[Cite as Beatty v. Urbania, 2019-Ohio-245.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                COLUMBIANA COUNTY

                                    M. JOAN BEATTY, et al.,

                                        Plaintiffs-Appellants,

                                                  v.

                                  CHERIE L. URBANIA, et al.,

                                      Defendants-Appellees.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 17 CO 0023


                                    Civil Appeal from the
                      Court of Common Pleas of Columbiana County, Ohio
                                   Case No. 2014-CV-599

                                          BEFORE:
                  Kathleen Bartlett, Gene Donofrio, Cheryl L. Waite, Judges.


                                    JUDGMENT:
                 AFFIRMED, IN PART; REVERSED, IN PART; REMANDED


Attys. Glenn Osborne and T. Kamenitsa, Jr., 3801 Starrs Centre Drive, Canfield, Ohio
44406, for Appellees and

Atty. Mark Hutson, 33 Pittsburgh Street, Columbiana, Ohio 44408 and Atty. Scott
Essad, 721 Boardman-Poland Road, Suite 201, Youngstown, Ohio 44512 , for
Appellants.

                                       Dated: January 24, 2019
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BARTLETT, J.

        {¶1}    This is an appeal from the trial court’s entry granting certain equitable
relief in favor of Defendants-Appellees, Cherie and Michael Urbania (hereinafter
“Appellees”) and against Plaintiffs-Appellants, Joan Beatty, Lee Guterba and Cindy
Guterba (hereinafter “Appellants”).
        {¶2}    For the following reasons, Appellants’ assignment of error has merit with
regard to the trial court’s grant of lake access/rights to the Appellees. Accordingly, the
judgment of the trial court is reversed, in part, and remanded to the trial court for further
proceedings according to law and consistent with this Court’s Opinion.
                                  Facts and Procedural History
        {¶3}    The parties all reside with their homes fronting on Kelly Park Road and
abutting Lake Copeland, separated by one rental property (which is owned by the
Appellants). The parties have a long history of feuding. There have been two separate
lawsuits spanning a period of over seventeen (17) years involving the parties. In a prior
lawsuit, Appellees transferred their lake access/rights to the Appellants in exchange for
$18,000.00. As a result, the Appellees have not exercised any lake rights or access to
the property between Appellees’ property and the lakefront since that settlement in
2002.
        {¶4}    In the instant action, the original claims of Appellants, filed in 2014, were
dismissed on summary judgment,1 however, the Appellees’ counterclaims remained
pending. Appellees’ counterclaims alleged trespass, destruction of personal property,
nuisance, invasion of privacy/harassment, defamation, intentional interference with
business relationships, and abuse of process. The trespass, nuisance, and invasion of
privacy/harassment claims were based upon allegations of Appellants putting trash,
decaying food, fireworks debris and other items on Appellees’ property; “spying” on

1 Appellants original claims against Appellees alleged breach of contract (based upon operation of a
business from Appellees’ home); breach of declaration of restrictions (also based on Appellees’ operation
of a business from the home); declaratory relief (based upon the deed restrictions); invasion of privacy
(due to video cameras Appellees placed on their property); false light invasion of privacy (based upon
Facebook posts after Appellees’ kitten was killed); and defamation (also related to the Facebook posts).
All of the claims were dismissed on summary judgment, and it was further determined that the deed
restrictions which Appellants relied upon in their complaint were not applicable to the Appellees’ property.


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Appellees; and claims that rifles and other firearms were discharged near, towards, and
across the property. The destruction of property claim was based upon a kitten owned
by the Appellees that died from a gunshot wound which Appellees alleged was inflicted
by Appellants. The Appellees’ claims for defamation and intentional interference with
business relationships pertained to actions taken by the Appellants with regard to
Appellee Cherie Urbania operating a business called “The Pet Angel.” Appellees further
alleged abuse of process where Appellants had constructive notice that the deed
restrictions upon which they based their claims did not apply to Appellees’ property and
continued to prosecute those claims, resulting in great expense and emotional distress
to Appellees. Appellees’ prayer for relief in their Seconded Amended Counterclaim
included compensatory and punitive damages for the various tort claims; injunctive
relief, including a permanent injunction restraining Appellants’ conduct; enjoining
Appellants from further invasions of Appellees’ privacy; issuance of a civil restraining
order against Appellants; and “such other relief that the Court deems just and proper.”
(Second Am. Counterclaim at 11-12).
       {¶5}   The case proceeded to trial on January 24, 2017. Following two days of
trial, the parties engaged in settlement negotiations before the third day of trial resumed.
       {¶6}   The trial court excused the jury on the third day of trial, and stated in its
1/27/17 judgment entry:

       On Thursday, January 26, 2017, just prior to the resumption of the
       proceedings, counsel advised the Court that they were very close to a
       negotiated settlement of the issues.          The Court, based on the
       development of the evidence to that point, finds that this case is not one in
       which the jury can render a verdict that adequately addresses and
       disposes of the issues at bar. That is because the jury’s only option is to
       return a monetary award.

       The Court removes the case from jury consideration and directs the
       parties and counsel to continue to negotiate in good faith on the remaining
       issues, which are real estate in nature.        In the absence of a full
       settlement of all issues, any unresolved matters shall be submitted


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       to the Court by memorandum not later than 4:00 p.m. on Friday,
       February 10, 2017.

(1/27/17 JE).
       {¶7}     Appellees filed a Trial Brief on January 27, 2017 which gave a brief
summary of the pending claims, and stated that most of the relief sought by Appellees
was based upon questions of fact for the jury to decide, but a few items were within the
exclusive     scope    of     the   bench.         Appellees     highlighted     that   “[i]n   our
Complaint/Countersuit, we requested injunctive relief from the Court.” (1/27/17 Trial
Brief at 3). Appellees stated that in addition to asking for judgment in their favor from
the jury, they would “request injunctive relief directly from the Court prior to submitting
factual questions for the deliberation of the jury,” which included:

       Counterclaimants/Defendants           ask    that   the     Court       order    that
       Counterdefendants/Plaintiffs remove the chicken wire fence that was
       installed directly behind the Urbania property. Additionally, we ask that
       the Court grant injunctive relief in our favor by issuing an order preventing
       Counterdefendants/Plaintiffs from dumping garbage on or behind the land
       of the Urbanias, shooting firearms at or towards the Urbanias or their
       property, shooting fireworks are [sic] or towards the Urbanias or their
       property, and any other forms of harassment that Defendants may show
       require injunctive relief.

(1/27/17 Trial Brief at 4).
       {¶8}     On February 10, 2017, Appellees submitted a Memorandum of Position
and Proposed Order.           Appellees stated that their proposed order represented “a
compromise of the original Settlement Agreement which was provided to opposing
counsel and presented to the Court at the final Pretrial of this matter on January 9,
2017.” (Memo. of Position at 1). Appellees further stated that by the morning of the
third day of trial, “both counsel believed that the parties were close to resolving the
case.” (Memo. of Position at 1). Appellees outlined three main points of disagreement
as: first, the dividing line along the southern property boundary of the Appellees to



Case No. 17 CO 0023
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separate the parties, involving Arborvitae to be planted and moving a chicken wire
fence; second, the disagreement on the depth of the easement which Appellees will
have behind their property running towards Copeland Lake, whereas Appellants
proposed a 15 foot easement compared to the 150 foot easement that Appellees sought
for the entire 250 foot north-south portion of the property; third, disagreement regarding
rights behind the easement, where Appellees sought the ability to use that property “for
the purpose of traveling to the edge of the lake for fishing and perhaps launching a
canoe for paddling or fishing on the lake itself.” (Memo. of Position at 2-3). Appellees
noted that this would represent a much reduced lake right compared to what was
originally enjoyed before the disputes arose among the parties, and that Appellee
Cherie Urbania “testified that she was strong-armed by Guterbas’ constructive denial of
her lake rights in the 90’s. This fact, coupled with the mutual mistake of deed restriction
inapplicability ultimately resulted in the abuse of process claim, but also ultimately
deprived Cherie of a valuable property right.” (Memo. of Positon at 3). Appellees also
noted that both parties sought to maintain the property between the easement and the
lake, and stated that a joint right of maintenance may be one solution.
      {¶9}   Appellees stated “Defendants-Counterclaimants submit the proposed
Agreed Order for the Court’s consideration under its equity jurisdiction in lieu of
continuing to jury verdict at the trial of this matter, which commenced on or about
January 24, 2017.” (Memo. of Position at 3). They further stated that their filings were
submitted in compliance with the trial court’s January 26, 2017 order (which was file-
stamped January 27, 2017).        In their Memorandum, Appellees “urge the court to
consider the enclosed proposal for easement rights, use of real estate and non-
interference as consideration in lieu of compensation for their claims of abuse of
process, intentional destruction of domestic animal, trespass, invasion of privacy, and
other tort claims in the matter.” (Appellees’ Memorandum of Position at 3). Appellees
further concluded:

      While money does not solve the problem, strong, complete, physical
      division between the parties may. The parties and the Court all agree on
      this point, in principle.   Further, extension of Urbania’s land and lake
      privileges goes a long way towards providing Urbanias with some


Case No. 17 CO 0023
                                                                                       –6–


          measure of compensation for this loss. It presents all parties with their
          last chance for peace and privacy.        By combining principles of legal
          compensation with broad principles of equity, this Court can further the
          ends of actual justice and fair play with a broad stroke of its pen.

(Memo. of Position at 5).
          {¶10} On February 13, 2017, Appellants submitted a Post-Trial Memorandum
with an Agreed Order for Settlement, Release and Non-Interference, with Grant of
Easement.       The Memorandum states that it was submitted “to assist this Court in
coming to a decision in connection with certain points or areas that remain in dispute
between the Plaintiffs and the Defendants * * * [a]s an additional aid, Plaintiffs are
submitting herewith their Proposed Order for Settlement, Relief, Non-Interference with
Grant of Easement.” (Post Trial Memo. at 1). Appellants detail in their Memorandum
that “[f]ollowing two days of testimony, settlement discussions which had stalled prior to
the start of trial were reconvened. As a result of such renewed discussions it appeared
that settlement had been reached; or at least that enough progress had been made so
that further testimony to the jury may in fact have been counterproductive and
unnecessary.” (Post Trial Memo. at 2). Appellants discuss their initial proposal “which
included points designed to separate the parties and hence avoid renewed
confrontations, while at the same time provide the Urbanias with some of what they had
testified had been lost.” (Post Trial Memo at 2). Appellants state that their first offer
was to provide Appellees the ability to care for a section of property beyond their
western boundary with dimensions of 15 feet from East to West and 250 feet from North
to South (the “buffer”); opening up a wide swath of the Beatty property immediately
West of the “buffer” and clean it up and care for it as had been done several years ago;
plant arborvitae along the southern border of the property; and Appellants would limit
their presence on the land behind the balance of the 250 foot-width running north-south
to purposes of maintenance of the grounds and dam located north of that property.
(Post Trial Memo. At 2-3).        Appellants further created a sketch of what was being
proposed and submitted it as an exhibit with their proposed order. (Post Trial Memo.,
Ex. A).
          {¶11} Appellants noted in their Memorandum that the parties were in agreement


Case No. 17 CO 0023
                                                                                           –7–


that the Court Order should contain a listing of prohibited actions, listing various forms
of harassment and actions that would be considered a nuisance. Appellants further
outlined the three remaining areas of disagreement between the parties:              first, the
parties proposed different dimensions of the “buffer” area; second, the parties proposed
competing interests in mowing and maintaining the “buffer” area; and third, Defendants
previously sold their lake rights for $18,000.00, and now sought to regain lake privileges
or rights to the extent of traversing the “opened-up area” and/or the “License Area” to be
able to utilize the lake for fishing and boating. (Post Trial Memo. At 4). Appellants
disagreed with Appellees’ proposals, stating that they would contradict the goal of
separation of the parties, that responsibility for maintenance or mowing of the area
between the Appellees’ property and the lakefront “will undoubtedly be a point of
contention,” and that granting renewed lake privileges would be “putting the parties in
either close proximity of one another or creating a race to see who reaches the lake
shore first,” as well as the “negative effect [lake privileges would likely have] on value or
marketability of the [Beatty] property.” (Post Trial Memo. at 4).
       {¶12} Appellants’ Post Trial Memorandum concluded:

       In the end, the parties have made considerable effort to resolve the
       differences that led to the filing of the suit and counter suit. These efforts
       have yielded areas of agreement as cited above.                  Left for the
       consideration of this Court are the three principal areas of
       disagreement also cited herein. While both Counsel would urge this
       Court to adopt their respective version of an Agreed Order and would
       oppose the wholesale adoption of the other’s, both Counsel would agree
       in urging this Court, if willing, to visit the Kelly Road properties to be better
       able to see what has been requested or opposed and why.

(Post Trial Memo. at 5) [emphasis added].
       {¶13} Both parties’ proposals involved the grant of an easement to the Appellees
for a portion of the property between their home and the lakefront. Appellees proposed
an easement appurtenant; Appellants proposed a conditional easement in gross. The
drawing submitted by Appellants proposed a 15’ “buffer” area running behind the


Case No. 17 CO 0023
                                                                                         –8–


Appellees’ property, and a limited 100’ wide area between the “buffer” area and the
lakefront to be cleaned up with trees trimmed and property mowed to the lake (as
compared to the trial court’s order which grants Appellees access over the entire 250’
wide parcel). Also, in comparing the proposed orders submitted by the parties, it is
noted that Appellants submitted an “Agreed Order” which included signature lines for
the trial judge as well as the parties, whereas Appellees submitted a “Proposed Order”
which only included a signature line for the trial judge.
       {¶14} It does not appear from either parties’ filings that the potential restoration
of lake access or privileges was raised during the third day of trial which resulted in the
dismissal of the jury. There is no transcript of the discussions that took place among
counsel and the trial court. This Court is limited to the information contained in the post-
trial filings of the parties. It appears that the issue of restoration of lake access or
privileges was raised in Appellees’ Memorandum of Position and Proposed Order filed
on February 10, 2017.        There was no mention of restoration of lake privileges in
Appellees’ Trial Brief filed on 1/27/17.
       {¶15} On June 28, 2017, with the matter still pending, Appellants filed a Motion
to Supplement the Record or in the Alternative to Return Matter to Trial Docket, stating
that the counterclaims of Appellees had sought monetary damages, and none of the
claims were focused on or sought equitable remedies, but that the Appellees were
seeking equitable remedies at the resolution stage following the jury trial. Appellants
argued that no evidence was presented as to the proposed equitable remedy, and the
restoration of lake privileges was never sought in the counterclaims of Appellees.
Appellants requested the opportunity to offer evidence surrounding the dispute of
restoration of lake privileges at an evidentiary hearing, or in the alternative to restore the
matter to the trial docket, stating that the record would not be complete if one of those
actions was not permitted.
       {¶16} On July 3, 2017, Appellees filed a Memorandum in Opposition to the
Motion to Supplement the Record or in the Alternative to Return the Matter to the Trial
Docket. Appellees stated that during the trial the parties came very close to resolution,
but remaining matters in dispute were the specific covenants to “open up” the area
behind the Urbania property, the dimensions of that area, the location of the borders,



Case No. 17 CO 0023
                                                                                      –9–


and maintenance for the area. Both parties agreed to allow the trial court to supplement
the remaining aspects of an eventual order, and as a result the jury was released
without objection by either party. Appellees viewed the Motion as Appellants changing
their minds and hoping to change the result by taking “another bite at the proverbial
apple.”
       {¶17} On July 19, 2017, the trial court issued a judgment entry overruling the
Motion to Supplement the Record or in the Alternative to Return the Matter to the Trial
Docket, noting that the court would concentrate its efforts on issuing a final order in the
near future.
       {¶18} On July 28, 2017, the trial court issued its Opinion and Final Order which
is the subject of the current appeal. Upon receipt by Appellees of the trial court’s order,
they immediately began to clear the “license area” behind Appellees’ property in
accordance with the trial court’s order.
       {¶19} On August 2, 2017, Appellants filed a Motion to Stay Proceedings to
Enforce Judgment.
       {¶20} On August 3, 2017, Appellees filed an Emergency Motion for Contempt
Citation for Plaintiffs’ Violation of the Court’s Order (Request for Emergency Hearing or
Action).   Appellees alleged that since the filing of the court’s Order, Appellants
committed “numerous actions impermissible by this Court’s Order,” including walking
directly behind the Appellees’ property while filming and yelling obscenities, driving a
truck on the restricted area, as well as other alleged violations detailed in the Motion.
(8/3/17 Motion at 2).
       {¶21} On August 3, 2017, the trial court issued a notice that the Motion to Stay
Proceedings to Enforce Judgment would be decided on the briefs on August 10, 2017
and that any response briefs were to be timely filed.
       {¶22} On August 4, 2017, Appellees filed a Memorandum in Opposition to
Motion for Stay of Proceedings to Enforce Judgment Pending Appeal.
       {¶23} Also on August 4, 2017, Appellants filed a Motion to Stay Judgment
Pending Appeal with this Court.
       {¶24} On August 10, Appellees filed a Memorandum in Opposition of the Motion
to Stay filed with this Court.



Case No. 17 CO 0023
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       {¶25} On August 15, 2017, Appellants filed a Memorandum in Opposition to
Emergency Citation for Contempt.
       {¶26} On August 21, 2017, the trial court entered a judgment entry overruling
Appellants’ Motion to stay the enforcement of the court’s July 28, 2017 order.
       {¶27} On August 24, 2017, the trial court issued a judgment entry in the
contempt proceedings. Appellant Lee Guterba had admitted to committing one or more
violations of the 7/28/17 order and the trial court therefore found him in contempt,
finding that he may purge his contempt by remaining in strict compliance, discouraging
any violations by relatives or invitees and that he should not be complicit in any
violations by those persons. The court awarded attorney fees for the contemptuous
conduct, and requested an affidavit of fees associated with the contempt and any
objections to those fees to be filed. Counsel for Appellants raised the issue that the
current decree precludes the Appellants’ access to a certain bathhouse, dock, and
merry-go-round on the premises.
       {¶28} On August 30, 2017, Appellees filed a Supplemental Memorandum in
Opposition to Motion for Stay with this Court.
       {¶29} On August 31, 2017, Appellants filed a Supplemental Motion to Stay
Judgment Pending Appeal with this Court.
       {¶30} On September 5, 2017, this Court issued a judgment entry overruling the
motion for stay, and issued a limited remand for the trial court to issue a decision on the
stay pending in that court.
       {¶31} On September 8, 2017, Appellees filed a Memorandum in Opposition to
Supplemental Motion for Stay with this Court.
       {¶32} On September 25, 2017, this Court issued a judgment entry overruling the
supplemental motion for stay, finding the trial court’s reasoning persuasive that there
were no compelling reasons to grant a stay in this appeal.
       {¶33} On September 14, 2017, Appellees filed a Report to the trial court on
Status of Guterba Opportunity to Purge Contemptuous Actions with Request for Further
Action.
       {¶34} On November 1, 2017, the court issued a judgment entry in the amount of
$2,568.50 against Appellant Lee Guterba to be paid to Appellees representing the



Case No. 17 CO 0023
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attorney fees associated with the 8/24/17 contempt entry.

         Sole Assignment of Error:      Appellants argue the trial court erred
         when it forced an irrevocable license agreement upon the Appellants
         when they were only being sued for money damages. The trial court
         should not have rendered an equitable judgment when none was
         prayed for.

         {¶35} Appellants contend that questions of law related to an easement are
reviewed by an appellate court de novo, without deference to the trial court’s
conclusion, and have cited Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352,
2008-Ohio-938, 884 N.E.2d 12, ¶ 34, in support of this position. Appellants’ reliance is
misplaced where the cited case refers to whether a de novo or abuse of discretion
standard is applied in determining whether an arbitration clause is unenforceable.
Appellees assert that the standard of review applicable to claims for equitable relief is
abuse of discretion. Sandusky Properties v. Aveni, 15 Ohio St.3d 273, 274-275, 473
N.E.2d 798 (1984). Based upon the equitable nature of the trial court’s decision, we
agree.
         {¶36} In equitable matters, “the court has considerable discretion in attempting
to fashion a fair and just remedy.” Winchell v. Burch, 116 Ohio App.3d 555, 561, 688
N.E.2d 1053 (11th Dist. 1996). The court “has the power to fashion any remedy
necessary and appropriate to do justice in a particular case.” McDonald & Co. Sec.,
Inc., Gradison Div. v. Alzheimer's Disease & Related Disorders Assn., Inc., 140 Ohio
App.3d 358, 366, 747 N.E.2d 843 (1st Dist. 2000). When a party invokes the trial
court's equitable jurisdiction, the trial court possesses discretionary authority to weigh
the parties' competing interests and exact an equitable division of their property rights.
Murray v. Lyon, 95 Ohio App.3d 215, 221, 642 N.E.2d 41 (9th Dist. 1994), citing Ohio
Power Co. v. Bauer, 60 Ohio App.3d 57, 59–60, 573 N.E.2d 780 (5th Dist. 1989). A
finding that a trial court abused its discretion implies that the court acted unreasonably,
arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). When applying the abuse of discretion standard, we may not
substitute our judgment for that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161,


Case No. 17 CO 0023
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169, 559 N.E.2d 1301(1990).
       {¶37} The term “abuse of discretion” is one of art, connoting judgment exercised
by a court which neither comports with reason, nor the record. State v. Ferranto, 112
Ohio St. 667, 676–678, 148 N.E. 362 (1925). An abuse of discretion may be found
when the trial court “applies the wrong legal standard, misapplies the correct legal
standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176
Ohio App.3d 401, 2008–Ohio–1720, 892 N.E.2d 454, ¶ 15 (8th Dist.2008). “An abuse
of discretion involves far more than a difference in opinion. The term discretion itself
involves the idea of choice, of an exercise of will, of a determination, made between
competing considerations. In order to have an ‘abuse’ in reaching such determination,
the result must be so palpably and grossly violative of fact and logic that it evidences
not the exercise of will but the perversity of will, not the exercise of judgment but the
defiance thereof, not the exercise of reason but rather of passion or bias.” Huffman v.
Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985), citing State v.
Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984).
       {¶38} Both parties submitted post-trial memoranda and proposed orders which
contained equitable relief as a means of resolving the case.          Disputes remained
regarding the extent and details of the equitable relief.
       {¶39} The proposed order of Appellees included “a limited, irrevocable license to
use the land directly behind (and west of) the [proposed] easement to the edge of the
said Lake Copeland to walk to the lakeshore, fish, launch a canoe or other small non-
motorized watercraft, provided however that Michael and Cherie Urbania shall insure
and provide proof of liability insurance * * * .” (Appellees’ 2/10/17 Proposed Order at 3).
The proposed order further stated: “Urbanias and their invitees shall have the right to
fish from the shoreline of Copeland Lake directly behind their property and to launch a
non-motorized canoe or small boat into the lake for the purpose of fishing or paddling
around the lake, but shall use the lake for no other purposes, and shall not access the
shoreline of Copeland Lake except from the area of the license.” (2/10/17 Proposed
Order at 5).
       {¶40} Appellants identified three principal areas of disagreement among the
parties in their Post-Trial Memorandum:



Case No. 17 CO 0023
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       First, while Plaintiffs have proposed a Buffer of 15 feet; Defendants have
       proposed this same area be termed an Easement Appurtenant with an
       east-west dimension of 150 feet.

       Second, while Plaintiffs have agreed to open-up a 100-foot-wide swath
       extending in an east-west direction to the lake shore and to maintain this
       area with trimmed trees and mowed lawn; Defendants have proposed the
       area west of the Easement as an area whereby Defendants are granted a
       license to mow the same, (the “License Area”).

       Third, while Defendants previously sold their lake rights for $18,000.00,
       they now seek to regain lake privileges or rights to the extent of traversing
       the opened-up area and/or the License Area to be able to utilize the lake
       for fishing and boating.

(Appellants’ 2/13/17 Post Trial Memorandum at 4).
       {¶41} Based upon the review of the limited record after the case was removed
from jury consideration, it is clear that the parties negotiated toward a settlement that
was equitable in nature, with each proposing different access to the property (or a
portion thereof) between Appellees’ property and the lake.           The parties had full
opportunity to present their issues to the trial court through: post-trial memoranda; the
motion to supplement the record or return the matter for trial; meetings with the trial
court and counsel; and a site visit with the trial court judge to examine the area in
dispute. The trial court subsequently weighed the parties’ interests and rendered a
decision. The trial court did not abuse its discretion in granting an irrevocable license to
Appellees to access and maintain the land between their property and the lake. The
property between Appellees’ property and the lake was the crux of the dispute as
appears from the post-trial filings. Both parties proposed different levels of access and
dimensions of the property between Appellees and the lake. It was within the trial
court’s discretion to fashion an equitable remedy that took into account each of the
proposals that were submitted by the parties with regard to the disputed area between
Appellee’s home and the lake.



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       {¶42} However, the granting of the lake access/privileges, which were
relinquished by Appellees in 2002 for the sum of $18,000.00, was an abuse of the trial
court’s discretion. Based upon the record before this Court, granting lake access was
far above and beyond the injunctive relief that Appellees requested pertaining to the
behaviors of Appellants that they sought to restrain. Because there is no mention of the
restoration of lake access or privileges in the record prior to the Appellees’ 2/10/17
Memorandum, there is no way of knowing if this was an issue that the parties had
considered on the third day of trial when the jury dismissed, or if this was something that
Appellees decided to add on to their Proposed Order following the breakdown in
negotiations. If this was not considered during those negotiations, but rather raised for
the first time in Appellees’ Memorandum of Position and Proposed Order, it is
unreasonable to expand the area of access beyond what the parties had anticipated
and negotiated.     The trial court was requested to “close the gap” in settlement
negotiations where the parties could not resolve specifics with regard to the mechanics
of creating the separation among the parties and the proposed access area between
the Appellees’ property and the lake. The restoration of lake access and privileges
exceeds the scope, and represents an abuse of discretion by the trial court.
       {¶43} Thus, based on all of the above, the sole assignment of error has merit
with regard to the restoration of lake access/privileges, and the judgment of the trial
court is affirmed in part, reversed in part, and remanded on that limited basis.

Donofrio, J., concurs.

Waite, J., concurs.




Case No. 17 CO 0023
[Cite as Beatty v. Urbania, 2019-Ohio-245.]




        For the reasons stated in the Opinion rendered herein, the assignment of error is
sustained, in part, and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas of Columbiana County, Ohio, is affirmed in part, reversed
in part, and remanded on a limited basis. Costs to be taxed against the Appellee.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
