[Cite as McConnell Columbiana Property, L.L.C. v. Beno, 2026-Ohio-2448.]
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY
McCONNELL COLUMBIANA PROPERTY, LLC,
Plaintiff-Appellee,
v.
JOHN C. BENO ET AL.,
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY Case No. 25 CO 0048
Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2023 CV 283
BEFORE: Cheryl L. Waite, Mark A. Hanni, Katelyn Dickey, Judges.
JUDGMENT: Affirmed.
Atty. Mark A. Hutson, for Plaintiff-Appellee
Atty. Joseph C. Bishara, and Atty. Robert T. Buch, Roth, Blair, Roberts, Strasfeld & Lodge LPA for Defendants-Appellants
Dated: June 24, 2026 –2–
WAITE, P.J.
{¶1} In 2023, Appellee McConnell Columbiana Property, LLC filed a declaratory
judgment action against twelve defendants, including Appellants Frank J. Chestnut and
Lana Chestnut, co-trustees of The Chestnut Family Trust. The purpose of the complaint
was to settle the location of an unmaintained portion of Crosser Road in Center Township,
Columbiana County. Appellee needs to use the road to access its landlocked property.
The court granted summary judgment to Appellee. Appellants argue that there are
genuine issues of material fact in dispute as to whether any part of Crosser Road runs
through their property, as well as questions about the exact location of Crosser Road.
Appellee submitted two surveys and surveyors’ affidavits to establish the location of
Crosser Road. Appellants attempted to rebut the evidence with a personal affidavit from
Frank J. Chestnut stating that Crosser Road did not run through the Chestnut property.
However, the affidavit contains mere self-serving conclusions, and the attachments did
not rebut Appellee’s evidence, they actually support Appellee’s position. As the trial court
correctly granted summary judgment to Appellee, the judgment of the trial court is
affirmed.
Facts and Procedural History
{¶2} On June 21, 2023, Appellee filed a complaint seeking declaratory judgment
in the Columbiana County Court of Common Pleas in order to establish the location and
boundaries of an unmaintained portion of Crosser Road located in Center Township,
Columbiana County. Appellee is a limited liability company and owns three parcels of
land in Sections 20 and 29 of Center Township totaling 173.840 acres. A portion of
Crosser Road servicing Appellee’s property had been removed from the inventory of
Case No. 25 CO 0048 –3–
maintained roads by the action of the Columbiana County Commissioners. Appellee
alleged that the unmaintained part of Crosser Road passed through Sections 19 and 20
of Center Township, and could still legally be used to access its property.
{¶3} Appellee needed to define the parameters of the road in order to have public
road access to its landlocked property. Appellants Frank J. Chestnut and Lana Chestnut,
co-trustees of The Chestnut Family Trust, were two of the named defendants in
Appellee’s declaratory judgment action. Appellants were alleged to hold title to property
through which part of the unmaintained section of Crosser Road passed.
{¶4} Appellee had a survey of the area prepared by registered surveyor Kim
Halverstadt. This survey was attached to the complaint, along with documents from the
Columbiana County Commissioners reflecting that the unmaintained portion of Crosser
Road had not been vacated or abandoned and continued to be a public road.
{¶5} On November 5, 2024, the court granted default judgment to Appellee as to
seven of the twelve named defendants. Appellee filed an amended complaint on
November 20, 2024 against the remaining defendants, as well as two additional
defendants. Appellees attached an additional survey to the amended complaint,
completed by registered surveyor Graham Ewing, along with a detailed metes and
bounds description of the unmaintained section of Crosser Road. Both surveyors had
done extensive research into the history of Crosser Road in order to complete their
surveys.
{¶6} Appellants filed an answer and counterclaim. The court granted Appellee
default judgment against all remaining defendants except for Appellants and defendants
John C. and Elaine Beno. On April 18, 2025, Appellee filed a motion for summary
Case No. 25 CO 0048 –4–
judgment. Attached to the motion were affidavits from: Paul McConnell, a member of
Appellee McConnell Property, LLC; surveyor Kim Halverstadt; and surveyor Graham
Ewing. Appellee also attached the two surveys that were prepared, the metes and
bounds descriptions, aerial photos, and documents from the Columbiana County
Commissioners.
{¶7} Appellants filed a motion in opposition to summary judgment. Appellants
Frank and Laura Chestnut attached Frank’s affidavit to the motion. They also attached a
page from a 1998 plat book and a deed from 2002 transferring 76.494 acres in Center
Township from Nina Chestnut to Frank J. Chestnut and Lana J. Chestnut. John and
Elaine Beno did not oppose summary judgment and are not parties to this appeal.
{¶8} On July 8, 2025 the trial court granted summary judgment on all matters to
Appellee. Appellants filed an appeal, Appeal No. 25 CO 0026. This court sua sponte
dismissed the appeal for lack of a final appealable order, as the trial court’s judgment
entry did not contain enough information to satisfy the requirements of declaratory
judgment. On return to the trial court, the court again granted summary judgment to
Appellee on all matters on November 6, 2025. The court included as part of its judgment
the survey maps and legal descriptions provided by the two surveyors. Appellants filed
a notice of appeal on December 3, 2025. Appellants raise a single assignment of error
on appeal.
Final Appealable Order Status
{¶9} As a preliminary matter, Appellants argue that the trial court’s judgment of
November 6, 2025 does not constitute a final appealable order, and thus, the appeal
should be dismissed. To be clear, Appellants filed this appeal, but now contend the
Case No. 25 CO 0048 –5–
court’s judgment is not final and appealable. The basis of Appellants’ argument is that
they filed a counterclaim which was never ruled on by the court. Appellants’ argument is
without merit. The trial court’s judgment states: “The Court hereby finds no genuine
issues as to any material facts remains to be litigated in this case. The Court finds Plaintiff
is entitled to judgment as a matter of law.” (11/6/25 J.E., p. 2.) The entry also states:
“This is a final appealable order.” (11/6/25 J.E., p. 2.) The trial court made it clear that it
was ruling on all matters in the case and that judgment on all matters was being granted
entirely to Appellee. Although the judgment entry does not explicitly mention Appellants’
counterclaim, the manner of the court’s ruling makes it clear that the counterclaim was
denied. It is also apparent that the six counts in the counterclaim all depend on a ruling
in Appellants’ favor on the issue of the existence and location of the unmaintained portion
of Crosser Road in dispute. It is very clear, however, that the trial court ruled in Appellee’s
favor on that issue. The November 6, 2025 Judgment Entry is a final appealable order.
Summary Judgment Standard of Review
{¶10} An appellate court conducts a de novo review of a trial court's decision to
grant summary judgment, using the same standards as the trial court set forth in Civ.R.
56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Before summary
judgment can be granted, the trial court must determine that: (1) no genuine issue as to
any material fact remains to be litigated, (2) the moving party is entitled to judgment as a
matter of law, (3) it appears from the evidence that reasonable minds can come to but
one conclusion, and viewing the evidence most favorably in favor of the party against
whom the motion for summary judgment is made, the conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). Whether a fact is “material”
Case No. 25 CO 0048 –6–
depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc.,
Inc., 104 Ohio App.3d 598, 603 (8th Dist.1995).
{¶11} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party's
claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296 (1996). If the
moving party carries its burden, the nonmoving party has a reciprocal burden of setting
forth specific facts showing that there is a genuine issue for trial. Id. at 293. In other
words, when presented with a properly supported motion for summary judgment, the
nonmoving party must produce some evidence to suggest that a reasonable factfinder
could rule in that party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378,
386 (8th Dist.1997).
{¶12} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a light
most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
PLAINTIFF-APPELLEE'S CLAIM FOR DECLARATORY MOTION.
{¶13} Appellants argue that the affidavit of Frank J. Chestnut and the two
documents attached to the affidavit create a genuine issue of material fact as to the
Case No. 25 CO 0048 –7–
location and existence of the unmaintained section of Crosser Road. Therefore, they
contend that summary judgment was not appropriate. Appellants do not dispute that a
section of Crosser Road ceased being maintained by Center Township, that it was not
vacated, and that it still exists as a public road. Appellee and Appellants have both asked
the court to define the exact location of the unmaintained portion of Crosser Road as it
cuts across, or alternatively, near to the eastern edge of Appellants’ property. Appellants
maintain that there is enough evidence in the record to create a genuine issue of material
fact as to whether Crosser Road cuts through a portion of the Chestnut property.
{¶14} The Chestnuts’ argument depends entirely on the affidavit of Appellant
Frank Chestnut and two attachments to that affidavit: a copy of a page from a plat map
book; and a copy of the 2002 deed transferring 76.494 acres from Nina Chestnut to Frank
J. Chestnut and Lana J. Chestnut. The affidavit and attachments were filed as part of
Appellants’ motion in opposition to summary judgment.
{¶15} There is no date on the page from the plat map book, but Appellants allege
that it is from 1998. It purports to show 18 sections of Center Township, including Section
19 that contains the Chestnut property, and Section 20 that contains Appellee’s property.
The plat map page purports to show that Crosser Road runs north/south along the eastern
edge of a small section of the Chestnut property. It also shows Crosser Road continuing
south through the property of the other defendants (none of whom has contested
Appellee’s claim) and connecting to Appellee’s landlocked property. The scale of the
map is so minute that it is impossible to make any detailed determination of the location
of Crosser Road with respect to the Chestnut property, other than it appears to run down
Case No. 25 CO 0048 –8–
the eastern edge of a small section of the Chestnut property. Thus, we note that this plat
map confirms, rather than rebuts, Appellee’s expert evidence and surveys.
{¶16} Likewise, the deed that Appellants attached to their motion in opposition to
summary judgment confirms rather than rebuts Appellee’s expert evidence. The deed
states that the easternmost edge of a small section of the Chestnut property runs along
the eastern edge of Section 19 of Center Township and also travels along Crosser Road
for 533.28 feet. The deed states that one of the surveyor’s pins is within Crosser Road
and that part of Crosser Road lies within the Chestnut property. The deed also states
that the Chestnut property is subject to all legal highways, easements, and right of ways.
This information is perfectly consistent with the evidence presented by Appellee, but
inconsistent with Appellants’ contention to the contrary.
{¶17} Appellant Frank Chestnut’s affidavit does not provide evidence of the type
that can be used at trial to create a genuine issue of material fact. Although he states at
one point that Crosser Road is a dead-end road that ends roughly at his property line, the
attachments to his affidavit actually prove that it does not end at his property line. He
makes multiple claims in the affidavit that are either hearsay, speculation, or unsupported
conclusions, such as: nearby property owners leased land to Rosebud Mining Company
and then stopped leasing said land; Crosser Road was destroyed by mining activities; the
boundaries established by Appellee’s expert witnesses are not the boundaries of Crosser
Road; and he claims a road that Appellants maintain through the Chestnut property is not
Crosser Road. We must also note that since Frank Chestnut avers that he does not know
where the unmaintained part of Crosser Road is, he cannot state as fact that it does not
pass through his property or that Appellee’s surveys are incorrect.
Case No. 25 CO 0048 –9–
{¶18} Appellant Frank Chestnut’s affidavit presents a classic example of a self-
serving affidavit that cannot be used to create a genuine issue of material fact in summary
judgment.
A nonmoving party may not avoid summary judgment by merely
submitting a self-serving affidavit contradicting the evidence offered by the
moving party. To hold otherwise would allow a party to avoid summary
judgment simply by submitting a self-serving affidavit with nothing more
than unsupported contradictions of the evidence offered by the moving
party. A self-serving affidavit that is not corroborated by any evidence is
insufficient to establish the existence of an issue of material fact. (Citations
omitted.)
Merino v. Levine Oil Enterprises, LLC, 2019-Ohio-205, ¶ 36 (7th Dist.). The attachments
to Appellant’s affidavit do not support the assertions he makes in the affidavit and do not
contradict the surveys of the property prepared and submitted by Appellee’s surveyors.
Appellant’s affidavit merely contains a contradictory and speculative opinion as to
Appellee’s evidence without providing any actual evidence to support that opinion. “In
order to defeat summary judgment, the nonmoving party must produce evidence beyond
allegations set forth in the pleadings and beyond conclusory statements in an affidavit.”
Scott v. Marckel, 2008-Ohio-2743, ¶ 18 (3d Dist.).
{¶19} Appellants’ only argument, here, is that Appellant Frank Chestnut, as one
of the property owners, should be able to create a material issue of fact through his own
purported knowledge of where his property lines are without relying on expert evidence.
Case No. 25 CO 0048 – 10 –
Appellants contend that a party opposing expert evidence in summary judgment is not
always required to provide an opposing expert. This is a meaningless, straw argument,
since Appellee has never argued that Appellants must produce opposing expert evidence
to rebut Appellee’s experts. Appellants also contend that a landowner’s affidavit
regarding his own knowledge of his property lines is always sufficient to rebut contrary
evidence regarding those property lines. Appellant cites a single case he claims supports
this conclusion. Peters v. Angel's Path, L.L.C., 2007-Ohio-7103, ¶ 1 (6th Dist.). Peters
involved claims of trespass and nuisance when a developer constructed dirt mounds to
control rainwater runoff, but an adjoining landowner (the plaintiff) alleged that the mounds
trespassed on his property and actually caused flooding and water damage on his
property. The trial court granted summary judgment to Angel’s Path, the developer, but
this was reversed on appeal.
{¶20} Peters is distinguished from the instant case in many ways. First, the
discussion in the case regarding expert evidence of surveyors had to do with expert
evidence that would be presented at trial, not in summary judgment. The trial court
excluded the plaintiff’s expert evidence because it had not been timely filed according to
the court’s discovery rules, and it was this aspect of the court’s judgment that was
reversed on appeal. Id. at ¶ 20. In Peters, the plaintiff did possess opposing expert
evidence regarding whether the dirt mounds had slid across the plaintiff’s property line.
{¶21} Second, the Peters plaintiff indicated at the summary judgment stage that it
was planning on relying on expert survey evidence, and it actually submitted this evidence
to oppose the defendant’s motion for summary judgment. Id. at ¶ 19. In the instant case,
Appellants have provided no survey evidence to contradict Appellee’s evidence, but also
Case No. 25 CO 0048 – 11 –
have given no indication that they plan to conduct their own survey that might contradict
the evidence contained in Appellee’s two surveys.
{¶22} Third, the Sixth District’s comment about whether the homeowner’s affidavit
(regarding whether the dirt mounds had crossed his property line) was sufficient to rebut
the defendant’s expert was clearly dicta. Id. at ¶ 36. The appellate court had already
ruled that the plaintiff’s expert evidence was admissible, but then speculated as to
whether the plaintiff’s affidavit could be treated as evidence regarding the location of his
property line even before his own separate survey was conducted. The Sixth District
concluded: “[D]espite the fact that appellants had not yet had a separate survey done,
we can find nothing to disqualify them from testifying to the boundaries of their own
property.” Id. Since the Sixth District had already decided to reverse the decision to grant
of summary judgment on other grounds, this comment was superfluous.
{¶23} Fourth, the Peters case did not conclude that a homeowner’s affidavit about
his property line is always sufficient to rebut the opposing party’s survey of the property.
It concluded that, in the context of the facts and circumstances before it, the homeowner’s
affidavit could be treated as rebuttal evidence. Obviously, different facts and
circumstances may lead to a different conclusion.
{¶24} Fifth, the main fact in dispute in Peters is not the same type of fact in dispute
in the instant case. The Peters issue was whether a dirt mound slid across the
homeowner’s property line, constituting a trespass. In the instant case, the question is
the location of a public road that is no longer maintained in order to preserve the right-of-
way for a landlocked landowner. Obviously, Appellants need to know more than the
location of their property lines to answer this question. They need to know the exact
Case No. 25 CO 0048 – 12 –
location of the road. Appellants’ own rebuttal evidence shows they do not know the
location of the unmaintained section of Crosser Road. They believe that because it had
essentially disappeared from view, it no longer legally existed. Appellee established
through evidence that the road does legally continue to exist as a public road. Appellants’
bold and completely unsupported opinion to the contrary is not evidence.
{¶25} Sixth, Appellant Frank Chestnut’s personal conclusion that Crosser Road
never ran through his property is contradicted by his own evidence. He could not
personally claim that Crosser Road never ran through the Chestnut property because he
only obtained the property in 2002. The 1998 plat book page and the 2002 deed he
attached to his affidavit reflect that Crosser Road did extend into his property, at least
through the edge of his property. Therefore, Frank Chestnut could not rely on his opinion
that Crosser Road never crossed his property as rebuttal evidence, particularly since the
evidence he attached to his own affidavit contradicts that opinion.
{¶26} The evidence submitted by Appellee regarding the location of Crosser Road
was not actually rebutted by Appellants. This record reveals that there was no question
of material fact before the trial court still in dispute. Appellee’s evidence was sufficient for
the trial court to grant summary judgment and to declare the parameters of Crosser Road.
The trial court clearly defined the location of the unmaintained portion of Crosser Road
as part of its judgment. Therefore, Appellants’ assignment of error is without merit and is
overruled.
Conclusion
{¶27} Appellants contend the trial court should not have granted summary
judgment to Appellee in this declaratory judgment action. The purpose of the complaint
Case No. 25 CO 0048 – 13 –
was to settle the location of an unmaintained portion of Crosser Road in Center Township,
Columbiana County. Appellants claim that there are genuine issues of material fact in
dispute regarding the existence and location of Crosser Road, which Appellee seeks to
use in order to cross Appellants’ property to its own property. Appellee submitted two
surveys and surveyors’ affidavits establishing the location of Crosser Road. Appellants
submitted documentation in their attempt to oppose summary judgment, but these
documents did not actually contain evidence to rebut the evidence presented by Appellee.
Appellant Frank J. Chestnut’s affidavit contains mere self-serving conclusions
unsupported by evidence, and the documents attached actually support Appellee’s
contentions. The trial court correctly granted summary judgment to Appellee, and the
judgment of the trial court is affirmed.
Hanni, J. concurs.
Dickey, J. concurs.
Case No. 25 CO 0048 [Cite as McConnell Columbiana Property, L.L.C. v. Beno, 2026-Ohio-2448.]
For the reasons stated in the Opinion rendered herein, Appellants’ assignment of
error is overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed
against the Appellants.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.