[Cite as World Business Servs., Inc. v. Yoest, 2018-Ohio-1541.]




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


World Business Services, Inc.                               Court of Appeals No. E-17-034

        Appellant                                           Trial Court No. 15 CV 0623

v.

Kyle Yoest, et al.                                          DECISION AND JUDGMENT

        Appellees                                           Decided: April 20, 2018

                                                  *****

        Stephen H. Dodd, for appellant.

        D. Jeffery Rengel and Thomas R. Lucas, for appellees.

                                                  *****

        SINGER, J.

        {¶ 1} Appellant, World Business Services, Inc., appeals the June 7, 2017 judgment

of the Erie County Court of Common Pleas granting summary judgment in favor of

appellees, Jeri and Kyle Yoest, Fred Stueber, Cynthia Herndon, Ltd., and Breakers of

Kelleys Island, LLC. For the reasons that follow, we reverse and remand.
                                   Assignment of Error

       {¶ 2} Appellant sets forth the following assignment of error:

              1. The Common Pleas Court erred to the prejudice of Plaintiffs-

       Appellant in granting summary judgment in favor of Defendants-

       Appellees. (June 7, 2017 Opinion and Judgment Entry, p. 11-12).

                                        Background

       {¶ 3} On October 5, 2015, appellant filed a complaint seeking a declaratory

judgment to clarify its easement rights. Appellant averred that, despite having an

easement appurtenant to do so, appellees placed a barricade to stop appellant from

walking or driving along a private road to reach Lake Erie’s shoreline.

       {¶ 4} Appellees answered the complaint on December 14, 2015, claiming to own

the private road, and alleging that any easement rights appellant had did not extend to

allow access to Lake Erie.

       {¶ 5} The private road at issue is known as “Dwelle Lane.” Dating back to the

Nineteenth Century, this private road was owned by the Dwelle family. Part of what was

then the Dwelle family farm abuts Lake Erie in the village of Kelleys Island.

       {¶ 6} On September 22, 2016, appellees moved for summary judgment, claiming

that res judicata applied to bar appellant’s claims.

       {¶ 7} Appellees further argued, in the alternative, that the easement granted was

merely for ingress and egress to appellant’s property, and that appellees had the right, as

owners, to vacate a portion of Dwelle Lane by way of an amended plat. Appellees




2.
amended the plat in 2008. Appellees asserted appellant did not act within the one-year

statute of limitation to challenge this amended plat.

       {¶ 8} In further support of its motion for summary judgment, appellees supplied

an April 2013 affidavit1 from a licensed professional surveyor, Peter Segaard.

       {¶ 9} Segaard’s April 2013 affidavit was submitted to support appellees’ position

that Dwelle Lane was and is a private road, that Dwelle Lane was owned by appellees,

and that appellant’s ingress and egress rights only extended to allow access to its

property, but not to Lake Erie.

       {¶ 10} Appellees also submitted deeds from their chains of record title.

       {¶ 11} Two deeds concerned the parcel of land south of Dwelle Lane, at its eastern

point, which is and was owned by Breakers of Kelleys Island, LLC (“Breakers”) and its

predecessors (“the Stuebers”) dating back to 1964. There is no dispute this land is within

what was the original Dwelle farm.

       {¶ 12} Based on its language, Paul and Anne Stueber received the 1964 deed from

the Ohio Public Trust Company, trustee of the Elmina Dwelle Lucke estate. The 1964

deed purportedly conveyed a 3.181 acre parcel. The Stuebers’ children received interest

in the land from their mother’s residence trust in a 2002 deed. Two of the children,

Cynthia (Herndon) and Fred, subsequently acquired ownership and transferred it to their




1
 This affidavit was originally from the matter of Kuyoth v. Village of Kelleys Island, Erie
C.P. No. 2011-CV-0456, 2015 Ohio Misc. LEXIS 22130 (Apr. 13, 2015).




3.
company, Breakers. The deed references a 1926 case from the Erie Court of Common

Pleas in which easement rights were established by stipulation.

       {¶ 13} This 1926 case was brought by Charles Dwelle against Ray Gorsuch, Ralph

Lucke, Elmina Lucke, the children and heirs of Jacob Lucke, and Milford Hicks. See

Charles B. Dwelle v. Ray H. Gorsuch, Erie C.P. No. 15989 (Aug. 5, 1926). Charles

Dwelle sought to establish easement rights or a right-of-way by arguing he and his

predecessors maintained such rights. The parties settled and their stipulations were

adopted by the court.

       {¶ 14} Additional deeds were submitted by appellees in support of summary

judgment, which concerned appellees’, Jeri and Kyle Yoest, parcel of land.

       {¶ 15} This parcel of land is north of Dwelle Lane, at the eastern point, and is

indisputably part of what was the Dwelle farm. The land was once owned by Ralph (and

Esther) Lucke, who then conveyed it to Walter and Jennie Gasieski in 1942. The

Gasieskis formed a subdivision and private park, and appellant’s right to access the park

has been a subject of litigation.

       {¶ 16} Appellant filed its opposition to summary judgment, arguing there were

genuine disputes of material fact as to whether Dwelle Lane historically extended to the

shoreline, whether the Dwelle family accessed the shoreline from Dwelle Lane, and

whether appellees are rightful owners of Dwelle Lane.

       {¶ 17} Appellant owns the land to the west of Breakers, and appellant’s land

borders south of Dwelle Lane. This parcel of land is indisputably within what was the




4.
original Dwelle farm, and it abuts Dwelle Lane. Appellant can travel west to reach

Monaghan Road, and east to reach appellees’ erected barrier before reaching the

shoreline.

        {¶ 18} Appellant deposed appellee Fred Stueber in October 2016, and offered his

testimony, along with other evidence, to withstand judgment as a matter of law.

        {¶ 19} In particular, appellant argued Stueber’s testimony demonstrated that

factual disputes exist because it shows that the eastern point of Dwelle Lane was used by

the Dwelle family for boating, that Dwelle Lane was historically considered to extend

east to the shoreline of Lake Erie, and that Dwelle Lane was not owned by appellees.

        {¶ 20} Further, appellant offered expert testimony and at least three historical

maps to support the argument that Dwelle Lane extended east to the shoreline of Lake

Erie.

        {¶ 21} Specifically, an October 2016 affidavit from Segaard, the same surveyor

who was affiant for appellees in April 2013, averred that based on his expert analysis

“Dwelle Lane was a private road which ran to the shoreline of Lake Erie.”

        {¶ 22} Appellant also submitted an October 2016 affidavit from Michael F.

Waiwood, a title insurance agent and attorney who has worked in the industry since 1977,

which stated that based on his opinion Dwelle Lane spanned to Lake Erie.

        {¶ 23} Appellant also offered expert testimony to support that Dwelle Lane was

not owned by appellees. Waiwood’s affidavit reflected his opinion that “[t]he fee simple

title underlying Dwelle [Lane] itself is not conveyed.” Waiwood continued, stating:




5.
                The deed also purports to grant to the grantees, their heirs and

         assigns, all of the right, title and interest it holds (whatever that is, if any) in

         Dwelle Lane itself but the deed does not state affirmatively that it does hold

         any such right, title or interest. The deed contains no Covenant of Seisen

         nor any warranties of title nor any obligation to defend the title. It only

         represents that said title is clear, free and unencumbered by any act of the

         grantor. Effectively it is a quit-claim deed without warranties or covenants

         and only conveys what it may have owned (unencumbered by it) but does

         not include the title to any part of Dwelle Lane. In [f]act, Ohio Citizens

         never owned the fee title to Dwelle Lane.

         {¶ 24} Segaard’s October 2016 affidavit reflected that he shared that opinion,

stating as follows: “[t]he 2006 deeds conveying Lots 1, 2 and 3 of Block 2 of the

Gasieski Subdivision (south side of Dwelle Lane), to Frederick Stueber, for which I

prepared the legal descriptions, do not include any part of the road known as Dwelle

Lane.” Segaard continued with, “[t]he property line stops at the south edge of Dwelle

Lane.”

         {¶ 25} The trial court nevertheless granted summary judgment in favor of

appellees, and an entry was journalized June 7, 2017. Appellant now timely appeals.




6.
                                  Standard of Review

      {¶ 26} When reviewing a trial court’s summary judgment decision, the appellate

court conducts a de novo review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996).

      {¶ 27} Summary judgment will be granted where there remains no genuine issue

of material fact and, when construing the evidence most strongly in favor of the non-

movant, reasonable minds can only conclude that the movant is entitled to judgment as a

matter of law. Civ.R. 56(C). Accord Lopez v. Home Depot, USA, Inc., 6th Dist. Lucas

No. L-02-1248, 2003-Ohio-2132, ¶ 7. When a properly supported motion for summary

judgment is made, an adverse party may not rest on mere allegations or denials in the

pleading, but must respond with specific facts showing there is a genuine issue of

material fact. Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246

(1984).

                                     Legal Analysis

      {¶ 28} In the sole assigned error, appellant challenges appellees’ right to vacate or

modify an alleged easement appurtenant.

      {¶ 29} More specifically, appellant argues appellees have failed to meet their

burden under Civ.R. 56(C), because issues of material fact exist as to whether Dwelle

Lane historically extended to the shoreline, whether the Dwelle family accessed the

shoreline from Dwelle Lane, and whether appellees are rightful owners of Dwelle Lane.




7.
Appellant asserts these issues must be resolved before judgment, as a matter of law, in

favor of appellees is proper.

       {¶ 30} Appellees make five arguments in response to support that no factual issues

exist, and that the grant of judgment as a matter of law is appropriate.

       {¶ 31} First, appellees argue the 2008 amended plat submitted into the record

shows that Dwelle Lane was shortened to eliminate appellant’s access to Lake Erie, and

that appellant did not challenge the plat within the statute of limitations. Appellant

responds, pointing to Segaard’s October 2016 and Waiwood’s affidavits, which aver that

Dwelle Lane was not conveyed to appellees and, therefore, appellees have no right to

vacate Dwelle Lane by way of an amended plat.

       {¶ 32} Second, appellees argue appellant never had a right to access the lakeshore

from Dwelle Lane and, third, that appellant still has the right to the intended use of

Dwelle Lane which was allegedly to allow appellant to leave and return to its property

from Monaghan Road. Appellees rely on the language of the deeds and Segaard’s April

2013 affidavit.

       {¶ 33} Appellant responds, pointing to Stueber’s testimony, Segaard’s October

2016 and Waiwood’s affidavits, and the imprecise language in appellees’ chain of record

title, essentially arguing that the evidence in the record places in dispute whether

appellant has implied rights that extend to allow access to the shoreline.

       {¶ 34} Fourth and fifth, appellees argue res judicata prevents appellant from

relitigating to establish rights and from challenging certain facts. Appellant contends the




8.
past litigation involved declaratory judgment and did not involve the same legal and

factual issues.

                                       A. Easement Rights

          {¶ 35} “An easement is a right without profit, created by grant or prescription,

which the owner of one estate may exercise in or over the estate of another for the benefit

of the former.” Yeager v. Tuning, 79 Ohio St. 121, 124, 86 N.E. 657 (1908). “Easements

may be created by express grant, by implication, by prescription, or by estoppel.”

Kienzle v. Myers, 167 Ohio App.3d 78, 2006-Ohio-2765, 853 N.E.2d 1203, ¶ 17 (6th

Dist.).

          {¶ 36} Here, we first review the deeds in the record from appellees’ chains of

record title. With respect to the Yoests’ chain of record title, the Gasieskis’ 1969 deed

states:

                 Meaning to convey all that part of the Charles B. Dwelle farm

          located north of Dwelle Lane so called with all rights to use of said Dwelle

          Lane that originally were enjoyed by owners of said Dwelle Farm; said

          Charles B. Dwelle Farm being the farm conveyed by Charles B. Dwelle, a

          Bachelor to J.J. Lucke and Milford W. Hicks* * *[.]

          {¶ 37} With respect to Breakers’ chain of record title, the Stueber 1964 deed

specifically states as follows:

                 The grantor of the lands herein described further grants to the

          grantee, his heirs and assigned, all right, title, and interest it holds in the




9.
       area hereto for designated as any part of Dwelle Lane, reserving, however,

       for any property owners of lands within the original Sylvester Dwelle estate

       (deed volume 11, page 200) their heirs, assigns, servants and guests, the

       right of use thereof for ingress and egress to their respective properties.

       {¶ 38} Moreover, in the 2002 deed in which “the Anne K. Stueber Residence

Trust” granted equal shares of the Stueber property to Breakers’ owners, it states: “[B]ut

subject to all legal highways and waterways. Together with and/or subject to easements

and rights of way of record appurtenant thereto or affecting said premises, particularly as

established by decree entered August 5, 1926 in Case Number 15989, Erie County

Common Pleas Court.” We note there is no deed from appellant’s chain of title in the

record below.

       {¶ 39} Consequently, based on the deed language in appellees’ chains of title, and

as agreed by the parties, we hold that as a matter of law appellant was granted an express

easement to use Dwelle Lane for ingress and egress to its property. See Kuyoth v. Village

of Kelleys Island, 2016-Ohio-1395, 62 N.E.3d 846, ¶ 2 (“Appellants have ingress and

egress rights to Dwelle Lane, and those rights are not at issue in this case.”).

       {¶ 40} Moreover, based on the unrestricting and imprecise language used in the

deeds, we find there is a reasonable dispute of material fact as to whether it was the intent

of the grantor(s) to grant implied rights contemporaneously within the express right to

use Dwelle Lane. See Carman v. Entner, 2d Dist. Montgomery No. 13978, 1994 Ohio

App. LEXIS 387, *10-15 (Feb. 2, 1994).




10.
       {¶ 41} To have implied easement rights, a party must show: (1) a severance of the

unity of ownership; (2) that before the separation took place, the use which gives rise to

the easement was so long continued and obvious or manifest as to show that it was to be

permanent; (3) that the easement shall be reasonably necessary to the beneficial

enjoyment of land granted or retained; and (4) that the servitude shall be continuous as

distinguished from a temporary or occasional use only. See Campbell v. Great Miami

Aerie No. 2309, Fraternal Order of Eagles, 15 Ohio St.3d 79, 80-81, 472 N.E.2d 711

(1984).

       {¶ 42} “An analysis of an implied easement necessitates consideration of both the

owner’s intent at severance as well as what occurs between subsequent owners of the

dominant and servient estates.” See Cadwallader v. Scovanner, 178 Ohio App.3d 26,

2008-Ohio-4166, 896 N.E.2d 748, ¶ 17 (12th Dist.). See also Dunn v. Ransom, 4th Dist.

Pike No. 13CA837, 2013-Ohio-5116, ¶ 6-17, citing Restatement of the Law 3d, Property

(Servitudes), Section 4.1, at 496-497 (2000).

       {¶ 43} “[W]hen the instrument is unclear, * * * [what] the parties’ intent was and

for what purpose the easement was created are largely factual issues.” Dunn at ¶ 9.

       {¶ 44} Here, the deeds from appellees’ chains of record title, with regard to the

scope and extent of the rights granted appellant, are unclear because there is no precise

metes and bounds description.

       {¶ 45} Nonetheless, in viewing the record strongly in favor of appellant, including

the deeds, testimony of Stueber, experts’ affidavits, maps, and arguments and case law in




11.
the briefs, we find there are genuine issues of material fact that must be addressed by a

trier-of-fact before the extent and scope of the implied rights can be analyzed.

       {¶ 46} In particular, we find to determine the “intent at severance” and what

subsequently occurred “between subsequent owners of the dominant and servient

estates,” see Cadwallader at ¶ 17, these issues of fact must be resolved. See also Dunn at

¶ 6 (stating “[w]hen the intended dimensions of an easement are not explicitly expressed,

determining the dimensions becomes largely a question of fact”).

       {¶ 47} Namely, and as argued by appellant, the unresolved issues are whether

Dwelle Lane historically extended to the shoreline, whether the Dwelle family accessed

the shoreline from Dwelle Lane, and whether appellees are rightful owners of Dwelle

Lane. These factual issues cannot be resolved as a matter of law. Accordingly, when

construing the evidence most strongly in favor of appellant, we cannot say reasonable

minds can only conclude that appellees are entitled to summary judgment.

                                     B. Res Judicata

       {¶ 48} Lastly, we address whether the doctrine of res judicata, including both

claim and issue preclusion, supports summary judgment in favor of appellees.

       {¶ 49} “[R]es judicata involves both claim preclusion (historically called estoppel

by judgment in Ohio) and issue preclusion (traditionally known as collateral estoppel).”

See State ex rel. Robinson v. Huron Cty. Court of Common Pleas, 143 Ohio St.3d 127,

2015-Ohio-1553, 34 N.E.3d 903, ¶ 5, citing Grava v. Parkman Twp., 73 Ohio St.3d 379,




12.
653 N.E.2d 226 (1995); Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 254 N.E.2d 10

(1969); Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989).

       {¶ 50} “With regard to claim preclusion, a final judgment or decree, rendered on

the merits by a court of competent jurisdiction, is a complete bar to any subsequent action

on the same claim between the same parties or those in privity with them.” See Robinson

at ¶ 5, citing Grava at 381. Claim preclusion generally bars claims that either were or

might have been litigated in the first lawsuit. See Brown v. City of Dayton, 89 Ohio St.3d

245, 248, 730 N.E.2d 958 (2000). Nevertheless, “[f]or a previous declaratory judgment,

res judicata precludes only claims that were actually decided.” State ex rel. Trafalgar

Corp. v. Miami Cty. Bd. of Commrs., 104 Ohio St.3d 350, 2004-Ohio-6406, 819 N.E.2d

1040, ¶ 22.

       {¶ 51} In this case, appellees argue appellant sought access to Lake Erie in prior

litigation and, thus, its attempt to do so now is barred under claim preclusion.

       {¶ 52} Appellees point to the final decisions on the merit in Kuyoth v. Village of

Kelleys Island, 2016-Ohio-1395, 62 N.E.3d 846 (6th Dist.), and Hammond v. Klonowski,

6th Dist. Erie No. E-00-044, 2001 Ohio App. LEXIS 2902 (June 29, 2001), to support

their position. See also Kuyoth v. Village of Kelleys Island, 6th Dist. Erie No. E-13-039,

2014-Ohio-1990; Kuyoth v. Village of Kelleys Island, Erie C.P. No. 2011-CV-0456, 2015

Ohio Misc. LEXIS 22130 (Apr. 13, 2015); World Business Services, Inc. v. Kyle and Jeri

Yoest, Fred Stueber and the Village of Kelleys Island, Erie C.P. No. 2015-CV-0035

(Sept. 14, 2015); and World Business Services, Inc. v. Kyle and Jeri Yoest, Fred Stueber




13.
and the Village of Kelleys Island, Delaware C.P. No. 2015-CVH-04-0275 (Aug. 18,

2015).

         {¶ 53} We find the parties (or those in privity) here were certainly parties in the

above cases, and that those cases sought to establish rights attached to land within what

was the original Dwelle farm. Nevertheless, we find none of these cases actually reached

judgment on the merits with respect to the rights at issue in this matter.

         {¶ 54} The most recent of the cases to be decided was Kuyoth, 2016-Ohio-1395,

which was decided in March 2016 (15 years after Hammond). The issue of appellant’s

easement and the scope thereof had not been addressed. Id. at ¶ 2.

         {¶ 55} Specifically, we stated that “[a]ppellants have ingress and egress rights to

Dwelle Lane, and those rights are not at issue in this case.” The alternative claims and

remedy sought in Kuyoth were to establish Dwelle Lane as a public street. Kuyoth v.

Village of Kelleys Island, 2014-Ohio-1990, at ¶ 2. We cannot say Kuyoth precludes

appellant from now clarifying the scope of its rights.

         {¶ 56} Moreover, we cannot say the final judgment in Hammond can be utilized to

preclude appellant’s claims here either. Hammond dealt with appellant’s easement rights

to a private park. This park is now the Yoests’ property, and the Hammond court did not

particularly contemplate rights with respect to Dwelle Lane. The Hammond court

actually implied access to the park did not involve Dwelle Lane, and thus that the two

were separate and distinct properties, noting that “[o]nly a small portion of the park was

cleared along Dwelle Lane that led to the shoreline of the lake.” See Hammond, 6th Dist.




14.
Erie No. E-00-044, 2001 Ohio App. LEXIS 2902, at *5. Accordingly, although appellant

was a plaintiff in Hammond, we cannot say the final judgment in that case precludes its

claims in this case.

       {¶ 57} “[I]ssue preclusion* * * holds that a fact or a point that was actually and

directly at issue in a previous action, and was passed upon and determined by a court of

competent jurisdiction, may not be drawn into question in a subsequent action between

the same parties or their privies[.]” See Frank v. Simon, 6th Dist. Lucas No. L-06-1185,

2007-Ohio-1324, ¶ 8. For this doctrine to apply, the following elements must be met:

              (1) The party against whom estoppel is sought was a party or in

       privity with a party to the prior action; (2) there was a final judgment on the

       merits in the previous case after a full and fair opportunity to litigate the

       issue; (3) the issue must have been admitted or actually tried and decided

       and must be necessary to the final judgment; and (4) the issue must have

       been identical to the issue involved in the prior suit.

Id. at ¶ 9, citing Monahan v. Eagle Picher Industries, Inc., 21 Ohio App.3d 179, 486

N.E.2d 1165 (1st Dist.1984), at paragraph one of syllabus.

       {¶ 58} Here, although worded as if solely an assertion of claim preclusion,

appellees’ appellate brief does not specify whether they are also applying issue

preclusion. We will, nevertheless, address the issue.

       {¶ 59} We find the first two elements in Frank, supra, met because appellant and

appellees (or those in privity) were parties in these past cases, and because there were




15.
final judgments on the merit in these past cases after full and fair opportunities to litigate.

The third and fourth elements, however, are not met because the primary legal and factual

issues were not necessary to the final judgments, and because the legal and factual issues

were not necessarily identical in the past suits. The past cases neither established the

scope of the specific easement rights at issue (despite acknowledging that such rights

indeed existed), nor found the issues of ownership of Dwelle Lane or whether the lane

extends to the shoreline necessary for the final judgments.

       {¶ 60} Accordingly, res judicata does not bar appellant’s claims or the

determination of the related legal and factual issues presented. The sole assigned error is

found well-taken.

                                         Conclusion

       {¶ 61} The judgment of the Erie County Court of Common Pleas is reversed. The

matter is remanded for further proceedings consistent with this decision. Appellees are

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


                                                                          Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




16.
                                                World Business Servs., Inc. v. Yoest
                                                C.A. No. E-17-034




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
Thomas J. Osowik, 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/.




17.
