[Cite as Shangrila Ohio, L.L.C. v. Westbridge Realty Co., 2013-Ohio-3817.]




                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99784


                             SHANGRILA OHIO, L.L.C.
                                                   PLAINTIFF-APPELLEE

                                                     vs.

            WESTRIDGE REALTY COMPANY,* ET AL.
                                                   DEFENDANTS-APPELLANTS


                                           JUDGMENT:
                                            AFFIRMED

                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-774133

             BEFORE: Blackmon, J., Boyle, P.J., and McCormack, J.
             RELEASED AND JOURNALIZED:              September 5, 2013

*Westridge Realty Co. is no longer a party to this appeal and has been replaced by Robert A.
Sating, Jr.
ATTORNEY FOR APPELLANT

Andrew R. Kasle
526 Superior Avenue, East
Suite 833
Cleveland, Ohio 44114


ATTORNEY FOR APPELLEE

Lei Jiang
Lei Jiang L.L.C.
26943 Westwood Road
Westlake, Ohio 44145
PATRICIA ANN BLACKMON, J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. Appellant Robert A. Sating, Jr. (“Sating”) appeals the trial

court’s granting of summary judgment in favor of Shangrila Ohio, L.L.C. (“Shangrila”),

and assigns the following four errors for our review:

       I. The trial court improperly granted Shangrila Ohio, L.L.C. an implied
       easement on real property which appellant, a bone fide purchaser for value
       without notice, purchased at [the] Sheriff’s foreclosure sale.

       II. The trial court failed to apply the doctrine of lis pendens by granting
       Shangrila Ohio, L.L.C. an implied easement on appellant’s real property
       since Shangrila Ohio L.L.C. never obtained any interest in appellant’s real
       property.

       III. It was an abuse of discretion for the trial court to grant Shangrila Ohio,
       L.L.C. an implied easement when the elements for granting an implied
       easement did not exist.

       IV. The trial court improperly granted Shangrila Ohio, L.L.C. summary

       judgment when genuine issues of fact exist.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

judgment. The apposite facts follow.

                                           Facts

       {¶3} On April 28, 2010, Shangrila purchased parcel number 215-10-022 located

in Westlake, Ohio, at a sheriff’s sale. The parcel has two buildings, a single story office

building (26943 Westwood Road), and a single story hair salon (26945 Westwood Road).

 The two buildings abut each other, but are not connected. They each have a separate

access to Westwood Road.
       {¶4} Adjacent to the parcel is a corner lot, parcel number 215-10-006. The

corner lot is an undeveloped lot with the exception of a driveway and a parking lot that

were constructed for use by the building housing the hair salon in the 1950s when the lots

were owned by the same owner, Westridge Realty Company (“WRC”). In fact, part of

the hair salon’s building encroaches on the corner lot. There is no access to the hair

salon except by the use of the driveway. To the west and north the hair salon is enclosed

by the corner lot. To the east of the hair salon is the office building, and to the south is a

creek. This sole means of access to the salon was not a problem when the parcels were

owned by the same entity.

       {¶5} After Shangrila purchased its parcel, the two parcels were severed, with

WRC retaining ownership of the corner lot. In 2011, KeyBank initiated a foreclosure

action on the corner lot. Prior to the foreclosure, WRC tried to force Shangrila to

purchase the corner lot from WRC and threatened to block the driveway if Shangrila

refused. WRC also informed Shangrila that the property owner on the other side of the

corner lot, Robert Sating, was also interested in the property but had offered WRC too

low of a purchase price.

       {¶6}    In response, on January 23, 2012, Shangrila filed a complaint for

declaratory judgment requesting the court to find that an implied easement existed on the

corner lot. Shangrila also requested injunctive relief to prevent WRC from obstructing

the driveway and parking lot. The trial court granted plaintiff’s motion for a restraining

order and discovery proceeded regarding the declaratory judgment.
       {¶7} In spite of the pending lawsuit, on April 23, 2012, Sating purchased the

corner lot by bidding against Shangrila at the foreclosure sale. Sating then joined the

lawsuit. Both Sating and Shangrila filed cross-motions for summary judgment. The

trial court granted summary judgment in favor of Shangrila in a six-page opinion in which

it concluded an implied easement existed on the corner lot.

                                   Standard of Review

       {¶8} We review an appeal from summary judgment under a de novo standard of

review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th

Dist.1997).   Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

       {¶9} Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment is entitled

to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party. We conclude the trial court did not err by granting summary judgment

as a matter of law in favor of Shangrila.

                             Notice to Bona Fide Purchaser

       {¶10} In his first assigned error, Sating argues that an implied easement did not

attach to the property because he did not have notice of the pending lawsuit. According
to the Ohio Supreme Court, the equitable right of an implied easement should not be

enforceable against a bona fide purchaser for value who has no actual or constructive

notice of the easement. Tiller v. Hinton, 19 Ohio St.3d 66, 482 N.E.2d 946 (1985);

Renner v. Johnson, 2 Ohio St.2d 195, 207 N.E.2d 751 (1965). He claims that by not

intervening in the foreclosure action regarding the corner lot, Shangrila failed to provide

notice of the easement.

      {¶11} Sating had both actual and constructive notice of the implied easement.

Sating was the owner of the parcel adjacent to the corner lot opposite the hair salon since

1986. During this time the driveway and parking lot were used exclusively by the hair

salon. Therefore, he had actual notice that the lot was used for the benefit of the salon.

See Mapes v. Smith, 8th Dist. Cuyahoga No. 81065, 2003-Ohio-428 (neighbor’s

knowledge that the parcel was used as a common driveway prevented him from arguing

he was a bona fide purchaser).

      {¶12} Sating also had constructive notice of the easement. Shangrila purchased

the parcel next to the corner lot on April 28, 2010. On January 23, 2012, Shangrila filed

its declaratory action regarding the implied easement on the corner lot. Sating purchased

the corner lot at the sheriff’s sale on April 23, 2012. Prior to being issued the deed on

July 30, 2012, Sating entered an appearance in the declaratory judgment action on May

18, 2012. Therefore, prior to the sale being complete, Sating had notice of the implied

easement. Thus, based on the record, Sating is not a bona fide purchaser because he had
both actual and constructive notice of the easement. Accordingly, Sating’s first assigned

error is overruled.

                                        Lis Pendens

       {¶13} In his second assigned error, Sating argues that the doctrine of lis pendens

prevents the court from concluding an implied easement exists.

       {¶14} According to the lis pendens doctrine, “someone who acquires an interest in

property that is the subject of litigation is as bound by the result of the litigation as if he

had been a party to it himself.” Beneficial Ohio, Inc. v. Ellis, 121 Ohio St.3d 89,

2009-Ohio-311, 902 N.E.2d 452. Sating argues that because the foreclosure action on

the corner lot was pending at the time that Shangrila filed its declaratory judgment action,

Shangrila cannot have an implied easement on the property.

       {¶15} Lis pendens is not applicable to the instant case because Shangrila’s interest

in the easement existed prior to the foreclosure action on the corner lot. Shangrila

purchased the hair salon property in April 2010, and the foreclosure action on the corner

lot was filed on January 21, 2011.

       The rationale underlying the doctrine of lis pendens applies only where a
       third person attempts to intrude into a controversy by acquiring an interest
       in the matter in litigation from a litigant while a suit is pending and does not
       extend to one whose interest existed before the commencement of the suit
       and who might have been made an original party.

66 Ohio Jurisprudence 3d, Lis Pendens, Section 20 (1986).

       {¶16} At the time that Shangrila purchased the lot, a hair salon existed in the space

and was operating and using the driveway and parking lot. Thus, when the foreclosure
action was filed on the corner lot nine months later, Shangrila had already established the

use of the easement. Thus, because Shangrila’s interest predated the foreclosure action,

the doctrine of lis pendens does not apply. Accordingly, Shangrila’s second assigned

error is overruled.

                                    Implied Easement

       {¶17} In his third and fourth assigned errors, Sating argues the trial court erred by

granting summary judgment in Shangrila’s favor because the evidence did not support the

trial court’s conclusion that there was an implied easement on the corner lot.

       {¶18} Implied easements are based upon the principle that when an individual

conveys property, he also conveys whatever is necessary for the use and enjoyment of that

property. Trattar v. Rausch, 154 Ohio St. 286, 95 N.E.2d 685 (1950), paragraph four of

the syllabus. While implied easements are disfavored in the law as being contrary to the

rule that written documents speak for themselves, a party has an implied easement if it

can establish, (1) that there is a severance of the unity of ownership in an estate, (2) that

before the separation takes place, the use that gives rise to the easement must have been

so long continued and obvious or manifest as to show that it was meant to be permanent,

(3) that the easement is reasonably necessary to the beneficial enjoyment of the land

granted or retained, and (4) that the servitude is continuous as distinguished from a

temporary or occasional use only. Campbell v. Great Miami Aerie No. 2309, Fraternal

Order of Eagles, 15 Ohio St.3d 79, 80, 472 N.E.2d 711 (1984), citing Ciski v. Wentworth,

122 Ohio St. 487, 172 N.E. 276 (1930).
      {¶19} There are two ways by which a party may establish an implied easement: (1)

an easement implied by necessity, and (2) an easement implied by prior use. Wheeler v.

McBride, 178 Ohio App.3d 367, 2008-Ohio-5109, 896 N.E.2d 748 (4th Dist.). The

requirements to establish both implied easements follow the above elements, except that

in an easement implied by necessity, the plaintiff must show “strict necessity” to satisfy

the third element, whereas in an easement implied by prior use, the plaintiff need only

show “reasonable necessity.” Tiller, 19 Ohio St.3d at 69, 482 N.E.2d 946. Shangrila

claimed both an implied easement by prior use and an easement implied by necessity.

The trial court concluded that Shangrila had established a prior use easement.

      {¶20} There is no dispute that the first element has been met because both parties

agree that the ownership of the corner lot and hair salon lot were both owned by the same

prior owner, WRC, and severed through foreclosure proceedings.

      {¶21} The evidence also supported a finding that the second element was met, that

the prior use was a long and continuous use that was meant to be permanent. The hair

salon has no other driveway or parking lot and the driveway leads only to the hair salon;

therefore, the lots are obviously dependent on each other. The hair salon building had

used the driveway and parking lot continuously since the 1950s.

      {¶22} The evidence also supports the third element that the easement is

reasonably necessary to enjoy the property. As we stated, a prior use easement need only

show that the easement is reasonably necessary, not strictly necessary.          In order to

determine whether the easement is reasonably necessary, the court considers:
       [T]he extent of the use, the character, and the surroundings of the property,
       the relationship of the parts separated to each other, and the reason for
       giving such construction to the conveyances as will make them effective
       according to what must have been the real intent of the parties; the
       foundation of the rule being that there shall be held to have been included in
       the conveyances all the rights and privileges which were incident and
       necessary to the reasonable enjoyment of the thing granted, practically in
       the same condition in which the entire property was received from the
       grantor.

Cadwallader v. Scovanner, 178 Ohio App.3d 26, 2008-Ohio-4166, 896 N.E.2d 748 (12th

Dist.), ¶ 37, quoting Ciski v. Wentworth, 122 Ohio St. at 495-496, 172 N.E. 276.

       {¶23} When the hair salon was originally built in 1950, the driveway and parking

lot were constructed at the same time. Without the implied easement, the hair salon

would lose access to the main road. Additionally, the corner lot must be traversed to

enter the hair salon because the corner of the hair salon’s building sits on the corner lot.

The hair salon’s utility meters also border the corner lot. The salon cannot build another

access in the back of the building because it is bordered in the back by a ravine and a

creek. Thus, the original intent regarding the parcels shows the hair salon and the corner

lot, which were constructed at the same time, were meant to be dependent on each other.

       {¶24} Sating argues that the hair salon could use the parking lot to the east of the

office building. However, this would require customers to walk around the building to

get to the hair salon and does not address the fact that customers would still have to cross

over the corner lot to get into the hair salon, and utility companies would have to access

the driveway and parking lot to get to the salon’s meters. Additionally, the office

building parking lot is not visible from the hair salon because it is located behind the
office building and is not close to the hair salon. Moreover, an alternative means of

entry does not defeat an easement by prior use, where the plaintiff only needs to show the

easement is “reasonably necessary” not “strictly necessary.” Dunn v. Ransom, 4th Dist.

Pike No. 10CA806, 2011-Ohio-4253; Metro. Home Inv. Corp. v. Ivy Hill Condominium

Assn., 11th Dist. Trumbull Nos. 97-T-0030 and 97-T-0143, 1998 Ohio App. LEXIS 5820

 (Dec. 4, 1998).

       {¶25} The fourth element, proof that the servitude is continuous as distinguished

from a temporary or occasional use, has also been shown. As we stated above, the

driveway, parking lot, and hair salon were all constructed at the same time in the 1950s,

and the salon has used the driveway and parking lot continuously since then. Shangrila

has shown no intent to abandon the use. Although Sating contends the salon was vacant

for over a year shortly after Shangrila took possession, the evidence indicated that the

salon was vacant for ten months, and during the vacancy, both Shangrila and its new hair

salon tenant made needed upgrades and renovations to the building. During this time,

the contractors working on the salon used both the driveway and parking lot. Once the

work was completed, the building was again used as a hair salon. This evidence refutes

Sating’s contention that the easement was abandoned.

       {¶26} Sating also contends that the trial court’s journal entry fails to clearly state

what constitutes the implied easement. However, the sole issue throughout the suit was

Shangrila’s contention that it had an implied easement on the driveway and parking lot.

The trial court in its journal entry clearly agreed with Shangrila that the implied easement
encompasses the driveway and parking lot. Whether the easement has tax implications

was not an issue before the trial court, and is an issue that could be raised with the

appropriate tax authority. Therefore, we contend there is no reason to remand for further

clarification.

       {¶27} Shangrila has presented sufficient evidence to support each element of an

implied easement; therefore, the trial court did not err by granting an implied easement by

prior use on the corner lot.   Accordingly, Shangrila’s third and fourth assigned errors

are overruled.

       {¶28} Judgment affirmed.

       It is ordered that appellee recover from appellants the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
TIM McCORMACK, J., CONCUR
