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Marconi v. Savage

Court of Appeals of Ohio, Eighth District

September 5, 2013


Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-763485

ATTORNEYS FOR APPELLANT Dan A. Morell, Jr. Michael D. Schmit Dan Morell & Associates L.L.C.

ATTORNEYS FOR APPELLEE: James L. Defeo Frank R. Desantis Thompson Hine L.L.P.

BEFORE: Stewart, A.J., McCormack, J., and E.T. Gallagher, J.



(¶1} Plaintiff-appellant Elaine Marconi filed this declaratory judgment action to quiet title to an easement allowing her access to a residential driveway she shared with defendants-appellees Corrine and Alvin Savage. The Savages were divorced before this action was filed and Corrine is the sole owner of her house, so we shall use the singular form "Savage." The substance of Marconi's action was that Savage, without obtaining necessary building permits, erected a fence on the driveway that encroached on her property and that Savage did so with intent to interfere with her use and enjoyment of the property and cause her emotional distress. Savage argued that these claims were res judicata, having been the subject of a settlement agreement reached in 2002 and most recently enforced by the court in 2011. The court granted summary judgment on Savage's motion.

(¶2} We agree, consistent with principles of res judicata, that all of Marconi's present claims have been, or could have been, resolved in the prior litigation between the parties. In so concluding, we find that Marconi is bound by the terms of the 2002 settlement agreement that the court most recently enforced, in similar litigation, in 2011. Finally, we see no equitable basis for denying preclusive effect to the prior litigation between the parties because Marconi offers no plausible basis for failing to bring her claims at any previous point. The court did not err by finding that Marconi is precluded from raising them in this case.


(¶3} We review the facts forming the basis of the court's summary judgment most favorably to Marconi, the nonmoving party. See Civ.R. 56(C).

(¶ 4} Marconi and Savage live next door to each other, separated by a driveway owned by Savage. Marconi has an easement on the driveway that allows her access to her garage. In 1997, Marconi's late mother, the prior owner of Marconi's property, filed suit against Savage. The mother alleged that Savage interfered with her easement by parking vehicles in the driveway and obstructing the path to the garage. Marconi's mother died before any judgments could be rendered, and the court dismissed the action with prejudice.

(¶ 5} In 2002, Marconi was the executor of her mother's estate and later bought her late mother's house. She filed a complaint against Savage in her capacity as executor of the estate and sought a temporary restraining order to bar Savage from pouring a concrete curb to divide the driveway. She alleged that, if constructed, the curb would deprive the estate of the benefit of the easement to use the driveway. Marconi also complained that Savage allowed her "invitees and licensees" to park their vehicles in the easement and obstruct access.

(¶ 6} In October 2002, the parties informed the court that they agreed to settle their differences. They read the terms of their settlement into the record, expressly recognizing that the court retained jurisdiction to enforce the terms of the settlement. As relevant here, the settlement contained terms relating to the use of a "gate, " presumably attached to a fence. The parties agreed that Savage "shall only keep [her] gate open for ingress and egress purposes, not to be used to block the ingress or egress of [Marconi]."

(¶7} In 2010, Marconi filed a motion to enforce the settlement agreement by requiring Savage to "remove a fence which is trespassing on the Plaintiffs real property." Marconi offered an affidavit in which she admitted that she knew about the alleged encroachment — a total of three inches — as early as 2004. At a full evidentiary hearing on the motion to enforce the settlement agreement, Savage testified the fence in question had been "in place and in the same location when the 2002 settlement was entered into." The court concluded that there had been "no material breach" of the settlement agreement and expressly ordered that "both the easement and fence should remain in place." Finally, the court admonished the parties to "be respectful to each other" and maintain their property in a reasonable condition. Marconi did not appeal from this order.

(ΒΆ 8} The claims presently before this court relate to the fence. Marconi alleged that Savage failed to obtain a building permit before erecting the fence, that the fence encroaches onto her property, and that Savage has ...

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