[Cite as 2291 Fourth, L.L.C. v. Advantage Credit Union, Inc., 2021-Ohio-4021.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
2291 FOURTH LLC JUDGES: Hon. Craig R. Baldwin, P. J. Plaintiff-Appellant Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2021 CA 0022 ADVANTAGE CREDIT UNION, INC.
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 19 CV 0331
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 10, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
CHARLES E. TICKNOR, III ERIC S. MILLER PETER J. GEORGITON 13 Park Avenue West RACHEL E. SHONEBARGER Suite 608 DINSMORE & SHOHL, LLP Mansfield, Ohio 44902 191 West Nationwide Blvd. Suite 300 Columbus, Ohio 43215 Richland County, Case No. 2021 CA 0022 2
Wise, J.
{¶1} Appellant 2291 Fourth LLC appeals from the March 24, 2021 Judgment
Entry by the Delaware County Court of Common Pleas granting summary judgment in
favor of Appellee. Appellee is Advantage Credit Union, Inc. The relevant facts leading to
this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant owns commercial property located at 2291 W. Fourth Street in
Mansfield, Ohio. Appellant leases the property to various tenants.
{¶3} Appellee owns commercial property next to 2291 W. Fourth Street located
at 700 Stumbo Road N. in Mansfield, Ohio.
{¶4} In 1981, the prior owners of 2291 W. Fourth Street granted an express
easement (“the Easement”) to the owners of 700 Stumbo Road N. The Easement was
recorded on October 30, 1981.
{¶5} Under the terms of the Easement, Appellee must maintain the easement in
a “safe, sanitary, and proper” manner at the cost and expense of Appellee.
{¶6} From 2005 until 2018, Appellee performed no maintenance on the
easement.
{¶7} In 2018, Appellant approached Appellee demanding repairs be made.
Appellee proposed a plan for repair, which was rejected by Appellant. Appellant rejected
the proposals by Appellee in October of 2018, March of 2019, and April of 2020.
{¶8} Appellant alleges $5,281 in damages stemming from spot repairs of the
easement. Richland County, Case No. 2021 CA 0022 3
{¶9} On May 2, 2019, Appellant filed a complaint alleging breach of contract for
Appellee’s failure to maintain the easement, and seeking to terminate the easement.
{¶10} On June 6, 2019, Appellee filed a Motion for Summary Judgment.
{¶11} On November 27, 2019, Appellant filed a Motion for Summary Judgment.
{¶12} On February 5, 2020, the trial court overruled both Motions for Summary
Judgment.
{¶13} Appellee sought leave to file a second Motion for Summary Judgment on
October 15, 2020, which was granted by the trial court.
{¶14} On November 5, 2020, Appellee filed a second Motion for Summary
Judgment. In Appellee’s second Motion for Summary Judgment, Appellee argues
Appellant has no basis to terminate easement. Appellee urges the trial court to ignore
the language of the contract requiring Appellee to maintain the easement in a “safe,
sanitary, and proper” manner. Instead, the trial court should determine whether repairs
are necessary to prevent Appellee’s use of the easement from becoming an annoyance
and a nuisance to Appellant.
{¶15} On December 1, 2020, Appellant also filed a partial Motion for Summary
Judgment. Appellant argued Appellee breached the easement contract.
{¶16} On March 24, 2021, the trial court granted Appellee’s Motion for Summary
Judgment and denied Appellant’s partial Motion for Summary Judgment. In the trial
court’s journal entry, the trial court applied the common law standard of whether the
easement became an annoyance or nuisance to Appellant finding the easement
language of “safe, sanitary, and proper” is “insufficiently specific and meaningful for the
Court to effectively enforce it[.]” Richland County, Case No. 2021 CA 0022 4
ASSIGNMENT OF ERROR
{¶17} Appellant timely filed a notice of appeal and herein raises the following two
assignments of error:
{¶18} “I. THE TRIAL COURT ERRED IN HOLDING THAT ADVANTAGE DID
NOT BREACH THE EASEMENT, EVEN THOUGH IT IS UNDISPUTED THAT
ADVANTAGE DID NOT PERFORM ANY MAINTENANCE TO THE EASEMENT FOR
OVER 13 YEARS.
{¶19} “II. THE TRIAL COURT ERRED IN HOLDING THAT 2291 FOURTH’S
CLAIM FOR DECLARATORY JUDGMENT SEEKING TERMINATION OF THE
EASEMENT FAILED AS A MATTER OF LAW.”
Standard of Review
{¶20} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may
grant summary judgment if it determines: (1) no genuine issues as to any material fact
remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one conclusion
and viewing such evidence most strongly in favor of the party against whom the motion
for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977). Richland County, Case No. 2021 CA 0022 5
{¶21} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶22} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). Once the moving party has met the burden, the nonmoving party then has a
reciprocal burden of specificity and cannot rest on the allegations or denials in the
pleadings, but must set forth “specific facts” by the means listed in Civ.R. 56(C) showing
that a “triable issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
798, 801 (1988).
I.
{¶23} In Appellant’s First Assignment of Error, Appellant argues the trial court
erred by finding Appellee did not breach the easement by applying the common law
standard. We agree.
{¶24} An easement is an interest in land of another created by prescription or
express or implied grant, which entitles the owner of the easement to a limited use of the
land in which the interest exists. Myers v. McCoy, 5th Dist. Delaware No. 2004CAE07059,
2005-Ohio-2171, ¶16, citing Alban v. R.K. Company, 15 Ohio St.2d 229, 231, 239 N.E.2d
22 (1968). The owner of the easement is referred to as the dominant estate, and the land
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[Cite as 2291 Fourth, L.L.C. v. Advantage Credit Union, Inc., 2021-Ohio-4021.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
2291 FOURTH LLC JUDGES: Hon. Craig R. Baldwin, P. J. Plaintiff-Appellant Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2021 CA 0022 ADVANTAGE CREDIT UNION, INC.
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 19 CV 0331
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 10, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
CHARLES E. TICKNOR, III ERIC S. MILLER PETER J. GEORGITON 13 Park Avenue West RACHEL E. SHONEBARGER Suite 608 DINSMORE & SHOHL, LLP Mansfield, Ohio 44902 191 West Nationwide Blvd. Suite 300 Columbus, Ohio 43215 Richland County, Case No. 2021 CA 0022 2
Wise, J.
{¶1} Appellant 2291 Fourth LLC appeals from the March 24, 2021 Judgment
Entry by the Delaware County Court of Common Pleas granting summary judgment in
favor of Appellee. Appellee is Advantage Credit Union, Inc. The relevant facts leading to
this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant owns commercial property located at 2291 W. Fourth Street in
Mansfield, Ohio. Appellant leases the property to various tenants.
{¶3} Appellee owns commercial property next to 2291 W. Fourth Street located
at 700 Stumbo Road N. in Mansfield, Ohio.
{¶4} In 1981, the prior owners of 2291 W. Fourth Street granted an express
easement (“the Easement”) to the owners of 700 Stumbo Road N. The Easement was
recorded on October 30, 1981.
{¶5} Under the terms of the Easement, Appellee must maintain the easement in
a “safe, sanitary, and proper” manner at the cost and expense of Appellee.
{¶6} From 2005 until 2018, Appellee performed no maintenance on the
easement.
{¶7} In 2018, Appellant approached Appellee demanding repairs be made.
Appellee proposed a plan for repair, which was rejected by Appellant. Appellant rejected
the proposals by Appellee in October of 2018, March of 2019, and April of 2020.
{¶8} Appellant alleges $5,281 in damages stemming from spot repairs of the
easement. Richland County, Case No. 2021 CA 0022 3
{¶9} On May 2, 2019, Appellant filed a complaint alleging breach of contract for
Appellee’s failure to maintain the easement, and seeking to terminate the easement.
{¶10} On June 6, 2019, Appellee filed a Motion for Summary Judgment.
{¶11} On November 27, 2019, Appellant filed a Motion for Summary Judgment.
{¶12} On February 5, 2020, the trial court overruled both Motions for Summary
Judgment.
{¶13} Appellee sought leave to file a second Motion for Summary Judgment on
October 15, 2020, which was granted by the trial court.
{¶14} On November 5, 2020, Appellee filed a second Motion for Summary
Judgment. In Appellee’s second Motion for Summary Judgment, Appellee argues
Appellant has no basis to terminate easement. Appellee urges the trial court to ignore
the language of the contract requiring Appellee to maintain the easement in a “safe,
sanitary, and proper” manner. Instead, the trial court should determine whether repairs
are necessary to prevent Appellee’s use of the easement from becoming an annoyance
and a nuisance to Appellant.
{¶15} On December 1, 2020, Appellant also filed a partial Motion for Summary
Judgment. Appellant argued Appellee breached the easement contract.
{¶16} On March 24, 2021, the trial court granted Appellee’s Motion for Summary
Judgment and denied Appellant’s partial Motion for Summary Judgment. In the trial
court’s journal entry, the trial court applied the common law standard of whether the
easement became an annoyance or nuisance to Appellant finding the easement
language of “safe, sanitary, and proper” is “insufficiently specific and meaningful for the
Court to effectively enforce it[.]” Richland County, Case No. 2021 CA 0022 4
ASSIGNMENT OF ERROR
{¶17} Appellant timely filed a notice of appeal and herein raises the following two
assignments of error:
{¶18} “I. THE TRIAL COURT ERRED IN HOLDING THAT ADVANTAGE DID
NOT BREACH THE EASEMENT, EVEN THOUGH IT IS UNDISPUTED THAT
ADVANTAGE DID NOT PERFORM ANY MAINTENANCE TO THE EASEMENT FOR
OVER 13 YEARS.
{¶19} “II. THE TRIAL COURT ERRED IN HOLDING THAT 2291 FOURTH’S
CLAIM FOR DECLARATORY JUDGMENT SEEKING TERMINATION OF THE
EASEMENT FAILED AS A MATTER OF LAW.”
Standard of Review
{¶20} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may
grant summary judgment if it determines: (1) no genuine issues as to any material fact
remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one conclusion
and viewing such evidence most strongly in favor of the party against whom the motion
for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977). Richland County, Case No. 2021 CA 0022 5
{¶21} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶22} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). Once the moving party has met the burden, the nonmoving party then has a
reciprocal burden of specificity and cannot rest on the allegations or denials in the
pleadings, but must set forth “specific facts” by the means listed in Civ.R. 56(C) showing
that a “triable issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
798, 801 (1988).
I.
{¶23} In Appellant’s First Assignment of Error, Appellant argues the trial court
erred by finding Appellee did not breach the easement by applying the common law
standard. We agree.
{¶24} An easement is an interest in land of another created by prescription or
express or implied grant, which entitles the owner of the easement to a limited use of the
land in which the interest exists. Myers v. McCoy, 5th Dist. Delaware No. 2004CAE07059,
2005-Ohio-2171, ¶16, citing Alban v. R.K. Company, 15 Ohio St.2d 229, 231, 239 N.E.2d
22 (1968). The owner of the easement is referred to as the dominant estate, and the land
in which the interest exists is called the servient estate. Id. When an easement is granted Richland County, Case No. 2021 CA 0022 6
by an express grant, the extent and limitations upon the dominate estate’s use of the
land depends upon the language of the granting instrument. Id.
{¶25} To interpret the terms of a written easement, the court must follow the
ordinary rules of contract construction so as to carry out the intent of the parties as
demonstrated by the language in the contract. Skivolocki v. East Ohio Gas Co., 38 Ohio
St.2d 244, 313, 313 N.E.2d 374 (1974), syllabus, paragraph one. “Generally, courts
presume that the intent of the parties to a contract resides in the language they chose to
employ in the agreement.” Shifrin v. Forest City Ents. Inc., 64 Ohio St.3d 635, 638, 597
N.E.2d 499 (1992). “Common words appearing in a written instrument will be given their
ordinary meaning unless manifest absurdity results, or unless some other meaning is
clearly evidenced from the face or overall contents of the instrument.” Alexander v.
Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978) paragraph two of the
syllabus. When the terms of the easement are clear and unambiguous, a court cannot
create new terms by finding an intent not expressed in the language used. Id. “When a
term of a contract is determined to be ambiguous, then the determination of what the
actual terms were becomes a question of fact.” Lake Erie Towing v. Troike, 6th Dist. Erie
No. E-05-062, 2006-Ohio-5115, ¶13.
{¶26} In the case sub judice, the easement agreement requires Appellee to
maintain the easement in a “safe, sanitary, and proper” manner. The trial court held this
standard is meaningless in the context of outdoor asphalt driveways as the term
“sanitary” has no common sense meaning. The trial court describes unsanitary
conditions such as bird droppings, dirt, and oil which do not impair the practical use of Richland County, Case No. 2021 CA 0022 7
the easement. Even if the trial court finds no application of this term to asphalt driveways,
it may still apply the standard “safe” and “proper.”
{¶27} The trial court concludes the word proper is too subjective as Appellant and
Appellee urge the trial court to adopt two different definitions of proper. Appellee argued
patching potholes would be proper in the context of maintaining an asphalt driveway.
Appellant argued proper maintenance would be much more extensive, and should be
interpreted to include keeping the easement aesthetically pleasing. As noted in
Alexander, the trial court should apply the common ordinary meaning to the term
“proper.”
{¶28} The trial court agrees that the term safe can be applied objectively.
However, the trial court then applied the common law standard that Appellant failed to
demonstrate that Appellee abused or misused the easement.
{¶29} The trial court, by abandoning the easement terms of “safe, sanitary, and
proper” in favor of the common law standard, created a new intent of the agreement not
contemplated in the original easement agreement. The trial court must give the plain
ordinary meaning of the terms “safe,” “sanitary,” and “proper” in the context of
maintaining outdoor paved driveways. If the trial court finds these terms to be ambiguous,
then the determination of the meaning of “safe, sanitary, and proper” becomes a question
of fact to be determined by the finder of fact.
{¶30} Appellant’s First Assignment of Error is sustained.
II.
{¶31} Due to our disposition of Appellant’s First Assignment of Error, we find
Appellant’s Second Assignment of Error to be moot. Richland County, Case No. 2021 CA 0022 8
{¶32} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is reversed. This matter is remanded for further proceedings
consistent with this opinion.
By: Wise, J.
Baldwin, P. J., and
Gwin, J., concur.
JWW/br 1105