COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67068 CLEVELAND INDUSTRIAL SQUARE, : INC. : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 9, 1995 CHARACTER OF PROCEEDING: CIVIL CASE FROM THE COURT OF COMMON PLEAS CASE NO. CV-208583 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: RICHARD G. LILLIE (#0023744) 55 Public Square - Suite 1331 Cleveland, OH 44113-1901 For Defendant-Appellee: SHARON SOBOL JORDAN (#0006731) Director of Law KENNETH G. SILLIMAN (#0039830) Assistant Director of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, OH 44114 - 2 - 2 SPELLACY, P.J.: Plaintiff-appellant Cleveland Industrial Square, Inc. ("appel- lant") appeals the denial of its complaint for declaratory judgment and the grant of defendant-appellee City of Cleveland's ("Cleve- land") counterclaim for declaratory judgment. The parties disputed whether appellant was in default pursuant to sale documents relating to the sale of certain real estate and, if so, whether Cleveland could exercise any remedies under the sale documents including the right of re-entry. Appellant assigns the following errors for review: I. THE LOWER COURT ERRED BY DISMISSING APPELLANT'S COMPLAINT FOR DECLARA- TORY JUDGMENT WITH PREJUDICE WHERE IT ALSO DISMISSED THE APPELLEE'S COMPLAINT WITH PREJUDICE, APPELLEE HAD NOT RIGHT OF RE-ENTRY AND THE COVENANT TO CONSTRUCT A BUILDING WAS NOT BREACHED. (JUDGMENT ENTRY OF APRIL 24, 1992) II. THE LOWER COURT ERRED BY DENYING APPELLANT'S MOTION FOR PRELIMINARY INJUNCTION WHERE A SPECIAL INTEREST IN REAL ESTATE WAS BEING THREATENED BY APPELLEE. (JUDGMENT ENTRY OF APRIL 24, 1992) Finding neither of the assignments of error to have merit, the judgment of the trial court is affirmed. I. On November 17, 1988, appellant entered into a contract with Cleveland to purchase a plot of land in the Lee Seville/Cleveland Outerbelt Industrial Park. Appellant executed a purchase money - 3 - 3 mortgage and promissory note. The official deed was recorded on November 29, 1988. The contract provided: The deed shall also contain as a condition subsequent the express condition that Buyer shall, within two (2) years of the filing of the deed, construct a 92,000 sq. ft. pre- engineered building. Failure to so construct the building within said two (2) year period shall constitute an event of default under terms of this Contract and the Mortgage. Under the purchase money mortgage, one event of default was listed as the failure of appellant to construct the required building within two years of filing the deed. In the event of default, Cleveland could enter and take possession of the property. A provision in the deed states: The Grantee further covenants that as pro- vided in the contract, it shall, (sic) construct a 92,000 s/f building on the land within two (2) years from the date this deed is recorded of record: and in the event that prior to the completion of the improvements by the Grantee, its successors or assigns, as provided in the contract, the Grantee, its successors or assigns shall default in or violate its obligations with respect to the construction of the Improvements as provided in the contract, or shall abandon or substan- tially suspend construction work on the Improvements, and such default or violation, abandonment or suspension shall not be cured, ended or remedied within three (3) months after written demand by the Grantor to do so, then the Grantor shall have the right to re-enter and take possession of the Property and to terminate and revest in the Grantor the Estate hereby conveyed to the Grantee, provided, however, that any revesting to the Estate in the Grantor shall (a) be subject to and limited by, and shall not defeat, render invalid, or limit (i) the lien or any mortgage executed for - 4 - 4 the sole purpose of obtaining funds for maing (sic) the Improvements, and/or any other purpose specified in the Agreement, and (ii) any rights or interest provided for in the Agreement for the Protection of the holders of such mortgages. The deed later provides that the covenants in the document are covenants running with the land. On March 6, 1990, appellant and its proposed tenant for the site, Cleveland Distillation Energy Corporation, filed an appli- cation with Cleveland for a shell permit which was granted. A month later, Cleveland denied appellant's use permit. Appellant's appeal to the Cleveland Board of Zoning was denied. Appellant then appealed to the Cuyahoga County Court of Common Pleas which found the zoning board's decision to be arbitrary and unreasonable and that appellant was entitled to the use permit. Cleveland appealed the decision to this court. While the appeal was pending before this court, appellant filed a complaint for declaratory judgment and for equitable relief. Appellant asked the court to declare that it was prevented from performing by Cleveland's actions; that Cleveland's failure and refusal to issue the occupancy permit was a force majeure under the purchase money mortgage; that Cleveland was not entitled to exercise any remedy under the purchase money agreement or any other remedy at law or in equity; and that Cleveland was not entitled to re-enter and take possession of the property or to terminate or revest the estate. Appellant also filed a motion for a preliminary injunction asking that Cleveland be restrained from exercising any - 5 - 5 remedy for default pending a determination of the action on the merits. Both parties agreed to merge the motion for injunctive relief with the trial on the merits. Cleveland counterclaimed for a declaratory action, asking appellant's complaint be dismissed and that the court declare appellant in default and that any implementation of any or all default remedies provided in the purchase money agreement would be legal and valid and that if appellant fails to construct a building within the three months of the default notice Cleveland sent on March 21, 1991, Cleveland may re-enter and take possession. On June 21, 1991, trial was held. The trial court overruled the motion for preliminary injunction and appellant appealed. That appeal was dismissed as non-final. On February 25, 1994, upon remand, the trial court denied appellant's motion for a preliminary injunction and dismissed its complaint with prejudice. Cleveland's counterclaim for declaratory judgment was granted. The trial court declared appellant to be in default of the deed and the purchase money agreement and that the default remedies provided for in the documents were legal and valid, that appellant failed to construct the 92,000 square foot building within three months of Cleveland's March 21, 1991, notice of default, and that Cleveland may re-enter and take possession of the land. In Cleveland Industrial Square, et al. v. Cleveland Board of Zoning Appeals (October 8, 1992), Cuyahoga App. No. 61430, unreported, this court reversed the trial court in Cleveland's - 6 - 6 appeal regarding the issuance of a use permit. This court found the proposed facility exceeded the use limitations of Cleveland's zoning ordinances. Cleveland was not required to issue the use permit. II. In its first assignment of error, appellant contends the trial court erred by dismissing its complaint for declaratory judgment with prejudice; that Cleveland had no right of re-entry; and the covenant to construct a building was not breached. Appellant first discusses the trial court's judgment entry overruling its motion for a preliminary injunction. Appellant ignores the trial court's later ruling dismissing its complaint with prejudice while granting Cleveland's counterclaim for declaratory judgment. Therefore, appellant's arguments discussing the earlier judgment entry will be disregarded. Appellant next argues the language in the deed created a covenant running with the land and not a condition subsequent. A review of the record reveals appellant failed to present this issue to the trial court. A reviewing court will not consider a claim of error which is neither raised nor considered by the court below. State v. Williams (1977), 51 Ohio St.2d 112, paragraph two of the syllabus. Appellant maintains it did not breach any of the conditions of the sale documents because the purchase money mortgage provides appellant will not be deemed to be in default of the agreement by reason of a force majeure. The purchase money mortgage states: - 7 - 7 "Force Majeure" means, without limitation, acts of God; strikes or other industrial dis- turbances; acts of public enemies; insurrec- tions; civil disturbances, riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes; tornadoes; storms; droughts; floods; or any other cause, circumstances or event not within the control of the mortgagor. Appellant asserts Cleveland's denial of its applications for use and other necessary permits prevented it from completing construction of the building. Appellant maintains this refusal constitutes a cause, circumstance, or event not within its control thereby excusing its performance. Cleveland denied the applications for the permits because it objected to the proposed use of the building as a solid waste distillation facility. That decision ultimately was upheld by this court. The record indicates Cleveland would have been willing to reconsider the denial of the permits if appellant had proposed another use for the building. Appellant was aware that zoning regulations would have to be complied with when it agreed to purchase the property. Compliance with the applicable zoning ordinances was within appellant's control. The denial of the permits was not a force majeure pursuant to the purchase money mortgage. Appellant next posits it was excused from performance under the contract because Cleveland caused the failure to perform. In effect, appellant is arguing its performance was an impossibility. Impossibility of performance occurs where after the contract is entered into, an unforeseen event arises rendering impossible the - 8 - 8 performance of one of the contracting parties. See Calamari and Perillo, Contract (1977), 476, Section 13. However, a contracting party will not be excused from performance merely because performance may prove difficult, dangerous, or burdensome. State ex rel. Jewett v. Sayre (1914), 91 Ohio St. 85. As discussed previously, appellant was not prevented from performing by Cleveland's denial of the permits. It may have been difficult for appellant to find another tenant for the building, but this does not excuse appellant's failure to perform. The doctrine of impossibility will not be invoked under these circumstances. The trial court did not err in dismissing appellant's complaint for declaratory judgment. Appellant's first assignment of error is overruled. III. In its second assignment of error, appellant argues the trial court erred by denying its motion for a preliminary injunction. Appellant asserts it has no adequate remedy at law because, once Cleveland re-enters the property, appellant would lose its fee simple estate and physical possession of the land. Appellant argues no action for damages could compensate it for the loss of the land. The grant or denial of an injunction is solely within the discretion of the trial court. That decision will not be disturbed - 9 - 9 upon appeal absent a clear showing of an abuse of discretion. Garono v. State (1988), 37 Ohio St.3d 171, 173. An injunction is an extraordinary remedy in equity where there is no adequate remedy available at law. It is not available as a right but may be granted by a court if it is necessary to prevent a future wrong that the law cannot. Id. The purpose of a preliminary injunction is to maintain the status quo until the final hearing. See Staff Notes to Civ.R. 65; Cardinale v. Ottawa Reg. Planning Com'n. (1993), 89 Ohio App.3d 747. In the instant case, the hearing on appellant's motion for a preliminary injunction was consolidated with the trial on the merits. Once the trial court rendered its decision on the merits, there no longer was any purpose for the issuance of a preliminary injunction. It was no longer necessary to maintain the status quo between the parties. The trial court did not err in denying appellant's motion for a preliminary injunction. Appellant's second assignment of error lacks merit. Judgment affirmed. - 10 - 10 It is ordered that appellee recover of appellant its 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. DONALD C. NUGENT, J. and TERRENCE O'DONNELL, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period .