[Cite as Aurora Partners III., Ltd. v. Aurora, 2013-Ohio-4310.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


AURORA PARTNERS III, LTD.,                               :        OPINION

                 Plaintiff-Appellant,                    :
                                                                  CASE NO. 2013-P-0019
        - vs -                                           :

CITY OF AURORA, OHIO,                                    :

                 Defendant-Appellee.                     :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2011 CV
00340.

Judgment: Affirmed.


Douglas P. Whipple, 13940 Cedar Road, Suite 420, University Heights, OH 44118-
3204 (For Plaintiff-Appellant).

Frank H. Scialdone, James A. Climer, and John D. Pinzone, Mazanec, Raskin, Ryder
& Keller Co., L.P.A., 100 Franklin’s Row, 34305 Solon Road, Solon, OH 44139 (For
Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Aurora Partners III, Ltd., appeals from the summary judgment

entered by the Portage County Court of Common Pleas, declaring appellee, City of

Aurora, to hold a permanent easement, for ingress and egress, over portions of

appellant’s property.        At issue is whether there are genuine issues of material fact

regarding the existence and/or location of an easement for ingress and egress,
possessed by appellee, over appellant’s land. We answer this question in the negative

and affirm the judgment of the trial court.

        {¶2}    In April of 1995, appellant purchased a seven-acre parcel of vacant

property for commercial development. The parcel is bordered to the south by appellee’s

service center and the Aurora Cemetery; and to the north by various commercial

properties. Access to the parcel is from the property’s frontage to Aurora Road (a.k.a.

State Route 43), to the east. A paved roadway runs across portions of the property east

to west from Aurora Road; the roadway ends at appellee’s service center gate.

        {¶3}    According to Harry W. Caplan, one of appellant’s principals, the access

road was seldom used by appellee when appellant purchased the parcel. Mr. Caplan

averred that “many years” after appellee purchased the parcel, appellee paved the road

and began using the same more frequently with heavy trucks and equipment.1 Mr.

Caplan asserted appellant was unaware of appellee’s intentions to pave the road and,

even though it was partially situated on appellant’s property, it did not consent. Mr.

Caplan maintained that the nature and significance of the heavy vehicular traffic has

changed the character of appellant’s property and rendered it unsuitable and unusable.

        {¶4}    Appellee maintained it has an existing easement for ingress and egress

over the property at issue and multiple recorded documents established the same. In

particular, in 1933, a recorded deed provided appellee’s then-governing body, the

Portage County Commissioners, a “right-of-way to be used as roadway for means of

ingress and egress to and from” the property. In 1961, appellee obtained the property



1. A factual conflict exists regarding whether, before 2003 or 2004, the roadway was actually paved or
simply gravel. Mr. Caplan averred the roadway was gravel; during a deposition, however, John Trew,
Director of Public Services for appellee, testified that the roadway was simply repaved in either 2003 or
2004. This conflict does not affect our analysis of the issues in this case.


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which included “rights of way to be used as roadway for means of ingress and egress to

and from the * * * property.”

        {¶5}    Appellee then sold the property to Irene Brandes, in which it reserved “an

easement and access for the purpose of repair, replacement, maintenance or removal

of the water mains.” Brandes Properties later sent a letter to appellee in which it, after

deliberation, conveyed, inter alia, “a right of way” to a road “that will extend from Route

#43 to and beyond the present [Aurora] pumphouse.” The agreement, however, was

never fully executed or recorded. As a result, in 1973, appellee and the then-owner of

the property, Aurora Village Commons, entered into a written agreement which

purported to clarify the 1961 agreement.

        {¶6}    The 1973 agreement granted appellee a “permanent easement” to a

permanent driveway running from the intersection of Aurora Road and Maple Lane

across the property. The agreement, however, did not set forth the specific metes and

bounds of the permanent easement.                Nevertheless, Richard J. Shaw, the general

partner for Aurora Village Commons at the time the agreement was executed, averred

the “roadway and driveway existing and described in the [easement agreement] were

then and remain in their present location.”2 The agreement was recorded in 1979.

        {¶7}    Appellee ultimately constructed a service center on its property, situated

south of appellant’s property. In addition to the increase in heavy vehicle traffic, Mr.

Caplan averred that appellee began using that property as a dump site for empty




2. In 1986, Aurora Village Commons granted McDonald’s a “perpetual, non-exclusive easement for
automobile and pedestrian ingress and egress * * *.” Because appellant does not contest that easement
and appellee was not a party to the agreement, it is not directly relevant to the issue before this court;
namely, whether appellee possesses an easement for ingress and egress over appellant’s land and, if so,
where is it located.


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chemical drums, wood and boards, building materials, disassembled motor vehicles,

inoperable machine parts, pallets, scrap metal, used tires, and other assorted trash.

       {¶8}   Appellant filed a complaint seeking relief on counts to quiet title,

ejectment, trespass, and physical taking. In filing the complaint, appellant sought (1) a

declaration restoring quiet title to its property; (2) an injunction prohibiting appellee’s

presence on its property except for maintaining the existing waterline; (2) an injunction

prohibiting appellee from dumping trash on its property within view of appellant’s

property; and (4) money damages. Appellee filed an answer and counterclaim seeking

a declaratory judgment for a permanent easement; appellee also sought to quiet title on

the easement to which it claimed entitlement.

       {¶9}   Appellee filed a motion for summary judgment which appellant duly

opposed. Appellee later filed a reply to appellant’s memorandum in opposition. On

February 13, 2013, the trial court determined, pursuant to R.C. 2744.02, appellee was

immune from liability on appellant’s claims for trespassing, taking, and ejectment. The

trial court further determined appellee “is also entitled to its use of the road over

[Appellee’s] property. The easements and agreements give [Appellee] that right.” The

court later entered a judgment nunc pro tunc due to a scrivener’s error. As a result of

the judgment, no justiciable issues remained and appellant filed a notice of appeal.

Appellant assigns two errors for this court’s review.

       {¶10} Appellant’s first assignment of error states:

       {¶11} “The trial court erred and abused its discretion by granting appellee’s

counterclaim for declaration that it is entitled to a permanent easement.”




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      {¶12} Summary judgment is a procedural tool that terminates litigation and thus

should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d

64, 66 (1993). Summary judgment is proper where (1) there is no genuine issue of

material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter

of law; and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion

favors the movant. See e.g. Civ.R. 56(C).

      {¶13} When considering a motion for summary judgment, the trial court may not

weigh the evidence or select among reasonable inferences.            Dupler v. Mansfield

Journal Co., 64 Ohio St.2d 116, 121 (1980). Rather, all doubts and questions must be

resolved in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,

359 (1992). Hence, a trial court is required to overrule a motion for summary judgment

where conflicting evidence exists and alternative reasonable inferences can be drawn.

Pierson v. Norfork Southern Corp., 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-

6682, ¶36. On appeal, we review a trial court’s entry of summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

      {¶14} Appellant contends the trial court erred in granting summary judgment

because the record contains evidence that significant portions of the easement on

which appellee relies are on property located north of its property and substantial

portions of the paved road are outside the legal boundaries of the easement.             In

support, appellant relies on the testimony of its expert, Kenneth J. Hejduk, a

professional surveyor.




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        {¶15} In his affidavit, Mr. Hejduk averred that, even assuming the deeds and

agreements appellee utilizes to support its claim for an easement are valid, they still do

not authorize the particular roadway currently used by appellee for ingress and egress.

Mr. Hejduk surveyed the property and, after identifying the specific metes and bounds

described in the recorded documents, determined that appellee possessed an

easement for ingress and egress for only a 15’ right of way. This right of way, at certain

points, overlapped portions of the extant paved roadway.                          According to his

measurements, however, the 15’ right-of-way easement is completely north of

appellant’s property at the access point of Aurora Road.                 Mr. Hejduk consequently

determined that any municipal vehicle traversing the paved road will necessarily travel

onto appellant’s property either partially or entirely outside the limits of the

ingress/egress easement. Thus, Mr. Hejduk’s testimony revealed that, while appellees

possess an easement, it is situated in a location predominantly north of the current

paved road.

        {¶16} Mr. Hejduk’s survey provides some evidence that appellee’s use of the

road is inconsistent with the metes and bounds set forth in the recorded documentation.

Nevertheless, the 1973 agreement, executed between appellee and the predecessor

owners, Aurora Village Commons, included language conveying a “permanent

driveway” that runs from Aurora Road, at the intersection of Maple Lane and continues

westerly to the Central Wellfield.3           The agreement provided that the permanent

driveway “would remain in its present location” and represent a “permanent easement.”




3. Maple Lane runs perpendicular to Aurora Road and, from an aerial view of the location, the paved
roadway at issue is an extension of Maple Lane.


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The 1973 agreement, which was duly executed by both parties, was recorded with the

Portage County Recorder.

      {¶17} We recognize that the 1973 agreement conveys a permanent easement,

but neither sets forth metes and bounds nor specifies a general location of the

permanent driveway. The lack of specificity, however, does not necessarily defeat the

conveyance. The failure to describe an easement by metes and bounds does not

invalidate the conveying instrument. H & S Company, Ltd. v. Aurora, 11th Dist. Portage

No. 2003-P-0104, 2004-Ohio-3507, ¶16, citing Roebuck v. Columbia Gas Transm.

Corp., 57 Ohio App.2d 217, 219-220 (3d Dist.1977). The dimension and scope of an

easement may be ascertained from the language of the conveyance and the

circumstances surrounding the grant. H&S, supra; citing Roebuck, supra, at 220; see

also Pomante v. Marathon Ashland Pipe Line LLC, 187 Ohio App.3d 731, 2010-Ohio-

1823, ¶10 (10th Dist.); Amsbary v. Little, 4th Dist. Washington No. 90 CA 16, 1991 Ohio

App. LEXIS 1186, *9 (Mar. 11, 1991).       Therefore, “when an expressed easement

imprecisely describes the location of an easement, the court must examine extrinsic

evidence to determine the location as intended by the parties, which is typically

indicated by use.” H&S, supra; accord Woodyard v. Chesterhill, 5th Dist. Morgan No.

05-CA-18, 2006-Ohio-634, 2006 Ohio App. LEXIS 581, *9.

      {¶18} A review of the record in this case demonstrates that, even though the

easement did not specify metes and bounds, there was sufficient evidence identifying

the location of the easement. First, the evidence indicates appellee regularly used the

roadway in question both before and after appellant had purchased the parcel. And,




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since the road was paved or repaved in 2003 or 2004, that use has significantly

increased.

        {¶19} Furthermore, Richard J. Shaw, the general partner of Aurora Village

Commons who executed the 1973 agreement on its behalf, averred that, at the time the

agreement was entered, it was his expectation and intention to grant a permanent

easement to appellee for “the then existing roadway and driveway which extended

westerly from the intersection of State Route 43 [Aurora Road] and Maple Lane, and

along the eastern boundary of and within the property [at issue.]” Shaw further averred

that, to the best of his knowledge and observation, the roadway existing and described

in the agreement was, and still remains, in its present location. Aerial photographs and

site plans dating as far back as 1988 were submitted during the summary judgment

exercise. These exhibits demonstrate that the only roadway extending west from the

intersection of Aurora Road and Maple Lane is the paved roadway that is the subject of

this litigation.

        {¶20} We additionally point out that the foregoing conclusion is not inconsistent

with Mr. Hejduk’s survey. Mr. Hejduk averred that the only specified easement on

record is the 15’ track running predominantly north of the property. This easement,

defined in the 1961 deed, has specified metes and bounds and, as a result, is different

than the more generally-defined, permanent easement conveyed in the 1973 agreement

by Aurora Village Commons. Because the easement discussed in the 1973 agreement

did not contain metes and bounds, Mr. Hejduk would have no ability to specifically

measure its parameters or verify its existence by way of survey. In light of Mr. Shaw’s

affidavit, however, both easements can legally coexist. Therefore, Mr. Hejduk’s survey




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and verifications are not, unto themselves, sufficient to create a genuine issue of

material fact on the issue of appellee’s alleged trespass.

       {¶21} Notwithstanding this conclusion, appellant contends there is conflicting

evidence and material issues of fact that exist regarding whether Aurora Village

Commons had a legal right to convey an easement by way of the 1973 agreement.

Appellant points out that the unexecuted 1961 letter, which purported to initially convey

an easement to appellee, was signed by one “F.A. Brandes” on behalf of “Brandes

Properties.”   Appellant argues that the owner of the property in 1961 was Irene

Brandes, not F.A. Brandes or Brandes Properties.         Appellant claims the letter was

legally void and thus no easement was conveyed in 1961. Appellant therefore contends

there is a question as to whether the Brandes easement was ever legally created and,

as a result, there is a question whether Aurora Village Commons could convey the so-

called Brandes Properties’ easement to appellee. We do not agree.

       {¶22} There is nothing in the record suggesting Aurora Village Commons did not

own the subject property at the time it entered and recorded the 1973 agreement.

Thus, even assuming one could question the legal validity of the Brandes easement, it

is clear that Aurora Village Commons had the right, as the successor owner of the

property, to convey a permanent easement over the property at the time the agreement

was executed and recorded. In essence, the legal validity of the Brandes easement is

inconsequential to the extent the 1973 agreement evidences an intent to convey a

permanent easement over the portion of the property in question. Appellant’s argument

therefore has no bearing on the validity or sufficiency of the easement.




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       {¶23} The 1973 agreement, which was recorded, created an easement over the

subject property. And the evidence demonstrates the location of that easement is

consistent with the current, existing, paved roadway at issue in this litigation.        We

therefore hold the trial court did not err in declaring that appellee possesses a

permanent easement in the location of the paved roadway, which crosses appellant’s

property as a matter of law.

       {¶24} Appellant’s first assignment of error lacks merit.

       {¶25} For its second assignment of error, appellant asserts:

       {¶26} “The trial court erred and abused its discretion by granting appellee’s

motion for summary judgment on the issue of sovereign immunity.”

       {¶27} Determining whether a political subdivision is immune from tort liability

under R.C. Chapter 2744 involves a three-tiered analysis. Greene Cty. Agricultural Soc.

v. Liming, 89 Ohio St.3d 551, 556-557 (2000). The first tier sets forth the general rule

that a political subdivision is immune from liability incurred in the performance of either a

governmental function or proprietary function. Id. at 556-557; R.C. 2744.02(A)(1). That

immunity, however, is not absolute. R.C. 2744.02(B); Cater v. Cleveland, 83 Ohio St.3d

24, 28 (1998).

       {¶28} The second tier of the analysis requires a court to consider whether any

of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political

subdivision to liability. Cater, supra, at 28. If any of the exceptions to immunity in R.C.

2744.02(B) apply and no defense in that section protects the political subdivision from

liability, then the third tier of the analysis requires a court to determine whether any of

the defenses to immunity set forth under R.C. 2744.03 apply.




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      {¶29} Under the three-tier analysis, the end of the inquiry is reached when the

acts or omissions of a political subdivision do not fit under any of the five exceptions

enumerated in R.C. 2744.02(B). In other words, the courts do not engage in the third

tier of the analysis regarding available defenses provided in R.C. 2744.03 if no

exception under R.C. 2744.02(B) can be found to remove the general grant of immunity.

      {¶30} In its judgment entry, the trial court determined that none of the exceptions

to immunity apply to appellant’s trespass, taking, and ejectment claims.           Thus, it

concluded appellee was immune from liability for these claims.

      {¶31} We first point out that R.C. Chapter 2744. and its procedural mandates do

not apply to civil claims based upon alleged violations of federal constitutional or

statutory law. See e.g. Cochran v. Norton, 9th Dist. Summit No. 20418, 2001 Ohio App.

LEXIS 3378, *17 (Aug. 1, 2001). In effect, therefore, appellee could not be immune

from appellant’s Fifth Amendment “taking” claim, to the extent it was available.

      {¶32} That said, our conclusion that a valid easement exists over the subject

property renders the issue of immunity moot. That is, because appellee is entitled, via

the ingress/egress easement, to permanently use the paved roadway, appellant cannot

claim appellee’s use is either a trespass or a taking. Similarly, appellant cannot eject

appellee for a use to which it is legally entitled. Because there is no claim that would

require an immunity analysis, any such analysis would have no practical effect on the

outcome of the case. Any question relating to appellee’s immunity to appellant’s claims

is therefore moot.

      {¶33} Appellant’s second assignment of error is not well taken.




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      {¶34} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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