[Cite as Rubber City Arches Graham, L.L.C. v. Joe Sharma Properties, L.L.C., 2013-Ohio-1773.]


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

RUBBER CITY ARCHES GRAHAM, LLC                            C.A. No.         26557

        Appellee/Cross-Appellant

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
JOE SHARMA PROPERTIES, LLC., et al.                       COURT OF COMMON PLEAS
                                                          COUNTY OF SUMMIT, OHIO
        Appellants/Cross-Appellees                        CASE No.   CV 2011-04-2137

                                DECISION AND JOURNAL ENTRY

Dated: May 1, 2013



        WHITMORE, Judge.

        {¶1}    Appellants/Cross-Appellees, Joe Sharma Properties, L.L.C. and Joseph Sharma

(collectively, “Sharma”), appeal from the judgment of the Summit County Court of Common

Pleas. Additionally, Appellee/Cross-Appellant, Rubber City Arches Graham, L.L.C. (“Rubber

City”), cross-appeals from the trial court’s judgment. This Court reverses.

                                                     I

        {¶2}    In 1974, Gaylia Medley leased one of her two adjoining lots to the Blake Brothers

Company (“Blake Brothers”) for them to build and operate a Friendly’s Restaurant. Under its

original terms, the lease would expire on May 31, 2016. In the lease, Medley granted Blake

Brothers, “its customers, employees and all those having business with it to use for parking

purposes and for entrance to and also egress from its leased premises all parking spaces,

entrances, exits, driveways and rights of way from time to time located on or appurtenant to the
                                                 2


[adjoining] parcel [owned by Medley].”        The parties also memorialized this in a separate

document entitled a “Driveway License Agreement.”

       {¶3}    Sometime thereafter, Medley sold the adjoining parcel to a Jessie Tucker, and, in

1982, Sharma purchased the parcel from Tucker’s estate. Sharma was aware of the Driveway

License Agreement at that time.        In 2004, Blake Brothers assigned the lease to JEMM

Restaurants, Inc. (“JEMM”). Medley and JEMM then amended the lease, giving JEMM the

option of extending the lease to 2026, an additional ten years.

       {¶4}    In 2010, Medley sold the leased parcel to Rubber City. In 2011, JEMM assigned

the lease to Rubber City Arches, L.L.C., a company related to Rubber City.

       {¶5}    In April 2011, Rubber City filed a complaint against Sharma for, among other

things, a declaratory judgment of an implied or prescriptive easement over a portion of Sharma’s

property. The trial court concluded that the lease agreement was validly extended and that the

Driveway Lease Agreement remained binding on Sharma as long as the lease agreement

remained in effect.

       {¶6}    Sharma now appeals and raises a single assignment of error for our review.

Additionally, Rubber City appeals and raises one assignment of error.

                                                 II

                                  Sharma’s Assignment of Error

       THE TRIAL COURT ERRED IN DETERMINING THAT THE STRIP MALL
       PARCEL IS SUBJECT TO THE TERMS OF THE FRIENDLY’S LEASE AND
       DRIVEWAY LICENSE AGREEMENT SO LONG AS THE FRIENDLY’S
       LEASE REMAINS IN EFFECT.

       {¶7}    In its sole assignment of error, Sharma argues that “the trial court [erred when it]

implicitly found the existence of an easement.” Because it is not clear from the trial court’s
                                               3


judgment that it considered Sharma’s argument that a license existed instead of an easement, we

reverse and remand.

       {¶8}    This Court remains a reviewing court. As such, this Court will not consider issues

in the first instance. See Harris-Coker v. Abraham, 9th Dist. No. 26053, 2012-Ohio-4135, ¶ 4.

       {¶9}    Rubber City sought a declaratory judgment on a prescriptive and an implied

easement. It did not plead the existence of an express easement contained in the Friendly’s lease

and in the separate Driveway License Agreement. However, Sharma never objected when this

theory was raised during discovery. Instead, Sharma chose to argue that the Driveway License

Agreement merely provided a license and not an easement, or, in the alternative, the easement

was terminated because Rubber City had failed to provide the required maintenance.

       {¶10} At trial, Rubber City presented testimony from Michael Waiwood, an expert in

the field of title examination. Waiwood acknowledged that the Driveway License Agreement

was labeled as a license, but opined that the document was really an easement. Waiwood

testified that specific words are not required to create an easement as long as the intent of the

parties is clear. Neither party presented testimony regarding the intent of the parties as to the

Driveway License Agreement.

       {¶11} The court included extensive findings of facts and conclusions of law in its

judgment entry. However, the court did not discuss whether the Driveway License Agreement

created a license or an easement. Instead, the court summarily concluded that the lease was still

valid and that the Driveway License Agreement remained binding on Sharma as long as the lease

remained in effect.

       {¶12} After the court concluded that the lease was still valid, the issue became whether

the Driveway License Agreement created a license or an easement. Based on the judgment
                                                4


entry, we cannot conclude that the trial court considered this issue. This Court has consistently

refused to consider issues in the first instance. See Ward v. Ohio State Waterproofing, 9th Dist.

No. 26203, 2012-Ohio-4432, ¶ 10. Accordingly, we remand the case for the trial court to

consider Sharma’s argument that the Driveway License Agreement is a license and not an

easement. Sharma’s assignment of error is sustained on that basis.

                               Rubber City’s Assignment of Error

       THE TRIAL COURT ERRED IN DETERMINING THAT A CLEAR DAMAGE
       AMOUNT RESULTING FROM CROSS-APPELLEE’S TRESPASS WAS NOT
       ESTABLISHED AT TRIAL.

       {¶13} In its sole assignment of error, Rubber City argues that the “trial court’s finding

that [it] did not establish its damages is against the manifest weight of the evidence.” Based on

our resolution of Sharma’s assignment of error, Rubber City’s assignment of error is not ripe for

consideration. See Wizards of Plastic Recycling L.L.C. v. R & M Plastic Recycling L.L.C., 9th

Dist. No. 25951, 2012-Ohio-3672, ¶ 25.

                                               III

       {¶14} Sharma’s assignment of error is sustained and Rubber City’s assignment of error

is not ripe for consideration. The judgment of the Summit County Court of Common Pleas is

reversed, and the cause is remanded for further proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.
                                                 5


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

Pleas, County of Summit, 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 Appellee/Cross-Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



MOORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

CAROLINE L. MARKS, Attorney at Law, for Appellants/Cross-Appellees.

CHRISTOPHER F. SWING, Attorney at Law, for Appellants/Cross-Appellees.

JOHN MONROE and ANTHONY COYNE, Attorneys at Law, for Appellee/Cross-Appellant.
