Opinion
Case No. 98 CA 185
Dated: March 20, 2000
Civil Appeal from Mahoning County Common Pleas Court, Case No. 97 CV 1036.
For Plaintiff-Appellant: Attorney Brian T. Must, Attorney Michael P. Robic, II, 11 Stanwix Street, Pittsburgh, Pennsylvania 15222.
For Defendant-Appellee: Attorney Mark I. Wallach, Attorney Maura L. Hughes, 1400 McDonald Investment Center, 800 Superior Avenue, Cleveland, Ohio 44114.
OPINION
Plaintiff-appellant Castle Properties appeals the decision of the Mahoning County Common Pleas Court which granted summary judgment to defendant-appellee Lowe's Home Centers, Inc. For the following reasons, the judgment of the trial, court is affirmed.
STATEMENT OF FACTS
Castle owns a nine hundred foot deep parcel of real estate located along Route 224 in Boardman. The front five hundred feet are zoned for commercial use. The back four hundred feet are zoned for residential use only and are adjacent to a developed residential neighborhood. In 1993, Lowers agreed to purchase the property from Castle on the condition that the parcel be rezoned in a manner satisfactory for Lowe's intended use. Under the terms of the agreement, Castle agreed to exercise its "best efforts" to meet the condition.
Following unsuccessful efforts on the part of Castle to rezone the land, the parties entered into a new agreement in August 1994. The new agreement provided for the sale of the parcel under the following terns. Castle was to transfer the land to Lowe's immediately in return for $825,000. If Lowe's was able to successfully rezone the parcel and obtain government approval to use the land for Lowe's intended use, then $3,775,000 more would be transferred to Castle for a total purchase price of $4,600,000. However, if Lowe's was unable to obtain rezoning and government approval within the time specified, then Castle was obligated to repurchase the parcel for $825,000.
Specifically, the agreement, which was drafted by Lowe's, provides that Lowe's must only complete the purchase if:
"[Lowe's] is able to accomplish both of the following events by January 15, 1996:
(a) Rezoning of the Premises which allows [Lowe's] to use the Premises as a Lowe's home improvement retail warehouse, as such retail warehouses are currently operating in the state of Ohio, substantially in the form attached as Exhibit D (the `Intended Use').
Exhibit D is the site plan for Lowe's prototype retail warehouse of approximately 125,000 square feet.
(b) Obtaining the approval of the proper municipal authorities of the site plan showing the Intended Use.
[Lowe's] shall use all commercially reasonable efforts to accomplish these events within the time frame permitted." (Emphasis added).
On August 9, 1995, Lowe's filed a zoning petition which sought to rezone the back four hundred feet of the property from residential to commercial. Hearings were held before the Mahoning County Planning Commission and the Boardman Zoning Commission on September 12, 1995 and before the Boardman Township Trustees on October 2, 1995. All three bodies denied Lowe's application. Thus, on October 31, 1995, Lowe's notified Castle that it was invoking the repurchase clause in the agreement. Castle repurchased the land from Lowe's in April 1996. Subsequently, Lowe's constructed a warehouse on South Avenue in Boardman.
On February 21, 1997, Castle filed a breach of contract suit against Lowe's. The complaint alleged that Lowe's had breached the parties' 1994 agreement by failing to use "all commercially reasonable efforts" to obtain the necessary zoning as required by the terms of the agreement and that Lowe's had acted in bad faith since a warehouse could have been constructed on the site without any zoning changes. Thereafter, Lowe's filed a motion for summary judgment which the trial court granted on September 9, 1998. In doing so, the trial court stated:
"A contract contingent upon the obtainment of certain results and imposing a duty on a party to use all commercially reasonable efforts to obtain those results does not require that the party do everything possible. [Ne]ither does it require that the party's efforts be wholly beyond criticism.
Rather, the requirement of `reasonable efforts' must be considered met where one spends substantial sums, hires competent persons to assist, and demonstrates a commitment to obtaining the desired outcome."
ASSIGNMENT OF ERROR ANALYSIS
Castle's sole assignment of error alleges that the trial court should not have granted summary judgment to Lowe's because there remained genuine issues of material fact regarding whether Lowe's used "all commercially reasonable efforts" to rezone the property. We review the trial court's grant of summary judgment de novo. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108. Pursuant to Civ.R. 56(C), summary judgment is proper if: (1) no genuine issue of material fact remains to be litigated; (2) the movant is entitled to judgment as a matter of law; and (3) it appears that reasonable minds can only come to a conclusion that is adverse to the nonmovant. Welco Indus., Inc. v. Allied Cos. (1993), 67 Ohio St.3d 344, 346. A trial court should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party. Id . Nevertheless, summary judgment is appropriate where the nonmovant fails to produce evidence demonstrating that a genuine issue of material fact exists. Id.
The movant has the initial burden of informing the trial court of the basis for its summary judgment motion by identifying the portions of the record that demonstrate the absence of a genuine issue for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The burden then shifts to the nonmovant to set forth specific facts showing that there is a genuine issue for trial in that reasonable minds could reach different conclusions. Id. To meet these burdens the parties must point to the proper supporting evidence. This evidence consists of pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact. Civ.R. 56(C).
Castle argues that it met its burden of establishing that there existed genuine issues of material fact. Initially, Castle professes that the phrase "all commercially reasonable efforts" is ambiguous and therefore should have been left for determination by a jury. However, the construction of written contracts is a matter of law. Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 313. Contracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language. Lelux v. Chernick (1997), 119 Ohio App.3d 6, 10. "The fact that contractual language may, on occasion, pose difficult factual applications does not make that language ambiguous." Santana v. Auto Owners Ins. Co. (1993), 91 Ohio App.3d 490, 494. Common words appearing in a written instrument are to be given their plain and ordinary meaning unless manifest absurdity results or unless some other meaning is clearly intended from the face or overall contents of the instrument. Alexander v. Buckeye Pipeline Co. (1978), 53 Ohio St.2d 241, 245.
Although no Ohio court has previously defined the phrase "all commercially reasonable efforts," it does not follow that the phrase itself is ambiguous. The phrase has ordinary meaning which is not contradicted by the terms of the agreement and which does not result in absurdity. It appears that the language used is capable of only one reasonable construction, that Lowe's was required to make every effort to obtain the required zoning that a reasonable business entity would have made under similar circumstances.
Having concluded that the phrase in question is not ambiguous, we must determine whether there remained any genuine issues of material fact relating to whether or not Lowe's used "all commercially reasonable efforts" to obtain rezoning for the parcel of land. As the movant, Lowe's meets its initial burden by pointing out the various efforts expended to rezone the property. For instance, Lowe's hired local attorney Daniel Daniluk to handle the attempted rezoning. Deposition testimony established that Daniluk came highly recommended and was experienced in the field of zoning law. Lowe's paid Daniluk almost $9,000 for his services.
In addition, Lowe's paid a South Carolina graphic design firm close to $10,000 for the preparation of poster-size color demonstrative aids that were used in presentations to the community and to the various zoning authorities. A traffic study was funded by Lowe's which cost $12,000, and an environmental assessment cost Lowe's almost $14,000. There is evidence of other expenditures as well.
Lowe's representatives met several times with members of the Boardman and Mahoning County zoning bodies, which officials advised Lowe's that the rezoning effort would require significant public support. In order to gain this public support, Lowe's distributed letters to the neighborhood adjacent to the parcel explaining its intended use for the parcel, displaying computer-generated photographs of the proposal and inviting the residents to a meeting to discuss the matter. The meeting took place in January 1995. Two Lowe's representatives flew in from North Carolina. According to Daniluk, one of the participants read a prepared statement that in substance said, "go to hell, we're not talking to you, we oppose you 100 percent and you will never build on that location," at which point the residents got up in mass and walked out.
In an effort to address the concerns of both residents and zoning officials alike, Lowe's promised to leave a 100 foot strip of trees intact as a buffer zone between the proposed store and the neighborhood. Another fifty foot area would be disturbed during construction but then replanted with evergreens. Lowe's planned to build a six foot high wooden fence between the buffer zone and the store. Lowe's made plans to relocate the storm water retention pool to appease residents' concerns about drainage. Lowe's also attempted to procure the support of the DeBartolo Corporation for the zoning effort, but that company refused to become involved as it believed that the rezoning effort would not be successful.
In support of its contention that there remained various disputed factual issues before the trial court, Castle points out the alleged deficiencies in Lowe's efforts to rezone. For instance, Castle notes that although the agreement was entered into in August 1994 and set a deadline of January 15, 1996 for the rezoning to be completed, Lowe's did not file its application for rezoning until August 9, 1995. However, Lowe's spent the year between the signing of the agreement and its filing of the application engaged in efforts to gain public and political support by working with the community. As aforementioned, Lowe's was also seeking help from DeBartolo. Furthermore, Lowe's own attorney wanted to put off the zoning request until a later date due to the public opposition. Daniluk testified that when he suggested waiting, Lowe's urged him to file. This urging was presumably due to the fact that they needed to attempt rezoning prior to January 1996 as part of their obligation under the agreement with Castle.
Additionally, Castle claims that Lowe's failure to appeal to the trial court indicates a failure to use all commercially reasonable efforts. However, Castle does not support this statement with the requisite evidence. Castle does not suggest the assignments that could be raised on appeal or the likelihood of success on appeal. Three boards rejected the rezoning petition. Daniluk informed Lowe's that there was little or no likelihood of success on appeal. If success is this unlikely, then appealing is not commercially reasonably, particularly when Castle can propose no reason as to why a trial court would overturn the prior decisions.
Castle also claims that there remained a factual dispute as to whether Lowe's had been negotiating for the South Avenue site prior to denial of the zoning application. Specifically, Castle refers to a letter dated January 8, 1996 from Developers Diversified to Lowe's. Lowe's admits that it was approached by many developers about alternative sites. However, Lowe's asserts that negotiations for the South Avenue site did not occur until after the zoning authorities had rejected Lowe's application. Regardless, discussing potential alternative sites is not inconsistent with a duty to exert "all commercially reasonable efforts." It is merely a realistic decision to have a back-up plan should the favored plan fail, especially where many indicators pointed towards failure.
In support of its position, Castle notes that Lowe's failed to inform Daniluk of the terms of the purchase agreement or of the January 15, 1996 deadline until September 1995. Lowe's concedes this fact, but argues that it was immaterial to the case as there was no evidence suggesting that Daniluk's lack of awareness concerning the terms of the agreement in any way affected Lowe's commitment to the rezoning. We agree. Daniluk was the zoning attorney, not the contract attorney. It was implicit when Lowe's hired Daniluk and that, as Lowe's attorney, he would perform to the best of his abilities in preparing and presenting the case. Deposition testimony established that Lowe's urged Daniluk to file the rezoning petition earlier than he would have preferred. We shall not presume that Daniluk did not give it his all merely because he was unaware that Lowe's was required to use all commercially reasonable efforts to rezone the property. As such, it was not relevant that Lowe's did not advise Daniluk of the specific terms of the agreement with Castle.
Castle next contends that Lowe's should have withdrew its zoning petition during the hearing before the zoning commission and refiled an amended petition seeking to rezone less than the entire four hundred feet of the residential property. Castle points to the transcript of the hearing where a board member asked Daniluk why Lowe's was seeking to rezone the entire four hundred feet if it intended to keep one hundred feet of trees intact and replant another fifty feet. Daniluk responded to the board that Lowe's did not want to run afoul of setback laws. He then stated that Lowe's was willing to place a permanent restrictive covenant on the buffer zones to whatever agency the board found appropriate.
There is nothing inadequate about Daniluk's response. Such a proposal would maintain the character of the neighborhood. If the intended buffer zone remained residential because Lowe's did not seek rezoning for it, then Lowe's could sell that land to developers who could remove the trees and build homes, resulting in the Lowe's building being clearly visible from the existing development. Thus, there is nothing unreasonable with Daniluk's response that Lowe's was willing to enter into a restrictive covenant to protect the land rather than refile an amended petition seeking to rezone only two hundred fifty feet. Furthermore, Daniluk informed the board that Lowe's was willing to increase the height of the six foot wooden fence to eight or ten feet if the board so ordered.
Moreover, Castle had filed petitions in the past and withdrew them at the last minute for fear of defeat. That strategy did not work when Castle was obligated to use its best efforts to rezone. Thus, when Lowe's took over the effort to rezone, there is no reason it should be expected to inflame the community more than Castle already had by repeated withdrawals.
Castle's last argument is that Lowe's could have turned its store sideways or erected a smaller store to avoid the rezoning issue. However, the parties' agreement stated that Lowe's was only obligated to purchase the land if rezoning occurred that allowed Lowe's to build a store resembling the prototype store in the attached exhibit. Thus, Lowe's was not obligated to turn the store sideways or decrease the store's square footage to something other than the prototype store.
Lowe's spent substantial sums, hired competent people to assist in its efforts and demonstrated a high degree of commitment to obtaining the desired outcome. Depositions established that Lowe's had never before expended so much money in a rezoning effort. Daniluk opined that Lowe's did everything commercially reasonable. The record is replete with evidence that Lowe's did indeed make commercially reasonable efforts to obtain the required rezoning.
In its opposition to summary judgment, Castle submitted a letter written by an "expert" it consulted which pointed out ways that Lowe's did not use all commercially reasonable efforts. However, a letter is not an affidavit or any other type of evidence that is admissible in ruling on a motion for summary judgment pursuant to Civ.R. 56(C) and (E). Furthermore, the criticisms set forth in the letter that are argued by Castle on appeal were addressed supra.
Most importantly, the agreement between the parties does not require that Lowe's use every possible strategy to attempt rezoning. The word "all" is limited by the words "commercially reasonable." As previously outlined by this court, Castle failed to rebut Lowe's assertions that it used "all commercially reasonable efforts" to rezone. Hence, Castle failed to meet its burden as imposed by Dresher , making summary judgment available as a matter of law. Castle's assignment of error is overruled.
For the foregoing reasons, the judgment of the trial court is hereby affirmed.
JUDGMENT: Affirmed.
Cox, P.J., concurs.
Donofrio, J., dissents; see dissenting opinion.
APPROVED:
__________________________ JOSEPH J. VUKOVICH, JUDGE
For the reasons that follow, I respectfully dissent from the majority's opinion which affirms the trial court's decision granting summary judgment.
I agree that the phrase "all commercially reasonable efforts" required Lowe's to make every effort to obtain the required zoning that a reasonable business entity would have made under similar circumstances. However, I disagree with the majority's position that there were no remaining genuine issues of material fact relating to whether appellee met this standard.
Contrary to Lowe's position, this standard is not met simply by demonstrating a good faith attempt to accomplish the specific task. "Good faith" generally means an honest intention by a person to abstain from wrongdoing along with an absence of facts to the contrary. Francis A. Bonanno, Inc. v. ISC Wines of California (1989), 56 Ohio App.3d 62, 66. "Good faith * * * in common usage * * * has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation." Phillipe v. Thomas (Conn.App.Ct. 1985), 489 A.2d 1056, 1059. The determination of good faith involves an inquiry into the party's motive and purpose as well as actual intent. Id.
Alternatively, reasonableness is determined by an objective test and involves an analysis of what an ordinary business entity acting with ordinary prudence would do given the particular circumstances. See id. Although good faith and reasonableness are determined under two different standards, there is necessarily some overlap. See Worth v. Huntington Bancshares, Inc. (1989), 43 Ohio St.3d 192, 198 ("Where a contract provides that entitlement to benefits thereunder is contingent on a party's good faith determination, a court reviewing that party's good faith determination should consider not only the party's subjective reasoning but also the facts and circumstances surrounding the determination"). As the court in Phillipe, supra, stated:
"Evidence of what is reasonable, however, may be relevant to determining one's good faith and is not excluded from playing a part in that determination. Similarly, one's good faith may be relevant in ascertaining the reasonableness of his actions." Phillipe, 489 A.2d at 1060 (Internal citations omitted.)
In support of its contention that there remained various disputed factual issues before the trial court, Castle claims, for example, that although the agreement was entered into in August of 1994, and set a deadline of January 15, 1996 for the rezoning to be completed, Lowe's did not file an application for rezoning until August 9, 1995. Castle claims that by waiting this long to file the application, Lowe's effectively precluded the filing of a new application should the first be rejected, and left insufficient time to pursue an appeal of any adverse decision to the common pleas court. Additionally, Castle claims that Lowe's decision not to file an appeal indicates a failure to use all commercially reasonable efforts, where said decision was made without due consideration and without legal advice.
In response, Lowe's claims that upon the advice of its counsel, it spent the year between the signing of the agreement and its filing of the application engaged in efforts to gain public and political support by working with the community. According to Lowe's, its counsel waited to file an application because the public and political climate spelled defeat for the application at an earlier date. Lowe's also notes that the zoning applications were resolved in just a few weeks so that refiling or the taking of an appeal would have been possible had such a course of action been commercially reasonable. Lowe's also claims that given that an appeal would likely take two years to process, such an option was not reasonable under the time limit imposed by the agreement.
Whether or not an appeal of the zoning decision was commercially reasonable under the circumstances of the instant case remains a question of fact for determination by a jury. Although not binding on this court, I am struck by the similarities between the instant case and Foodmaker, Inc. v. Denney (Md.App. 1976), 360 A.2d 446, the case relied on by the trial court. Foodmaker dealt with a contract for the sale of real property. The contract in question contained a condition precedent which read as follows:
"This Contract is contingent upon Purchaser's ability to obtain building and sign permits plus site and driveway use for a typical Jack-in-the-Box restaurant within 120 days. Purchaser shall use diligence in pursuing the acquisition of the permits and site use, however, Purchaser may withdraw from this transaction and be released of all liability hereunder should said permits be denied." Foodmaker, 360 A.2d at 448
The purchaser made attempts to obtain the permits, which efforts were rejected by the Baltimore City Department of Housing and Community Development, and, on appeal, by the Commission on Signs. One of the issues raised on appeal was that the purchaser had not acted diligently because it had not sought judicial intervention in an effort to get the permits. In rejecting this argument, the Maryland Court of Special Appeals held that the 120 day time limit in the contract was sufficient to show that at the time of contracting neither party had anticipated a legal challenge, since a judicial procedure could not have been completed within such a time limit.
Although the issue in Foodmaker is similar to that posed by the instant case, the time limit imposed by the instant agreement was considerably more than the 120 days in Foodmaker. At the time of contracting in August of 1994 Lowe's had until January of 1996 to accomplish its task. With a time limit of close to a year and a half, I would not find as a matter of law that neither party intended recourse to a judicial proceeding should it become necessary. Although Lowe's did not pursue an appeal of the decision, reasonable minds could reach different conclusions as to whether or not at the time of entering the agreement, an appeal of an adverse decision to the common pleas court would have been included within the ambit of "all commercially reasonable efforts."
Castle also claims there remained a factual dispute as to whether Lowe's had been negotiating for the South Avenue site prior to denial of the zoning application. Specifically, Castle refers to a letter dated January 8, 1996 from John McGill of Developers Diversified to Michael Miller, representative of Lowe's, which reads as follows:
"Dear Mike,
"I am just dropping you a note to see if I can receive an update as to where Lowe's stands with regard to our site at the above. As you are aware [through our discussion] we have actively held this opportunity available to Lowe's for in excess of six months. We have even reached a point where we have completed site design, and fine tuned the site plan, pursuant to the information you provided us, and are in a position to start this project, essentially over night. "Our company acquired the real estate and let a contract to commence sitework, the Wal-Mart building, Dick's Sports, Media Play, PetsMart, and the retails as of this date. We continue to have negotiations with a major supermarket of 90,000 sq. ft. which will negate the Lowe's building if we commit to a deal.
"As you know, we would like to further our relationship with Lowe's and accommodate you at this location, however, we have reached a point where we cannot assure its availability to Lowe's after 01/31/96 so that we may be able to finish the project in an orderly fashion. I do not want this to be taken as an ultimatum, but merely as an effort to show that we are attempting to give Lowe's every opportunity possible.
"I look forward to hearing from you."
Castle argues that this letter is evidence that Lowe's was actively engaged in developing another site, which explains why Lowe's delayed the filing of its application and declined to pursue an appeal. Lowe's responds that the letter in question is dated several months after the zoning application had been turned down, and after the parcel had been tended back to Castle. Lowe's interprets the letter as a solicitation which necessarily shows that Lowe's was not committed to the South Avenue site. Rather, Lowe's asserts that negotiations for the site did not occur until after the zoning authorities had rejected Lowe's application.
In further support of its position, Castle notes that Lowe's failed to inform Daniluk of the terms of the agreement between Castle and Lowe's, or of the deadline of January 15, 1996. Indeed, it was only shortly before the zoning hearing that Daniluk was first shown the agreement. Lowe's concedes this fact, but argues that it was immaterial to the case as there was no evidence suggesting that Daniluk's lack of awareness concerning the terms of the agreement in any way affected Lowe's commitment to the rezoning.
When determining the propriety of an award of summary judgment courts must construe the evidence and all reasonable inferences drawn therefrom in a light most favorable to the party opposing the motion. Stevens Skin Softener, Inc. v. Revco Drug Stores, Inc. (1997), 121 Ohio App.3d 212, 217. Although Lowe's argues that the letter is dated after the zoning application had been rejected, reviewing the letter in a light most favorable to Castle strongly suggests that discussions had been going on between Diversified Developers and Lowe's for more than six months prior to the date of the letter. The letter also permits a reasonable inference that Lowe's had provided Diversified Developers with the information necessary to develop a site plan, which would negate Lowe's claim that the letter was simply a solicitation. Reasonable minds could therefore conclude that Lowe's had indeed been actively engaged in the development of another site during the contract period. Although the development of another site is not necessarily inconsistent with a duty to exert "all commercially reasonable efforts," such evidence creates a disputed factual question as to whether or not Lowe's acted in good faith in its efforts to rezone the Castle property. As already noted, good faith may be relevant in determining whether or not a party's actions were reasonable. Phillipe, supra.
After reviewing the record, I would find that the trial court erred in granting summary judgment in favor of Lowe's. I believe a factual dispute remains as to whether Lowe's was actively seeking to procure the South Avenue site from Diversified Developers during the pendency of the application. In addition, while many of the facts of this case are not disputed, it nonetheless does not appear that reasonable minds could come to but one conclusion on the issue of whether the efforts utilized by Lowe's amounted to "all commercially reasonable efforts." Viewing the evidence in a light most favorable to Castle, it is far from clear that Lowe's was entitled to judgment as a matter of law. Lowe's waited over a year to file its application, arguably because it failed to inform its attorney of the deadline in the agreement. Although Lowe's did not pursue an appeal of the decision, reasonable minds could reach different conclusions as to whether or not "all commercially reasonable efforts" would have included an appeal of an adverse decision to a judicial tribunal.
In addition, when disputed, good faith efforts to satisfy contract conditions are factual issues. Kebe v. Nutro Machinery Corp. (1985), 30 Ohio App.3d 175, 178. Although the instant case Involves "all commercially reasonable efforts" as opposed to "good faith efforts," the nature of the issue is no less a factual one. As the Cuyahoga County Court of Appeals has previously noted in a related context:
"The nature of the issue involved in the present case, whether the defendant acted in good faith and made reasonable efforts to obtain a loan, is such that summary judgment is ordinarily not a proper vehicle for its resolution. * * * Whether a purchaser made reasonable efforts to obtain financing has been held to be a question that should be submitted to the trier of fact * * *." Clarke v. Hartley (1982), 7 Ohio App.3d 147, 151 (citing Smith v. Currie [1977], 40 N.C. App. 739, 742)
I believe the record in the instant case allows for competing reasonable inferences as to whether or not Lowe's performed "all commercially reasonable efforts." Had the language in the agreement simply required Lowe's to use "reasonable efforts" or "commercially reasonable efforts" to obtain the necessary zoning, I may have been inclined to agree with the majority's decision affirming the trial court's grant of summary judgment. However, I think that the inclusion of the word "all" in the agreement precludes such a finding. It is the duty of a court to give effect to all parts of a written contract, if this can be done consistently with the expressed intent of the parties. Ford Motor Co. v. John L. Frazier Sons Co. (1964), 8 Ohio App.2d 158, 161. This is especially the case where the language in question, agreed to by two sophisticated business entities, has yet to be defined as a matter of law by any Ohio court. Whereas the record is replete with evidence that Lowe's did indeed make commercially reasonable efforts to obtain the required rezoning, the word "all" necessarily focuses our analysis on what Lowe's failed to do. In its judgment entry the trial court found that Lowe's had satisfied the requirement of "reasonable efforts." However, the fact that Lowe's spent substantial sums, hired competent people to assist it in its efforts, and demonstrated a commitment to obtaining the desired outcome, does not, as a matter of law, establish that under the circumstances Lowe's used " all commercially reasonable efforts." Rather, I would find that such a determination remains a question of fact to be determined at trial.
____________________ GENE DONOFRIO, JUDGE