[Cite as Kuyoth v. Kelleys Island, 2016-Ohio-1395.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
John and Jean Kuyoth, et al. Court of Appeals No. E-15-027
Appellants Trial Court No. 2011-CV-0456
v.
Village of Kelleys Island, Ohio, et al. DECISION AND JUDGMENT
Appellees Decided: March 31, 2016
*****
Stephen H. Dodd, for appellants.
David A. Lambros, for appellee Village of Kelleys Island.
D. Jeffery Rengel and Thomas R. Lucas, for appellees Kyle Yoest, Jeri Yoest and Fred Stueber.
JENSEN, P.J.
I. Introduction
{¶ 1} In this accelerated appeal, landowners along a private road appeal a
judgment by the Erie County Court of Common Pleas. The trial court found that
declaring that the road was public would not conduce to the general interests of the municipality and therefore denied appellants’ petition under R.C. 723.09. We find that
the appellees are entitled to judgment as a matter of law, and therefore, we affirm the
lower court’s judgment. We do so, however, for a different reason.
II. Statement of Facts
{¶ 2} This case began with the filing of a complaint on June 27, 2011, against the
Village of Kelleys Island (“the Village”). The plaintiff-appellants are John and Jean
Kuyoth, Douglass and Sally Kitchen, Glen and Michele Holzhauser, Gary and Lanette
Muzie, and World Business Services. All of the plaintiff-appellants own property along a
private road, known as Dwelle Lane. Appellants have ingress and egress rights to Dwelle
Lane, and those rights are not at issue in this case.
{¶ 3} After the filing of the complaint, Kyle and Jeri Yost and Frederick Stueber
successfully intervened in the action. The public records filed in this case suggest that
the intervenors are the owners, in fee simple, of Dwelle Lane. The trial court specifically
found, however, that the identity of the owner(s) was not relevant, other than to note that
Dwelle Lane is privately owned.
{¶ 4} Count 1 of the complaint is a declaratory action, under R.C. 2721.01, in
which the plaintiffs-appellants requested that the court find that Dwelle Lane is a public
road and that the Village had an obligation to maintain it. Count 2 was pled in the
alternative, in which appellants petitioned the court to “convert” Dwelle Lane to a public
street, pursuant to the trial court’s authority under R.C. 723.09.
2. {¶ 5} The intervenors and the Village each filed for summary judgment, and the
trial court dismissed the case with prejudice (“Kuyoth I”). It found,
Plaintiffs cannot meet their burden of proof on the common law
dedication requirement of dedication or acceptance by the Village of
Kelleys Island. In sum, no evidence has been presented nor can be
presented pursuant to R.C. 2721.01 or R.C. 723.09. Thus, while Dwelle
Lane is a road, it is not a public road.
{¶ 6} Appellants appealed the judgment. On May 9, 2014, we affirmed the
dismissal of Count 1, the declaratory action. We reversed and remanded, however, as to
Count 2, based upon appellants’ failure to complete service by publication, as required
for a claim brought under R.C. 723.09.
{¶ 7} Following remand and corrected service, the Village and the intervenors
again filed for summary judgment, which appellants opposed.
{¶ 8} In ruling against appellants, the court found that converting Dwelle Lane
into a public road would add to the Village’s maintenance costs and therefore weighed
against the general interests of the Village. The court also rejected appellants’ arguments
that conversion of the road would help increase the local tax base as too speculative and
further found that fire-safety issues were unfounded.
3. {¶ 9} Appellants filed a timely notice of appeal. They allege one assignment of
error:
The Common Pleas Court erred to the prejudice of Plaintiffs-
Appellant in granting summary judgment in favor of Defendants-Appellees.
(April 13, 2015, Opinion and Judgment Entry, p.7).
III. Standard of Review
{¶ 10} Appellate review of a trial court’s decision to grant summary judgment is
de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
We apply the same standard as the trial courts, without deference to the trial court’s
findings. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198
(9th Dist.1989).
{¶ 11} A motion for summary judgment may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
4. {¶ 12} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact. Mitseff v. Wheeler, 38 Ohio
St.3d 112, 526 N.E.2d 798 (1988), syllabus; Dresher v. Burt, 75 Ohio St.3d 280, 293, 662
N.E.2d 264 (1996). When a properly supported motion for summary judgment is made,
an adverse party may not rest on mere allegations or denials in the pleadings, but must
respond with specific facts showing that there is a genuine issue of material fact. Civ.R.
56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999).
IV. Law and Analysis
{¶ 13} In this case, all sides agree that appellants have ingress and egress rights
between Dwelle Lane and their respective properties. On the other hand, it is unclear
from the record as to who owns Dwelle Lane, except that it is not any of the appellants.
Like the trial court, we do no resolve that issue, except to point out that we previously
upheld the trial court’s legal conclusion in Kuyoth I that Dwelle Lane is a private road, a
conclusion that we leave undisturbed.
{¶ 14} At issue herein is the application of R.C. 723.09, which provides,
Vacation or establishment of street or alley by court. The court
of common pleas may, upon petition filed in such court by any person
5. owning a lot in a municipal corporation, for the establishment or vacation
of a street or alley in the immediate vicinity of such lot, upon hearing, and
upon being satisfied that it will conduce to the general interests of such
municipal corporation, declare such street or alley established or vacated,
but this method shall be in addition to those prescribed in sections 723.04 to
723.08, inclusive, and section 723.02 of the Revised Code.1
{¶ 15} Appellants frame the issue as “whether or not it would be in the best
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[Cite as Kuyoth v. Kelleys Island, 2016-Ohio-1395.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
John and Jean Kuyoth, et al. Court of Appeals No. E-15-027
Appellants Trial Court No. 2011-CV-0456
v.
Village of Kelleys Island, Ohio, et al. DECISION AND JUDGMENT
Appellees Decided: March 31, 2016
*****
Stephen H. Dodd, for appellants.
David A. Lambros, for appellee Village of Kelleys Island.
D. Jeffery Rengel and Thomas R. Lucas, for appellees Kyle Yoest, Jeri Yoest and Fred Stueber.
JENSEN, P.J.
I. Introduction
{¶ 1} In this accelerated appeal, landowners along a private road appeal a
judgment by the Erie County Court of Common Pleas. The trial court found that
declaring that the road was public would not conduce to the general interests of the municipality and therefore denied appellants’ petition under R.C. 723.09. We find that
the appellees are entitled to judgment as a matter of law, and therefore, we affirm the
lower court’s judgment. We do so, however, for a different reason.
II. Statement of Facts
{¶ 2} This case began with the filing of a complaint on June 27, 2011, against the
Village of Kelleys Island (“the Village”). The plaintiff-appellants are John and Jean
Kuyoth, Douglass and Sally Kitchen, Glen and Michele Holzhauser, Gary and Lanette
Muzie, and World Business Services. All of the plaintiff-appellants own property along a
private road, known as Dwelle Lane. Appellants have ingress and egress rights to Dwelle
Lane, and those rights are not at issue in this case.
{¶ 3} After the filing of the complaint, Kyle and Jeri Yost and Frederick Stueber
successfully intervened in the action. The public records filed in this case suggest that
the intervenors are the owners, in fee simple, of Dwelle Lane. The trial court specifically
found, however, that the identity of the owner(s) was not relevant, other than to note that
Dwelle Lane is privately owned.
{¶ 4} Count 1 of the complaint is a declaratory action, under R.C. 2721.01, in
which the plaintiffs-appellants requested that the court find that Dwelle Lane is a public
road and that the Village had an obligation to maintain it. Count 2 was pled in the
alternative, in which appellants petitioned the court to “convert” Dwelle Lane to a public
street, pursuant to the trial court’s authority under R.C. 723.09.
2. {¶ 5} The intervenors and the Village each filed for summary judgment, and the
trial court dismissed the case with prejudice (“Kuyoth I”). It found,
Plaintiffs cannot meet their burden of proof on the common law
dedication requirement of dedication or acceptance by the Village of
Kelleys Island. In sum, no evidence has been presented nor can be
presented pursuant to R.C. 2721.01 or R.C. 723.09. Thus, while Dwelle
Lane is a road, it is not a public road.
{¶ 6} Appellants appealed the judgment. On May 9, 2014, we affirmed the
dismissal of Count 1, the declaratory action. We reversed and remanded, however, as to
Count 2, based upon appellants’ failure to complete service by publication, as required
for a claim brought under R.C. 723.09.
{¶ 7} Following remand and corrected service, the Village and the intervenors
again filed for summary judgment, which appellants opposed.
{¶ 8} In ruling against appellants, the court found that converting Dwelle Lane
into a public road would add to the Village’s maintenance costs and therefore weighed
against the general interests of the Village. The court also rejected appellants’ arguments
that conversion of the road would help increase the local tax base as too speculative and
further found that fire-safety issues were unfounded.
3. {¶ 9} Appellants filed a timely notice of appeal. They allege one assignment of
error:
The Common Pleas Court erred to the prejudice of Plaintiffs-
Appellant in granting summary judgment in favor of Defendants-Appellees.
(April 13, 2015, Opinion and Judgment Entry, p.7).
III. Standard of Review
{¶ 10} Appellate review of a trial court’s decision to grant summary judgment is
de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
We apply the same standard as the trial courts, without deference to the trial court’s
findings. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198
(9th Dist.1989).
{¶ 11} A motion for summary judgment may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
4. {¶ 12} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact. Mitseff v. Wheeler, 38 Ohio
St.3d 112, 526 N.E.2d 798 (1988), syllabus; Dresher v. Burt, 75 Ohio St.3d 280, 293, 662
N.E.2d 264 (1996). When a properly supported motion for summary judgment is made,
an adverse party may not rest on mere allegations or denials in the pleadings, but must
respond with specific facts showing that there is a genuine issue of material fact. Civ.R.
56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999).
IV. Law and Analysis
{¶ 13} In this case, all sides agree that appellants have ingress and egress rights
between Dwelle Lane and their respective properties. On the other hand, it is unclear
from the record as to who owns Dwelle Lane, except that it is not any of the appellants.
Like the trial court, we do no resolve that issue, except to point out that we previously
upheld the trial court’s legal conclusion in Kuyoth I that Dwelle Lane is a private road, a
conclusion that we leave undisturbed.
{¶ 14} At issue herein is the application of R.C. 723.09, which provides,
Vacation or establishment of street or alley by court. The court
of common pleas may, upon petition filed in such court by any person
5. owning a lot in a municipal corporation, for the establishment or vacation
of a street or alley in the immediate vicinity of such lot, upon hearing, and
upon being satisfied that it will conduce to the general interests of such
municipal corporation, declare such street or alley established or vacated,
but this method shall be in addition to those prescribed in sections 723.04 to
723.08, inclusive, and section 723.02 of the Revised Code.1
{¶ 15} Appellants frame the issue as “whether or not it would be in the best
interests of Kelleys Island to declare Dwelle Lane a public road.” In support of their
argument, appellants point to four affidavits demonstrating “why Affiants believe that
Dwelle Lane should be established as a public road.”
{¶ 16} The trial court disagreed. Before addressing the trial court’s conclusion on
that issue, however, we first address the scope of R.C. 723.09.
{¶ 17} Appellants insist that the statute authorizes the trial court to “convert” a
private roadway into a public roadway, notwithstanding that appellants themselves do not
own the road. In other words, they wish to take a private road, belonging to a third party,
and foist it upon a municipality that does not want it. Appellants cite no authority that
R.C. 723.09 carries with it such vast powers, and we are aware of no such authority
either.
1 R.C. 723.02 and 723.04 through 723.08 govern the legislative authority of municipal corporations to open, narrow, vacate and effect other changes to streets and alleys.
6. {¶ 18} By its plain language, the statute authorizes a common pleas court “to
declare” a roadway as either established or vacated. We interpret that to mean that a
court may recognize that an event has, in effect, already occurred, i.e. that a public street
has been abandoned by a municipality and effectively become private property. If it
chooses, the court “may” declare it so vacated, assuming there is evidence that it would
be in the best interests of the municipality to surrender the road.
{¶ 19} Of the few cases interpreting R.C. 723.09, most involve property owners
seeking to have a public roadway declared vacated by a municipality based on its failure
to maintain it. For example, we affirmed the granting of a petition to vacate portions of
an alley to adjacent landowners where the municipality did not defend its interest in the
alley, and the petitioners had treated the property as their own. Duggan v. Village of Put-
In-Bay, 6th Dist. Ottawa No. OT-00-044, 2001 WL 477168, *2 (May 4, 2001). See also
Bayer v. City of North College Hill, 31 Ohio App.3d 208, 510 N.E.2d 400 (1st Dist.1986)
(A court may not grant a petition for vacation of a street under R.C. 723.09 upon a
motion for summary judgment without holding a hearing and without considering
whether the vacation will conduce to the general interests of such municipal
corporation.).
{¶ 20} We can also conceive of a situation that the reverse could occur, i.e., that a
landowner could abandon a private street and relinquish it to a municipality, assuming
constitutional safeguards for the taking of private property are met. As noted by the trial
court, however, there are no actual cases interpreting that precise situation.
7. {¶ 21} Moreover, the examples cited above involve the municipality vis-a-vis the
actual landowner, not third parties with no ownership interest in the road. Indeed,
although not the basis for its decision, the trial court agreed “with the proposition that use
of R.C. 723.09 to establish public roads is available only to the owners of the underlying
real property upon which the private road is situated and not general members of the
public or those who merely hold an easement thereto.”
{¶ 22} We agree, and we find no support for appellants’ argument that R.C.
723.09 may be used as a vehicle to convert private roads to public roads, as here, when
neither the municipality nor the owner support such a change. Appellants’ assignment of
error is not well-taken.
{¶ 23} We find that there is no genuine issue as to any material fact in this case,
that appellees are entitled to judgment as a matter of law, and that reasonable minds can
come to but one conclusion, which is adverse to appellants.
{¶ 24} Having found appellants’ assignment of error not well-taken, we hereby
affirm the judgment of Erie County Court of Common Pleas. Costs are assessed to
appellants in accordance with App.R. 24.
Judgment affirmed.
8. Kuyoth v. Village of Kelleys Island, Ohio C.A. No. E-15-027
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________ JUDGE Stephen A. Yarbrough, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
9.