Background
Crocker Park’s governing declaration requires parcel owners to pay proportionate shares of expenses for maintaining common areas. After the City of Westlake terminated an agreement under which Crocker Park Management operated the city-owned Market Square property, Crocker Park asserted that the city became responsible for Market Square’s common expenses. When Westlake disputed that obligation, Crocker Park Commercial recorded a lien. Westlake later paid the billed principal but disputed whether interest remained due.
Westlake also received a $2.6 million offer from E&C Sports Group to buy Market Square. Crocker Park held a contractual right of first refusal to acquire the property “at the same price” offered by a third party. Crocker Park eventually offered $2.6 million but conditioned its offer on a property-tax exemption and eligibility to recover the purchase price through the Crocker Park Phase 3 waterfall. The ensuing litigation produced partial summary judgments rejecting Westlake’s slander-of-title and abuse-of-process counterclaims and declaring that Crocker Park had not waived its right of first refusal.
The Court’s Holding
The Eighth District affirmed summary judgment against Westlake on its slander-of-title claim. Although Westlake characterized its payment as full satisfaction of the lien, the parties disputed whether interest remained due, and there was no evidence of consideration or a meeting of the minds establishing an accord and satisfaction. The city therefore could not show that Crocker Park Commercial acted maliciously or recklessly in maintaining the lien.
The court also affirmed summary judgment on Westlake’s abuse-of-process claims. Westlake presented no evidence that Crocker Park pursued the lawsuit for an improper purpose or caused the asserted harm: E&C ultimately bought Market Square for the originally agreed $2.6 million. Nor did Westlake establish that the lien was used for an improper purpose. The court further rejected Westlake’s procedural objections because the summary-judgment motions were filed after pleadings closed, and Westlake forfeited its discovery argument by failing to seek relief under Civ.R. 56(F).
The court reversed the declaration that Crocker Park had not waived its right of first refusal. Although the agreement created a price-only matching right, Crocker Park’s added tax-exemption and reimbursement conditions converted its response into a counteroffer rather than a valid exercise of the right. The court held that Crocker Park failed to exercise the right within a reasonable time. It affirmed the trial court in part, reversed in part, and remanded for further proceedings.
Key Takeaways
- A party opposing premature summary judgment must seek additional discovery under Civ.R. 56(F) to preserve that issue for appeal.
- A slander-of-title claim fails without evidence that the challenged lien was maintained with malice or reckless disregard of its falsity.
- Even under a price-only right of first refusal, matching the price while adding new conditions is a counteroffer, not a valid acceptance.
Why It Matters
The decision illustrates the strict acceptance rules governing rights of first refusal. A holder may lose the right even after matching the third party’s price if it conditions acceptance on benefits that the governing agreement does not provide.
It also underscores the evidentiary demands of business-tort counterclaims and the importance of using Civ.R. 56(F) when discovery is allegedly incomplete. Because the appellate court remanded the case, further proceedings remain in the trial court following the partial affirmance and reversal.