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Watson v. Caldwell Hotel, LLC

Court of Appeals of Ohio, Seventh District, Noble

May 24, 2017

WAYNE W. WATSON, PLAINTIFF-APPELLEE,
v.
CALDWELL HOTEL, LLC, DEFENDANT-APPELLANT.

Civil Appeal from the Court of Common Pleas of Noble County, Ohio Case No. 216-0038

          For Plaintiff-Appellee: Atty. Daniel G. Padden Tribbie, Scott, Plummer & Padden

          For Defendant-Appellant: Atty. Scott M. Zurakowski Atty. Aletha M. Carver Atty. Scott G. Hastings Atty. Joseph J. Pasquarella Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.

          JUDGES: Hon. Carol Ann Robb Hon. Cheryl L. Waite Hon. Mary DeGenaro

          OPINION

          ROBB, P.J.

         {¶1} Defendant-Appellant Caldwell Hotel, LLC appeals the decision of the Noble County Common Pleas Court entered upon the motion for preliminary injunction filed by Plaintiff-Appellee Wayne W. Watson, the holder of a non-exclusive easement over a portion of adjoining land owned by the hotel. In ruling on the request for a preliminary injunction, the trial court granted the easement holder the right to install curbing and no parking signs along the northern boundary of the easement. The hotel contends the trial court erred in allowing the installation of curbing to prevent the hotel's use of twenty parking spaces pending trial on the merits.

         {¶2} This court concludes the easement holder did not meet its burden to show curbing was a proper form of ancillary relief at the preliminary injunction hearing. The trial court's order is reversed.

         STATEMENT OF THE CASE

         {¶3} As evidenced by a deed recorded December 2, 2005, the trustee of the Biehl Trust sold 3.228 acres to Wayne Watson and granted him a thirty-foot wide easement over the trust's adjacent property in order to reach the 3.228 acres. The deed granted to the easement holder a "perpetual non-exclusive easement appurtenant for vehicular and pedestrian traffic to and from the [3.228 parcel]." After specifically describing the location of the easement by metes and bounds, the deed provided: "Grantee shall pave the easement and maintain it at his expense. Grantee shall provide, at his expense, curb cuts on the north side of this easement for ingress and egress to it from real estate of the Grantor (1.200 acres, Parcel No. 28-51296), whenever requested by the Grantor." The easement holder paved the easement (without constructing actual curbs) and opened a car wash on his property which was reached via the easement.

         {¶4} The Biehl trustee sold 1.474 acres (including parcel number 28-51296) to the trustee of the Singer Trust pursuant to a deed recorded on January 28, 2008. (This deed provided it was subject to all easements of public record and then specifically referred to the "perpetual non-exclusive easement appurtenant for vehicular and pedestrian traffic to and from real estate conveyed to Wayne Watson by deed" and cited the prior deed reference.) As evidenced by a deed recorded May 30, 2014, the Singer trustee sold this property to the hotel. (The deed noted it was subject to exceptions, including agreements, easements, rights-of-way, and other matters of record.)

         {¶5} Construction of the hotel began soon after the deed was recorded. Construction vehicles used and parked on the easement, which was the roadway used to reach the car wash. The hotel opened in February 2015. The hotel had approximately seventy-three parking spaces. The main parking lot surrounded the hotel and could be reached by turning north off the easement roadway on either end of the hotel. The front door of the hotel faced the north side of the easement. Twenty of the hotel's parking spaces abutted the hotel building on this side and were accessed directly from the easement. At times, vehicles parking in these spaces would overhang the length of the parking spaces and protrude into the northern portion of the easement (the north side of the roadway leading away from the carwash). Hotel guests also parked along the southern portion of the easement (the south side of the roadway leading to the car wash). There was no designated parking space for registration at the front desk, which resulted in guests parking in the easement during check-in and check-out. Delivery trucks also parked in the easement.

         {¶6} The easement holder had a survey conducted in order to install survey pins, which were then painted orange. The easement holder subsequently painted a yellow line at the open end of the parking spaces, hoping to discourage vehicles from protruding into the roadway. The easement holder painted the line some inches south of the actual easement line in order to permit the vehicles of the hotel guests to protrude into the easement, in the hotel's favor. To discourage parking along the opposite side of the roadway, the easement holder installed curbs and no parking/tow-away signs on the south side of the easement on March 8, 2016.

         {¶7} On March 29, 2016, the easement holder filed a complaint (with a jury demand) against the hotel alleging certain causes of action and seeking damages. The complaint alleged the easement was blocked and damaged during construction of the hotel. The complaint also complained that hotel guests continually parked on the easement which interfered with access to the easement holder's car wash business. The easement holder asked for a declaratory judgment and injunctive relief, including a temporary restraining order and a preliminary injunction in order to enjoin parking on the easement. Under the count seeking an injunction, the easement holder said the hotel's use of the easement contradicted the provision that curb cuts shall be provided for ingress and egress. In the prayer for relief, the easement holder asked for a preliminary and permanent injunction to restrain the hotel and its agents, assigns, employees, customers, and all others acting in concert or participation with them from parking on the non-exclusive easement.

         {¶8} A separate motion for a temporary restraining order and a preliminary injunction was filed the same day. The hotel filed a brief and a supplemental brief in opposition, arguing the elements for granting a temporary restraining order or preliminary injunction were not satisfied. The hotel emphasized the non-exclusive nature of the easement and pointed to its efforts to cooperate with the easement holder to prevent parking on the easement.

         {¶9} On April 8, 2016, the easement holder filed a notice of intent to install curbing on the north side of the easement (which would leave two curb cuts to access the hotel's two driveways leading to/from the parking lot). The notice claimed the painted yellow line did not deter hotel guests from encroaching on the easement. The notice also explained curbing was already installed on the south side of the easement.

         {¶10} On April 13, 2016, the trial court held a hearing on the request for a preliminary injunction. The easement holder's son testified to issues with vehicles parking on the easement during and after construction. He explained the survey, the orange pins, and the yellow line, which did not prevent all vehicles from extending into the roadway. (Tr. 19). He also complained it was unsafe for vehicles to use the roadway to back into or out of the parking spaces in front of the hotel. (Tr. 23-24). He witnessed vehicles parked in the easement during check-in and trucks parked in the easement during deliveries. (Tr. 19-20, 22). He acknowledged the vehicles did not completely block the roadway but required a traveling vehicle to drive into the other lane to drive around the parked vehicles. (Tr. 29-30).

         {¶11} The witness opined the deed granting the easement permitted curbing along the northern edge. (Tr. 23). He recognized the easement holder's obligation to provide curb cuts; he said there were three curb cuts and suggested they should only have to provide two curb cuts to ingress and egress the hotel property. He said the three curb cuts measured: 20 feet, 18 feet, and 216 feet. It was the latter curb cut they wished to eliminate. (Tr. 24). He stated the hotel had no issue with the recent installation of curbing and no parking signs on the south side of the easement but threatened to sue for damages if curbing was placed on the north side (which would block twenty parking spaces). Deeds were introduced into evidence as were various photographs of cars parked on the easement.

         {¶12} The hotel presented the testimony of its general manager. She was not aware of the issues with the easement until the fall of 2015. To remedy the situation, she: placed notices on all vehicles at the hotel three times; would approach a car if she saw it park in the road; informed the front desk employees to instruct guests not to park in the road; posted a sign at the front desk and another on the front door providing notice of the tow-away zone (after the easement holder's March 8, 2016 installation of no parking signs); and instructed delivery trucks not to park in the roadway. Delivery trucks and guests checking-in or checking-out were temporarily being instructed to park in the handicap spots until new signs arrived. (Tr. 57, 67, 73).

         {¶13} The hotel submitted two bench briefs which: outlined the law on deed language; raised estoppel; claimed the easement holder failed to show entitlement to a preliminary injunction by clear and convincing evidence; and emphasized the obligation to engage in a spirit of mutual accommodation with regards to the use of a non-exclusive easement. A timely answer to the complaint was then filed.

         {¶14} In an April 15, 2016 entry, the trial court noted the matter was before the court on a motion for a preliminary injunction, evidence was presented, and the case was taken under advisement with a decision to be . ...


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