State ex rel. Friesner v. Abke

2025 Ohio 308

• Court: Ohio Court of Appeals
• Decided: January 31, 2025
• Docket: WD-24-005
• Status: Published

Opinion

[Cite as State ex rel. Friesner v. Abke, 2025-Ohio-308.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio ex rel. Donna L. Friesner Court of Appeals No. WD-24-005 Trustee of the Donna L. Friesner Trust Trial Court No. 2022 CV 0033 Appellee

v.

Randy C. Abke, et. al.

Appellees v.

Board of Commissioners of Wood County, Ohio, et al.

Appellants DECISION AND JUDGMENT

Decided: January 31, 2025

***** Matthew D. Harper and Nicholas W. Bartlett, for appellee, Donna L. Friesner.

Paul A. Dobson, Wood County Prosecuting Attorney and Assistant Prosecuting Attorneys Linda Holmes and Joyce C. Nowak, and Teresa L. Grigsby and Jennifer A. McHugh, for appellants.

***** MAYLE, J.

{¶ 1} In this interlocutory appeal, appellants, the Board of Commissioners of

Wood County and the Freedom Township Board of Trustees, appeal the December 13, 2023 judgment of the Wood County Court of Common Pleas, denying their claim of

governmental immunity in the action filed against them by appellee, Donna L. Friesner,

Trustee of the Trust of Donna L. Friesner, and involuntary plaintiffs, Randy C. Abke and

Sandra S. Abke. For the following reasons, we reverse the trial court judgment.

I. Background

{¶ 2} The Trust of Donna L. Friesner owns real property located at 6535 Kemner

Road in Freedom Township, Wood County, Ohio. Randy and Sandra Abke own the

neighboring property located at 6391 Kemner Road. Trustee, Donna L. Friesner, filed a

petition for writ of mandamus and complaint for other relief against the Wood County

Board of Commissioners (the “county” or “commissioners”) and the Freedom Township

Board of Trustees (the “township” or “trustees”) (collectively “appellants”); she named

the Abkes involuntary plaintiffs to the action. The crux of the dispute is whether a 608-

foot path (“the path”) that runs continuously from Kemner Road and ends at Friesner’s

driveway is a private drive or a public road.1

{¶ 3} Friesner contends in her petition and complaint that by virtue of common-

law dedication, the path became part of Kemner Road and is a public township road that

must be maintained by the township. Her petition and complaint seek judgment (1)

declaring that a common-law dedication occurred making the path a public township

road; (2) quieting title consistent with its status as a public road; (3) issuing a writ of

1 Friesner calls it a “road.” Appellants call it a “private drive.” Instead of adopting either party’s nomenclature, we will simply call the disputed area a “path.”

2. mandamus compelling the trustees to discharge their legal duties under R.C. 5535.01(C)

and 5571.02 to maintain the path and keep it in good repair, and (4) awarding damages

arising from the trustees’ failure and refusal to maintain the path and keep it in good

repair.

{¶ 4} Appellants claim that Kemner Road ends where the path begins, thus the

path is a private drive for which they bear no responsibility. They further maintain that

under R.C. 2744.02(A)(1), they are statutorily immune from liability for alleged damages

resulting from its disrepair.

{¶ 5} Although not argued by either party, the trial court concluded that Kemner

Road was dedicated as a public county road in 1860, and was extended in 1926, to

include the path, but ultimately found that there exists an issue of material fact whether it

is currently a public county road or a public township road. Because it determined that

either way, the path is part of a public road, it declared it as such. Based on this

conclusion, it found that appellants were not statutorily immune from liability because

the immunity exception contained in R.C. 2744.02(B)(3) applies, potentially rendering

appellants liable for damages arising from loss to person or property caused by the

negligent failure to keep the path in repair. It also rejected appellants’ claim that even if

the path is part of a public road, immunity should be reinstated under R.C. 2744.03(A)(5)

because decisions relative to the maintenance of public roads are discretionary. The court

held that genuine issues of material fact precluded summary judgment as to the quiet title

3. claim, the petition for writ of mandamus, and the issue of whether and to what extent

Friesner suffered damages caused by appellants’ alleged failure to maintain the road.

{¶ 6} Appellants filed this interlocutory appeal. They assert the following errors

for our review:

Assignment of Error No. 1: The Trial Court’s December 13, 2023 Decision and Order denied Defendants’ Motion for Summary Judgment on Plaintiffs’ damages claim arising from their alleged failure to repair a “public road.” The Motion sought dismissal on immunity grounds. The Trial Court erred in allowing Plaintiffs’ damages claim to proceed, despite Defendants’ assertion that it was barred by the immunity provided them under Ohio R.C. §2744.02(A)(1), based on its erroneous findings that: 1) a “public road” existed; 2) Plaintiffs could invoke the immunity “exception” outlined in Ohio R.C. §2744.02(B)(3) applicable when a plaintiff claims a “loss” “caused by” a “negligent” failure to maintain and repair a “public road,” and 3) immunity could not be reinstated under Ohio R.C. §2744.03(A)(5).

Assignment of Error No. 2: As political subdivisions, Defendants are entitled to immunity for tort damages under Ohio R.C. §2744.02(A)(1) unless an immunity exception set forth in Ohio R.C. §2744.02(B) applies. The Trial Court erred in finding the Ohio R.C. §2744.02(B)(3) exception applicable because the exception requires the existence of a “public road,” and the record contains evidence disputing each of the three elements required for a common law road dedication, thus creating a genuine issue of material fact. The Trial Court’s Decision and Order granting Plaintiff summary judgment finding the existence of a public road and denying Defendants immunity was erroneous.

Assignment of Error No. 3: The Trial Court erred in when it failed to identify or apply the “clear and convincing” proof standard when finding the existence of a public road, which was a predicate ruling to its determination that an immunity exception could be invoked, and its decision to deny Defendants immunity.

4. Assignment of Error No. 4: The Trial Court ruled that “once the decision is made to establish a public road, political subdivisions are not immune from liability for breach of duty to maintain the road.” (Dec. and Order p. 17.) This ruling was erroneous because it does not recognize that, in order to invoke the Ohio R.C. §2744.02(B)(3) exception, the Trial Court must have found not only the existence of a “public road,” but also have found that the claim for damages was “caused by” a “negligent failure” to keep [the] “public road[...]” in repair. The Trial Court erred in failing to evaluate whether, and to make a finding that, the additional conditions for triggering the immunity exception (i.e. a “negligent failure” to keep the public road in repair and “causation”) are present in this case.

Assignment of Error No. 5: Assuming that the Ohio R.C. §2744.02(B)(3) exception to immunity applied, the Trial Court erred in failing to reinstate immunity under R.C. §2744.03(A)(5). Decisions made by a political subdivision about whether and when to undertake road repairs are discretionary judgments about the use of public equipment, supplies, materials, personnel, facilities, and other resources. When there is no evidence that discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner, immunity applies.

II. Standard of Review

{¶ 7} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996), employing the same standard as trial courts.

Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129 (9th Dist.1989). The

motion 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 (1978), Civ.R. 56(C).

5. {¶ 8} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988),

syllabus, and identify those portions of the record that demonstrate the absence of a

genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (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 (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 (6th Dist. 1999); Needham v. Provident Bank,

110 Ohio App.3d 817, 826 (8th Dist. 1996), citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

{¶ 9} Generally speaking, “‘the issue of whether sovereign immunity is applicable

in a particular case is properly determined by a court as a matter of law before trial, and is

the proper subject of a summary judgment motion.’” Vasquez-Cromer v. City of Toledo,

2019-Ohio-5149, ¶ 8 (6th Dist.), quoting Grinter v. Toledo, 1999 WL 740268, *2 (6th

Dist. Mar. 19, 1999), citing Nease v. Med. College Hosp., 64 Ohio St.3d 396, 400 (1992).

Having said that, genuine issues of material fact may exist as to the applicability of an

exception to statutory immunity, precluding resolution of the issue on summary

judgment. Todd v. Cleveland, 2013-Ohio-101, ¶ 28 (8th Dist.). Our review of a trial

6. court’s rejection of a defense of statutory immunity is de novo. Piazza v. Cuyahoga

Cnty., 2019-Ohio-2499, ¶ 33.

III. Law and Analysis

{¶ 10} In their first assignment of error, appellants argue that the trial court erred

in allowing Friesner’s damages claim to proceed based on its erroneous findings that (1)

the R.C. 2744.02(B)(3) immunity exception applies because the path is a “public road,”

thus appellants could be liable for loss caused by their negligent failure to keep the public

road in repair, and (2) immunity could not be reinstated under R.C. 2744.03(A)(5).

{¶ 11} In their second assignment of error, appellants argue that the trial court

erred in finding that the R.C. 2744.02(B)(3) immunity exception applies because the

exception requires the existence of a “public road,” and the record contains evidence

disputing each of the three elements required for a common-law road dedication.

{¶ 12} In their third assignment of error, appellants argue that the trial court erred

because in finding the existence of a public road—the predicate ruling to its

determination that the R.C. 2744.02(B)(3) immunity exception applied—it failed to apply

the “clear and convincing” standard.

{¶ 13} In their fourth assignment of error, appellants argue that the trial court erred

by rejecting its immunity defense without finding that there had been a “negligent

failure” to keep the “public road” in repair and that this negligence “caused” damages.

{¶ 14} Finally, in their fifth assignment of error, appellants argue that even

assuming that the R.C. 2744.02(B)(3) immunity exception applies, the trial court erred in

7. failing to reinstate immunity under R.C 2744.03(A)(5) based on the discretionary nature

of road-repair decisions and the absence of evidence of malicious purpose, bad faith, or

wantonness or recklessness.

{¶ 15} Before addressing appellants’ assignments of errors, we quickly summarize

the legal requirements for common-law dedication of a road, the history of the dispute,

and the trial court’s findings leading to its conclusion that the path is a public road. And

because appellants’ assignments of error are multi-faceted and present overlapping

issues, we first broadly address the issues presented in their assignments of error, then

summarize our resolution of each assignment.

A. Common-Law Dedication

{¶ 16} Under Ohio law, dedication of a road can be accomplished statutorily or by

common-law dedication. Ickes v. Lawrence Twp., 2005-Ohio-3195, ¶ 6 (5th Dist.).

Generally, three elements are necessary to accomplish common-law dedication: “(1) the

existence of an intention on the part of the owner to make such dedication; (2) an actual

offer on the part of the owner, evidenced by some unequivocal act, to make such

dedication; and (3) the acceptance of such offer by or on behalf of the public.” Hall v.

Dasher, 2022-Ohio-1735, ¶ 53 (5th Dist.). “The burden of proof to establish a dedication

is on the party asserting it.” Bachtel v. Strickland, 1987 WL 20398, *3 (4th Dist. Nov.

17, 1987).

{¶ 17} The intention to dedicate and acceptance of the dedication may be either

express or implied. Hall at ¶ 54; Hawn v. Pleasant, 1999 WL 366584, *5 (4th Dist. Jun.

8. 1, 1999). Evidence of intention must be clear and convincing. Becker v. Cox, 1985 WL

8688, *4 (12th Dist. June 10, 1985). Mere use by the public is not sufficient to satisfy the

“acceptance” element for common-law dedication. State ex rel. Fitzthum v. Turinsky,

172 Ohio St. 148, 152-153 (1961).

B. History of the Dispute

{¶ 18} The Friesner farmhouse is one of three homes located on Kemner Road

west of where it intersects Caskie Road. It is situated on 72 acres of land. The Portage

River borders Kemner Road to the north. Eventually, if the road continued straight, it

would meet the river. There is a post at that approximate location, north of the road and

west of the Abkes’ driveway. Up to the point of the post, the road is relatively smooth

and flat. Once past the post, the path is crumbled and uneven. It is mainly broken

pavement, stone, and gravel and is heavily rutted and potholed. The Abkes’ property line

extends beyond the smooth road into the rutted path. Their property must be traversed in

order to access the Friesner farmhouse, located west of the Abkes’ property.

{¶ 19} Just after the post, the river winds southwest and the path curves in the

same direction as the river. They follow each other for a short distance, then the river

juts back to the north while the path continues until it dead ends at its intersection with

Friesner’s driveway. Sometimes when the river overflows, it floods the path. In addition

to flooding from the river, a pond located on the Abke property leaks, causing additional

dampness near the path.

9. {¶ 20} Friesner’s husband, Todd Friesner, grew up in the Friesner farmhouse, but

for more than a decade, Friesner leased the farmhouse and some of the land to the

MacAllister family. The bulk of the remaining acreage is used for farming. In around

2015 or 2016, Friesner and the MacAllisters discussed a possible sale of the farmhouse,

along with approximately 9.7 acres of the land for $260,000. To accomplish this sale, the

parcel would need to be split. Splitting the parcel would require approval of the Wood

County Planning Commission and the Engineer’s office, and the absence of frontage on a

public road is an impediment to obtaining county approval. This split has not occurred

and the sale to the MacAllisters was never consummated. But while negotiations were

still ongoing, the Friesners secured a formal easement agreement from the Abkes,

expressly permitting ingress and egress over their property for purposes of accessing the

Friesner property, along with the Abkes’ agreement to cooperate in the process of getting

the path dedicated as a public road.

{¶ 21} On August 6, 2019, the Friesners sent to the Wood County Administrator a

“Request for Formal Confirmation of Prior Acceptance of Dedication Plat.” It

maintained that a common-law dedication of the path had already been accomplished, but

they urged the commissioners to formalize this dedication. In support, they argued that

the township had paved, maintained, and snowplowed the path, had contemplated

constructing a T-type turnaround on Friesner’s property to be utilized by snowplows and

other vehicles, and had generally taken the position over many decades that the path was

part of Kemner Road. They insisted that the township’s maintenance of the path

10. continued uninterrupted until 2018, when the township abruptly changed course and

disclaimed responsibility for the path, declaring that it was a private drive and not a

township road.

{¶ 22} The county declined Friesner’s request. It disputed that the path had ever

been dedicated a township road and explained the numerous reasons—both safety and

financial—why dedication of the path “does not meet the county’s specifications for new

roads,” including that the north side of the proposed easement extends ten feet from the

water’s edge into the Portage River, the river often overflows inundating the path with

water six feet deep, there is the potential for river washout, the easement is partially

located on the mounding area of the Abkes’ leaking pond, and the dedication of the path

would not benefit the public given that the only users of the path are the residents and

guests of the two homes.

{¶ 23} Friesner filed suit after the county refused to acknowledge that the path had

been dedicated and was an extension of Kemner Road. She first filed—then voluntarily

dismissed—Wood County case No. 2020-cv-0224. She refiled as Wood County case No.

2022-cv-0333. This is an appeal from the refiled action.

{¶ 24} In the refiled action, Friesner sought judgment (1) declaring that a

common-law dedication occurred making the path a public township road; (2) quieting

title consistent with its status as a public road; (3) issuing a writ of mandamus compelling

the trustees to discharge their legal duties under R.C. 5535.01(C) and 5571.02 to maintain

the path and keep it in good repair, and (4) awarding damages. Pertinent to this appeal,

11. Friesner claimed that she had suffered damages caused by the township’s refusal to

“maintain” the path as a “road[] within its township” and “keep it in good repair,” despite

its legal obligation to do so. She maintained that she had been forced to “undertake, at

her expense, maintenance and repair” of the path and, because of its deterioration, she

“lost a tenant in her house, causing further damages . . . in the form of lost rental

income.”

C. The Trial Court Judgment

{¶ 25} The parties filed motions for summary judgment. Appellants moved for

summary judgment on all of Friesner’s claims. Friesner moved for partial summary

judgment on all but her damages claim, the amount of which she maintained must be

determined at trial.

{¶ 26} On December 13, 2023, the trial court denied appellants’ motion and

granted Friesner’s partial motion, in part. It concluded that a common-law dedication of

the path had taken place and the path is a public road. The court did not resolve

Friesner’s remaining claims because it found that a genuine issue of material fact exists

concerning whether the path is a public county road or a public township road.

{¶ 27} Pertinent to the present appeal, the trial court also found that a genuine

issue of material fact exists concerning whether Friesner has suffered damages related to

the failure to maintain the path. On that claim, the court acknowledged—but rejected—

appellants’ defense that they are statutorily immune from liability for damages under

R.C. 2744.02(A)(1).

12. {¶ 28} Under R.C. 2744.02(A)(1), “[e]xcept as provided in division (B) . . ., a

political subdivision is not liable in damages in a civil action for . . . loss to person or

property allegedly caused by any act or omission of the political subdivision . . . in

connection with a governmental or proprietary function.” One of the enumerated

exceptions to the immunity granted to political subdivisions is R.C. 2744.02(B)(3), under

which a political subdivision may be “liable for . . . loss to person or property caused by

their negligent failure to keep public roads in repair. . . .” There are circumstances that

may reinstate immunity, including R.C. 2744.03(A)(5), “if the . . . loss to person or

property resulted from the exercise of judgment or discretion in determining whether to

acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other

resources unless the judgment or discretion was exercised with malicious purpose, in bad

faith, or in a wanton or reckless manner.”

{¶ 29} The trial court found that appellants were not statutorily immune from

liability for damages here because the R.C. 2744.02(B)(3) immunity exception applies.

This was based on its conclusion that the path is a public road that appellants are

obligated to keep in repair. It further rejected appellants’ assertion that the decision to

maintain and repair a road is discretionary, which they argued reinstated statutory

immunity under R.C. 2744.03(A)(5). The court reasoned that the decision to maintain a

public road and keep it in repair is mandated by Ohio law and is not discretionary. It

found that “once the decision is made to establish a public road, political subdivisions are

not immune from liability for breach of the duty to maintain the road.”

13. D. The Trial Court’s Review of the History of Kemner Road

{¶ 30} Despite Friesner’s claim that the path is part of Kemner Road, a public

township road, the trial court found that county records demonstrated that it could be a

public county road. According to the court’s interpretation of the record on summary

judgment, a handwritten petition was submitted to the county in 1860, “signed by at least

12 freeholders residing in the vicinity of said proposed road,” requesting the

establishment of a county road commencing on the section line of Section 29 “where the

Rollersville & Portage Road intersects McCutchenville and Perrysburg Road, running

West thence along said section line to the Middle Branch of Portage River.” Following

the notice period, the county appointed viewers to meet with surveyors “to examine the

route for a proposed County Road.” The viewers reported back “in favor of establishing

a part of said road on the line surveyed,” along with a report and plat. The viewers’

reasons for establishing County Road 256 were as follows: (1) “It will accommodate

some who now have no convenient road for egress and ingress”; (2) “It will, when made,

be of much benefit to the surrounding lands as an outlet for drainage”; and (3) “It will be

a general benefit and convenience to the public at large when opened.” While the

petition requested that the road run west to the Middle Branch of the Portage River, the

road, as approved, “terminate[d] at the SW corner of Sec[tion] 29 instead of continuing

into the Middle Branch of the Portage River.”

{¶ 31} On December 11, 1916, a petition was filed by Kemner-Kreinkamp to

improve the road and extend it into Section 31. On March 12, 1926, the county approved

14. the county surveyor’s “Plan for the Kemner-Kreinkamp Road improvement,” extending

Road No. 256-A into Section 31 in close proximity to the Portage River. It was to be

built “from sta. 0+00 to sta. 24+69.85, on the E. & W. branch, on the N. side of Sec[tion]

31.”

{¶ 32} The court next summarized maintenance that had been performed in the

years that followed. It observed that the April 21, 1947 minutes of the township trustees

state that the trustees attended a Wood County Commissioners’ meeting “to put in the

following roads in the township for new repair, or other words (sic) black top these roads

. . . the Kemner road this (sic) being the dead end.” In 1947, “KEMNER ROAD – NO

256 A” was “PRIMED PATCHED AND 90# DRAG” for $488.32.

{¶ 33} In a letter to the county commissioners dated June 11, 1970, the Wood

County Engineer estimated the cost of $1,025.00 to “patch and surface treat” Kemner

Road No. 256-a “[f]rom Caskie Road west to dead end at Portage River. Length 0.57

mile: Width 10 feet: Square yards = 3300.” The county and the township agreed that

“Kemner Road, No. 256-a, within Freedom Township” would be improved as specified

at the cost specified, with the following additional specifications: “Type—bituminous

macadam. To be patched and surface treated.” The agreement was incorporated into a

resolution adopted by the county on July 21, 1970. Further records indicate that the work

was performed.

{¶ 34} In a letter to the county commissioners dated April 8, 1974, the Wood

County Engineer submitted an estimate of $4,778.67 to resurface Kemner Road No. 256-

15. a “[f]rom Caskie Road westerly to dead end. Length 0.57 mile: Width 10 feet: Square

Yards 3345.” The estimate was discussed at a May 6, 1974 township meeting. The

minutes from that meeting state “Estimate was received from [t]he County Engineer for

the resurfacing of . . . Kenmner (sic) road as follows . . . [Kemner] road from [C]askie

[R]d. to dead end 0.57 mile width 10 ft. patch and construction at $4,778.67.” The

minutes further state that the township would advertise for bids for the repair. Thereafter,

a bid from Henry W. Bergman, Inc. was accepted for $4,423,01. Further records indicate

that the work was performed.

{¶ 35} And in a letter dated May 11, 1987, from the Wood County Engineer to the

county commissioners, the cost for surface treating the entire length of “Kemner Road-

No. 256A” was estimated at $4,695.00. The length of Kemner Road was designated as

“From U.S. Route 6 to Dead End. Length = 3,364’ at 15’ width; 2,997’ [i.e., 0.567

miles] at 10’ width; Square Yards = 8,937.” On May 29, 1987, the Wood County

Engineer wrote to the county commissioners requesting that an agreement be prepared

with the township for the Wood County Engineer to surface treat Kemner Road by force

account. On June 2, 1987, the county and the township entered into an agreement for the

road to be surface treated “by Wood County forces under the direct supervision and

direction of the Wood County Engineer in accordance with the plans, specifications,

estimate of cost, etc. thereof as prepared and submitted by the said County Engineer.”

Further records indicate that the work was performed.

16. E. The Trial Court’s Resolution of the Question of Common-Law Dedication

{¶ 36} Having reached factual findings concerning the establishment of the path as

part of Kemner Road and having found that maintenance was performed on the road, the

trial court applied those findings in analyzing the three elements required for common-

law dedication.

{¶ 37} As to the first two elements of common-law dedication—intent and offer to

dedicate—the trial court concluded that these two elements were satisfied by the petition

presented to the county in June of 1860, asking that a county road be established

beginning on the section line of Section 29 “where the Rollersville & Portage Road

intersects McCutchenville and Perrysburg Road, running West thence along said section

line to the Middle Branch of Portage River.” While it recognized that the decision had

been made initially that County Road 256 would “terminate at the SW corner of Sec[tion]

29 instead of continuing into the Middle Branch of the Portage River,” it found that the

petition of December 11, 1916, sought to extend the road into Section 31.

{¶ 38} As to the third element—acceptance—the court observed that on March 12,

1926, the county approved the county surveyor’s “Plan for the Kemner-Kreinkamp Road

improvement,” extending Road No. 256-A into Section 31. This, the court held, satisfied

the third element—acceptance. But it found that acceptance was further evidenced “by

the lengthy history of maintenance of Kemner Road,” including the path at issue. It

reiterated that such maintenance was performed in 1947, 1970, 1974, and 1987.

17. {¶ 39} The court concluded that the length of Kemner Road west from Caskie

Road was .57 miles, and included the path in its entirety. It reasoned that “[a]s far back

as 1970, the Wood County Engineer designated the length of Kemner Road ‘[f]rom

Caskie Road west to dead end at Portage River’ as being 0.57 miles.” It found that the

county and the township relied on this information when they took action to maintain and

repair Kemner Road and the path. The court further reasoned that the length of 0.57

miles had been confirmed in the “survey for Kemner Roadway West of Caskie Road Part

of Section 31, Town 5 North, Range 12 East, Freedom Township, Wood County, Ohio.”

It found that that survey shows the total distance from the centerline of the intersection of

Caskie Road and Kemner Road to the dead end of Kemner Road as being approximately

3,031 feet, or 0.57 miles, with the path accounting for 608 feet. Based on these

conclusions, the trial court determined that a common-law dedication of the path had

occurred, rendering it a public road.

F. The Trial Court’s Finding that Questions of Fact Exist

{¶ 40} Although it found that no question of fact existed that Kemner Road,

including the path, is a public road, the trial court nevertheless found that questions of

fact remained and prevented summary judgment on all of Friesner’s claims.

{¶ 41} The court reiterated that County Road No. 256 was established by the

commissioners in 1860 as a public county road, and at some point became known as

County Road No. 256-A and then Kemner Road. But it observed that there was no

explanation in the record for the change in name, and no explanation for how it

18. purportedly became a township road. For this reason, the court found that a genuine

issue of material fact exists on Friesner’s claim to quiet title and for writ of mandamus

because it was not clear whether the county or the township had an interest in the path

and a duty to maintain it.

{¶ 42} But based on its conclusion that the path is a public road—whether it be a

county or township road—the court went on to reject appellants’ statutory immunity

defense under R.C. 2744.02(B)(3) and declined to reinstate immunity under R.C.

2744.03(B)(5), reasoning that the decision to maintain and keep a public road in repair is

not discretionary.

G. The Parties’ Positions Concerning the Elements of Common-Law Dedication

{¶ 43} In their first assignment of error, appellants argue that the trial court

incorrectly found that the R.C. 2744.02(B)(3) immunity exception could be invoked

based on its erroneous conclusion that the path is a “public road,” and immunity could

not be reinstated under R.C. 2744.03(A)(5). They complain that the trial court analyzed

the engineering records itself and relied exclusively on its own misinterpretation of the

1916 petition and 1926 Improvement Plan as evidence of the “offer” and “intent”

elements of common-law dedication, completely ignoring the testimony of the county

engineer and survey coordinator. They maintain that the “indisputable proof” the trial

court relied on actually shows that the path was not included in the territory comprising

the Kemner Road extension. Rather, those records show that the 2,469.85-foot extension

19. of Kemner Road ran on a straight line from Caskie Road due west to the juncture of the

Portage River—it did not include the path, which runs southwest from that point across

the balance of the Abke parcel and onto the Friesner land. Given this misinterpretation,

appellants contend that the court should have examined the other evidence concerning the

three elements required for a common-law dedication. They insist that this other

evidence creates fact questions precluding summary judgment.

{¶ 44} Friesner does not rely on the trial court’s rationale or attempt to justify it as

correctly concluding that the 1916 Petition and 1926 Improvement Plan constitute

evidence of “offer” and “intent.” She does claim, however, that those records

demonstrate an intent to dedicate all of Kemner Road as a public road—“[t]hat the course

of Kemner Road changed over the intervening decades to match the course of the Portage

River is hardly shocking,” she reasons. Friesner argues that the 608-foot path begins

where the western end of Kemner Road curves southwest, matching the curve of the

Portage River and resulting in a southwest hook shape to the path, ending at Friesner’s

driveway. She maintains that in addition to the express offer to formalize the dedication,

made just before they filed suit, the Friesners and Abkes acquiesced to public use of the

property, evidencing offer and intent.

{¶ 45} In support of the “acceptance” element, Friesner summarizes at length what

she claims is an extensive maintenance history dating back decades and ending only in

2018, when the township abruptly stopped maintaining the path. Her recitation of the

maintenance history is substantially more detailed than the trial court’s summary.

20. Friesner also highlights communications from the township and ODOT certifications that

she claims acknowledge the status of the path as a public road.

{¶ 46} In reply, appellants maintain that the Friesners and Abkes’ silent

acquiescence to the use of the path by snowplows, school buses, and mail trucks did not

evidence “intent” and “offer” to dedicate, and they insist that the record contains other

explanations for why the property owners allowed use of the path. Appellants claim that

evidence of the Friesners’ efforts to acquire an Easement Agreement and Cooperation

Agreement from the Abkes is proof that there was no previous intent to offer to dedicate

the path as a public road.

{¶ 47} Appellants also deny that the county accepted the path for dedication, and

they emphasize that only the commissioners had authority to accept the dedication. They

dispute that the maintenance history demonstrates acceptance. In fact, appellants point to

the Friesners’ prior complaints to the township about the condition of the path as

evidencing that continuous maintenance did not, in fact, occur. And as to the

maintenance history, appellants point out that much of the documentation of maintenance

is either silent whether it included the path or stopped short of it or can be explained as

having been performed for reasons other than that they viewed the path as part of the

public road. They submit that the only evidence of acceptance was the performance of

some insignificant work on the path in 1970 and 1974. They insist that any major work

that was performed on Kemner Road stopped before the path began.

21. H. The Trial Court’s Faulty Rationale

{¶ 48} Despite the trial court’s conclusion that the historical records demonstrate

that there is no question of fact that Kemner Road, including the path, is a public road,

neither party interprets the record consistent with the trial court’s interpretation. This is

significant as we resolve appellants’ first and second assignments of error.

{¶ 49} As referenced above, road dedication can occur statutorily or by common-

law. State ex rel. Fitzthum, 172 Ohio St. at 150. The trial court’s decision seems to

conflate these two distinct procedures.

{¶ 50} R.C. 5553.31 sets forth the statutory procedure for dedicating a road. It

provides:

Any person may, with the approval of the board of county commissioners, dedicate lands for road purposes. A definite description of the lands to be dedicated with a plat of such lands thereto attached and signed by the party dedicating such lands, with the approval and acceptance of the board indorsed thereon, shall be placed upon the proper road records of the county in which such road is situated. The board shall not approve and accept the dedication of any land for road purposes until any lien attached to such land under division (A) of section 505.82 of the Revised Code is satisfied. If the lands so dedicated contemplate a change in an existing road, the same proceedings shall be had thereon, after the board by proper resolution approves and accepts the lands for such purpose, as are provided in cases where the board by unanimous vote declares its intention to locate, establish, widen, straighten, vacate, or change the direction of a road without a petition therefor, but otherwise the proposal to dedicate lands for road purposes, together with the acceptance of the grant by the board, constitutes the lands so dedicated a public road without any further proceedings thereon.

{¶ 51} The trial court relied on records from 1860, 1916, and 1926 as satisfying

the “intention,” “offer,” and “acceptance” elements of a common-law dedication. But

22. what the trial court described by reference to these records pertains entirely to the original

statutory dedication of lands that would extend Kemner Road past Caskie and up to the

juncture of the Portage River. This is problematic for two reasons: (1) as stated, these

records are evidence of statutory dedication (not common-law dedication); and (2) these

records show dedication of Kemner Road only to the point of the river (not into the

disputed stretch of pavement that Friesner calls a public road and appellants call a private

drive—i.e., what we have referred to as “the path.”). The trial court found that these

1860, 1916, and 1926 records provide undisputed evidence of all three elements of a

common-law dedication of the path. It found that some of the maintenance history

highlighted by Friesner constitutes additional evidence of the third element—acceptance.

{¶ 52} Friesner sought to accomplish statutory dedication of the path in 2019, by a

formal offer letter attaching a dedication plat. Appellants declined to accept the plat

dedication. Not succeeding in achieving a statutory dedication, Friesner filed suit,

attempting to prove that a common-law dedication had already occurred despite

appellants’ rejection of her offer and the failure to dedicate the path statutorily. Because

the trial court failed to appreciate that the century-old records did not encompass the path,

and by conflating the concepts of statutory and common-law dedication, the trial court

did not properly analyze the first two elements of common-law dedication. It also

improperly analyzed the third element by finding evidence of “acceptance” in the historic

records, however it offered an alternate rationale for finding that “acceptance” was

satisfied, so this is less problematic.

23. {¶ 53} Given that our review here is de novo, and a de novo review of a summary-

judgment motion permits us to affirm a trial court judgment even if we find that the trial

court reached the correct conclusion albeit for different reasons, we will examine the

record and the parties’ arguments to determine if the correct result was reached despite

the trial court’s faulty rationale. Bonner v. Delp, 2021-Ohio-3772, ¶ 80 (6th Dist.),

Singer v. Fairborn, 73 Ohio App.3d 809, 814 (2d Dist. 1991).

I. Evidence Concerning Common-Law Dedication

{¶ 54} As previously articulated, common-law dedication requires clear evidence

of three elements: (1) intention to dedicate, (2) an offer to dedicate, and (3) acceptance of

the dedication. Becker, 1985 WL 8688, at *4 (12th Dist.). There is much overlap

between these elements. For instance, “intention” and “offer” to make a dedication often

may be inferred from the same evidence. Mastera v. City of Alliance., 43 Ohio App.3d

120, 121 (5th Dist. 1987). So, too, may the elements of “intention” and “acceptance.”

See Bachtel, 1987 WL 20398, at *3 (4th Dist.) (“A dedication and acceptance of private

property for a public use may result from the use of such property by the public, with the

silent acquiescence of the owner, for a period of time sufficient to warrant an inference of

an intention to make such dedication and to constitute such acceptance.”).

{¶ 55} We examine the evidence asserted by the parties in their motions for

summary judgment as they relate to the elements of common-law dedication.

24. 1. Intention and Offer

{¶ 56} Friesner suggests that despite the trial court’s failure to look outside the

historic documents for evidence of “intention” and “offer,” its analysis of these elements

need not be wholly disregarded because, she maintains, the historic documents still

provide proof of the elements of common-law dedication. This is based on her claim that

“[t]he 1916 and 1926 documents reveal the then-property owners’ express intent to

dedicate all of Kemner Road as a public road.” Friesner contends that the course of

Kemner Road simply “changed over the intervening decades to match the course of the

Portage River.” Appellants point out that there is no record evidence to support this

assertion, and, in any event, the path winds away from the river—it doesn’t follow the

course of the river.

{¶ 57} Friesner also maintains that the status of the path as a public road is

supported by testimony from Todd Friesner, who recalled from his childhood that

members of the public used the path to access the Portage River for fishing, and he

recalled school buses, mail trucks, and delivery drivers using the path. Appellants, on the

other hand, offered evidence that neither the Abkes nor the MacAllisters, who leased the

farmhouse for a decade, ever saw people use the path to go fishing. Randy Abke testified

that when his sisters were younger, a school bus picked them up and backed into their

driveway to exit Kemner Road, rather than driving down to the Friesner property to turn

around, and the MacAllisters generally did not see school buses drive down the path.

25. Even so, appellants claim, school buses are authorized by statute to use private property

as a turnaround point.

{¶ 58} Appellants also urge that Friesner’s current claim that the path is part of a

public road is at odds with its conduct in securing an access easement and cooperation

agreement with the Abkes and is at odds with 2016 discussions with the county about the

possible acquisition of an easement to facilitate a turnaround on Friesner’s property.

Additionally, they claim that the Abkes, involuntary plaintiffs here, did not genuinely

intend to dedicate their property to appellants.

{¶ 59} “Intention” and “offer” to make a dedication may be express or implied and

may be supported by evidence of “the use of the property by the public, with the mere

silent acquiescence therein of the owner, for a period sufficient to warrant the inference

of an intention to dedicate, provided that the owner should have had knowledge of the

fact of such use.” Mastera, 43 Ohio App.3d at 121. Id. Nevertheless, “public use which

is not inconsistent with the owner’s use and enjoyment of his rights of private ownership

will not demonstrate intention to dedicate.” Id. “Thus, if a roadway is maintained by an

owner for his private use, and it is also used incidentally by the public, only a permissive

use is presumed (regardless how long the public use).” Id.

{¶ 60} Here, we find no evidence of an “express intent to dedicate all of Kemner

Road as a public road.” As for use of the path by the public, this is at best a disputed

issue. There is evidence that the Friesners and Abkes believed the path to be part of the

public road, but there is also evidence that the MacAllisters paid for and performed their

26. own patching of potholes, Todd Friesner sometimes dropped off stone for filling

potholes, and when appellants actually filled in potholes, they did so after the

MacAllisters complained that the township snowplows caused the damage in the first

place by using the Friesner driveway as a turnaround. Additionally, there is evidence that

Friesner engaged in discussions with both the Abkes and the county concerning acquiring

easements, suggesting that they believed that the path was private property. This

competing evidence demonstrates that genuine issues of material fact exist as to the

elements of “intention” and “offer.”

2. Acceptance

{¶ 61} Formal acceptance is not required to effectuate a common-law dedication.

Mastera, 43 Ohio App.3d at 121-22. Acceptance may also be established, for instance,

by the act of a governmental authority in improving the road. Id. Mere use by the public,

however, “without an acceptance by responsible public authorities, is not sufficient to

charge those authorities with the duty of maintenance.” State ex rel. Fitzthum, 172 Ohio

St. at 152.

{¶ 62} In Fitzthum, the Ohio Supreme Court acknowledged that “a negligent

violation of the duty to maintain streets which it is obligated to maintain imposes on a

board of trustees liability for damages suffered by anyone as a result thereof.” Id. at 152.

To that end, it reasoned that “some acceptance of the responsibility and consequent

potential liability should be required prior to imposing such responsibility and liability

through the unilateral act of a person or group of persons who decide to dedicate their

27. land for the use by the public as roads or streets.” Id. Moreover, it acknowledged the

burden and expense required to maintain modern roads. It observed that “maintenance of

streets and roads today entails much more than the mere dragging and spreading of a little

gravel which was sufficient to accommodate the horse and buggy travel of a generation

or so ago.” Id. Particularly significant to the present case, the court recognized that “[t]o

impose such a duty might well subject township trustees to the responsibility of

improving and maintaining many of the country lanes leading only to a single farmhouse

merely because deliverymen, mailmen and other segments of the public have been using

that lane for a period of years.” Id. See also Becker, 1985 WL 8688 at *5 (12th Dist.)

(concluding that there was an absence of continuous public use required for common-law

acceptance and observing that “[t]hose individuals who did use the driveway on a regular

basis were those who either resided on [the road] or had farm land in the area”).

{¶ 63} Appellants offered affidavits from numerous township and county

employees and officials concerning the status of the path as it relates to Kemner Road.

The affiants are all consistent in their understanding that the dedicated Kemner Road

ends in the vicinity of a marker post. Ryan Crum, the Surveys Operations Coordinator

and Assistant Tax Map Draftsman for Wood County, stated more specifically that the

road terminates at the Middle Branch of the Portage River. He averred that Kemner

Road, from Caskie Road to where Kemner dead ends at the Portage River, is 0.47 miles.

The path is 0.10 miles.

28. {¶ 64} In the affidavits offered by appellants, witnesses familiar with maintenance

of the road explain that snowplows routinely plowed to the end of the path because they

used Friesner’s driveway as a turnaround. This was because turning around at the end of

the dedicated road was too dangerous due to the proximity of the river. As an

accommodation for Friesner allowing the snowplows to turn around in her driveway,

snowplow operators would leave the blade of the plow in the down position as they

traveled to the turnaround. And because the plows caused wear and tear of the path, they

sometimes filled potholes on the path, especially when Friesner or her tenant complained

about them. But those witnesses averred that they never performed cold patch repair, did

not mow along the sides of the path, and did not perform berm repairs as would have

been performed on township roads.

{¶ 65} Appellants’ witnesses claimed that the only major road project performed

on Kemner Road was a 2018 repaving project. They obtained two estimates for that

work—one that included only Kemner Road to the marker post, and the other to the end

of the path. While both estimates were obtained, appellants claim that they never

intended to pay the cost to have the path repaved. Rather, they obtained this estimate to

give to Friesner because they believed it might be less expensive for Friesner to have the

path repaved at the same time appellants had the road repaved.

{¶ 66} Friesner, on the other hand, claims that township records make clear that

appellants have always considered Kemner Road to extend to the end of the path. They

29. point to (a) maintenance records, (b) certifications to the Ohio Department of

Transportation, and (c) correspondence acknowledging the path as part of Kemner Road.

a. Maintenance Records

{¶ 67} Friesner’s contentions concerning the maintenance history are summarized

below, along with appellants’ explanations for why this activity does not demonstrate that

they accepted responsibility for keeping the path in repair.

Year Friesner’s Contentions Appellants’ Response 1947 Township records confirm that Kemner The records state only that Kemner Road is “a dead end road,” and was to Road “dead-ends.” They do not be blacktopped that year. identify the location of the dead end or the length of the work. The county engineer testified that the road dead- ends west of the Caskie Road intersection, in the vicinity of a marker post located in the right-of- way. Work performed to the “dead- end” would not include the path. 1952 Township records show that a truck The county engineer survey driver “was instructed to fix catch operations coordinator testified that basin along Charlie Abke farm on the the catch basin is located to the west Kemmer [sic] road in the near future.” of the marker post, but still within the The “catch basin” is located adjacent to right-of-way of the formally dedicated the south side of the path, west of Kemner Road. where appellants contend Kemner Road ends. 1960 A company called Bell & Clark was Just because Kemner Road was paid $511.40 for “[o]iling Sander and “oiled” does not mean that Kemner Kemmener [sic] Rd.” Road included the path or that this portion of pavement was actually repaired by the township. The records do not identify the length of the project or demonstrate that the oiling work included the path. 1969 The Township’s “Truck Driver was The records do not indicate that instructed to repair ... Kemner ... road Kemner Road included the path, and

30. in the next two weeks.” Records they are silent as to its length and confirm that Kemner Road was starting and ending points. “oiled.” 1970 The township scheduled Kemner Road The county entered into an Agreement to receive new black top. An estimate with the township for Kemner Road was sought “to patch, tar and chip” improvement work “[f]rom Caskie Kemner Road “from S.R. 6 to Caskie Road west to dead end at Portage Road, to end.” The engineer provided River.” The cost estimate that was an estimate to the county for the obtained was for work to be requested work, “From Caskie Road performed “from Caskie Road west to west to dead end at Portage River. dead end at Portage River.” The Length 0.57 mile.” The township’s documents show that the county minutes authorized an agreement with approved work that ended at the the county “to resurface Kemner road juncture with the Portage River. at the estimate of $1025.00.” County While Friesner submits that the records confirm the township paid the ultimate length of the work—0.57 engineer $1,025 for the work on the miles—equates to a distance that 0.57 mile stretch of Kemner Road west includes the path, plaintiffs maintain of Caskie Road. The records confirm that if this is true, this means only that that the workers “patched and surface the documents are internally treated [Kemner Road] from Caskie inconsistent. They point to Crum’s Road to dead end” for $1,025.50. The affidavit, indicating that the reference specified distance of Kemner Road as in the 1970s document to the project being 0.57 miles westerly from Caskie length is “inconsistent with the Road is highly relevant because that previous road records and other distance exactly encompasses the private surveys which establish the entirety of the path. Friesner obtained distance from Caskie Road to the a professional survey from Bryan Ellis, dead end at the Portage River as being who confirmed that the total distance 0.47 miles, not the 0.57 miles as stated in the agreement.” Appellants from the centerline of the intersection of Caskie and Kemner Roads to the maintain that these are internal driveway of the Friesner family inconsistencies and not evidence of an homestead is 0.57 miles. implied acceptance by the commissioners to extend Kemner past the dead-end at the River. 1974 The Township agreed to use “revenue Appellants maintain that there is no sharing monies for new tops on the explanation in the record for why this Stein, Kemner, and Kesson road.” work was performed. Moreover, they County records describe the work on contend that the mere existence of the Kemner Road to extend “[f]rom Caskie work is not evidence that it was Road westerly to dead end Length 0.57 performed because the appropriate

31. miles.” The engineer also provided governmental officials accepted and estimates for work on Kemner Road viewed the path as part of a dedicated “from Caskie Road westerly to dead road. end. Length 0.57 mile.” The engineer estimated that the work “from caskie rd. to dead end 0.57 mile” would cost $4,778.67. A bid was accepted for $4,423.01. The actual total charged and paid was $4,797.50. Todd Friesner lived at the family homestead in 1974 and recalls the work done on the path in 1974, because the asphalt and gravel top for the road made it difficult for him to ride his bike. He also recalls the tar truck backing all the way up to the driveway. 1987 The Township asked the County The records indicate that the work Engineer to prepare an estimate for the would extend “from US 6 [not Caskie county to perform surface treating Road] to dead-end.” The records do work on Kemner Road “to dead end, not identify the precise point on US 6 West of Caskie Road.” This work was where the work would start, the completed. precise location of the “dead-end,” or the length of the pavement as starting at Caskie Road and ending at the Friesner farmhouse. There is no record evidence that the county commissioners were ever informed that 0.57 miles was a length that included the path, nor was there evidence that any commissioner calculated the distance when they approved the agreement for the work. The township minutes asked the county engineer to estimate the cost of surface treating Kemner Road “to the dead end, west of Caskie Road.” The records do not reflect that the trustees understood the dead-end to be something other than the general area of the marker post at the juncture of the river. Also, the payment issued

32. for the work was less than the amount agreed upon, suggesting that the county ultimately did not perform all of the work originally contemplated by the Agreement. 1992 Township minutes confirm that The records show only that an Kemner Road was “moto paved” from estimate was sought, but do not its west end for a distance eastward of indicate that the work was actually 500 feet. performed. Even if the work was performed, the records do not show where the “west end” started or that it included the path. 1994 Work was attempted on the catch basin The records do not show that work located in the path west of the was completed, and the catch basin is purported end of the road, but could located within the dedicated Kemner not be done as the basin was Road easement, outside the path. continually filled with water. 2001 The Township considered an estimate The records refer to pavement work to “[s]urface treat the west 1000’ of that was considered for the west 1000 [Kemner Road] roadway,” which feet of Kemner Road, but do not would have included the path since it is define where that point starts. located within the west 1000’ of Kemner Road. That work was ultimately performed. Todd Friesner personally viewed the work and said that it started at the driveway of the Friesner family homestead. He also recalled complaining to the township because his tenant was not pleased with the work that was performed. 2015 Todd Friesner or his tenant complained Appellants concede that some about potholes on the path. The potholes on the path were filled with township repaired potholes that same crushed stone in 2015, after month. MacAllister raised concerns. The MacAllisters believed that because township snowplows used the path to make turns and were responsible for creating the potholes, the township should remedy the problem. In any event, this evidence is irrelevant because only the county

33. commissioners—not the trustees—are authorized to accept the path as a public road. 2016 Todd Friesner and the trustees This email indicates merely that one discussed a potential turnaround on proposal for an easement to Friesner’s property and weighed the accommodate a turnaround would be relative benefits of various turnaround to locate it at the property line of the types and locations. Counsel for the Abke and Friesner parcels. But as the trustees sent an email on October 13 to email says, the trustees were Friesner’s counsel stating: “I left you a contemplating the acquisition of an voice mail message earlier but here is a easement in order to install the preliminary view of the easement for turnaround. There would be no need the Friesner (sic) with the turnaround at to acquire an easement if Kemner the property line. That would give the Road as a public road already house some privacy. If we go back to extended past the juncture of the the house with the easement, it would Portage River, and extended fully to also have to include an area for a the farmhouse. turnaround that would intrude into the front yard and driveway to the house. We need to know by tomorrow which option you choose because the township needs to pave the road before the asphalt plants close for the winter.” The prior voice mail referenced the need for the turnaround to accommodate snowplows and school buses. These communications show that the trustees desired to formalize an easement to accommodate the turnaround at the Friesners’ driveway—not at the marker post. It also shows that they contemplated paving the path all the way to Friesner’s driveway. Pre- Randy Abke testified that sometime 2018 before 2018, the trustees undertook backhoe excavating activities on the catch basin adjacent to the path, west of the marker post. When Abke complained about the work being done, a township worker told him “we got

34. right of way, we, you know, we can do what we please.” 2018 Appellants suddenly refused to pave Appellants agree that repavement of the path. Kemner Road was paved, but Kemner Road ended at the road’s this improvement stopped at the marker juncture with the Portage River, post and provided no turnaround for before reaching the Friesner property maintenance or other vehicles. The line. path became impassable, forcing the Friesners’ tenant to repair it themselves. Friesner was forced to obtain an easement from the Abkes.

b. Certifications to ODOT

{¶ 68} Friesner argues that in addition to decades of maintaining the path,

appellants signed and submitted certifications of the length of county and township roads

to ODOT. She argues that based on these certifications, ODOT issued its Road Inventory

System (“RIS”) Report identifying all of the public roads in the township and stating that

the west end of Kemner Road is .5680 miles long from Caskie Road to its western

terminus, a length which includes the path. She insists that having certified that the

county and township roads include the path, appellants cannot now deny it.

{¶ 69} Appellants respond that the certification forms signed by the

commissioners and the trustees are not specific to Kemner Road and do not certify that

Kemner Road includes the path—they show only the total mileage of public roads that

the county or township is responsible for maintaining. Appellants offered affidavits

explaining that the certification forms are sent by ODOT to the county engineer’s office

with each township’s total road mileage already typed into the form. Those forms are

forwarded to township trustees with instructions to sign and return them. The township is

35. not asked to verify the accuracy of the total mileage or determine what portion of the total

mileage is attributable to any particular road or segment—the township lacks the

resources to do this. Rather, the township relies on the figures supplied by ODOT and

simply carries them over unless additional roads have been added by new plats or

annexation.

{¶ 70} To the extent that Friesner argues that the ODOT RIS Report indicates that

the total length of the west section of Kemner Road is .57 miles—which Friesner says

equates with inclusion of the path as part of Kemner Road—appellants respond that the

RIS Report is not created, maintained, or signed by Wood County or Freedom Township

officials. Moreover, they claim that Friesner presented no testimony identifying the

source of the information in the RIS Report or explaining if the numbers are even based

on actual survey data. Appellants insist that the certifications cannot be relied upon in

determining if there has been an “implied acceptance” of the path as a public road.

c. 2014 Correspondence

{¶ 71} Friesner also points to 2014 correspondence from the township as

evidencing its acknowledgment that Kemner Road includes the path. In letters dated

February 11, 2014, the trustees wrote to Friesner and her tenant, advising them that

parked vehicles on the property had interfered with snow removal efforts. The letter to

Friesner stated “As you are aware, Kemner Road dead ends into your property and in

order for the township’s snow plows to get turned around without getting off the road,

they must use your driveway.” The letter to the tenants complained that the township

36. was forced “to deal with parked vehicles located at the west end of Kemner Road that

dead ends into your driveway.” The letters reference the township’s duty to plow the

road. Friesner contends that the trustees plainly admitted that they have a duty to

maintain all of Kemner Road, including the path. Friesner also points out that Randy

Abke testified that he “never had any reason to believe the road ended anywhere other

than the dead end at the Friesner property.”

{¶ 72} Appellants concede that these letters expressed their concern that vehicles

had been parked at the “end of the road,” requiring snowplow drivers to turn around in

the yard or back out. They emphasize, however, that two trustees signed affidavits

explaining that it was not their intention when signing the letter to suggest that the path is

part of Kemner Road or that Kemner Road extends onto Friesner’s land. They

acknowledge that the letter would have been more accurate if it said that Kemner Road

ends before reaching the Friesner property, however, the focus and intent of the letters

was to solicit the assistance of the tenants living in the Friesner farmhouse—not to

describe Kemner Road.

{¶ 73} In Ickes, 2005-Ohio-3195, at ¶ 16 (5th Dist.), the Fifth District recognized

that the issue of implied acceptance necessary to prove common-law dedication “[i]s not

a purely legal analysis,” but rather one requiring the facts to be weighed to determine

whether sufficient evidence exists to demonstrate implied acceptance. There, the trial

court had held that “formal” acceptance had not been demonstrated even though the

stipulated facts showed that the roadway had been part of the township’s lighting district,

37. had been subject to assessments for the lighting district, was included in ODOT’s street

inventory as part of a dedicated street, and was used by members of the public. The

appellate court remanded the matter to the trial court for consideration by the fact-finder

whether implied acceptance had been proven.

{¶ 74} We similarly conclude that the evidence offered by the parties

demonstrates that there exist genuine issues of material fact concerning the element of

“acceptance.” It is unclear whether much of the maintenance that was performed actually

extended past the marker post at the juncture of Kemner Road and the Portage River. To

the extent that some maintenance of the path occurred, it is unclear whether appellants

performed this maintenance because they believed they were duty-bound to do so or as an

acknowledgment that they had damaged the path by using it as a turnaround for its

snowplows. As for the ODOT certifications and the 2014 letters to Friesner and her

tenant, this evidence must be weighed along with the maintenance evidence in

determining whether they signify appellants’ implied acceptance of a dedication. See

State ex rel. Schmardebeck v. Bay Tp. Bd. of Trustees, 1993 WL 553607, *3 (6th Dist.

Dec. 30, 1993) (affirming denial of appellants’ motion for summary judgment and

acknowledging that while there had been an admission that the township improved the

road at issue, “appellee had submitted conflicting affidavits which, at best, would have

created a question of fact” precluding summary judgment in appellant’s favor); Village of

Boston Hts. v. Village of Boston Hts., 1981 WL 4209, *2 (9th Dist. Oct. 21, 1981)

(finding genuine issue of material fact whether village accepted offer to dedicate where it

38. spread oil on the road three times over 12-year period, plowed snow, collected rubbish,

sprayed for mosquitoes, erected NO OUTLET, NO THROUGH STREET, and

CHILDREN AT PLAY signs, placed stop sign at intersection, and installed street name

sign).

{¶ 75} Should the trial court conclude after further proceedings that common-law

dedication of the path occurred here such that the path is a “public road,” it must also

determine whether Friesner suffered “loss” that was “caused by” the “negligent” failure

to keep the public road “in repair.” In sum, there exist genuine issues of material fact

whether the immunity exception contained in R.C. 2744.02(B)(3) applies. See Hubbell v.

City of Xenia, 2007-Ohio-4839, ¶ 21 (“If a genuine issue of material fact remains, the

court of appeals can remand the case to the trial court for further development of the facts

necessary to resolve the immunity issue.”).

J. Reinstating Immunity

{¶ 76} There are three tiers in cases involving political subdivision immunity. The

first tier is “the general rule that a political subdivision is immune from liability incurred

in performing either a governmental function or proprietary function.” Pelletier v.

Campbell, 2018-Ohio-2121, ¶ 15, citing R.C. 2744.02(B). The second tier involves

determining if any of the five exceptions in R.C. 2744.02(B) apply “to expose the

political subdivision to liability.” Id. The burden of demonstrating the applicability of an

exception to the general grant of immunity lies with the plaintiff. Nonprasit v. Ohio

Teaching Family Assn., 2022-Ohio-3685, ¶ 43 (6th Dist.). If any of the exceptions apply,

39. the third tier requires the court to determine if immunity may be reinstated under one of

the defenses set forth in R.C. 2744.03. Pelletier at ¶ 15. In their fifth assignment of

error, appellants challenge the trial court’s determination that immunity could not be

reinstated under R.C. 2744.03(A)(5). They maintain that a genuine issue of material fact

exists concerning whether the “failure to repair” involved a discretionary decision about

the use of public resources exercised in good faith—especially given that the alleged

“loss” here was not in the form of physical injury.

{¶ 77} We conclude that until the trial court reconsiders whether the immunity

exception applies, it is premature for this court to pass upon the trial court’s conclusion

that immunity could not be reinstated under R.C. 2744.03(A)(5).

K. Resolution of the Assignments of Error

{¶ 78} In the preceding sections, we broadly addressed the issues presented in

appellants’ assignments of error. Because their assignments of error are multi-faceted

and present overlapping issues, we summarize our resolution of the assignments of error.

{¶ 79} We find appellants’ first assignment of error well-taken, in part. We agree

with appellants that the trial court erroneously concluded that no genuine issue of

material fact exists concerning whether the R.C. 2744.02(B)(3) immunity exception

applies. There is, in fact, a genuine issue of material fact concerning the application of

R.C. 2744.02(B)(3). However, we decline to address the trial court’s conclusion that if

the R.C. 2744.02(B)(3) immunity exception applies, immunity may not be reinstated

under R.C. 2744.03(A)(5).

40. {¶ 80} We find appellants’ second assignment of error well-taken. We agree with

appellants that genuine issues of material fact exist as to all three elements of common-

law dedication, therefore, precluding summary judgment.

{¶ 81} We find appellants’ third assignment of error well-taken, in part, and not

well-taken, in part. We agree with appellants that an intention to dedicate must be

demonstrated by clear and convincing evidence; the trial court judgment does not

acknowledge this standard of proof. We disagree, however, that offer and acceptance

must be established by clear and convincing evidence. All the cases cited by appellants

speak of this elevated standard of proof only with respect to the “intention” element. See

State ex rel. Mentor Lagoons, Inc. v. Wyant, 166 Ohio St. 169, 171 (1957) (“The owner’s

intention to dedicate property to public use as a highway must be established by clear

evidence.”); Hall, 2022-Ohio-1735, at ¶ 54 (5th Dist.) (“The evidence showing an intent

to dedicate must be clear and convincing.”); Becker, 1985 WL 8688, at *4 (“[T]he

evidence showing an intention to dedicate must be clear and convincing evidence.”).

{¶ 82} We find appellants’ fourth assignment of error well-taken. The trial court

held that “a genuine issue of material fact exists for trial regarding whether Friesner has

suffered damages related to the failure to maintain the [path].” While Friesner’s claim

for damages and the requirements for invoking an exception to statutory immunity are

very much intertwined, the tiered analysis for claims of statutory immunity requires

consideration of issues in a particular order. To that end, Friesner’s damages claim

cannot proceed unless she demonstrates the applicability of the immunity exception.

41. That is, she must demonstrate not only that the path is a “public road,” but also that she

suffered “loss” “caused by” the “negligent failure” to keep the “public road” “in repair.”

{¶ 83} We decline to address appellants’ fifth assignment of error. We conclude

that until the trial court reconsiders whether the immunity exception applies, it is

premature for this court to pass upon the trial court’s conclusion that immunity could not

be reinstated under R.C. 2744.03(A)(5).

{¶ 84} Finally, we are cognizant that our resolution of appellants’ assignments of

error impact the trial court’s non-final judgment respecting Friesner’s declaratory

judgment claim. The trial court will have to reconcile its prior judgment with this court’s

decision.

IV. Conclusion

{¶ 85} For the reasons set forth in the preceding sections, we find that factual

disputes exist as to all elements of common-law dedication, thus whether the path is a

“public road” under the R.C. 2744.02(B)(3) immunity exception (and all other elements

of the immunity exception) present fact questions for the trial court to resolve.

Accordingly, we find appellants’ first assignment of error well-taken, in part. We find

appellants’ second assignment of error well-taken. We find appellants’ third assignment

of error well-taken, in part, and not well-taken, in part. We find appellants’ fourth

assignment of error well-taken. And we decline to address appellants’ fifth assignment of

error.

42. {¶ 86} We reverse the December 13, 2023 judgment of the Wood County Court of

Common Pleas and remand this matter to the trial court for further proceedings to resolve

the factual issues relative to each of the elements of the immunity exception contained in

R.C. 2744.02(B)(3) and to fully determine its applicability. As Friesner’s claims here

will be tried to the bench, and there is much overlap between the issues presented by

appellants’ immunity defense and Friesner’s claims, the court may exercise its discretion

whether to hear the immunity defense and try Friesner’s claims in a single evidentiary

proceeding rather than conduct a separate hearing and bench trial. Friesner is ordered to

pay the costs of this appeal under App.R. 24.

Judgment reversed and remanded.

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 Christine E. Mayle, J. ____________________________ Gene A. Zmuda, 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.supremecourt.ohio.gov/ROD/docs/.

43.