[Cite as 2900 Invests., L.L.C. v. Jebril, 2025-Ohio-2424.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
2900 INVESTMENTS, LLC, : APPEAL NO. C-240514 TRIAL NO. A-2300729 Plaintiff-Appellee, :
vs. : JUDGMENT ENTRY DEANDRA JEBRIL, :
Defendant-Appellant. :
This cause was heard upon the appeal, the record, and the briefs. The judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded for the reasons set forth in the Opinion filed this date. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs are taxed 75 percent to appellant and 25 percent to appellee. The court further orders that 1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 7/9/2025 per order of the court.
By:_______________________ Administrative Judge [Cite as 2900 Invests., L.L.C. v. Jebril, 2025-Ohio-2424.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
2900 INVESTMENTS, LLC, : APPEAL NO. C-240514 TRIAL NO. A-2300729 Plaintiff-Appellee, :
vs. : OPINION DEANDRA JEBRIL, :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: July 9, 2025
Thomas H. Bergman & Assoc., LLC, and Brian Leurck, for Plaintiff-Appellee,
Wood & Lamping LLP, Kathleen F. Ryan and Hanna R. Puthoff, for Defendant- Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Defendant-appellant Deandra Jebril appeals from the judgment of the
Hamilton County Court of Common Pleas declaring a valid and enforceable
prescriptive easement over a portion of her property at 2916 Gilbert Avenue. For the
reasons that follow, we overrule Jebril’s arguments pertaining to the evidence
establishing the easement and sustain Jebril’s argument pertaining to the trial court’s
description of the easement in the judgment entry. As a result, we remand the cause
for the trial court to include a sufficient description of the easement in its judgment
entry, as further explained below.
I. Procedural History
{¶2} In February 2023, plaintiff-appellee 2900 Investments, LLC, (“2900”)
filed suit against Jebril, seeking a declaratory judgment in favor of a prescriptive
easement. The complaint claimed that 2900 must access Jebril’s property at 2916
Gilbert Avenue (“Jebril’s property”) to enter, park, and exit from its property at 2902
and 2910 Gilbert Avenue (“the 2900 property”), and a dispute arose regarding the
“rights, status, and legal relationship between the parties arising from the property
line, specifically the entrance, exit and parking areas.” 2900 claimed that it has owned
the 2900 property since April 3, 2003, and that 2900 and its predecessors in interest
have openly and continuously used Jebril’s property for access to and from the 2900
property and parking since “at least 1990, approximately 33 years.”
{¶3} The matter proceeded to trial in July 2024. In advance and for the
purpose of trial, the parties submitted a joint stipulation of facts and exhibits. The
stipulated facts established the ownership history of each property. Further, 2900
presented the testimony of several witnesses in its favor at trial. Jebril did not present
any witnesses or evidence at trial. After written closing arguments, the trial court OHIO FIRST DISTRICT COURT OF APPEALS
issued an order granting 2900’s motion for a declaratory judgment in favor of a
prescriptive easement. More specifically, the court declared “that a valid, enforceable
easement over the parcel of property, subject to this lawsuit only, is awarded to [2900].
[2900], from the date of this entry forward[,] is entitled to the quiet use and enjoyment
of the easement without undue interference by [Jebril].”
{¶4} Jebril now appeals, asserting a single assignment of error in which she
argues that the trial court erred in finding a prescriptive easement.
II. Facts
{¶5} 2900 is composed of two members. One of the members (“Member A”)
is one of the original founders of the Giminetti Baking Company (“Giminetti”). He
testified that Giminetti moved into the 2900 property in 1990 under “a purchase
contract” with the previous owner and exercised the option to buy the property in
2003. Giminetti was “a wholesale bakery baking company,” with a retail cafe bakery
in part of the front area, that was in operation until 2023, when the business (not the
property) was sold. The property is now leased to a school.
{¶6} Member A testified that the 2900 property has a parking lot and stated
that, to get to the parking lot, customers and employees utilized the curb cut that
comes across Jebril’s property to access the parking spaces. The curb cut is the only
access to the parking lot. The bakery was open six days a week to customers, and
employees were at the bakery seven days a week.
{¶7} Member A utilized joint exhibit XI—a survey map from the Hamilton
County Auditor exhibiting property boundaries—to point out the area at issue. He
testified that the yellow area on the map is the 2900 property, the blue area is Jebril’s
property, and the pink area is “what we are here today talking about.” The curb cut is
“right on the front of the pink area.”
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} When asked to explain what “the parking lot” was used for, Member A
testified,
For numerous -- we have -- at one time, we used to deliver for all
the Burger Kings in the Tristate region. So we had leased trucks we
used. We had six of them at that time, in addition to our bakery trucks
that we would have to park on that property at night. And then, of
course, the drivers would replace their car with the truck when they
went out on the routes.
Also, when we opened the restaurant, that was the only parking
for our customers to use. So we were very protective of that property
just to make sure we can use it for our parking, and make sure we had
access to it.
{¶9} Member A said that the “strip of land we’re talking about” was
previously owned by a gentleman who had a pharmacy and medical building “on that
property at one time.” Member A denied ever having entered into any agreement with
the previous owner or getting oral permission to use “that parcel.” When asked if he
used “that parcel” from the day he moved in, he said, “Yes.” When asked if the parcel
was used for “deliveries, parking, and the curb cut,” he answered, “That’s correct.” He
said that the deliveries went from 1990 to 2023. He denied that anyone ever stopped
him from using “that parcel.” When asked about maintenance to “this parcel,” he said,
“We took care of the snow removal. We took care of patching blacktop as needed, we
did the striping three or four times.” When asked if he continuously parked in the
parking lot from 1990 to 2023, he answered, “Every day.” When asked if he ever tried
to hide the use of the parking lot or the parcel in any way, he said, “No, not [at] all.”
When asked if “things were parked there during the day,” he said, “Yes,” “every day.”
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Member A testified about an incident in 2014, when “Mr. Jebril” owned
the property, where a temporary fence was put up that “encroached on the access to
our parking spaces.” He sent a text to Mr. Jebril to move the fence because it was
blocking entry to the parking lot. He did not get a response to the text message, but
the fence was moved. He also testified to another incident in 2020 where a chain was
put up “across this access on to our property.” He said, “we asked him to take it down
and he did because it was on our property.” He said it was “a one-sided discussion”
because he never received responses to the text messages he sent. He denied that the
Jebrils ever gave him an explanation for why the fence or the chain went up.
{¶11} The second member of 2900 (“Member B”) testified that he became
Member A’s business partner in 1996. In the early 1990s, he worked for Member A
delivering doughnuts and bread to all the Thriftway stores. He was also “on the trucks”
once they were business partners. When asked about “the parcel in question today”
and if he ever used the parcel, he answered, “Yes. We parked our trucks over there
when I drove. Then our customers and employees used it up until we shut down the
deli.” When asked if he always used the curb cut, he said, “Yes. That’s the only way
into the lot, into our parking spaces.” When asked if they were the only business using
“that parcel,” he said, “Yes.” When asked if the parcel was used every day, he said,
“Yes.” When asked how often he was there when he was driving, he answered, “I would
be there at least eight to ten hours a day.” This was six days a week. When asked about
maintenance and who took care of the “parcel,” he said, “We did. We striped it.” When
asked who he meant by “we,” he said, “Giminetti’s did.” He testified, “We striped it,
and we’d salt it, and plow it.” They also hired someone to cut the grass. He denied
ever having any contact with the Jebrils about the parcel and denied that Giminetti
ever tried to hide use of the parcel. When asked if he ever got permission to use the
6 OHIO FIRST DISTRICT COURT OF APPEALS
parcel from any owner, previous or current, he said, “No. We just always used it.” He
testified that the curb cut was the only entrance to their parking lot and agreed it was
used for “customers, delivery, employees, et cetera.”
{¶12} A Giminetti employee (“Employee A”) testified that she worked for
Member A “for many years,” and worked for his father before that. She worked at
Giminetti for 24 years, from 1993 to 2017. She said that she used the parking lot at the
building and there was “one curb” that you could use to get into the parking lot. When
asked if she parked there a lot, she said, “Yes, I parked there, customers parked there,
we parked our trucks there sometimes.” She said they maintained the parking lot
yearly “for snow removal, throwing down salt, cutting back weeds.” She also agreed
that they “striped it.” When asked on cross-examination whether they would stripe
“the Giminetti parking lot or the adjoining parking lot,” she said, “I don’t see where
there’s a difference.” When asked where the striping ended, she said, “The striping
was pretty much on the side, closest to our building.” On redirect, she was asked
whether vehicles were parked in “the parcel” that goes straight back from the curb cut,
and she said, “Yes. They would parallel park in those spaces.” She could not recall for
sure if there was a line where they would parallel park.
{¶13} Another Giminetti employee (“Employee B”) testified that he worked for
Member A from 2008 to 2014, and then again from 2019 to 2020. When asked how
one entered the parking lot, he said, “There was an entrance. It was like between two
yellow poles, and you just pulled in the entrance.” He agreed this was the curb cut.
When asked if this was where he parked, he said, “Yes. We typically would park further
down to leave the front parking spots for the deli guys.” When asked if customers used
the parking lot, he said, “Every day.” When asked about the strip that “goes straight
back” from the curb cut and whether trucks were parked there, he said,
7 OHIO FIRST DISTRICT COURT OF APPEALS
I mean, yeah. We would, you know, sometimes we have to park
our trucks there, depending on what was going on the side of the street
or if we had to clear out our loading dock. You know, we had space there
to just pull apart [t]he trucks because there was a two-car garage at the
very end that was unused, so being able to pull down towards the end.
{¶14} When asked about joint exhibit XII—an overview photograph of the
area—and the “strip here where you see those cars,” he testified that this area was used
while he worked there for customer parking and “occasionally” for truck parking. He
denied ever receiving permission to use that area. He said, “It was never discussed,”
and added, “That’s how we got into the parking lot.” When asked about the
maintenance of this area, he said it was maintained by the company. He added,
And, I know, personally, when I worked there, I had prior
ownership to working for the company, so I put effort into keeping the
outside of the building cleaned up, weeded, whatnot. So I would weed
and clean that parking lot. I actually painted stripes in that parking lot,
I believe two times over the course of the first time I worked there, from
2008 to 2014.
{¶15} He further added, “I, actually, painted even the parallel parking spots.”
He believed this occurred around 2009 and 2011. He also made sure snow was
removed and it was salted.
{¶16} A third Giminetti employee (“Employee C”), testified that he worked for
Member A from 1992 to 2008. He said that you enter the parking lot through the curb
cut. When asked about the area straight back from the curb cut and what it was used
for, he said, “Oh, for parking. That’s all I can remember.” When asked if customers
parked there, he said, “I believe they did. So, for me, I was never really there during
8 OHIO FIRST DISTRICT COURT OF APPEALS
the day. I was always out on deliveries. So that was the core hours for customers. But
yeah, I believe customers had access to that lot.” He testified that he parked trucks
there “occasionally.” When asked about maintenance of this area, he said the bakery
always cleared the snow and took care of the grass. When asked if he ever received
permission to use that area, he said, “No, I never had any kind of permission from
anyone. I just parked there and no one had ever said you can’t park here.” He agreed
that, during his “entire time there,” he would see cars and trucks in that narrow strip
of the parking lot next to the grass.
III. Law and Analysis
A. Standard of Review
{¶17} “In a declaratory judgment case, a trial court’s decision on justiciability
is reviewed under the abuse of discretion standard of review.” Paulus v. Beck Energy
Corp., 2017-Ohio-5716, ¶ 14 (7th Dist.), citing Arnott v. Arnott, 2012-Ohio-3208, ¶ 1.
“Thereafter, legal questions are subject to de novo review whereby no deference is
given to the trial court’s decision.” Id. at ¶ 15, citing Arnott at ¶ 1, 13. “Where the final
decision involves factual issues, another standard of review may be implicated.” Id.
Pursuant to a specific declaratory judgment statute: “When an
action or proceeding in which declaratory relief is sought under this
chapter involves the determination of an issue of fact, that issue may be
tried and determined in the same manner as issues of fact are tried and
determined in other civil actions in the court in which the action or
proceeding is pending.”
Id., quoting R.C. 2721.10.
{¶18} Thus, when reviewing factual determinations from a bench trial, this
court applies the usual sufficiency and manifest-weight standards of review. See, e.g.,
9 OHIO FIRST DISTRICT COURT OF APPEALS
id. at ¶ 16; Kraynak v. Whitacre, 2018-Ohio-2784, ¶ 15 (7th Dist.); Blair v. McDonagh,
2008-Ohio-3698, ¶ 56 (1st Dist.); Cincinnati Ins. Co. v. Irwin Co., 2000 Ohio App.
LEXIS 6045, *7 (1st Dist. Dec. 22, 2000); City of Westlake v. City of Cleveland, 2021-
Ohio-2929, ¶ 11 (8th Dist.).
B. Prescriptive Easements Generally
{¶19} “An easement is an interest in the land of another which entitles the
owner of the easement to a limited use of the land in which the interest exists.”
Westvaco Corp. v. W. 114th Berea Realty Corp., 1994 Ohio App. LEXIS 4633, *7 (8th
Dist. Oct. 13, 1994), citing Szaraz v. Consolidated RR. Corp., 10 Ohio App.3d 89 (9th
Dist. 1983). “‘An easement in or over the land of another may be acquired only by
grant, express or implied, or by prescription.’” Id., quoting Trattar v. Rausch, 154
Ohio St. 286 (1950), paragraph two of the syllabus. “‘Prescription is the acquisition of
an easement, over the property of another, through adverse use of that property.’”
Hall v. Dasher, 2022-Ohio-1735, ¶ 42 (5th Dist.), quoting Crawford v. Matthews,
1998 Ohio App. LEXIS 4492 (4th Dist. Sept. 21, 1998).
{¶20} “‘Prescription, like adverse possession, is effectively, a statute of
limitations.’” Shell Oil Co v. Deval Co., 1999 Ohio App. LEXIS 4423, *13 (1st Dist.
Sept. 24, 1999), quoting Crawford.
“The principle upon which the limitation operates, is, that the
adverse claim is accompanied by such an invasion of the rights of the
opposite party as to give him a cause of action, which he has failed to
prosecute within the time limited by law, and which he is therefore
presumed to have surrendered or abandoned.”
Id., quoting Crawford.
{¶21} “‘Prescription is, in essence, a form of adverse possession.” Harris v.
10 OHIO FIRST DISTRICT COURT OF APPEALS
Dayton Power & Light Co., 2016-Ohio-517, ¶ 12 (2d Dist.), quoting Crawford at fn. 6.
“‘They differ in that prescription grants the adverse user an easement or incorporeal
rights in the property, while adverse possession grants the adverse user legal title.’”
Id., quoting Crawford at fn. 6. “An easement grants permission to use the land of
another not the exclusive right to possess it.” Id. at ¶ 13.
{¶22} Thus,
“[t]he distinction between the elements required to acquire a
prescriptive easement and those required to acquire title by adverse
possession is limited to the land’s exclusive use. Acquiring an easement
by prescription differs from acquiring title by adverse possession, in that
exclusivity is not an element required to establish an easement by
prescription.”
Id. at ¶ 13, quoting Vaughn v. Johnston, 2005-Ohio-942, ¶ 11 (12th Dist.).
{¶23} “Under Ohio law, in order to obtain a prescriptive easement, a
landowner using adjacent property must prove, by clear and convincing evidence, that
such use was open, notorious, adverse to the neighbor’s property rights, continuous,
and in place for at least twenty-one years.” Hall, 2022-Ohio-1735, at ¶ 43 (5th Dist.),
citing Williams v. Phillips, 1999 Ohio App. LEXIS 2693 (5th Dist. June 3, 1999);
accord, e.g., Pinkerton v. Salyers, 2015-Ohio-377, ¶ 23 (4th Dist.); Katz v.
Metropolitan Sewer Dist., 117 Ohio App.3d 584, 589 (1st Dist. 1997).
{¶24} “A use is ‘adverse’ when it is without permission of, and is inconsistent
with the rights of, the property owner.” Hall at ¶ 63, citing Crawford, 1998 Ohio App.
LEXIS 4492 (4th Dist. Sept. 21, 1998). “‘It is not necessary that there be a heated
controversy, a manifestation of ill will, or enemy between the parties.’” Id., quoting
Crawford. “‘[Where] one uses a way over the land of another without permission as a
11 OHIO FIRST DISTRICT COURT OF APPEALS
way incident to his own land, and continues to do [so] with the knowledge of the
owner, such use is, of itself, adverse.’” Id., quoting Pavey v. Vance, 56 Ohio St. 162
(1897). “Any use of the land inconsistent with the rights of the titleholder is adverse
or hostile.” Id., citing Kimball v. Anderson, 125 Ohio St. 241 (1932).
{¶25} “Property is used ‘openly’ when it is used ‘without attempted
concealment,’ and it is used ‘notoriously’ when its use is ‘known to some who might
reasonably be expected to communicate their knowledge to the owner if he maintained
a reasonable degree of supervision over his premises.’” Harris, 2016-Ohio-517, at ¶ 19
(2d Dist.), quoting Hindall v. Martinez, 69 Ohio App.3d 580, 583 (3d Dist. 1990).
C. Initial Matters
{¶26} We first note that the arguments presented in the appellant’s brief
appear to be based on a limited portion of the evidentiary record. Cited are (1) an
affidavit that her attorney filed in advance of trial that pertained to discovery issues
and included certain photographs, and (2) the “Joint Stipulation of Facts and Exhibits”
that was filed in advance of trial. However, the attorney affidavit was not referenced
or utilized at trial, and only certain exhibits from the stipulated exhibits were actually
admitted at trial. Further, no reference is made to joint exhibits XI and XII, two
exhibits that were heavily relied upon and admitted at trial. This is significant as
Exhibit XI—the survey map—outlines in pink the area over which 2900 was claiming
an easement. It is claimed in the reply brief that these exhibits are not a part of the
record. However, both exhibits were admitted at trial and were with the trial court
exhibit clerk and thus are a part of the record. See App.R. 9(A)(1) (“The original papers
and exhibits thereto filed in the trial court, the transcript of proceedings, if any,
including exhibits, and a certified copy of the docket and journal entries prepared by
the clerk of the trial court shall constitute the record on appeal in all cases.” (Emphasis
12 OHIO FIRST DISTRICT COURT OF APPEALS
added.)); State v. Hendrix, 2018-Ohio-3754, ¶ 8 (1st Dist.), citing App.R. 9(A)(1) and
9(B)(6)(g) (“[T]he exhibits admitted at trial are part of the transcript of proceedings.”).
Accordingly, our analysis is based on the full evidentiary record, inclusive of all trial
exhibits.
{¶27} We further note the challenges under each issue presented for review as
to whether 2900’s complaint was sufficient. The argument raised under the first issue
presented for review is that the complaint does not adequately define the easement
where no exact physical boundaries are provided in the complaint. However, no
authority is cited in support of the assertion that the complaint must provide exact
boundaries of the claimed easement. The argument raised under the second issue
presented for review is that 2900 unlawfully expanded the scope of the claimed
easement beyond that which was presented in the complaint by including the parallel
parking spaces at trial. Paragraph three of the complaint is relied on in support of this
argument, which states, “Plaintiff must access Defendant’s Property to enter, park,
and exit Plaintiff’s Property.” However, the argument does not address paragraph 8,
which states, “Plaintiff and predecessors in interest have used Defendant's Property
for access to and from Plaintiff’s Property and for parking since at least 1990,
approximately 33 years.” (Emphasis added.) This assertion was sufficient to provide
notice of the extent of 2900’s claim. See Cline v. Rogers Farm Ents., LLC, 2017-Ohio-
1379, ¶ 46 (4th Dist.), quoting Patrick v. Wertman, 113 Ohio App.3d 713, 716 (3d Dist.
1996) (“‘“All that the civil rules require is a short, plain statement of the claim that will
give the defendant fair notice of the plaintiff’s claim and the grounds upon which it is
based.”’”) Beyond that, these issues were not raised below. See id. at ¶ 47, quoting
Schade v. Quarterman, 2014-Ohio-4034, ¶ 15 (“It is a rule of appellate procedure that
‘an appellate court will not consider any error which could have been brought to the
13 OHIO FIRST DISTRICT COURT OF APPEALS
trial court’s attention, and hence avoided or otherwise corrected.’”). Therefore, we
decline to find error based on the complaint.
D. First Issue Presented for Review
{¶28} In the first issue presented for review, Jebril asserts that the trial court
erred when it granted a prescriptive easement without further defining the physical
boundaries of the easement as to the curb cut and the ingress/egress pathway to get to
the bakery parking. In doing so, Jebril makes two arguments: (1) the evidence
presented by 2900 failed to adequately describe the area sought for this purpose, and
(2) that the trial court’s entry is inadequate to describe the boundaries of the easement
in this regard.
{¶29} As to the sufficiency argument regarding the evidentiary record, it is
asserted that “[n]owhere in the record is there a clear representation of what [2900
seeks].” It is further claimed that “[w]ithin the hearing, there is likewise absolute zero
reference to the specifics of the scope of the alleged easement, including any surveys,
legal descriptions, site plans, or even a single discussion of what is at issue.” However,
these arguments are refuted upon review of joint exhibit XI and Member A’s testimony
regarding this survey map. At the start of trial, Member A testified that the area in
pink on the survey map was the area over which 2900 was claiming an easement.
{¶30} An argument is also presented that there is “a considerable degree of
drive aisle width” and therefore, even if an easement is warranted, “how the pathway
looks must be defined” and “the pathway and shape and dimensions of it must all meet
the five elements of a prescriptive easement.” However, as indicated above, Member
A established the area in pink as the area over which they were claiming an easement,
and his remaining testimony, as well as the testimony of the other witnesses,
established how this area has been used by bakery since 1990. Notably, this assertion
14 OHIO FIRST DISTRICT COURT OF APPEALS
was never negated at trial in any manner. No evidence was offered in opposition to
the asserted scope of the easement and no argument was made to the trial court
regarding the scope of the easement. Instead, only a sufficiency argument was made
in the written closing argument pertaining to the adversity element and the 21-year
period.1 Because no argument was made to the trial court regarding the
appropriateness of the scope of the easement sought, we decline to consider this
argument. See, e.g., State v. Wintermeyer, 2019-Ohio-5156, ¶ 10 (“A first principle of
appellate jurisdiction is that a party ordinarily may not present an argument on appeal
that it failed to raise below.”).
{¶31} Nevertheless, even if we consider this argument, the evidence in the
record does not support the assertion that there was a “considerable degree of drive
aisle width.” Rather, the evidence established that the left side of the pink area was
used for parallel parking, and the area between that parallel-parking area and the
bakery parking was used to reach the parking on either side. Joint exhibit XII—the
overview photograph of the disputed area—shows that the in-between area is not
much wider than the length of a car, and no contrary evidence was presented at trial
to show that a narrower easement was—or could be—used by the bakery to reach the
parking spots.
{¶32} Jebril nevertheless points to Attewell v. Eagle Beach–Wildwood Assn.,
2000 Ohio App. LEXIS 1887, *6 (6th Dist. May 5, 2000), in support of her argument.
In Attewell, the court affirmed the trial court’s dismissal of a claim for a prescriptive
easement where the record lacked clear and convincing evidence setting forth the
extent of the easement. Id. at *7. Instead, the evidence showed that “at scattered times
1 Beyond that, she only made an argument challenging the appropriateness of the claim under the
Declaratory Judgment Act. Notably, none of these arguments are now advanced before this court.
15 OHIO FIRST DISTRICT COURT OF APPEALS
the disputed area was used for different activities and different purposes,” with no
evidence showing the exact location of these activities. Id. Further, the photographs
submitted “lacked exact reference points from which the court could determine the
exact area sought.” Id.
{¶33} The same deficiencies do not exist here. Here, 2900 presented a survey
map with the exact location of the area sought and presented testimony and an
additional photograph of the area exhibiting how each part of this area was used,
consistently, while the bakery was in operation since 1990. While it is true that the
testimony indicates that the delivery trucks were parked in the parallel-parking area
only sometimes, there was also testimony that the parallel-parking area was used for
customer parking as well, and the bakery was open to customers six days a week. Most
notably, Employee A testified that she worked at the bakery from 1993 to 2017, and
that customers parked in the parallel-parking area during that time. Employee C
testified that he worked at the bakery from 1992 to 2008 and said that he saw cars and
trucks parked in the parallel-parking area during his “entire time there.” Employee B
testified that he was employed by Giminetti from 2008 to 2014 and again from 2019
to 2020 and said that he painted the stripes for the parallel-parking area in 2009 and
2011. Beyond that, the testimony of Member A and Employees A, B, and C also
established that the curb cut and middle area was used every day for customers and
employees to access and park at the available parking. When looking at the
photograph of the middle area, the area appears to be only as wide as the length of a
vehicle and the parking goes all the way to the back of the area sought. Thus, it is
unclear how a car could use parking toward the back without utilizing the full middle
area.
{¶34} Therefore, to the extent that this is a sufficiency argument, the argument
16 OHIO FIRST DISTRICT COURT OF APPEALS
is overruled. Further, as pointed out by Jebril, courts have held that, because
prescriptive easements are an equitable remedy, determination of the limits of a
prescriptive easement is vested within the considerable discretion of the trial court
and will not be reversed absent an abuse of discretion. See, e.g., Pinkerton, 2015-
Ohio-377, at ¶ 19 (4th Dist.), citing Dunn v. Ransom, 2013-Ohio-5116, ¶ 9 (4th Dist.).
Here, we cannot determine that the trial court abused its discretion in granting an
easement over the full area requested as the evidence does not indicate that only a
narrower easement was warranted, and no argument was made to the trial court
regarding the scope of the easement. Therefore, to the extent that this argument is a
challenge to the determination of the limits of the easement, the argument is
overruled.
{¶35} Jebril further argues that the trial court’s entry was inadequate to
describe the boundaries of the easement.
{¶36} In Ford v. Estate of Tonti, 1992 Ohio App. LEXIS 6094 (10th Dist. Nov.
24, 1992), the court said, “A judgment entry describing an easement does not need to
contain a metes and bounds description, so long as the description is sufficient to show
the location of the easement.” Id. at *39-40. This principle arose from the court’s
analysis of what would be needed in a judgment entry to “give notice to all the world
that an easement exists for purposes of the use” at issue, considering that judgment
entries may be recorded in the chain of title. Id. at *39. The court went on to hold that
the judgment entry at issue was sufficient to identify the implied easement where the
entry “referred to the attached survey drawings in indicating the parameters of the
easements granted to the appellants,” and indicated the approximate area that the
appellants were permitted to use. Id. at *40.
{¶37} Jebril asserts that the trial court’s use of the term “property at issue” in
17 OHIO FIRST DISTRICT COURT OF APPEALS
the entry is insufficient as “the property at issue” was at no point defined by 2900.
{¶38} First, as mentioned above, the “property at issue” was defined by 2900
in joint exhibit XI and the corresponding testimony. Consequently, it is clear that the
trial court’s use of the phrase “property at issue” or property “subject to this lawsuit”
was referencing the area that 2900 identified as the property over which it sought the
easement. Nevertheless, the trial court did not reference or incorporate this exhibit,
or the testimony about this exhibit, into its entry. Rather, the court simply describes
the “property at issue” as “a piece” of Jebril’s property. To ensure a sufficient
description of the location of the easement, we sustain the assignment of error, in part,
as to the description of the easement in the trial court’s entry. We remand the cause
for the trial court to provide a sufficient description of the easement, such as by
incorporating joint exhibit XI into its judgment entry.
E. Second Issue Presented for Review
{¶39} In the second issue presented for review, Jebril challenges the
sufficiency of the evidence pertaining to the court’s grant of the easement for the
parallel parking.
{¶40} The argument raised is that, like in Grace v. Koch, 1996 Ohio App.
LEXIS 4432 (1st Dist. Oct. 9, 1996), the alleged use of Jebril’s property for parking was
insufficient to create a prescriptive easement. In Grace, this court reversed an
adverse-possession judgment for a number of different reasons, including failure to
meet the burden of proof regarding the exclusive, hostile, and notorious elements of a
claim for adverse possession. See id. at *32. Jebril appears to rely on the analysis
pertaining to evidence of a notorious, hostile use of the land. See id. at *30-31. This
court first said the notorious-possession element requires that
“the adverse claim of ownership must be evidenced by conduct
18 OHIO FIRST DISTRICT COURT OF APPEALS
sufficient to put a person of ordinary prudence on notice of the fact that
the land in question is held by the claimant as his own. The possession
must be visible and open to the common observer of the property so that
the owner or his agent, on visiting the premises, might readily see that
the owner's rights are being invaded.”
Id. at *29-30, quoting Jennewine v. Heinig, 1995 Ohio App. LEXIS 5816 (2d Dist. Dec.
29, 1995). This court then stated,
The [claimants] planted a tree, erected a swingset, parked cars
and trucks, stored firewood and materials, and constructed a carport on
the strip. The relevant uses that would put [the title owner] on notice of
adverse possession under Ohio case law are the tree and the carport,
and these are very minor encroachments. The tree was planted in 1986
and the carport was erected in 1983. Neither of these were within the
twenty-one-year statute of limitations. Therefore, until 1983, no use by
the [claimants] was sufficiently notorious to put [the title owner] on
notice that they claimed to adversely possess the strip.
Id. at *31.
{¶41} However, it is important to view this holding within the context of the
entire case, wherein it was established—among other things—that the strip of land in
question was used by both parties during the statutory period, the swingset was
erected but subsequently removed, and cars and trucks were only parked on the land
“periodically.” Id. at *6, 22, 25-26. Thus, these uses—within the facts of the specific
case—were not “sufficiently notorious to put [the title owner] on notice that [the
claimants] claimed to adversely possess the strip,” i.e., the uses were not sufficient to
“put a person of ordinary prudence on notice of the fact that the land in question is
19 OHIO FIRST DISTRICT COURT OF APPEALS
held by the claimant as his own.” See id. at *30-31.
{¶42} This court’s holding was affirmed by the Ohio Supreme Court in Grace
v. Koch, 81 Ohio St.3d 577 (1998). The court said,
[The title owner] first took action to assert ownership in July
1992 when [one claimant] began spreading gravel over the strip and [the
title owner] attempted to stop him. Therefore, to establish adverse
possession, the [claimants] must prove by clear and convincing
evidence that each element of adverse possession had been established
since 1971. We find it unnecessary to address each of the elements of
adverse possession because the [claimants] did not establish by clear
and convincing evidence that they held the strip adversely to [the title
owner] for the entire statutory period.
This court has stated that “it is the visible and adverse possession
with an intent to possess that constitutes [the occupancy’s] adverse
character,” Humphries v. Huffman (1878), 33 Ohio St. 395, 402, and
that “the occupancy must be such as to give notice to the real owner of
the extent of the adverse claim.” Id. at 404. In Lane v. Kennedy (1861),
13 Ohio St. 42, this court stated that to make possession adverse, “there
must have been an intention on the part of the person in possession to
claim title, so manifested by his declarations or his acts, that a failure of
the owner to prosecute within the time limited, raises a presumption of
an extinguishment or a surrender of his claim,” (Emphasis sic.) Id. at
47.
The Vermont Supreme Court stated the same proposition more
colorfully when it declared that to establish adversity, “the tenant must
20 OHIO FIRST DISTRICT COURT OF APPEALS
unfurl his flag on the land, and keep it flying so that the owner may see,
if he will, that an enemy has invaded his dominions and planted his
standard of conquest.” Darling v. Ennis (1980), 138 Vt. 311, 313, 415
A.2d 228, 230. See, also, Philbin v. Carr (1920), 75 Ind. App. 560, 591,
129 N.E. 19, 30.
There is no question that the [claimants] used the strip. They
mowed the grass, parked cars in the strip, and their children played in
the strip. The [claimants] also placed firewood, oil drums, and a swing
set in the strip. While we consider the case a close one, we conclude that
the record does not contain clear and convincing evidence that [title
owner] or his parents were on notice that their dominions had been
invaded in 1971. The [claimants] asked for the [title owners]’
permission before proceeding to mow the strip. [One claimant]
conceded that he knew that the strip belonged to [title owner] and that
he never would have used it without permission. Absent clear and
convincing evidence of the adversity of the [claimants]’ claim to the strip
for the entire statutory period, adverse possession must fail.
Id. at 581-582.
{¶43} Here, no argument is advanced that the use of the parallel-parking area
was not adverse. Rather, it is argued that the evidence is insufficient to show open and
notorious use of the area for parallel parking for 21 years. However, as mentioned
above, Employees A, B, and C testified that customers parked in the parallel-parking
area during the terms of their employment with Giminetti. The evidence indicates that
the bakery was open to customers six days a week. Additionally, Member A’s
testimony indicates the disputed strip was used for parking “every day” while the
21 OHIO FIRST DISTRICT COURT OF APPEALS
bakery was in operation since 1990. Further, the evidence indicates that the use of
this area was not hidden or done with permission by the title owner. Significantly, no
evidence was offered to the contrary to rebut the assertion that the bakery used this
area for parallel parking notoriously, continuously, and without permission for the
required 21-year period. In the absence of any evidence to the contrary, the evidence
was sufficient to show notorious use of the property for parallel parking.
Consequently, this argument is overruled.
IV. Conclusion
{¶44} For all the foregoing reasons, we sustain the sole assignment of error in
part as to the trial court’s insufficient description of the easement in its judgment entry
and overrule it in part as to the remaining arguments under the assignment of error
pertaining to the evidence establishing the easement. Accordingly, the trial court’s
judgment is affirmed as to the granting of a prescriptive easement and reversed insofar
as the description of that easement in the judgment entry, and the cause is remanded
for the trial court to provide a sufficient description of the easement.
Judgment affirmed in part, reversed in part, and cause remanded.
KINSLEY, P.J., and NESTOR, J., concur.