[Cite as Lan-Fair Credit Union v. Centres Kentucky LLC, 2011-Ohio-2953.]


                                      COURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                            JUDGES:
LAN-FAIR CREDIT UNION                               :       Hon. W. Scott Gwin, P.J.
                                                    :       Hon. John W. Wise, J.
                        Plaintiff-Appellee          :       Hon. Patricia A. Delaney, J.
                                                    :
-vs-                                                :
                                                    :       Case No. 10-CA-53
CENTRES KENTUCKY LLC, ET AL                         :
                                                    :
                 Defendants-Appellants              :       OPINION




CHARACTER OF PROCEEDING:                                Civil appeal from the Fairfield County Court
                                                        of Common Pleas, Case No. 06-CV-1069



JUDGMENT:                                               Affirmed

DATE OF JUDGMENT ENTRY:                                 June 16, 2011



APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant

DANIEL J. FRUTH                                         AMELIA A. BOWER
STEBLETON, ARANDA & SNIDER                              PLUNKETT COONEY
Box 130                                                 300 East Broad Street, Ste 590
Lancaster, OH 43130                                     Columbus, OH 43215
[Cite as Lan-Fair Credit Union v. Centres Kentucky LLC, 2011-Ohio-2953.]


Gwin, P.J.

        {¶1} Defendants-appellants Centres Kentucky, LLC. dba Centres, Inc. and ARC

 DGLANOH001, LLC appeal a summary judgment of the Court of Common Pleas of

 Fairfield County, Ohio, entered in favor of plaintiff-appellee Lan-Fair Credit Union.

 Appellants assign a single error to the trial court:

        {¶2} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

 APPELLEES FAVOR AND FINDING THAT APPELLANT’S PROPERTY IS SUBJECT

 TO AN EASEMENT IN FAVOR OF APPELLEE.”

        {¶3} Appellants’ statement pursuant to Loc. App. R. 9 asserts the summary

 judgment was incorrect both as a matter of law and because there is a genuine dispute

 as to material facts. Appellants argue the facts in dispute are: 1. The location of the

 easement when it was created; 2. The location of the easement during the time Lan-

 Fair owned the property; and 3. The location of the easement when Centres Kentucky

 acquired its property.

        {¶4} The case began as an action for specific performance, declaratory

 judgment, and trespass.             Essentially, the Credit Union sought to enforce an

 appurtenant easement for ingress and egress to its property over several parcels of

 land, including a tract of land owned by ARC. The easement also crosses or abuts

 property owned by ChrisSystems and the Fernow Trust. Both ChrisSystems and the

 Fernow Trust were party defendants, but are not parties to this appeal.

        {¶5} In its June 30, 2009, judgment entry, the court outlined the history of this

 easement.       The court found Pleasant Development Corporation purchased two

 contiguous tracts of land in 1977, including 14.63 acres from Robert and Barbara
Fairfield County, Case No. 10-CA-53                                                   3


Dorwart and Larry and Beverly Sharp, and 2 adjacent acres from several individuals,

including the McKinnons. This resulted in Pleasant Development Corporation owning a

parcel of land comprised of 16.63 acres.

      {¶6} In 1980, Pleasant Development Corporation conveyed .803 acre of its land

to Farmers & Citizens Bank. The court found this .803 acre was derived from what

was originally the Dorwart property. The deed to the bank conveyed the property and

also granted the bank a permanent right-of-way and easement for ingress and egress,

and for parking over and on all entrances from Fair Avenue, all roads, service roads,

parking areas, and other common areas whether in existence at the time of the

conveyance or constructed later on the remaining real estate owned by the grantor.

The bank’s deed referenced Deed Book Volume 470, page 24, the deed from the

Dorwarts and Sharps to Pleasant Development Corporation wherein the easement was

first granted.   In 1992, the bank transferred the property to the appellee, Lan-Fair

Credit Union.

      {¶7} Also in 1992, Pleasant Development Corporation transferred other property

to C.J. L. & Associates. This transfer involved a 2.73 acre tract of land and a .41 acre

tract of land. It is the 2.73 tract that was subsequently transferred amongst various

parties and ultimately came to appellant ARC.        The court found this property is

comprised of land Pleasant Development Corporation received from the Dorwarts and

from the McKinnons. The court found the deed to C.J.L. & Associates is recorded in

Deed Book, Volume 609, page 455, and reserves an easement to Pleasant

Development Corporation. It also notes the land is subject to all conveyances from
Fairfield County, Case No. 10-CA-53                                                    4


Pleasant Development Corporation as found in Deed Book, Volume 494, page 997,

the bank’s deed.

      {¶8} The trial court found the placement of the easement is not an issue,

because it is what the court described as “fluid” by virtue of the after-acquired clause.

The language of the easement allows the Credit Union permanent ingress and egress

across all roads, service roads, parking lots, and other common areas on the remaining

15.827 acres, that had been a part of Pleasant Development Corporation’s land. The

court clarified that the easement in question involves the right to use any and all roads

that existed on Pleasant Development Corporation’s land in 1980, and any and all

roads constructed across those acres in the future. The court concluded there was no

way to rigidly define the easement’s boundaries, but also found there was no question

that a gravel road did cross the boundaries of appellant ARC’s 2.73 acres.

      {¶9} The trial court found appellants’ argument that the easement was not in the

servient estate’s chain of title was incorrect. The court found appellants were not bona

fide purchasers taking the land free of encumbrances because the CJL deed

specifically stated it was subject to all conveyances from the grantor as found in Deed

Book Volume 494, page 997. The court concluded appellants had constructive notice

of the easement.

      {¶10} The court also found appellants’ argument that the easement could only

encumber what was once the Dorwart property is also incorrect, because the

easement specifically encumbers all the real estate owned by the grantor in 1980. The

court concluded as a matter of law the Credit Union was entitled to a judgment finding

it has a valid easement across appellants’ land.
Fairfield County, Case No. 10-CA-53                                                     5


      {¶11} Civ. R. 56 states in pertinent part:

      {¶12} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. No evidence or stipulation may be considered except as

stated in this rule. A summary judgment shall not be rendered unless it appears from

the evidence or stipulation, and only from the evidence or stipulation, that reasonable

minds can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being entitled to

have the evidence or stipulation construed most strongly in the party's favor. A summary

judgment, interlocutory in character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of damages.”

      {¶13} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts, Hounshell v. American States Insurance Company (1981), 67 Ohio

St. 2d 427, 424 N.E.2d 311. The court may not resolve ambiguities in the evidence

presented, Inland Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc.

(1984), 15 Ohio St. 3d 321, 474 N.E.2d 271. A fact is material if it affects the outcome

of the case under the applicable substantive law, Russell v. Interim Personnel, Inc.

(1999), 135 Ohio App. 3d 301, 733 N.E.2d 1186.
Fairfield County, Case No. 10-CA-53                                                   6


        {¶14} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court, Smiddy v. The

Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 506 N.E.2d 212. This means we review

the matter de novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d

1243.

        {¶15} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party’s claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280, 662

N.E.2d 264. Once the moving party meets its initial burden, the burden shifts to the

non-moving party to set forth specific facts demonstrating a genuine issue of material

fact does exist, Id.    The non-moving party may not rest upon the allegations and

denials in the pleadings, but instead must submit some evidentiary material showing a

genuine dispute over material facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732,

600 N.E.2d 791.

        {¶16} A failure to respond to a motion for summary judgment does not, by itself,

warrant that the motion be granted. Morris v. Ohio Casualty Insurance Co. (1988), 35

Ohio St.3d 45, 47, 517 N.E.2d 904. Even where the non-movant completely fails to

respond to the summary judgment motion, the trial court's analysis should focus on

whether the movant has satisfied its initial burden of showing that reasonable minds

could only conclude the case should be decided against the nonmoving party. Id. Only

then should the court address whether the non-movant has met its reciprocal burden of

establishing that a genuine issue remains for trial. Id.
Fairfield County, Case No. 10-CA-53                                                  7


      {¶17} Appellants first argue while the sale from Pleasant Development

Corporation to the bank created the easement, when the land now owned by the

Fernow Trust was sold there was neither a specific reference to the easement nor any

general reference to easements in the deed.

      {¶18} The trial court granted default judgment against the Trust, and it is not a

party to this appeal.     We find appellants have no standing to raise any issues

pertaining to the Fernow property.

      {¶19} Appellants argue their deed does not reference the easement itself, but

only contains a “cross-reference” to various conveyances. The deed actually lists ten

conveyances, and sets out the volume and page where each was recorded.

      {¶20} Appellants cite Spring Lakes Ltd. v. O.F.M. Company (1984), 12 Ohio

St.3d 333, 467 N.E.2d 537, as authority for the proposition a deed does not create

constructive notice of a specific easement to a purchaser if it contains only a general

reference to easements.

      {¶21} We find appellant’s reliance on Spring Lakes is misplaced. In Spring

Lakes, a company called Scott, Gage, & Whigham owned property consisting of lots

85, 86, and 95 in Randolph Township, Portage County. The OMF Company bought

lots 85 and 95, which had an easement for a sewer system across lot 86. Thereafter,

Spring Lakes acquired lot 86 from the successor to Scott Gage & Whigham. The

warranty deed transferring the property to Spring Lakes from the bank did not state

there was an easement, but did contain what the court referred to as a general

reference to an easement. The court’s opinion does not recite the actual wording of the

general reference.
Fairfield County, Case No. 10-CA-53                                                     8


      {¶22} Spring Lakes brought an action to quiet title, and OMF Company

counterclaimed to enforce its easement. The Ohio Supreme Court found in order for a

purchaser of property to be charged with constructive notice of an encumbrance

contained in a prior recorded instrument, the prior instrument must be recorded in the

purchaser’s chain of title. The rationale for this rule is that a title searcher examining

the deed had no notice of the deed granting the easement and would not have found

any encumbrance. Spring Lake stands for the proposition that the recording of an

instrument outside the chain of title does not grant constructive notice to the new owner

of the property. Spring Lake at 333, citations deleted.

      {¶23} Here, the deed did not contain a general statement regarding an

easement, but referenced ten recorded deeds by the volume and page in the Deed

Books. We find the trial court did not err in determining appellants had constructive

notice of the easement.

      {¶24} Appellants also assert the Credit Union did not show the location and

scope of the easement. The trial court found the easement was “fluid”, but its present

location could be identified. The Credit Union presented affidavits from a title examiner

and from Dennis Croft, an executive of the Credit Union. Croft’s affidavit testifies to

traffic patterns he has observed and how the easement has been defined by use.

Croft’s affidavit states he oversaw the Credit Union’s purchase of the property and

knew of the existence of the easement at the time of purchase.

      {¶25} Appellants did not present any evidence contradicting the Credit Union’s

affidavits regarding the scope and location of the easement. Instead, their only focus

was on the quality of evidence presented by the Credit Union. Once the trial court
Fairfield County, Case No. 10-CA-53                                                       9


rejected appellants’ argument about the admissibility of the affidavits, the affidavits

were the only evidence on the scope and location of the easement before the court.

      {¶26} Because we find the affidavits qualify as proper evidentiary materials, we

find the appellants’ failure to come forward with contradictory evidence permitted the

trial court to rely on the Credit Union’s affidavits regarding the location and scope of the

easement. Additionally, the plain language of the easement states it lies over any road

presently on the property or later constructed over the property. The court found there

is a gravel road crossing the property.

      {¶27} Appellants presented an affidavit from a title examiner, who found there

was no easement in the title work referred to him. The title examiner stated in his

professional opinion, if there is an easement, it is limited only to the parcel originally

belonging to the Dorwarts.

      {¶28} The court found the reference to the Dorwarts deed simply helps

delineate the chain of title, but does not limit the easement. The court found reading

the reference to the prior instrument as a limitation on the easement would contradict

the express language of the easement, which states it applies to all the remaining real

estate owned by the grantor. The court concluded it could not read the CJL deed to

apply only to the Dorwart property.        We agree. The trial court correctly stated

construction of a written contract is a matter of law, requiring the court to ascertain and

give effect to the intent of the parties. The court was not required to accept an expert

opinion regarding how to interpret the language.

      {¶29} Appellants urge the issues of fact as to the location of the easement in

1980, when appellants purchased the property, and at the present time are factual
Fairfield County, Case No. 10-CA-53                                                 10


issues that were not resolved by the court’s entry of summary judgment. We agree with

the trial court the precise location of the easement at any given time is not

determinative, because the 1980 language specifically notes it applies to any road or

street constructed across the property at any time.

       {¶30} We find the trial court did not err in entering summary judgment on behalf

of the appellee Credit Union. The assignment of error is overruled.

       {¶31} For the foregoing reasons, the judgment of the Court of Common Pleas of

Fairfield County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur


                                            _________________________________
                                            HON. W. SCOTT GWIN

                                            _________________________________
                                            HON. JOHN W. WISE

                                            _________________________________
                                            HON. PATRICIA A. DELANEY

WSG:clw 0513
[Cite as Lan-Fair Credit Union v. Centres Kentucky LLC, 2011-Ohio-2953.]


             IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


LAN-FAIR CREDIT UNION                                :
                                                     :
                           Plaintiff-Appellee        :
                                                     :
                                                     :
-vs-                                                 :       JUDGMENT ENTRY
                                                     :
CENTRES KENTUCKY LLC, ET AL                          :
                                                     :
                                                     :
                    Defendants-Appellants            :       CASE NO. 10-CA-53




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Fairfield County, Ohio, is affirmed. Costs to appellants.




                                                         _________________________________
                                                         HON. W. SCOTT GWIN

                                                         _________________________________
                                                         HON. JOHN W. WISE

                                                         _________________________________
                                                         HON. PATRICIA A. DELANEY
