & Hollister LLP, David H. Wallace, and
                 Kelsey Hughes-Blaum, for appellant/cross-appellee.
SEAN C. GALLAGHER, J.:

               J.P.S. Properties Diversified, Inc. (“JPS”), and Jay Realty, L.L.C.

(“Jay Realty”), each appeal from the trial court’s judgment entry vacating a nunc

pro tunc entry and reinstating a summary judgment in favor of Jay Realty that was

overturned in Jay Realty, LLC v. J.P.S. Properties Diversified, Inc., 2024-Ohio-

2458, ¶ 51 (8th Dist.) (“Jay Realty I”). For the following reasons, we reverse the

decision of the trial court and remand with instructions to enter judgment in favor

of JPS upon all claims.

               The underlying facts of this case were succinctly described in Jay

Realty I at ¶ 2-13. For the purposes of this appeal, it suffices that Jay Realty

purchased an adjacent property (“the property”) to one owned by Sedlak Interiors,

a home furnishings business. Id. at ¶ 2. Sedlak is owned and operated by the owners

of JPS. Id. The property, originally owned by JPS, was sold subject to a use

restriction that generally precludes using the property for the “sale or rental of

furniture, home furnishings, rugs, bedding, carpeting, mattresses, clocks, lamps,

lighting fixtures, wallpaper, fabric, window treatments or household appliances

(including refrigerators, freezers, ranges, washers, dryers, microwave ovens,

televisions, or VCRs),” or operation of a large discount store. Jay Realty attempted

to sell the property to another corporate entity that planned to develop an Amazon

Fulfillment Center. Id. at ¶ 6. The cloud on the title preempted the sale and

prompted Jay Realty to file the underlying litigation in an attempt to circumvent or

sever the use restriction from its deed.
               In the complaint, Jay Realty asserted two causes of action: one to

quiet title and a declaratory-judgment claim, both of which seek to declare the use

restriction null and void or otherwise unenforceable. Id.

               Initially, the trial court granted summary judgment on both claims in

Jay Realty’s favor. See id. The trial court entered “a declaration that the use

restriction at issue is not enforceable as to the parties’ instant dispute” because “the

plain language of the use restriction at issue does not apply to prohibit the use

proposed by plaintiff’s interested buyer.” Shortly after issuing the final order, the

trial court issued a nunc pro tunc entry maintaining the judgment in Jay Realty’s

favor on the declaratory judgment, declaring the use restriction to be inapplicable

but finding in favor of JPS on the quiet-title count, concluding that the use

restriction would not be severed from the deed. Id.

               Both parties appealed. The divided Jay Realty I panel vacated the

nunc pro tunc order based on the substantive changes to the final judgment and

reversed the trial court’s decision granting summary judgment in favor of Jay

Realty on both counts in the complaint. Id. at ¶ 51. The panel concluded that Jay

Realty’s claim to quiet title was legally defective because it asserted a merger claim

based on authority only applicable to easements and not use restrictions; that the

use restriction had not terminated as a matter of law; and that the use restriction

precluded an Amazon Fulfillment Center from being built on the property and was

enforceable by JPS as the original owner of the property. Id. at ¶ 32, 36, and 39.
               Following the remand from Jay Realty I, the trial court issued a final

entry vacating the nunc pro tunc entry in partial compliance with the earlier

mandate, but the court reinstated the granting of summary judgment in Jay

Realty’s favor on both counts. This timely appeal and cross-appeal followed.

               The parties agree that the trial court erred by reinstating the granting

of summary judgment in Jay Realty’s favor as a violation of the law of the case. See

Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C., 2024-Ohio-5729,

¶ 20 (“[T]he trial court is bound by that appellate court’s mandate.”), citing Nolan

v. Nolan, 11 Ohio St.3d 1 (1984), syllabus (“Absent extraordinary circumstances,

such as an intervening decision by the Supreme Court, an inferior court has no

discretion to disregard the mandate of a superior court in a prior appeal in the same

case.”). The previous panel concluded that the granting of summary judgment on

either count of the complaint in favor of Jay Realty was in error. Jay Realty I at ¶ 51

(concluding that “the trial court erred in granting summary judgment to Jay Realty

through its February 24, 2023 judgment entry”). The trial court lacked authority

to countermand the appellate panel’s decision by reinstating the final judgment.

See, e.g., Westgate Ford Truck Sales v. Ford Motor Co., 2014-Ohio-5429, ¶ 12-15

(8th Dist.) (trial court’s decision granting a judgment notwithstanding the verdict,

on the same issue for which an appellate panel concluded that a genuine issue of

material fact existed, was in violation of the law of the case). The trial court’s

decision to reinstate the granting of summary judgment is, therefore, reversed.
              Although the parties agree the trial court erred, they disagree as to

the scope of a remand. JPS, in its appeal, seeks a mandate directing the trial court

to enter summary judgment in its favor because the result of Jay Realty I left no

claims remaining. Jay Realty, on the other hand, in its cross-appeal claims the trial

court erred by failing to conduct further proceedings “to have the remaining factual

issues determined by the jury.” According to Jay Realty, there is a factual question

left unresolved of whether the use restriction “runs with the land.”

              In the underlying complaint, Jay Realty asserted a claim for

declaratory relief in Count 1, seeking to deem the use restriction null and void or,

in the alternative, to declare that JPS cannot enforce the restriction. In Count 2,

Jay Realty asserted a quiet-title claim to strip the use restriction from the title of

the property. Both counts relied on the same factual or legal allegations asserted

in the complaint, in which it is alleged that the use restriction (1) was terminated

through merger of estates, complaint at ¶ 18, but see Jay Realty I at ¶ 32

(concluding that merger doctrine does not apply to use restrictions); (2) was

unenforceable because it prohibited the owner from using the property for any

purpose if that owner or occupier is engaged in the sale of furniture online or at

another site, complaint at ¶ 19-21, but see Jay Realty I at ¶ 43 (the use restriction

prohibits entities that sell or rent home furnishings from using the property in that

manner, including services provided by the proposed Amazon Fulfillment Center);

and (3) could only be enforced by Jay Realty, as the owner of the property,

complaint at ¶ 22, but see Jay Realty I at ¶ 44 (concluding that JPS had the right
to enforce the use restriction because the restriction specifically stated that it “shall

run with the land and shall be binding on and inure to the benefit of all parties

having any rights, title, or interest” in the property).

               There are no other factual or legal allegations in the complaint, and

in particular, Jay Realty I tacitly concluded that the use restriction would run with

the land based on the panel’s conclusion that JPS, as the original owner, had

authority to enforce the restriction. Id. at ¶ 44. JPS’s ability to enforce the use

restriction for the benefit of the neighboring property following JPS’s sale of the

property necessarily means the restriction runs with the land. See Stark Cty. Park

Dist. v. Dickerhoof, 2018-Ohio-4319, ¶ 62 (5th Dist.), quoting Maasen v. Zopff, 1999

Ohio App. LEXIS 3422, *3 (12th Dist. July 26, 1999) (“[I]n the context of property

law, a ‘covenant’ denotes a contract that is either personal or ‘runs with the land.’”).

This is because, in general, “[r]estrictions running with the land are ‘intended to

limit the grantee’s use of the land to specified purposes, with the object of protecting

the interests of all landowners in the same allotment.’” (Emphasis added.) Id.,

quoting Stark Cty. Park Dist. at ¶ 62.

               Jay Realty I, therefore, resolved all allegations advanced in the

complaint. Notwithstanding, JPS did not assign error to the denial of its motion

for summary judgment in that earlier appeal. See generally Jay Realty I. The sole

focus was on the propriety of granting summary judgment in Jay Realty’s favor.

The panel’s conclusion that Jay Realty’s motion for summary judgment could not

be granted necessitated a remand based on the appellate posture — JPS did not
request affirmative relief. Upon that remand, however, all that remained was to

recognize that no claims in the complaint remained pending based on the law of

the case.

              The final judgment entered by the trial court in Jay Realty’s favor is

reversed. In the interests of expediency, in light of the procedural posture of this

case and the arguments presented, this matter is remanded for the sole purpose of

entering judgment in JPS’s favor based on the lack of any claims that remain

pending following the earlier appeal.

              Reversed and remanded.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

______________________
SEAN C. GALLAGHER, JUDGE

MICHAEL JOHN RYAN, P.J., and
TIMOTHY W. CLARY, J., CONCUR