[Cite as Agnew v. Muhammad, 2014-Ohio-3419.]


               Court of Appeals of Ohio
                            EIGHTH APPELLATE DISTRICT
                               COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                   No. 100599



                                       LENA AGNEW

                                                     PLAINTIFF-APPELLEE

                                               vs.

                        JACQUELINE MUHAMMAD, ET AL.

                                                     DEFENDANTS-APPELLANTS




                                         JUDGMENT:
                                          AFFIRMED



                                 Civil Appeal from the
                            East Cleveland Municipal Court
                       Case Nos. 12 CVI 01012 and 12 CVI 01013

       BEFORE: E.T. Gallagher, J., Boyle, A.J., and Kilbane, J.

       RELEASED AND JOURNALIZED: August 7, 2014
ATTORNEY FOR APPELLANTS

Russell A. Moorhead
614 West Superior Avenue, Suite 860
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

John J. Duffy
John J. Duffy & Associates
Brendan Place
23823 Lorain Road, Suite 270
North Olmsted, Ohio 44070

Lena Agnew, pro se
3743 Beacon Drive
Beachwood, Ohio 44122
EILEEN T. GALLAGHER, J.:

       {¶1} Defendants-appellants, Jacqueline Muhammad and Darcelia Durrah

(“appellants”), appeal the trial court’s judgment against them in East Cleveland

Municipal Court, and in favor of plaintiff-appellee, Lena Agnew (“appellee”).

Finding no merit to the appeal, we affirm.

       {¶2} Appellants and appellee own parcels of residential land on Terrace

Road (a.k.a. Terrace Drive) in East Cleveland. Terrace Road is an undedicated

private road with a total of eight real property owners. The road itself is part

asphalt, part gravel, and part dirt. Terrace Road’s undedicated status means that

the city of East Cleveland is not responsible for the maintenance of the road. In

1999, due to the road’s undedicated status and the need for improvements, the

property owners along Terrace Road entered into a Private Drive Maintenance

Agreement (“the Agreement”), which was subsequently publicly recorded.1

       {¶3} The Agreement provides for an easement upon the parcels of property,

allowing all of the homeowners access to their parcels.               It provides that the

homeowners shall not obstruct the easement.          In addition, the Agreement provides

that the parties share in the reasonable cost of maintaining and repairing the road,


           The Agreement was executed on April 22, 1999, and recorded with the Cuyahoga County
       1


Recorder’s Office on April 29, 1999, Instrument No. 199904290658.
and that the cost be divided seven ways, due to one of the homes being vacant.

The Agreement provides:

      That each Homeowner shall be responsible for paying one seventh of
      the reasonable cost of maintaining and repairing the easement known
      as Terrace Drive, except for any damage other than the ordinary wear
      and tear caused by any party shall be paid for by such party[.]

Furthermore, the Agreement specifies that it is binding upon all heirs and assigns of

the properties.

      {¶4} Appellants allege that in 2006, appellee and her husband began to

unilaterally control the repair and maintenance of the road, whereas prior to 2006,

the process had been more of a group-led endeavor. Appellants allege that prior to

2006, repairs and maintenance occurred at the agreement and convenience of all of

the homeowners, taking financial circumstances of the homeowners into

consideration.

      {¶5} Appellants argue that after 2006, they were not properly included in

meetings or in decisions regarding repairs and maintenance, and therefore, they

should not be responsible for contributing to the costs. In 2012, after a large

repair project was performed on the road, when approached about their share of the

cost, appellants refused to contribute.    In November 2012, appellee filed suit

against appellants in small claims court in East Cleveland Municipal Court.
       {¶6} In February 2013, a hearing was held. In April 2013, the magistrate

entered a decision in favor of appellee.        In September 2013, the trial court

overruled appellant’s objections to the magistrate’s decision and motion for a

continuance, which were filed in June 2013, and adopted the magistrate’s decision

in its entirety. Both appellants were ordered to pay appellee $1,943 each, plus

interest at 3 percent until paid in full.

       {¶7} Appellants now appeal, raising two assignments of error.2

                                Ambiguity of the Agreement

       {¶8} In their first assignment of error, appellants argue that the trial court

committed reversible error by granting judgment in favor of appellee because the

Agreement is ambiguous as to the meaning of “reasonable costs.” Appellants argue

that the ambiguity of the word “reasonable” results in the Agreement being

unenforceable.

       {¶9} An easement is a property interest in the land of another that allows the

owner of the easement a limited use of the land in which the interest exists.

McCumbers v. Puckett, 183 Ohio App.3d 762, 2009-Ohio-4465, 918 N.E.2d 1046

(12th Dist.). “An easement may be created by specific grant, prescription, or

implication that may arise from the particular set of facts and circumstances.”



           No appellee brief was filed.
       2
Fitzpatrick v. Palmer, 186 Ohio App.3d 80, 2009-Ohio-6008, 926 N.E.2d 651, ¶ 22

(4th Dist.).

       {¶10} “A written easement that contains an express grant will be interpreted

based upon the language contained in that grant.” Johnson v. Keith, 12th Dist.

Clermont No. CA2012-04-032, 2013-Ohio-451, ¶ 35, citing Proffitt v. Plymesser,

12th Dist. Brown No. CA2000-04-008, 2001 Ohio App. LEXIS 2801 (June 25,

2001). When interpreting the terms of a written easement, the court must follow

the ordinary rules of contract construction so as to carry out the intent of the parties

as demonstrated by the language in the contract. Lakewood Homes v. BP Oil, Inc.,

3d Dist. Hancock No. 5-98-29, 1999 Ohio App. LEXIS 3924 (Aug. 26, 1999).

       “A deed is presumed to express the intention of the parties and it is the
       duty of the court to search for the meaning intended to be expressed in
       the deed. For that purpose, the court may read it in light of
       circumstances that surrounded the parties at the time of execution.”
       Robinson, 1988 Ohio App. LEXIS 4218, [WL] at *3, citing Bobo &
       Sry v. Wolf, 18 Ohio St. 463 (1869). Where the deed is ambiguous,
       the court will try to ascertain the parties’ intention through the rules of
       construction. Hinman v. Barnes, 146 Ohio St. 497, 66 N.E.2d 911
       (1946).

Johnson at ¶ 36.

       {¶11} Appellants cite to Johnson to support their contention that “reasonable

costs,” as contained in the Agreement, is a phrase so ambiguous as to make the

Agreement unenforceable. However, in Johnson, the court ruled that “reasonable

maintenance” was ambiguous and therefore, that aspect of the agreement in that
case was unenforceable.        The instant case is easily distinguishable because

reasonable costs do not lack objective standards the way the meaning of

maintenance does.     We find “reasonable costs” to not be so ambiguous as to

prevent the trial court from enforcing the Agreement in the instant case.

      {¶12} Furthermore, we find that appellee set forth sufficient evidence of the

cost of the repairs, the different stages of the repairs, and the multiple estimates that

were received prior to choosing the contractor that eventually performed the repairs.

 We find that the trial court based its findings on the evidence presented during the

hearing.   Having reviewed the record, we find that appellants failed to rebut

appellee’s evidence that the repairs were necessary and that the costs associated

with completing those repairs were in fact reasonable. See Reynolds v. Bauer, 2d

Dist. Montgomery No. 21179, 2006-Ohio-2912.

      {¶13} Accordingly, appellant’s first assignment of error is overruled.

                                 Abuse of Discretion

      {¶14} In their second assignment of error, appellants argue that the trial court

erred in adopting the magistrate’s decision because it was against the manifest

weight of the evidence.

      {¶15} The standard of review on appeal from a decision of a trial court

adopting a magistrate’s decision is whether the trial court abused its discretion.

Butcher v. Butcher, 8th Dist. Cuyahoga No. 95758, 2011-Ohio-2550, ¶ 7, citing
O’Brien v. O’Brien, 167 Ohio App.3d 584, 2006-Ohio-1729, 856 N.E.2d 274 (8th

Dist.). An abuse of discretion connotes more than an error of law or of judgment;

it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), citing

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶16} Although appellant’s second assignment of error is presented by

utilizing “manifest weight of the evidence” language, this court reiterates that the

proper standard of review for a trial court judgment that adopts a magistrate’s

decision is abuse of discretion, and the instant appeal will be properly reviewed

under this standard.

       {¶17} Appellants argue that the trial court erred in adopting the magistrate’s

decision because appellee had failed to support the elements of her claim with

adequate evidence at the trial level. Appellants argue that appellee failed to prove

that she had authorization from the homeowners to have the road repaired in 2012.

However, the record contains evidence of multiple attempts at communications

between appellee and appellants. Having reviewed the testimony and documents

submitted as evidence, appellants have failed to demonstrate an abuse of discretion

on the trial level.

       {¶18} Appellants also argue that the trial court erred because it cited two

cases that appellants argue are distinguishable from the instant case. Both McCoy
v. Good, 2d Dist. Clark No. 06-CA-34, 2007-Ohio-327, and Reynolds v. Bauer, 2d

Dist. Montgomery No. 21179, 2006-Ohio-2912, although factually distinguishable,

were cited by the trial court in support of the court’s ruling that costs can be

determined to be reasonable in the course of litigation. As discussed above, the

cases both illustrate that the term “reasonable costs” can be determined by a lay

person and that the phrase itself is not so ambiguous as to nullify an agreement like

the one in the instant case.

      {¶19} Thus, we find that appellants have failed to illustrate that the trial court

abused its discretion in adopting the magistrate’s decision.              Accordingly,

appellant’s second assignment of error is overruled.

      {¶20} Judgment affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the East Cleveland Municipal

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.



EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
