[Cite as Bremke v. Sherck, 2013-Ohio-5361.]


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

KARL E. SHERCK, et al.                               C.A. No.     12CA010303

        Appellees

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JOHN R. BREMKE, et al.                               COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellants                                   CASE No.   10CV169023

                                DECISION AND JOURNAL ENTRY

Dated: December 9, 2013



        MOORE, Presiding Judge.

        {¶1}    Defendants-Appellants, John R. Bremke, et al., appeal from the October 25, 2012

judgment entry of the Lorain County Court of Common Pleas. We reverse.

                                                I.

        {¶2}    This matter arises from a dispute involving a vacated section of Fairlain Drive1

owned by John and Kimberly Bremke (“the Bremkes”). In Sherck v. Bremke, 9th Dist. Lorain

No. 11CA010078, 2012-Ohio-3527, ¶ 1, (“Bremke I”) this Court set forth the history of the case:

        For a number of years, Karl and Connie Sherck [the Shercks] accessed property
        that they owned by passing through land owned by [the Bremkes]. When [the
        Shercks] began increasing the frequency with which they used the route, however,
        the Bremkes erected a fence to keep them off [their] property. The Shercks sued
        the Bremkes seeking a declaration that they have an easement to pass over the
        Bremkes’ property. The Bremkes counterclaimed, requesting that the trial court
        enjoin the Shercks from entering their land. Following discovery, the Shercks
        moved for summary judgment and the Bremkes moved for partial summary
        judgment. The [trial] court granted judgment to the Shercks, concluding that,

        1
         Throughout the record, Fairlain Drive is spelled both “Fairlain Drive” and “Fairlane
Drive.” We have used the same spelling as the trial court, “Fairlain Drive,” in our discussion.
                                                    2


           under [R.C. 723.08], they have an easement over the part of the Bremkes’
           property that at one time had been dedicated to public use. The Bremkes []
           appealed, arguing that the court incorrectly granted the Shercks’ motion for
           summary judgment and incorrectly denied the Bremkes’ motion for partial
           summary judgment.

           {¶3}   In Bremke I at ¶ 22, we vacated the trial court’s decision and remanded it for

further review. In doing so, we instructed the trial court to determine if a genuine issue of

material fact existed as to whether “it was reasonably necessary for the Shercks to use the lot at

the corner of Butternut and Fairlain to access their Fairlain Drive lots at the time that the City

vacated Fairlain Drive.” (Emphasis added.) See also Lord v. Wilson, 9th Dist. No. 1354, 1985

WL 10675 (Apr. 10, 1985). On remand, the trial court again granted the Shercks’ motion for

summary judgment, and denied the Bremkes’ cross-motion for partial summary judgment,

stating:

           The issue before this [c]ourt is whether it was reasonably necessary for the
           [Shercks] to access their Fairlain Drive lots via the property now owned by [the
           Bremkes] at the time the City of Amherst vacated Fairlain Drive on November 8,
           1982. [] [Mr. Sherck] testified at his deposition that from the day he and his wife
           purchased the property they have made improvements to it. [] In the summer of
           1981, [the Shercks], with the help of a friend, used a tractor to grade the Fairlain
           Drive lots. [] The friend drove the tractor through the property now owned by [the
           Bremkes] to gain access to the lots. [] The friend used the same route when he
           was finished grading the property. [] The following year, 1982, [the Shercks]
           roto-tilled a portion of the property, planted a garden, brought in mulch, and
           planted trees on the Fairlain lots. [The Shercks] again used the property now
           owned by [the Bremkes] to gain access to the lots. [] On November 8, 1982, the
           City of Amherst vacated Fairlain Drive.

           ***

           Mr. Sherck’s affidavit and deposition testimony establish the expense,
           inconvenience, and impracticability of the Shercks utilizing another path to access
           their lots at the time Fairlain Drive was vacated by the City of Amherst. This
           [c]ourt finds that [the Shercks] have shown continued access through the vacated
           Fairlain Drive to their two lots abutting the vacated street was reasonably
           necessary at the time Fairlain Drive was vacated in November 1982.
                                                  3


       {¶4}    The Bremkes appealed, raising two assignments of error for our consideration. In

order to facilitate our discussion, we will address their assignments of error together.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT GRANTED [THE SHERCKS’]
       MOTION FOR SUMMARY JUDGMENT AND DENIED [THE BREMKES’]
       CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT, BECAUSE AT
       THE TIME [FAIRLAIN] DRIVE WAS VACATED, THE SHERCKS’ USE OF
       THE BREMKE PROPERTY TO ACCESS THE SHERCKS’ PROPERTY WAS
       NOT REASONABLY NECESSARY FOR PURPOSES OF [R.C. 723.08].

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT GRANTED [THE SHERCKS’]
       MOTION FOR SUMMARY JUDGMENT AND DENIED [THE BREMKES’]
       CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT, AS GENUINE
       ISSUES OF MATERIAL FACT REMAIN FOR DETERMINATION BY A
       JURY REGARDING WHETHER IT WAS “EXPENSIVE, INCONVENIENT
       AND IMPRACTICABLE” FOR THE SHERCKS TO USE AN ALTERNATIVE
       MEANS TO ACCESS [THEIR] PROPERTY FOR PURPOSES OF [R.C.
       723.08].

       {¶5}    An appellate court reviews an award of summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). It applies the same standard as the trial court,

viewing the facts of the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7,

12 (6th Dist.1983). Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party 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
       such evidence most strongly in the favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The moving party bears the initial

burden of informing the trial court of the basis for the motion and pointing to parts of the record

that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280,
                                                4


292-93 (1996). Specifically, the moving party must support its motion by pointing to some

evidence in the record indicated in Civ.R. 56(C). Id. Once this burden is satisfied, the non-

moving party bears the burden of offering specific facts to show a genuine issue for trial. Id. at

293; Civ.R. 56(E).

       {¶6}    R.C. 723.08 states that:

       The order of a legislative authority of a municipal corporation vacating or
       narrowing a street or alley which has been dedicated to public use by the
       proprietor thereof, shall, to the extent to which it is vacated or narrowed, operate
       as a revocation of the acceptance thereof by the legislative authority, but the right
       of way and easement therein of any lot owner shall not be impaired by such order.

In Butzer v. Johns, 67 Ohio App.2d 41, 42-43 (9th Dist.1979), this Court explained that:

       When a street is vacated and the land reverts to the abutting lot owners, certain
       rights to an easement may inhere in property owners whose land abuts the vacated
       area, if access to their own property is affected by the vacation. In order for an
       easement to arise, there must be either a direct physical connection between the
       obstructed property and the complainant’s land, or, the part vacated must have
       furnished the only access to the complainant's property. The applicable test for
       determining whether an easement exists depends into which category the
       complainant falls.

       Where, as here, the complainants’ land abuts the vacated property, a reasonable
       need standard, not one of absolute necessity, dictates whether the complainants
       merit an easement. In that case the denial of an easement to the complainant
       would have relegated him to using a path that was expensive, inconvenient and
       impracticable. Instead, the court granted him the easement over the vacated road.
       It is enough that no other road is reasonably suitable to meet [his] necessities.

(Citations and quotations omitted.) In the present matter, because the Shercks’ land abuts the

vacated Bremke property, we use the Butzer reasonable need standard. Further, in Lord, 1985

WL 10675, at *2, we clarified that “[t]he issue thus becomes whether continued access through

the vacated street was reasonably necessary for [the Shercks] at the time [Fairlain Drive] was

vacated. (Emphasis added.)
                                                 5


       {¶7}    Here, in support of their motion for summary judgment, the Shercks submitted

Mr. Sherck’s affidavit, as well as his supplemental affidavit.       In his affidavit, Mr. Sherck

averred, among other things, that:

       [1] In order to access our [t]wo [l]ots with any type of motor vehicle, it is
       necessary for me to use the easement on vacated Fairlane Drive. I have used the
       vacated portion of [Fairlain] Drive, together with my wife, [Mrs. Sherck], and our
       invitees, to access our [t]wo [l]ots for the purpose of bringing in building
       materials and gardening materials, driving and storing vehicles, and providing
       access to trucks for various purposes since [Fairlain] Drive was vacated in 1982.

       [2] Access to the [t]wo [l]ots for the above-described purposes and all other
       purposes is not possible through our Principal Residence Parcel fronting on Park
       Avenue because of the extremely narrow space between our residence and our
       residence parcel lines. On the easterly side of our Principal Residence Parcel, the
       space between the exterior wall of our house and an open drainage watercourse
       (which includes flowing water and cannot be obstructed) is only 63 inches and is
       not of sufficient width to drive either an automobile or a truck for access to our
       [t]wo [l]ots. On the west side of our Principal Residence Parcel, the space
       between the exterior wall of our house and the parcel boundary line is
       approximately 82 inches, and is not sufficient to drive an automobile or a truck
       for access to our [t]wo [l]ots. Additionally, access to the [t]wo [l]ots on either the
       westerly boundary or the easterly boundary would involve the construction of a
       driveway at considerable expense, not only for the driveway but for the
       preparation to install the driveway. On the westerly boundary of our Principal
       Residence Parcel, preparation to install a driveway would include the removal of
       several mature trees. In order to install a driveway in the 63 inches existing on
       the easterly boundary, construction of some type of structure to allow the drainage
       watercourse currently there to exist and continue to provide drainage would have
       to occur. The construction of a driveway, even if there were sufficient space on
       either side of our Principal Residence Parcel for a driveway, would involve
       considerable expense and is inconvenient and impracticable. Any other
       alternative would involve removal of parts of our residence which would also be
       expensive, inconvenient and impracticable.

        [3] The construction of a driveway across our Principal Residence parcel would
       impair the value of our Principal Residence Parcel.

(Emphasis added.) Further, in his supplemental affidavit, Mr. Sherck also averred that the

existence and location of the exterior wall of their residence, open drainage watercourse, and

property boundary lines have not changed or been altered since the time that Fairlain Drive was

first vacated in 1982.
                                                6


       {¶8}    In his deposition, Mr. Sherck testified that he and his wife purchased the two lots

in 1981, and that they made improvements “from day one.” Further, Mr. Sherck testified that, in

1981, his friend drove a tractor to the two lots, by way of Fairlain Drive, in order to plow the

properties. Mr. Sherck also testified that, in 1982, the two lots were again accessed by way of

Fairlain Drive in order to roto-till the land for a garden, bring in mulch, and plant some trees.

However, Mr. Sherck’s deposition contains no other testimony regarding a need to access the

lots by way of Fairlain Drive prior to when the road was vacated in 1982.

       {¶9}    In viewing the evidence in a light most favorable to the Bremkes, we conclude

that genuine issues of material fact exist as to whether continued access through the Bremkes’

property was reasonably necessary to the Shercks at the time Fairlain Drive was vacated in 1982,

and whether an alternative means of access would be expensive, inconvenient, and

impracticable. See Lord, 1985 WL 10675, at *2.

       {¶10} The record reflects that the Shercks accessed their lots by way of Fairlain Drive in

1981, and in 1982. In 1981, the Shercks’ friend drove his tractor over to the lots, and back, in

order to plow the land. In 1982, the Sherks roto-tilled the land, planted a garden, brought in

mulch, and planted some trees. However, there is no testimony regarding whether these events

took place in one day, or over a series of several days/months. As such, a question of fact arises

regarding whether, at the time of vacation in 1982, it was reasonably necessary for the Shercks to

use Fairlain Drive in order to continually access their lots. The record is unclear as to the

frequency with which the Shercks actually utilized the Bremke property for ingress/egress to

their two lots between 1981 and 1982. Additionally, Mr. Sherck’s affidavit, and supplemental

affidavit, refers to use of the Bremkes’ property since Fairlain Drive was vacated, instead of at

the time it was vacated in 1982. Finally, although the Shercks allege that alternative means of
                                                7


access to their lots would be “expensive, inconvenient and impracticable,” the record contains no

evidence to support this contention, other than Mr. Sherck’s speculation on the issue. When

asked in his deposition whether he explored the cost or feasibility of other options for accessing

his two lots, Mr. Sherck indicated that he had not explored other options because “[t]here’s no

need to.” Further, the record contains evidence that the Shercks’ neighbor, Mr. Geduldig,

offered access to the lots through his property after learning about the lawsuit. However, the

record does not indicate whether access through Mr. Geduldig’s property was available at the

time Fairlain Drive was vacated in 1982.

       {¶11} Based upon the foregoing, we conclude that the trial court erred in granting the

Shercks’ motion for summary judgment.

       {¶12} Additionally, the Bremkes assert that the trial court erred in denying their cross-

motion for partial summary judgment. We note that, although it is styled as a cross-motion for

partial summary judgment, the Bremkes’ “motion” is actually just an extension of their

memorandum in opposition to summary judgment because it alleges that genuine issues of

material fact exist as to the alternative arguments that (1) the Shercks waived their right to an

easement, and (2) the Shercks’ claims are barred by the doctrine of laches. Because the Bremkes

do not argue these issues on appeal, and because this Court has already concluded that the trial

court erred in granting the Shercks’ motion for summary judgment, we decline to further address

this matter.

       {¶13} Accordingly, the Bremkes’ first and second assignments of error are sustained

only as to the trial court’s error in granting the Shercks’ motion for summary judgment.
                                                 8


                                                III.

       {¶14} In sustaining, in part, the Bremkes’ first and second assignments of error, the

judgment of the Lorain County Court of Common Pleas is reversed, and this cause remanded for

further proceedings consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

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

Pleas, County of Lorain, 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 Appellees.




                                                       CARLA MOORE
                                                       FOR THE COURT



HENSAL, J.
CONCURS.
                                                9


CARR, J.
DISSENTING.

       {¶15} I respectfully dissent. Mr. Sherck averred that in order to access their lots with

any type of motor vehicle, “it has been necessary [] to use the easement on vacated Fairlane

Drive[.]” Mr. Sherck further averred that he and his wife, along with other invitees, used the

vacated portion of Fairlane Drive for vehicle access to their two lots “for the purpose of bringing

in building materials and gardening materials, driving and storing vehicles, and providing access

to trucks for various purposes[.]” Mr. Sherck specifically averred that they had engaged in this

practice “since Fairlane Drive was vacated in 1982.” (Emphasis added.) I read Mr. Sherck’s

affidavit as an unequivocal statement that he and his wife have continued to use the easement

since the day of the vacation of Fairlane Drive in 1982. Thus, I would affirm the trial court’s

summary judgment order.


APPEARANCES:

JEFFREY H. WEIR, II and JOSHUA E. LAMB, Attorneys at Law, for Appellants.

HOWARD T. LANE and JAMES R. WHITE, Attorneys at Law, for Appellees.
