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Aurora Partners III, Ltd. v. City of Aurora

Court of Appeals of Ohio, Eleventh District

September 30, 2013

AURORA PARTNERS III, LTD., Plaintiff-Appellant,
v.
CITY OF AURORA, OHIO, Defendant-Appellee.

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2011 CV 00340.

Douglas P. Whipple, (For Plaintiff-Appellant).

Frank H. Scialdone, James A. Climer, and John D. Pinzone, Mazanec, Raskin, Ryder & Keller Co., L.P.A., (For Defendant-Appellee).

OPINION

CYNTHIA WESTCOTT RICE, J.

(¶1} Appellant, Aurora Partners III, Ltd., appeals from the summary judgment entered by the Portage County Court of Common Pleas, declaring appellee, City of Aurora, to hold a permanent easement, for ingress and egress, over portions of appellant's property. At issue is whether there are genuine issues of material fact regarding the existence and/or location of an easement for ingress and egress, possessed by appellee, over appellant's land. We answer this question in the negative and affirm the judgment of the trial court.

(¶2} In April of 1995, appellant purchased a seven-acre parcel of vacant property for commercial development. The parcel is bordered to the south by appellee's service center and the Aurora Cemetery; and to the north by various commercial properties. Access to the parcel is from the property's frontage to Aurora Road (a.k.a. State Route 43), to the east. A paved roadway runs across portions of the property east to west from Aurora Road; the roadway ends at appellee's service center gate.

(¶3} According to Harry W. Caplan, one of appellant's principals, the access road was seldom used by appellee when appellant purchased the parcel. Mr. Caplan averred that "many years" after appellee purchased the parcel, appellee paved the road and began using the same more frequently with heavy trucks and equipment.[1] Mr. Caplan asserted appellant was unaware of appellee's intentions to pave the road and, even though it was partially situated on appellant's property, it did not consent. Mr. Caplan maintained that the nature and significance of the heavy vehicular traffic has changed the character of appellant's property and rendered it unsuitable and unusable.

(¶4} Appellee maintained it has an existing easement for ingress and egress over the property at issue and multiple recorded documents established the same. In particular, in 1933, a recorded deed provided appellee's then-governing body, the Portage County Commissioners, a "right-of-way to be used as roadway for means of ingress and egress to and from" the property. In 1961, appellee obtained the property which included "rights of way to be used as roadway for means of ingress and egress to and from the * * * property."

(¶5} Appellee then sold the property to Irene Brandes, in which it reserved "an easement and access for the purpose of repair, replacement, maintenance or removal of the water mains." Brandes Properties later sent a letter to appellee in which it, after deliberation, conveyed, inter alia, "a right of way" to a road "that will extend from Route #43 to and beyond the present [Aurora] pumphouse." The agreement, however, was never fully executed or recorded. As a result, in 1973, appellee and the then-owner of the property, Aurora Village Commons, entered into a written agreement which purported to clarify the 1961 agreement.

(¶6} The 1973 agreement granted appellee a "permanent easement" to a permanent driveway running from the intersection of Aurora Road and Maple Lane across the property. The agreement, however, did not set forth the specific metes and bounds of the permanent easement. Nevertheless, Richard J. Shaw, the general partner for Aurora Village Commons at the time the agreement was executed, averred the "roadway and driveway existing and described in the [easement agreement] were then and remain in their present location."[2] The agreement was recorded in 1979.

(¶7} Appellee ultimately constructed a service center on its property, situated south of appellant's property. In addition to the increase in heavy vehicle traffic, Mr. Caplan averred that appellee began using that property as a dump site for empty chemical drums, wood and boards, building materials, disassembled motor vehicles, inoperable machine parts, pallets, scrap metal, used tires, and other assorted trash.

(¶8} Appellant filed a complaint seeking relief on counts to quiet title, ejectment, trespass, and physical taking. In filing the complaint, appellant sought (1) a declaration restoring quiet title to its property; (2) an injunction prohibiting appellee's presence on its property except for maintaining the existing waterline; (2) an injunction prohibiting appellee from dumping trash on its property within view of appellant's property; and (4) money damages. Appellee filed an answer and counterclaim seeking a declaratory judgment for a permanent easement; appellee also sought to quiet title on the easement to which it claimed entitlement.

(¶9} Appellee filed a motion for summary judgment which appellant duly opposed. Appellee later filed a reply to appellant's memorandum in opposition. On February 13, 2013, the trial court determined, pursuant to R.C. 2744.02, appellee was immune from liability on appellant's claims for trespassing, taking, and ejectment. The trial court further determined appellee "is also entitled to its use of the road over [Appellee's] property. The easements and agreements give [Appellee] that right." The court later entered a judgment nunc pro tunc due to a scrivener's error. As a result of the ...


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