[Cite as Dalton v. Massillon, 2018-Ohio-2104.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

VILLAGE OF DALTON                                     C.A. No.       17AP0010

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CITY OF MASSILLON, OHIO                               COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant/Cross-Appellee                      CASE No.   2015 CVC-H 000428

        and

TED S. AND PENNY S. RENNER

        Appellees/Cross-Appellants

                                 DECISION AND JOURNAL ENTRY

Dated: May 29, 2018



        SCHAFER, Presiding Judge.

        {¶1}     The City of Massillon, Ted S. Renner, Trustee of the Ted S. Renner Trust, and

Penny S. Renner, Trustee of the Penny S. Renner Trust, appeal the order of the Wayne County

Court of Common Pleas granting summary judgment in favor of the Village of Dalton. This

Court dismisses for lack of a final and appealable order.

                                                 I.

        {¶2}     This matter arises from a dispute between the City of Massillon and the Village of

Dalton as to which party bears responsibility to replace a bridge located on property that is the

subject of a lease between Dalton and Massillon entered on October 19, 1998 (the “Lease”). The

bridge provides crossing over an abandoned railroad right-of-way to connect the northern and
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southern segments of the property presently owned by Ted S. Renner, Trustee, and Penny S.

Renner, Trustee, (the “Renners”). The Renners have made demand upon Dalton to repair the

bridge. Dalton alleges that the bridge cannot be repaired but must be replaced. Dalton brought

this declaratory judgment seeking a determination as to its obligation regarding the replacement

of the bridge.

History of the Property

       {¶3}      On December 2, 1882, an instrument (the “1882 Deed”) recorded in Wayne

County conveyed an interest in land from Thomas Reed to the Wheeling and Lake Erie Railroad

Company. The 1882 Deed permitted the railroad company to locate a rail line across Mr. Reed’s

property, provided that the railroad company “put up one crossing” for Mr. Reed to pass and

“keep up the crossing[.]” The Renners are the present owners of this property formerly owned

by Mr. Reed.

       {¶4}      The railroad company eventually abandoned the railroad spur and transferred its

interest in that property to Massillon by a quitclaim deed dated June 6, 1996 (the “1996 Deed”).

By virtue of the 1996 Deed, Massillon assumed responsibility for “restoration, repair,

reconstruction and/or rehabilitation of any and all bridges * * *” on the property.

       {¶5}      In October of 1998, Dalton leased the property from Massillon for a period of 99

years commencing on October 1, 1998, and ending on September 30, 2098, for rent in the

amount of $1.00. The Lease states in parts relevant to this action:

       3. Use of Real Estate The real estate shall be used as a hiking and biking trail and
       shall be made a part of [Dalton]’s village park and recreational area. Any and all
       improvements will be made by [Dalton] at no expense to [Massillon.] The
       operation of the park will be conducted as part of [Dalton]’s Park and
       Recreational Department.
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       4. Maintenance [Dalton] shall accept the real estate in its present condition.
       [Dalton] agrees at its expense to properly maintain the area in a clean, safe and
       healthy condition.

       5. Indemnification of [Massillon] [Dalton] agrees to save [Massillon] harmless
       from any and all claims of any kind, resulting from injury to any person or
       persons, or to property and agrees to promptly defend any actions which may be
       brought as a result of such injury or damage at [Dalton]’s cost and expense. In
       the event [Massillon] is made party to any such action, upon written notice to
       [Dalton], [Dalton] agrees to take over the defense of and pay or liquidate any
       judgment resulting from any such action in which [Massillon] is named a party
       thereto. [Dalton] shall name [Massillon] as an additional insured on [Dalton]’s
       liability insurance policy.

In light of the Renner’s demand for repair of the bridge, the issues in this matter involve the

construction of the Lease, as well as the 1882 and 1996 Deeds, to determine which party or

parties bear responsibility for the repair or, potentially, replacement of the bridge.

Procedural History

       {¶6}    Dalton initiated this action for declaratory judgment against Massillon, and

naming the Renners as interested parties. The complaint alleges that the bridge is in need of

replacement, that the Renners have made a demand upon Dalton to replace the bridge, and that

Dalton is in doubt as to its construction obligations regarding the bridge.

       {¶7}    On July 1, 2016, Massillon moved the court for summary judgment in its favor,

requesting that the trial court declare that, under the terms of the Lease, Dalton accepted the

property in its present condition, assumed the obligation to maintain the property and pay for

improvements, and is now obligated to replace the bridge “to the extent required as a

consequence of the failure of maintenance during the term of Dalton’s possession.” In the

motion, Massillon also requested a declaration that Dalton indemnify Massillon for the “alleged

claim of [the] Renners relating to the damage to the bridge in need of replacement.”
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       {¶8}    The Renners filed a response and also moved for summary judgment, arguing for

a declaration that Massillon and Dalton are obligated to maintain, repair, reconstruct, and replace

the bridge. Dalton responded to oppose Massillon’s summary judgment motion and also moved

for summary judgment in favor of Dalton on July 21, 2016.

       {¶9}    The trial court issued a decision on October 14, 2016, ruling on the motions for

summary judgment and determining that, in the absence of disputes of material fact, Dalton is

entitled to summary judgment on its request for declaratory relief. The entry instructed Dalton to

prepare and submit a proposed final judgment entry including findings of fact and conclusions of

law and declaring with specificity the rights and obligations of the parties. Thereafter, on

February 3, 2017, the trial court entered judgment, including findings of fact and conclusions of

law, in favor of Dalton and against Massillon, declaring that Massillon bears responsibility for

replacing the bridge.

       {¶10} Massillon has timely appealed the trial court’s entry of judgment raising one

assignment of error for this Court’s review. Massillon requests that this Court reverse the grant

of summary judgment in favor of Dalton on Dalton’s motion for summary judgment and instead

enter summary judgment in favor of Massillon. The Renners have also appealed the judgment

entry raising a single assignment of error for our review. On appeal, the Renners adopted the

statement of law and construction of the Lease argued by Massillon, and contend that the trial

court erred in holding that Dalton is not responsible for replacement of the bridge. These

assignments of error are based on the same arguments of law and request essentially the same

relief. On that basis, and for the reasons that follow, we elect to consolidate Massillon’s and the

Renners’ assignments.
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                                               II.

                               Massillon’s Assignment of Error

       The trial court erred as a matter of law by granting declaratory judgment in
       favor of the Village of Dalton, failing to find that the long-term lease between
       Dalton and the City of Massillon shifted the responsibility of maintenance,
       improvement, and indemnity onto the lessee, the Village of Dalton.

                              The Renners’ Assignment of Error

       The trial court erred as a matter of law by granting declaratory judgment
       holding the Village of Dalton (lessee) was not responsible to replace a bridge
       on Renners’ real property under the long-term Lease with the City of
       Massillon.

       {¶11} Massillon and the Renners contend that trial court erred in granting summary

judgment in favor of Dalton and granting declaratory judgment based on erroneous findings of

fact and conclusions of law. Summary judgment is appropriate under Civ.R. 56(C) where it is

determined that:

       (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). In order to prevail on a summary

judgment motion, the movant must first be able to point to evidentiary materials that demonstrate

there is no genuine issue of material fact, and that the moving party is entitled to judgment as a

matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The movant need not offer

affirmative evidence, but must identify those portions of the record supporting its argument. Id.

If the movant satisfies this burden, the nonmoving party “must set forth specific facts showing

that there is a genuine issue for trial.” Id. at 293, quoting Civ.R. 56(E). This Court reviews an
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award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105

(1996).

          {¶12} In its judgment entry, the trial court found that “[t]he small bridge at the crossing

which spans the creek running parallel to the former railroad line is said to be in need of

replacement * * * [and the] Renners have made demand upon Dalton to replace the bridge.”

(Emphasis added.) The trial court concluded that the 1882 Deed obligated the railroad company

to “put up” and to “keep up” the bridge. The 1996 Deed, the trial court concluded, “resulted in

the assumption by Massillon of all the * * * obligations under the 1882 Deed” which includes

the obligation to keep up the crossing and replace the bridge. The trial court further concluded

that the Lease did not transfer the obligation to replace the bridge from Massillon to Dalton.

          {¶13} Although the parties have not specifically raised this issue on appeal, this Court

finds it problematic that the record is not clear on a significant issue of fact concerning whether

the bridge actually and presently needs to be replaced. The only suggestion in the record on this

point is the affidavit of Dalton’s solicitor, Melissa Craemer Smith, who avers that Dalton has

been informed that the bridge is no longer repairable and must be replaced. In response to

Dalton’s proposed findings of fact and conclusions of law, the Renners filed an objection taking

issue with Dalton’s proposed statement “that the small bridge at the crossing ‘is no longer

repairable and must be replaced’” in light of the fact that the trial court made no such finding in

its decision granting summary judgment.

          {¶14} The record reflects that the trial judge was aware of this issue prior to granting

summary judgment. After the trial court issued its initial decision dated October 14, 2016, to

grant summary judgment, the trial judge sent a letter to the parties indicating that the he was

“stuck on one point” in attempting to draft a final entry. In the letter, the trial judge noted that in
                                                  7


his decision ruling on the motion for summary judgment he had, in reference to the bridge, used

the phrase “apparently needs to be replaced” because it was unclear whether the parties agreed

that the bridge needs to be replaced. The letter stated:

       If the parties are not in agreement on this issue, my thought is we need testimony
       about the bridge. And if it doesn’t need to be replaced, maybe the lawsuit is
       premature.

A telephone conference was scheduled to discuss the matter. However, the record does not

reflect that the parties ever stipulated as to a presently existing need to replace the bridge. In the

judgment entry, the trial court simply avoided a determination of that issue by stating that the

bridge “is said to be in need of replacement.” Although it is unclear whether there is an actual

dispute as to genuine issues of material fact, this Court observes an absence of a factual basis for

the court to adequately determine and declare the obligations of the parties regarding the

“replacement” of the bridge.

       {¶15} Moreover, although the parties have not addressed the finality of the order they

appeal, “‘this Court is obligated to raise sua sponte questions related to our jurisdiction.’”

Yeaples v. Precision Directional Boring, LLC, 9th Dist. Medina No. 16CA0031-M, 2017-Ohio-

7792, ¶ 11, quoting Lexington Ins. Co. v. DunnWell, LLC, 9th Dist. No. 27476, 2016-Ohio-5311,

¶ 6. This Court must consider the trial court’s declaration of rights because “an order entering

judgment in a declaratory judgment action which fails to declare the parties’ rights and

obligations is not final and appealable.” Lexington Ins. Co., ¶ 10. In the absence of a final,

appealable order, this Court must dismiss the appeal for lack of subject matter jurisdiction. In re

Estate of Thomas, 9th Dist. Summit No. 27177, 2014-Ohio-3481, ¶ 4; see R.C. 2501.02.

Therefore, we must consider whether the trial court entered an express declaration as to rights

and obligations with respect to the 1882 and 1996 Deeds and the Lease at issue in this dispute.
                                                8


       {¶16} In its complaint for declaratory judgment, Dalton sought a determination as to

“the extent of the obligation owed to [the] Renners for the replacement of the bridge which

provides access to their property pursuant to the” 1882 Deed and the 1996 Deed. Without an

evidentiary foundation for reaching such a conclusion, the trial court determined that the 1882

Deed requires the replacement of the bridge, and that Massillon bears that obligation. While this

conclusion purports to make a declaration that Massillon is responsible for replacing the bridge

which is “said to be in need of replacement” it fails to determine the extent of the obligation

owed to the Renners by Massillon and/or Dalton pursuant to the Lease, for the replacement,

repair, and maintenance of said bridge.

       {¶17} Dalton sought, in its declaratory judgment action, “a determination as to the

extent to which any obligations owed to [the] Renners are allocated between [Dalton and]

Massillon pursuant to the [Lease.]” With respect to the Lease, the trial court concluded that a

replacement bridge would not be an “improvement” and further determined that neither the

requirement in the Lease to “properly maintain the area” nor the “indemnity/hold harmless”

clause imposed an obligation on Dalton to replace the bridge. The trial court went on to state

that the bridge serves no purpose to Dalton, but instead serves a “third party to [t]he Lease.”

Then, without actually determining the obligations imposed by the Lease, the trial court

postulated:

       Even if [t]he Lease imposed an obligation on [Dalton] to maintain the bridge in
       question, that obligation would not extend to the replacement of the bridge as
       there is a difference between “maintenance” and “replacement[.]”

Thus, the trial court failed to make a determination declaring the extent to which any obligations

owed to the Renners are allocated between Dalton and Massillon per the Lease.
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       {¶18} “‘[T]o properly enter judgment in a declaratory judgment action, the trial court

must set forth its construction of the disputed document or law, and must expressly declare the

parties’ respective rights and obligations.’” Bowers v. Craven, 9th Dist. Summit No. 25717,

2012-Ohio-332, ¶ 11, quoting Miller Lakes Community Servs. Assn. v. Schmitt, 9th Dist. Wayne

No. 09CA0076, 2011-Ohio-1295, at ¶ 15. Because, in this matter “‘the trial court fail[ed] to

fulfill these requirements, its judgment is not final and appealable.’”        Id.   Accordingly,

Massillon’s and the Renners’ appeals are dismissed.

                                                III.

       {¶19} The trial court’s order purporting to grant summary judgment is not a final,

appealable order. Therefore, this Court lacks jurisdiction to address the merits of the appeal and

cross-appeal.

                                                              Appeal and cross-appeal dismissed.




       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to Appellant and Cross-Appellants.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
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TEODOSIO, J.
CONCURS.

HENSAL, J.
DISSENTS.


       {¶20} I respectfully dissent on the basis that I would find that the trial court’s judgment

entry granting summary judgment in favor of Dalton is a final, appealable order.


APPEARANCES:

GREGORY A. BECK, JAMES F. MATHEWS, and ANDREA K. ZIARKO, Attorneys at Law,
for Appellant.

ROBERT J. REYNOLDS, Attorney at Law, for Appellee.

CHARLES A. KENNEDY, Attorney at Law, for Appellees/Cross-Appellants.
