[Cite as Tower 10, L.L.C. v. 10 W. Broad Owner, L.L.C., 2020-Ohio-3554.]
                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Tower 10, LLC,                                      :

                Plaintiff-Appellant/                :
                Cross-Appellee,
                                                    :                        No. 18AP-998
v.                                                                         (C.P.C. No. 17CV-6166)
                                                    :
10 W Broad Owner, LLC,                                              (REGULAR CALENDAR)
                                                    :
                Defendant-Appellee/
                Cross-Appellant.                    :

Red Capital Group, LLC,                             :

                Plaintiff-Appellee,                 :
                                                                             No. 18AP-999
v.                                                  :                      (C.P.C. No. 17CV-6447)

Tower 10, LLC,                                      :               (REGULAR CALENDAR)

                Defendant-Appellant,                :
                Cross-Appellee,
                                                    :
10 W Broad Owner, LLC,
                                                    :
                Defendant-Appellee/
                Cross-Appellant,                    :

City of Columbus et al.,                            :

                Defendants-Appellees.               :



                                           D E C I S I O N

                                     Rendered on June 30, 2020


                On brief: James E. Arnold & Associates, LPA, James E.
                Arnold, Gerhardt A. Gosnell, II, and Damion M. Clifford, for
                Tower 10, LLC. Argued: Damion M. Clifford.

                On brief: William M. Harter, Russell J. Kutell, and
Nos. 18AP-998 and 18AP-999                                                                2

              Zachary L. Stillings, for 10 W Broad Owner, LLC. Argued:
              William M. Harter.

              On brief: Zeiger, Tigges & Little, LLP, Steven W. Tigges,
              Stuart G. Parsell, for Red Capital Group, LLC. Argued:
              Stuart G. Parsell.

               APPEALS from the Franklin County Court of Common Pleas

BROWN, J.
       {¶ 1} Plaintiff-appellant, Tower 10, LLC ("Tower 10"), appeals from a judgment of
the Franklin County Court of Common Pleas granting the motions for summary judgment
filed by defendants-appellees, 10 W Broad Owner, LLC ("10 W Broad") and Red Capital
Group, LLC ("Red Capital"), and denying the motion for summary judgment filed by Tower
10. For the reasons which follow, we reverse the judgment of the trial court.
       {¶ 2} Tower 10 owns the LeVeque Tower located at 50 West Broad Street in
Columbus, Ohio. 10 W Broad owns the One Columbus building located at 10 West Broad
Street in Columbus, Ohio. Red Capital is a tenant in the One Columbus building.
       {¶ 3} LeVeque Tower and One Columbus building are both multi-story high rise
buildings. The second story of LeVeque Tower connects to the second story of One
Columbus building through an enclosed skywalk which passes over the public right-of-way
at Wall Street (the "Wall Street skywalk"). A parking garage is located directly behind and
to the north of LeVeque Tower at 40 North Front Street in Columbus, Ohio. Another
enclosed skywalk passes over the public right-of-way at Lynn Street and connects the
second floor of LeVeque Tower to the second floor of the parking garage (the "Lynn Street
skywalk"). The present dispute between the parties concerns these skywalks and the
walkway which connect them.
       {¶ 4} On January 21, 1985, Tower 10's and 10 W Broad's predecessors-in-interest
executed a document titled "Declaration of Restrictions, Covenants and Easements."
(Tower 10 Compl., Ex. 1 (hereafter, "Declaration.")) Neither One Columbus building nor
the parking garage existed when the parties executed the Declaration. The Declaration
identified One Columbus Building Associates, Ltd. (the "partnership") as the "owner of an
option to purchase" the real estate located at the corner of Broad Street and High Street in
Columbus, Ohio "on which it [was] intending to build an office building." (Declaration,
Recital A.) The partnership would construct One Columbus building on the land identified
Nos. 18AP-998 and 18AP-999                                                                    3

in the Declaration. The Declaration identified an Ohio joint venture as the entity
"intend[ing] to develop * * * a parking garage" on the land located at 40 North Front Street.
(Declaration, Recital C.) The Declaration identified Katherine LeVeque as the owner of
LeVeque Tower.
       {¶ 5} The parties to the Declaration granted "easements and cross easements" to
each other for the "support and tie-in" and "construction, maintenance, * * * and operation"
of the Wall Street and Lynn Street skywalks. (Declaration, Section 1.03(a) & (b).) The
parties agreed to work together to obtain easements from the city to permit them to place
the skywalks over Wall Street and Lynn Street. The partnership had the "responsibility for
the construction of the Skywalks" and would "pay all costs with respect thereto."
(Declaration, Section 1.04.)
       {¶ 6} Each party to the Declaration also granted the other parties easements
through their respective buildings. Katherine LeVeque granted the partnership and the
joint venture "an easement for pedestrian traffic from the Wall Street Skywalk through a
portion of the second floor of the LeVeque Tower to the Lynn Street Skywalk." (Declaration,
Section 2.01(b).) The partnership granted Katharine LeVeque and the joint venture "an
easement for pedestrian traffic from the Wall Street Skywalk through a portion of the
second level lobby * * * to and through a portion of the first floor lobby or public area of the
[One Columbus] Building." (Declaration, Section 2.01(a).) The joint venture granted the
partnership and Katherine LeVeque "an easement for pedestrian traffic from the Lynn
Street Skywalk * * * into the Parking Garage." (Declaration, Section 2.01(c).)
       {¶ 7} The Declaration identified the entire pathway, from One Columbus building
through "the Wall Street Skywalk, the second floor of the LeVeque Tower, and the Lynn
Street Skywalk to and from the Parking Garage," as the "[w]alkway." (Declaration, Section
2.02.) The Declaration specified that "the [w]alkway" would "be maintained open at all
times during the normal business hours of the [One Columbus] Building, or at such other
times as agreed to by the parties." (Declaration, Section 2.05.) The easements granted in
the Declaration were "for the exclusive benefit of the owners and operators" of the
respective buildings, as well as the "tenants, and the employees, contractors, agents and
invitees of all of them, in order to provide convenient access between such properties and
the Parking Garage." (Declaration, Section 2.09(a).) The Declaration was "deemed to run
with and be appurtenant to the real estate" and was binding on each parties' "successors
Nos. 18AP-998 and 18AP-999                                                              4

and assigns." (Declaration, Section 6.01.) The easements granted in the Declaration had
"no termination." (Declaration, Section 8.02.) The Declaration was signed, properly
acknowledged, and recorded.
      {¶ 8} On October 1, 1985, the city of Columbus executed a deed granting the parties
to the Declaration, their successors and assigns, aerial encroachment easements over Wall
Street and Lynn Street ("city easement"). The One Columbus building, the parking garage,
and the skywalks were constructed between 1986-87.
      {¶ 9} During construction, doors were installed on either side of the walkway. The
doors are located between the parking garage and the Lynn Street skywalk, between
LeVeque Tower and the Wall Street skywalk, and between the Wall Street skywalk and One
Columbus building. Security keycard readers were installed next to the doors in the
walkway, and One Columbus issued keycards to its tenants and employees.
      {¶ 10} Since the walkway opened in 1987, the doors to the walkway have been
unlocked between 6:00 a.m. and 6:00 p.m. on weekdays. As such, the "[g]eneral public"
can freely access the walkway "during * * * working hours" throughout the week. (Gingerich
Depo. at 10; Prelim. Inj. Hearing Tr. Vol. I at 64.) Although the doors to the walkway are
locked after working hours and on the weekends, One Columbus workers' keycards have
provided them access to the walkway at any time, 24 hours a day, seven days a week
("24/7"). One Columbus workers' 24/7 keycard access to the walkway continued without
interruption from the time the walkway opened until June 23, 2017, when Tower 10
deactivated One Columbus workers' keycard access to the walkway.
      {¶ 11} Tower 10 acquired the LeVeque Tower in the first quarter of 2011. Tower 10
renovated and converted LeVeque Tower from a building consisting primarily of office
space, to a mixed-use space consisting of a hotel, a restaurant, a bar, a coffee shop,
apartments, and condominiums in addition to office space. LeVeque Tower residents, office
tenants, and hotel personnel have keycards which provide them with 24/7 access to the
parking garage through the Lynn Street skywalk.
      {¶ 12} Robert Meyers, the majority owner of Tower 10, explained he "verified" One
Columbus building's normal business hours before restricting the afterhours access to the
walkway by sending an e-mail to 10 W Broad's real estate services coordinator. The real
estate services coordinator informed Tower 10 that the "normal business hours" of One
Columbus building were "Monday through Friday 6:00am-6:00pm Saturday 8:00am–
Nos. 18AP-998 and 18AP-999                                                                5

12:00 pm." (O'Harra Depo. Ex. 16.) Although Tower 10 initially restricted One Columbus
workers' access to the walkway between 6:00 a.m. and 6:00 p.m. on weekdays, Tower 10
later restored One Columbus workers' ability to use their keycards between 8:00 a.m. and
12:00 p.m. on Saturdays.
       {¶ 13} On July 12, 2017, in case No. 17CV-6166, Tower 10 filed a complaint against
10 W Broad seeking a declaratory judgment. Tower 10 asked the court to find that its
"restriction of access to LeVeque Tower via the skywalk from One Columbus outside of One
Columbus's stated business hours [was] in full accord with the [Declaration]." (Tower 10
Compl. at ¶ 29.) On July 20, 2017, 10 W Broad filed an answer and counterclaim seeking a
declaratory judgment and injunctive relief. 10 W Broad asked the court to find that Tower
10's decision to restrict One Columbus workers' access to the walkway was in direct
violation of the Declaration and the city easements. 10 W Broad alternatively asked the
court to find that One Columbus had acquired a prescriptive easement to access the
walkway at any time.
       {¶ 14} On July 20, 2017, in case No. 17CV-6447, Red Capital filed a complaint
against Tower 10 seeking declaratory and injunctive relief. Red Capital asked the court to
find that Tower 10 had violated Red Capital's easement right to access the walkway,
whether the right existed by express grant, estoppel, or prescription.
       {¶ 15} 10 W Broad and Red Capital ("collectively appellees") each filed motions
seeking a temporary restraining order and preliminary injunction against Tower 10. On
July 20, 2017, the respective trial courts granted appellees temporary restraining orders
against Tower 10. The trial court consolidated the cases on July 28, 2017.
       {¶ 16} On August 3 and 4, 2017, a magistrate held a hearing on appellees' motions
for preliminary injunction. Dan Cvetanovich explained at the hearing that he had worked
in the One Columbus building and parked in the parking garage continually since July 1,
1987. Cvetanovich affirmed that throughout that "entire 30-year time period" he always
had "24/7 access" to the walkway by keycard. (Prelim. Inj. Hearing Tr. Vol. I. at 66.) James
Henson, the senior director and general counsel for Red Capital, noted that the "vast
majority" of Red Capital's employees parked in the parking garage and used their keycards
to access the walkway "24/7." (Prelim. Inj. Hearing Tr. Vol. I at 251-52.) Connie Hale
explained at the hearing that, although she recently began working as One Columbus
building manager in March 2017, she previously worked as One Columbus building
Nos. 18AP-998 and 18AP-999                                                                6

manager for two and one-half years in the early 1990's. Hale affirmed that "based on [her]
experiences that [she] had in the early 1990s as the manager" of One Columbus, it was her
"observation and understanding that - - that One Columbus and LeVeque had agreed that
One Columbus workers would have 24/7/365 card access to that skywalk." (Prelim. Inj.
Hearing Tr. Vol. I at 375.)
       {¶ 17} On August 9, 2017, the magistrate issued a decision granting appellees'
respective motions for preliminary injunction. Tower 10 filed objections to the magistrate's
decision. The trial court issued a decision and entry overruling Tower 10's objections and
adopting the magistrate's decision as its own on November 30, 2017.
       {¶ 18} On April 18, 2018, Tower 10, 10 W Broad, and Red Capital filed cross-motions
for summary judgment. Tower 10 acknowledged in its motion that Katherine "LeVeque
permitted the installation of a keycard system allowing only One Columbus tenants with a
keycard to access the walkway outside of One Columbus' normal business hours." (Tower
10 Mot. for Summ. Jgmt. at 4.) However, Tower 10 asserted that section 2.05 of the
Declaration obligated Tower 10 to only keep the walkway open during One Columbus'
normal business hours, from 6:00 a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m.
to 12:00 p.m. on Saturdays. Tower 10 further asserted that any purported agreement to
provide One Columbus workers with a permanent right to access the walkway after normal
business hours would need to comply with the statute of frauds and R.C. 5301.25(A).
       {¶ 19} 10 W Broad and Red Capital argued in their respective motions for summary
judgment that Eli Gingerich's testimony, Hale's testimony, and the parties' 30-year course
of conduct demonstrated that the parties to the Declaration agreed to provide One
Columbus workers with 24/7 keycard access to the walkway. Gingerich, LeVeque Tower
building manager from 1980 to 2005, affirmed it was his "understanding" that One
Columbus workers' 24/7 keycard access to the walkway was "by agreement of the owners"
of One Columbus building and LeVeque Tower. (Gingerich Depo. at 14-15.) Alternatively,
10 W Broad asserted it had acquired an easement by prescription and Red Capital asserted
it had acquired an easement by estoppel to access the walkway at any time.
       {¶ 20} On May 16, 2018, the parties filed memoranda contra responding to the
motions for summary judgment. Tower 10 asserted in its memorandum contra there was
no evidence of an "oral agreement under Section 2.05 of the Declaration," and that any
purported oral agreement would violate "the Statute of Frauds and R.C. 5301.25(A)."
Nos. 18AP-998 and 18AP-999                                                                7

(Tower 10 Memo. in Opp. to Summ. Jgmt. at 1.) Red Capital noted in its memorandum
contra that Colin LeVeque, the son of the deceased Katherine LeVeque and a signatory to
the 1985 Declaration, testified that his mother had to have agreed to provide One Columbus
workers with 24/7 keycard access to the walkway. Appellees both argued that Tower 10's
contentions regarding the statute of frauds and R.C. 5301.25(A) lacked merit, as the written
and recorded Declaration provided appellees with perpetual easement rights in the
walkway. Appellees further asserted that, even if the statute of frauds were applicable, the
parties conduct satisfied the partial performance exception and removed the agreement to
provide One Columbus workers 24/7 keycard access to the walkway from the statute of
frauds.
       {¶ 21} On November 20, 2018, the trial court issued a decision granting appellees'
respective motions for summary judgment and denying Tower 10's motion for summary
judgment. The court concluded that the "testimony of Hale, Gingerich, and LeVeque
establishe[d] that the parties to the easement agreed to allow the One Columbus tenants
and their employees unrestricted access to the walkway via the use of keycards." (Nov. 20,
2018 Decision at 11.) As the Declaration was written and "recorded and specifically
contemplated that the parties thereto could agree to access of the walkway outside of
'normal business hours,' " the court held that the agreement to provide One Columbus
workers with 24/7 keycard access to the walkway did not modify the Declaration or violate
the statute of frauds. (Nov. 20, 2018 Decision at 12-13.) The court concluded appellees had
"an express easement" to access the "walkway beyond normal business hours by use of a
keycard system," and declined to address appellees' alternative arguments for easements
by prescription or estoppel. (Nov. 20, 2018 Decision at 16.)
       {¶ 22} The court issued a declaratory judgment stating the Declaration provided 10
W Broad and Red Capital with 24/7 "continuous access" to the walkway. (Dec. 18, 2018
Final Jdgt. Entry at 2.) The court permanently enjoined Tower 10 from blocking,
obstructing, or interfering with appellees' access "to and through any portion of the
Walkway at any time * * * by way of keycards or other mutually agreeable means of
uninterrupted, continuous ingress and egress through the Walkway." (Dec. 18, 2018 Final
Jgmt. Entry at 3.)
Nos. 18AP-998 and 18AP-999                                                                  8

       {¶ 23} Tower 10 appeals, presenting the following errors for our review:

                [I.] The trial court erred in granting summary judgment in
                favor of 10 W Broad Owner and Red Capital Group.

                [II.] The trial court erred in denying Tower 10's motion[] for
                summary judgment.

       {¶ 24} 10 W Broad has filed a conditional cross-appeal, presenting the following
error for our review:
                If the Court finds that an express easement did not exist (which
                the Court should not), the trial court erred in failing to find an
                easement by prescription.

       {¶ 25} Tower 10's first assignment of error asserts the trial court erred in granting
appellees' respective motions for summary judgment, as the Declaration does not provide
appellees with an easement to access the walkway after normal business hours. Summary
judgment is appropriate when the moving party demonstrates that: (1) there is no genuine
issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds can come to but one conclusion when viewing the evidence most
strongly in favor of the non-moving party, and that conclusion is adverse to the non-moving
party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29, citing
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Appellate review of a trial court's
ruling on a motion for summary judgment is de novo. Id. at ¶ 29. De novo appellate review
means the court of appeals independently reviews the record and affords no deference to
the trial court's decision. Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-
Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6
(10th Dist.).
       {¶ 26} When seeking summary judgment on grounds the non-moving party cannot
prove its case, the moving party bears the initial burden of informing the trial court of the
basis for the motion and identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact on an essential element of the non-moving
party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party does not
discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that
the non-moving party has no evidence to prove its case. Id. Rather, the moving party must
affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the
Nos. 18AP-998 and 18AP-999                                                                  9

non-moving party has no evidence to support its claims. Id. If the moving party meets its
burden, then the non-moving party has a reciprocal burden to set forth specific facts
showing that there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293. If the non-
moving party does not so respond, summary judgment, if appropriate, shall be entered
against the non-moving party. Id.
       {¶ 27} "An easement is a non-possessory property interest in the land of another."
Pomante v. Marathon Ashland Pipe Line, LLC, 187 Ohio App.3d 731, 2010-Ohio-1823, ¶ 7
(10th Dist.), citing Andrews v. Columbia Gas Transm. Corp., 544 F.3d 618, 624 (6th
Cir.2008). An easement "entitles the owner of the easement, the dominant estate, to a
limited use of the land in which the interest exists, the servient estate." Crane Hollow, Inc.
v. Marathon Ashland Pipe Line, L.L.C., 138 Ohio App.3d 57, 66 (4th Dist.2000), citing
Alban v. R.K. Co., 15 Ohio St.2d 229, 231 (1968). Easements are either appurtenant or in
gross. Merril Lynch Mtge. Lending, Inc. v. Wheeling & Lake Erie Ry. Co., 9th Dist. No.
24943, 2010-Ohio-1827, ¶ 11. "An easement appurtenant runs with the land and is
transferable to future buyers," while an "easement in gross is personal only to the grantee
and, therefore does not run with the land." Walbridge v. Carroll, 172 Ohio App.3d 429,
2007-Ohio-3586, ¶ 17 (6th Dist.). Accord Lone Star Steakhouse & Saloon of Ohio, Inc. v.
Ryska, 11th Dist. No. 2003-L-192, 2005-Ohio-3398, ¶ 24.
       {¶ 28} Easements may be created by grant, implication, prescription, or estoppel.
Pomante at ¶ 7. "When an easement is created by express grant, the extent and limitations
of the easement depend upon the language of the grant." Id., citing Alban at 232. Accord
State ex rel. Wasseman v. Fremont, 140 Ohio St.3d 471, 2014-Ohio-2962, ¶ 28; Apel v.
Katz, 83 Ohio St.3d 11, 17 (1998). "There are no particular words required to create an
easement by express grant, provided that the intent of the parties is clear from the
document." Cincinnati Entertainment Assocs., Ltd. v. Bd. of Commrs., 141 Ohio App.3d
803, 813 (1st Dist.2001).
       {¶ 29} When the terms of an easement "are clear and unambiguous, the
construction of an express easement presents an issue of law." Pomante at ¶ 7, citing
Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph one of the
syllabus. "If there is no specific delineation of the easement, or if the document is
ambiguous, the court must then look to the circumstances surrounding the transaction in
order to determine the intent of the parties." Delaware Golf Club, LLC v. Dornoch Estates
Nos. 18AP-998 and 18AP-999                                                                 10

Homeowners Assn., 5th Dist. No. 19 CAE 04 0027, 2020-Ohio-880, ¶ 43, citing
Hemmelgarn v. Huelskamp & Sons, Inc., 3d Dist. No. 17-19-07, 2019-Ohio-5298, ¶ 13.
However, when the terms of an easement are unambiguous "a court cannot create new
terms by finding an intent not expressed in the language used." Id. at ¶ 42, citing Alexander
at 246. Accord Murray v. Lyon, 95 Ohio App.3d 215, 219 (9th Dist.1994) (noting that "[i]f
the intent is plain from the face of the document, then it is not necessary to resort to rules
of construction to determine the easement's effect").
       {¶ 30} In the Declaration, Katherine LeVeque granted One Columbus owners,
tenants, and employees an easement appurtenant to access the portion of the walkway
passing through the second floor of LeVeque Tower. The Declaration provided as follows
regarding the walkway:
              Except in the case of emergency, the Walkway shall be
              maintained open at all times during the normal business hours
              of the [One Columbus] Building, or at such other times as
              agreed to by the parties hereto, or their respective successors
              or assigns.

(Declaration, Section 2.05.)

       {¶ 31} The Declaration clearly and unambiguously provides that the walkway must
be maintained open during normal business hours of One Columbus building. The walkway
is maintained open whenever someone may freely pass through the walkway without
interruption. There is no language in the Declaration providing One Columbus workers
with a right to access the walkway outside normal business hours.
       {¶ 32} The provision in section 2.05 stating that the parties or their successors could
agree to maintain the walkway open at times other than normal business hours merely
restated rights the property owners always possessed. Indeed, while the Declaration
provided One Columbus with a permanent easement right to access the walkway during
normal business hours, the owners of LeVeque Tower and One Columbus building could
always agree to provide access to the walkway outside of normal business hours. The terms
of such an agreement between the property owners would necessarily dictate the extent and
duration of the property rights transferred.
       {¶ 33} The record demonstrates that Katharine LeVeque agreed to provide One
Columbus workers with 24/7 keycard access to the walkway. Both Hale and Gingerich
testified it was their understanding that the building owners had agreed to provide One
Nos. 18AP-998 and 18AP-999                                                                            11

Columbus workers with 24/7 keycard access to the walkway. Gingerich noted the building
owners agreed to the keycard access "[b]efore the building was built," and affirmed that the
keycard readers were present in the walkway when the walkway opened in 1987. (Gingerich
Depo. at 19.) Colin LeVeque noted that "based on how the buildings were operated," his
mother "would have had to agree" to provide One Columbus workers with access to the
walkway after normal business hours before such access could occur. (Colin LeVeque Depo.
at 91.)
          {¶ 34} Accordingly, as One Columbus workers had keycard access to the walkway
when the walkway opened in 1987, Katherine LeVeque had to have agreed to allow such
access. However, while the evidence demonstrates Katherine LeVeque granted One
Columbus workers permission to access the walkway after normal business hours, there is
no evidence demonstrating that Katherine LeVeque agreed to grant One Columbus a
permanent easement to access the walkway after normal business hours. Compare
Varjaski v. Pearch, 7th Dist. No. 04 MA 235, 2006-Ohio-5268, ¶ 12, quoting DePugh v.
Mead Corp., 79 Ohio App.3d 503, 511 (4th Dist.1992) (noting that "[i]n contrast to an
easement, a license is 'a personal, revocable, and nonassignable privilege, conferred either
by writing or parol, to do one or more acts upon land without possessing any interests in
the land' "). Colin LeVeque noted that he did not "remember ever talking" to his mother
"about modifying the easement or declarations of easement," and stated that his mother
"would have talked to [him]" if she intended to modify the easements. (Colin LeVeque
Depo. at 89.)
          {¶ 35} Moreover, any agreement to grant One Columbus an easement to access the
walkway after normal business hours would have to comply with the statute of frauds.
"[T]he term 'statute of frauds' refers to a provision that requires that certain agreements be
in writing. Where a plaintiff attempts to enforce an agreement against a defendant, the
defendant may raise the statute of frauds as an affirmative defense."1 ELM Invests., Inc. v.
BP Exploration & Oil, Inc., 10th Dist. No. 11AP-1000, 2012-Ohio-2950, ¶ 11. In Ohio, the
statute of frauds is embodied in R.C. Chapter 1335. Olympic Holding Co., L.L.C. v. ACE
Ltd., 122 Ohio St.3d 89, 2009-Ohio-2057, ¶ 30; McGee v. Tobin, 7th Dist. No. 04 MA 98,
2005-Ohio-2119, ¶ 15. R.C. 1335.05 provides that "[n]o action shall be brought whereby to


1 Tower 10 properly raised the statute of frauds as an affirmative defense in its answer to Red Capital's

complaint. See Civ.R. 8(C).
Nos. 18AP-998 and 18AP-999                                                               12

charge" a person upon a contract concerning an interest in land unless the agreement "is in
writing and signed by the party to be charged herewith." R.C. 1335.04 provides that no
interest in land "shall be assigned or granted except by deed, or note in writing, signed by
the party assigning or granting it, or his agent." "Agreements that do not comply with the
statute of frauds are unenforceable." Olympic Holding at ¶ 32, citing Hummel v. Hummel,
133 Ohio St. 520 (1938), paragraph one of the syllabus.
        {¶ 36} Thus, the statute of frauds seeks to "prevent 'frauds and perjuries' " by
informing "the public and judges of what is needed to form a contract and by encouraging
parties to follow these requirements by nullifying those agreements that do not comply."
Olympic Holding at ¶ 33, quoting Wilber v. Paine, 1 Ohio 251, 255 (1824). "For an
easement to arise by grant, the conveyance must comply with the statute of frauds." Evans
v. Blenry Ltd., 10 Dist. No. 75AP-453 (June 29, 1976). Accordingly, "[a] parol agreement
does not modify an easement agreement because it would run afoul of the statute of frauds."
Johnson v. New Direction IRA F.B.O. King C. Lam, 8th Dist. No. 106628, 2018-Ohio-4608,
¶ 34.
        {¶ 37} Gingerich and Hale both admitted they never saw a written agreement
regarding 24/7 keycard access to the walkway. Indeed, there is no evidence in the record of
a written agreement purporting to provide One Columbus with a permanent right to access
the walkway outside normal business hours. Accordingly, any parol agreement to provide
One Columbus workers with keycard access to the walkway could not modify the rights
granted in the Declaration.
        {¶ 38} Appellees contend the partial performance exception to the statute of frauds
removes the agreement to provide One Columbus workers with 24/7 keycard access to the
walkway from the operation of the statute. Appellees assert the facts in the present case
demonstrate the partial performance exception, as One Columbus purchased and installed
the keycard readers in the walkway, distributed keycards to its tenants, and One Columbus
tenants and employees have used keycards to access the walkway afterhours for 30 years.
Hale noted in her deposition that "One Columbus owned the card readers that [were]
attached to LeVeque." (Hale Depo. at 34.)
        {¶ 39} A party seeking to invoke the partial performance exception to the statute of
frauds must establish that "he has performed acts in exclusive reliance on an oral contract,
and that such acts have changed his position to his prejudice." LHPT Columbus The, LLC
Nos. 18AP-998 and 18AP-999                                                                        13

v. Capitol City Cardiology, Inc., 10th Dist. No. 14AP-264, 2014-Ohio-5247, ¶ 35, citing
DeAscentis v. Margello, 10th Dist. No. 08AP-522, 2008-Ohio-6821, ¶ 26. Accord Kiser v.
Williams, 9th Dist No. 24968, 2010-Ohio-3390, ¶ 15, quoting Hughes v. Oberholtzer, 162
Ohio St. 330, 337 (1954) (noting that the doctrine of part performance removes a case from
the operation of the statute of frauds "if the 'acts of the parties * * * are such that it is clearly
evident that such acts would not have been done in the absence of a contract' " and there is
" 'no other explanation for the performance of such acts except a contract containing the
provisions contended for by the plaintiff' "); Phoenix Concrete v. Reserve-Creekway, Inc.,
100 Ohio App.3d 397, 405 (10th Dist.1995).
       {¶ 40} "The doctrine of part performance is based in equity. It is applied in situations
where it would be inequitable to permit the statute [of frauds] to operate and where the acts
done sufficiently establish the alleged agreement to provide a safeguard against fraud in
lieu of the statutory requirements." Delfino v. Paul Davies Chevrolet, Inc., 2 Ohio St.2d
282, 286-87 (1965). "If the performance can reasonably be accounted for in any other
manner or if plaintiff has not altered his position in reliance on the agreement, the case
remains within the operation of the statute." Id. at 287. Accord WBNS-TV v. Palmer-
Donavin Mfg. Co., 10th Dist. No. 86AP-789 (Aug. 20, 1987).
       {¶ 41} Accordingly, the partial performance exception to the statute of frauds is
predicated on finding an oral agreement containing the terms alleged by the party asserting
the exception. See Upland Corp. v. Trustees of F. & A.M. Lodge 421, 2d Dist. No. 84 CA 62
(July 16, 1985). In the absence of an oral contract, and acts performed in exclusive reliance
upon the oral contract, the partial performance exception is inapplicable. Although the
evidence in the present case demonstrates Katherine LeVeque granted One Columbus
workers permission to access the walkway after normal business hours, there is no evidence
demonstrating Katherine LeVeque or any other owner of LeVeque Tower entered into an
oral agreement to provide One Columbus with a permanent easement to access the
walkway after normal business hours. As such, the acts of purchasing and installing the
keycard readers, distributing keycards, and using the keycards to access the walkway were
not done in exclusive reliance upon an oral contract to grant One Columbus an easement
to access the walkway afterhours. Moreover, appellees fail to explain how they changed
their position to their detriment in exclusive reliance on a purported oral contract. As such,
the partial performance exception was not applicable in the present case.
Nos. 18AP-998 and 18AP-999                                                                14

      {¶ 42} In the final analysis, the Declaration provides the extent and limitations of
appellees' rights to access the walkway. The clear and unambiguous language of the
Declaration states that the walkway must be maintained open during normal business
hours of One Columbus building. Although there is no evidence in the record of a parol
agreement to grant One Columbus an easement to access the walkway after normal
business hours, any such parol agreement would be unenforceable due to the statute of
frauds. Accordingly, the trial court erred in granting appellees' respective motions for
summary judgment.
      {¶ 43} Based on the foregoing, Tower 10's first assignment of error is sustained.
      {¶ 44} Tower 10's second assignment of error asserts the trial court erred in denying
Tower 10's motion for summary judgment. "Ordinarily, a denial of a motion for summary
judgment is not a final appealable order, but where the matter is submitted upon cross-
motions and a final judgment was entered against the appellant, an appellate court properly
may review the denial of the cross-motion." DeAscentis v. Margello, 10th Dist. No. 04AP-
4, 2005-Ohio-1520, ¶ 25, citing Waterfield Fin. Corp. v. Gilmer, 10th Dist. No. 04AP-252,
2005-Ohio-1004, ¶ 45, fn.1. Accord Cincinnati Ins. Co. v. Thompson & Ward Leasing Co.,
158 Ohio App.3d 369, 2004-Ohio-3972, ¶ 14 (10th Dist.).
      {¶ 45} Tower 10 asserted in its motion for summary judgment that the Declaration
only obligated Tower 10 to maintain the walkway open during One Columbus' normal
business hours, from 6:00 a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m. to 12:00
p.m. on Saturday. In our analysis of Tower 10's first assignment of error, we concluded the
Declaration unambiguously states that the walkway must be maintained open during One
Columbus' normal business hours.
      {¶ 46} At the preliminary injunction hearing, Steve Hearn, the principal operating
partner in 10 W Broad, stated that while the "public is allowed to come and go" from One
Columbus building "during normal business hours," members of the public "can't just
freely walk in and out of the [One Columbus] building" after normal business hours.
(Prelim. Inj. Hearing Tr. Vol. I at 157.) Hearn affirmed that the "normal business hours of
the [One Columbus] building [were] 6:00 a.m. to 6:00 p.m." on weekdays. (Prelim. Inj.
Hearing Tr. Vol. I at 156.) Hale noted that the doors to One Columbus building "open[ed]
at 6:00 a.m. and they close[d] at 6:00 p.m." throughout the week. (Prelim. Inj. Hearing Tr.
Vol. I at 343.) Hearn and Hale both noted that, although One Columbus building was open
Nos. 18AP-998 and 18AP-999                                                                15

to the general public between 6:00 a.m. and 6:00 p.m. on weekdays, the building was
accessible to its tenants 24/7.
       {¶ 47} Red Capital's lease agreement for its office in One Columbus building defines
normal business hours as "6:00 a.m. to 6:00 p.m." Monday through Friday "and 8:00 a.m.
to 12:00 p.m. on Saturdays." (10 W Broad Ex. 76, Section 2(b).) Other One Columbus tenant
lease agreements similarly define normal business hours as 6:00 a.m. to 6:00 p.m. Monday
through Friday and 8:00 a.m. to 12:00 p.m. on Saturday.
       {¶ 48} Appellees contend the phrase "normal business hours" in Section 2.05 of the
Declaration should be construed to mean 24/7, as One Columbus workers have 24/7 access
to One Columbus building and have historically possessed 24/7 keycard access to the
walkway. (10 W Broad Appellee's Brief at 38; Red Capital Appellee's Brief at 42.) The
Declaration, however, provides that the walkway is to be maintained open during normal
business hours of One Columbus building, not the hours One Columbus building is
accessible to its tenants. The evidence demonstrating that One Columbus workers had
permission to access the walkway by keycard outside of normal business hours indicates
that normal business hours of One Columbus building were the hours the walkway was
maintained open and keycard access was unnecessary. Although appellees contend they are
entitled to access the walkway 24/7, appellees do not otherwise dispute that One Columbus
building's normal business hours are 6:00 a.m. to 6:00 p.m. Monday through Friday and
8:00 a.m. to 12:00 p.m. on Saturday.
       {¶ 49} The record evidence demonstrates that One Columbus building's normal
business hours are 6:00 a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m. to 12:00
p.m. on Saturday. Based on the foregoing, Tower 10's second assignment of error is
sustained.
       {¶ 50} 10 W Broad's conditional assignment of error on cross-appeal asserts that, if
this court finds 10 W Broad did not possess an express easement to access the walkway after
normal business hours, the trial court erred in failing to find an easement by prescription.
Red Capital did not file a cross-appeal, but argues that "an alternative basis for affirming"
the trial court was that Red Capital had acquired an easement by estoppel to access the
walkway at any time. (Red Capital's Appellee's Brief at 44.)
       {¶ 51} Although appellees presented their contentions regarding easements by
prescription or estoppel in their respective motions for summary judgment, the trial court
Nos. 18AP-998 and 18AP-999                                                                 16

granted appellees' motions based solely on its conclusion that appellees had an express
easement to access the walkway at any time. As such, the trial court declined to address
appellees' alternative arguments for easements by prescription or estoppel.
       {¶ 52} "[W]here the trial court decline[s] to consider one of the arguments raised in
a motion for summary judgment, but grant[s] the motion for summary judgment solely on
the basis of a second argument, the first argument [is] not properly before the court of
appeals." Riverside v. State, 190 Ohio App.3d 765, 2010-Ohio-5868, ¶ 58 (10th Dist.), citing
Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 89 (1992). Accord Baird v. Owens Community
College, 10th Dist. No. 15AP-73, 2016-Ohio-537, ¶ 26 (observing that since the "Court of
Claims did not address the substantial issues of contract formation, scope and breach, but
rather, granted summary judgment solely on the alternative ground of damages, it [was]
appropriate that [the appellate court] decline to address those issues further in the first
instance and, instead, remand this matter for the Court of Claims to initially consider and
decide them"); Armbruster v. CGU Ins., 6th Dist. No. S-02-024, 2003-Ohio-3683, ¶ 28
(noting that, although the appellee argued "it was entitled to summary judgment on either
or both of the other two issues * * * raised in its motion for summary judgment," because
these issues "were deemed moot and not considered by the trial court" the appellate court
"decline[d] to consider them for the first time on appeal"); Stratford Chase Apts. v.
Columbus, 137 Ohio App.3d 29, 33 (10th Dist.2000), quoting Murphy v. Reynoldsburg, 65
Ohio St.3d 356, 360 (1992) (noting that "[e]ven though a reviewing court considers a
summary judgment motion de novo, Civ.R. 56(C) 'mandates that the trial court make the
initial determination whether to award summary judgment; the trial court's function
cannot be replaced by an "independent" review of an appellate court' "); Conny Farms, Ltd.
v. Ball Resources, Inc., 7th Dist. No. 09 CO 36, 2011-Ohio-5472, ¶ 15, citing Mills-Jennings,
Inc. v. Dept. of Liquor Control, 70 Ohio St.2d 95, 99 (1982); Cincinnati v. Fourth Natl.
Realty, LLC, 1st Dist. No. C-180156, 2019-Ohio-1868, ¶ 64.
       {¶ 53} Accordingly, because the trial court did not address appellees' arguments for
easements by either prescription or estoppel, we decline to address these arguments in the
first instance on appeal. Instead, we remand the matter to the trial court for it to initially
consider and decide appellees' contentions regarding prescription and estoppel. As such,
we decline to address 10 W Broad's conditional cross-assignment of error.
Nos. 18AP-998 and 18AP-999                                                               17

       {¶ 54} Having sustained Tower 10's first and second assignments of error, and
having declined to address 10 W Broad's conditional assignment of error on cross-appeal,
we reverse the judgment of the Franklin County Court of Common Pleas and remand the
matter to that court for further proceedings in accordance with law and consistent with this
decision.
                                                                   Judgment reversed and
                                                                        cause remanded.

                         SADLER, P.J., and DORRIAN J., concur.

                                 _________________
