[Cite as Rising v. Litchfield Twp. Bd. of Trustees, 2016-Ohio-6971.]


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

ROBERT R. RISING, JR.                                        C.A. No.   16CA0010-M

        Appellee

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
LITCHFIELD BOARD OF TOWNSHP                                  COURT OF COMMON PLEAS
TRUSTEES, et al.                                             COUNTY OF MEDINA, OHIO
                                                             CASE No.   11CIV0064
        Appellant

                                  DECISION AND JOURNAL ENTRY

Dated: September 26, 2016



        MOORE, Presiding Judge.

        {¶1}     Defendant, Litchfield Township Board of Trustees (“Litchfield Township”),

appeals from the judgment of the Medina County Court of Common Pleas. This Court affirms.

                                                       I.

        {¶2}     This Court set forth the relevant facts and procedural history of this case in a prior

appeal as follows:

        In 1945, [Robert R.] Rising’s parents purchased the property at 3933 Avon Lake
        Road (“Avon Lake Road property”) in Litchfield, Ohio. Mr. Rising was born in
        1951. In 1977, Mr. Rising’s father took sole title to the property after the death of
        his wife. On March 7, 1980, Mr. Rising took title to the property from his father’s
        estate. The Avon Lake Road property could be accessed from Avon Lake Road
        and from the property located immediately north of the Avon Lake Road
        property, 9268 Norwalk Road (“Norwalk Road property”). For as long as Mr.
        Rising can remember, his parents and others would utilize an approximately 16 by
        40 foot section of the Norwalk Road property (“the driveway”) for ingress to and
        egress from the Avon Lake Road property. Later, Mr. Rising also utilized the
        driveway. Because the Norwalk Road property was at the corner of Avon Lake
        Road and Norwalk Road, the driveway could be used as a convenient cut through.
                                         2


However, it was not necessary to use the driveway in order to access the Avon
Lake Road property.

On December 13, 1999, Litchfield Township took ownership of the Norwalk
Road property. At the time, Litchfield Township also owned some of the
surrounding lots that it used for township purposes. * * * The Norwalk Road
property was previously owned by Robert Kort who used it for a horse trading
business. Prior to that, it was owned by the Youngs who used it for a resale store.
In September 2010, Litchfield Township barricaded the driveway area impeding
Mr. Rising’s use of it.

Mr. Rising filed a complaint to quiet title and for a preliminary and permanent
injunction. He alleged that he had acquired title to the driveway via a prescriptive
easement. The parties filed cross-motions for summary judgment. The trial court
denied Mr. Rising’s motion, but granted Litchfield Township’s motion for
summary judgment, finding that, because the driveway was owned by a township,
it was not subject to either adverse possession or prescription. Mr. Rising
appealed the determination, and this Court reversed the decision in part. See
Rising v. Litchfield Bd. of Twp. Trustees [(“Rising I”)], 9th Dist. Medina No.
11CA0079-M, 2012-Ohio-2239, ¶ 1, 3. In doing so, we affirmed the trial court’s
denial of Mr. Rising’s motion for summary judgment, and reversed the trial
court’s grant of summary judgment to Litchfield Township. See id. at ¶ 10-11.
We concluded that Mr. Rising and his parents were in privity; thus, Mr. Rising
could “tack the number of years the driveway was used by his parents if he
[could] establish that his parents used the property in the same or similar manner
and that the use was continuous, open, notorious, and adverse.” Id. at ¶ 7.
Further, we determined that, “if [Mr.] Rising’s prescriptive easement vested prior
to 1999, Litchfield [Township] would have taken title subject to such easement.”
Id. at ¶ 9. Accordingly, if that were the case, Litchfield Township’s argument that
a prescriptive easement cannot vest against land owned by a municipality would
be irrelevant. See id.

Upon remand, after Mr. Rising received leave to amend his complaint to correct a
typographical error in the permanent parcel number and to clarify the boundaries
of the alleged easement, the matter proceeded to a bench trial. The parties entered
into nine stipulations of fact, many of which specified the dates of various
important events, such as the date Mr. Rising’s parents bought the Avon Lake
Road property. The trial court ultimately found in favor of Litchfield Township,
specifically concluding that, “based upon the fact that Mr. Rising was absent from
the property in 1970-71 and again from 1974-1979, [Mr. Rising] has failed to
show that his parent[s’] use of the subject driveway was continuous, and,
therefore, the Court will not permit the years of Mr. Rising’s parent[s’] use to be
added to his adverse use. [Mr. Rising] has therefore failed to show continuous
use of the driveway for a period of 21 years.”
                                                  3


Rising v. Litchfield Twp. Bd. of Trustees (“Rising II”), 9th Dist. Medina No. 14CA0022-M,

2015-Ohio-3091, ¶ 2-5.       In Rising II, Mr. Rising appealed from the judgment in favor of

Litchfield Township, challenging the trial court’s finding that he was absent from the property

from 1970 to 1971 and from 1974 to 1979 and challenging the trial court’s conclusion that the

evidence did not support that the use of the driveway prior to his ownership was continuous. Id.

at ¶ 7.

          {¶3}   This Court concluded that it “would be unnecessary to tack the period from 1970

to 1971 to establish a [twenty-one]-year period of continuous use prior to 1999.” Id. at ¶ 19.

With respect to the testimony at trial concerning the use of the driveway from 1974 to 1979, we

noted that “Mr. Rising’s unrebutted testimony was that, during this period, he was at the Avon

Lake Road property at least once a week, and sometimes he was there two to three times a week.

He testified that he used the driveway ‘all the time[ ]’ when he was home and that he saw his

father using it when he was home. He testified that he had specific memories of personally using

the driveway from 1974 to 1979.” Id. at ¶ 19. We noted that the trial court’s conclusions

relative to Mr. Rising’s absence and the continuous use of the Avon Lake Road property were

unclear. Id. at ¶ 18. We held that, if the trial court had concluded that Mr. Rising was “entirely

absent from the Avon Lake Road property from * * * 1974 until 1979,” such a determination

“would be completely unsupported by the testimony at trial.”           Id. at ¶ 18. However, we

concluded that, if the trial court had determined that Mr. Rising’s use of the property from 1974

to 1979 was “insufficient to be continuous,” then it had “erred as a matter of law.” Id. at ¶ 20.

          {¶4}   Accordingly, we held that the trial court erred in finding that there was a break in

the use of the driveway from 1974 to 1979 that precluded Mr. Rising from tacking his parents’

use of the driveway to his own. Id. at ¶ 21. We remanded the matter to the trial court to consider
                                                 4


whether “the additional elements” required to tack his parent’s use of the driveway with his own

were established by clear and convincing evidence. Id. We then provided that “[s]hould the

trial court find in Mr. Rising’s favor on the issue of tacking, it then must consider whether Mr.

Rising presented clear and convincing evidence that his own subsequent use prior to 1999 met

the elements required to establish a prescriptive easement.” Id.

       {¶5}    On remand, the trial court found that Mr. Rising was entitled to tack his parents’

use of the driveway to his own use of the driveway for purposes of determining whether there

had been twenty-one years of use. It then concluded that Mr. Rising was entitled to an easement

of the driveway for personal use.

       {¶6}    Litchfield Township appealed from the decision of the trial court in favor of Mr.

Rising, and it now presents one assignment of error for our review.1

                                                II.

                                    ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN FAVOR OF
       [MR. RISING.]

       {¶7}     In its sole assignment of error, Litchfield Township argues that the trial court

erred in granting Mr. Rising an easement because (1) the trial court’s determination that Mr.

Rising’s use of the driveway was the same as his parents’ use was against the manifest weight of

the evidence, (2) the trial court did not adequately define the nature of the rights to the easement

afforded to Mr. Rising, and (3) the trial court could not grant Mr. Rising an easement for access

to and from Norwalk Road because the driveway did not extend to Norwalk Road.




       1
         In his Appellee’s Brief, Mr. Rising moves to dismiss the appeal, arguing that this Court
should not have granted Litchfield Township an extension to file its merit brief. Upon review,
the motion is denied.
                                                   5


        {¶8}    “In determining whether a decision is against the manifest weight of the evidence,

‘[t]he [reviewing] court * * * weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder

of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]

must be reversed and a new trial ordered.’” Rising II, 2015-Ohio-3091, at ¶ 8, quoting Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.

        {¶9}    “A prescriptive easement occurs when one can prove that he has used the land of

another (a) openly, (b) notoriously, (c) adversely to the property owner’s rights, (d) continuously,

and (e) for at least twenty-one years.” (Internal quotations and citations omitted.) Rising II at ¶

9. “The plaintiff must prove these elements by clear and convincing evidence.” (Internal

quotations and citation omitted.) Id. “A landowner does not have to use the property himself for

the full twenty-one years. Under certain circumstances the landowner may add on, or ‘tack,’ the

number of years the land was adversely used by a predecessor in title.” Id., quoting Rising I,

2012-Ohio-2239, at ¶ 7. “In order to tack adverse uses, it must be established that (a) the party

and her predecessor are in privity, (b) the property was sequentially and continuously used, (c)

the property was used in the same or similar manner, and (d) that the use was open, notorious,

and adverse to the title holder’s interest.” Rising II at ¶ 9, quoting Rising I at ¶ 7.

        {¶10} Here, Litchfield Township maintains that Mr. Rising could not tack his parents’

use of the property to his own because he did not use the driveway in the same or similar manner

as his parents. Specifically, the Township maintains that Mr. Rising testified that he used the

driveway for commercial uses relating to his firewood business, whereas his parents used the

driveway only for personal use.
                                                  6


       {¶11} At the bench trial, Mr. Rising testified that the driveway was mostly used for

personal use.    He acknowledged that sometimes he sells firewood, “and once in a while

somebody that would buy or sell firewood would go through the driveway[,]” and he would

drive through there “occasionally, but not very often” with a farm truck to bring in firewood. He

also noted that “[o]ccasionally” a logging truck would use the driveway to leave his property, but

it was “very rare.” Mr. Rising indicated that he and his parents used the subject property for

convenience to leave and enter the Avon Lake Road property by vehicle. On cross-examination,

Mr. Rising indicated that his father did not have a firewood business. However, when asked if

Mr. Rising mainly used this easement for his firewood business, he stated, “No. Mainly it was

for personal use.”

       {¶12} Given Mr. Rising’s testimony, we cannot say that the trial court’s determination

that Mr. Rising’s use of the property was the same or similar to that of his parents was against

the manifest weight of the evidence. Accordingly, insofar as the Township argues that the trial

court erred in granting the easement because Mr. Rising’s use of the easement was not similar to

that of his parents, his assignment of error is overruled.

       {¶13} Additionally, Litchfield Township maintains that the trial court failed to define

the nature of the rights of the easement afforded to Mr. Rising, and such rights could not

constitute the use of the easement as a cut-through to the highway, as the easement is not directly

adjacent to the highway.

       {¶14} However, the trial court’s journal entry ordered that Mr. Rising is “entitled to an

easement for personal use of ingress and egress to [Mr. Rising’s] real property consisting of a

strip of land sixteen (16) foot by thirty-nine and 96/100 (39.96) foot portion of [Litchfield

Township’s] property.” The trial court further attached a map to the order. Accordingly, the
                                                7


trial court did define the nature of the rights of the easement afforded to Mr. Rising. Litchfield

Township has pointed this Court to no authority which would require a more specific delineation

of Mr. Rising’s rights to the easement. See App.R. 16(A)(7). Accordingly, to the extent that the

Township argues that the trial court erred in failing to specify the nature of the rights of the

easement afforded to Mr. Rising, its assignment of error is overruled.

       {¶15} Further, Litchfield Township argues that Mr. Rising cannot use the driveway in

the same manner as he had previously because the driveway does not extend to Norwalk Road.

Instead, Litchfield Township maintains that the driveway connects the Avon Lake Road property

to another property belonging to the City (“the adjacent property”), which is not subject to a

prescriptive easement and not a part of this action. Accordingly, Litchfield Township argues that

Mr. Rising could not use the driveway as a cut-through to the roadway because the driveway

does not access a roadway.

       {¶16}    It is undisputed that the Township owns the adjacent property, and Mr. Rising

did not seek an easement on the adjacent property. However, we can discern nowhere in the trial

court proceedings where the Township argued any alleged impropriety in granting an easement

on the basis that the easement does not extend to a roadway. Instead, Litchfield Township’s

arguments below consisted of its positions that (1) an easement could not be obtained over the

driveway because the Township is a political subdivision (an argument that we addressed in

Rising I), (2) the use of the driveway was not continuous, (an issue that we addressed in Rising

II), and (3) Mr. Rising’s use of the property was different than his parents’ use of the driveway

(an issue that we addressed above). Accordingly, Litchfield Township has forfeited all but plain

error on appeal with respect to the argument that this easement cannot be granted for ingress and

egress because it does not connect to a roadway. K.L. v. D.M., 9th Dist. Medina No. 15CA0010-
                                                  8


M, 2016-Ohio-338, ¶ 5. The Ohio Supreme Court has held that “in appeals of civil cases, the

plain error doctrine is not favored and may be applied only in the extremely rare case involving

exceptional circumstances where error, to which no objection was made at the trial court,

seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby

challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79

Ohio St.3d 116, 122-123, 1997-Ohio-401.               However, “[w]e will not decide if those

circumstances exist here, because [Litchfield Township] did not argue plain error in [its]

appellate brief.” K.L. at ¶ 5. See also Conti v. Spitzer Auto World Amherst, Inc., 9th Dist. Lorain

No. 07CA009121, 2008-Ohio-1320, ¶ 8 (declining to engage in an analysis of plain error where

the appellant failed to argue plain error on appeal).

        {¶17} Accordingly, we conclude that Litchfield Township has forfeited the argument

raised in its brief challenging the propriety of granting the easement for ingress to, and egress

from, the Avon Lake Road property because the easement does not extend to a roadway. To the

extent this argument is raised on appeal, its assignment of error is overruled on the basis that this

argument has been forfeited.

                                                 III.

        {¶18} Litchfield Township’s sole assignment of error is overruled. The judgment of the

trial court is affirmed.

                                                                                 Judgment affirmed.




        There were reasonable grounds for this appeal.
                                                 9


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       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 to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

DEAN HOLMAN, Prosecuting Attorney, and TOM J. KARRIS, Assistant Prosecuting Attorney,
for Appellant.

THEODORE J. LESIAK, Attorney at Law, for Appellee.
