COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68294 ZEEV APEL, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION SHAI KATZ, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 10, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-174255 JUDGMENT : REVERSED DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLEES: FOR DEFENDANTS-APPELLANTS: J. Michael Goldberg, Esq. Michael J. Garvin, Esq. 75 Public Square Mary A. Cavanaugh, Esq. Suite 1020 Hahn Loeser & Parks Cleveland, Ohio 44113 3300 BP America Building 200 Public Square Cleveland, Ohio 44114-2301 -2- HARPER, J.: Plaintiffs-appellants Zeev Apel and Atara Apel ("the Apels") appeal from a decision of the Cuyahoga County Court of Common Pleas which granted partial summary judgment in favor of defendants- appellees Shai and Linda C. Katz ("the Katzes") and denied the Apel's motion for summary judgment. The dispute in the underlying litigation involves an eight-acre parcel of real estate owned by the Apels that includes a thirty-foot-wide roadway by express easement over the Katzes' property. The Katzes' property is located adjacent to and immediately north of the Apels' property in Orange Village, Ohio. The Apels submit that the trial court erred when it granted partial summary judgment in favor of the Katzes and denied their motion for summary judgment, because the grantor created an express easement which was conveyed to subsequent owners. Laura Goodman ("the grantor") owned a single large parcel of land. In 1976, she divided the land into two separate parcels, the two parcels constituting the dispute in this case. The grantor retained one parcel and transferred the other parcel to Angela and Marie Saporito by way of a deed ("the Goodman/Saporito deed") recorded on July 1, 1976. The Goodman/Saporito deed included in pertinent part: Grantor reserves for herself, her heirs and assigns, an easement to provide ingress and egress to and from the property owned by the grantor abutting the above- described premises on the South. Grantor shall be allowed to keep and maintain a roadway; -3- Further, grantor reserves for herself, heirs and assigns, the right to install upon the easement public utility lines and poles, or underground utilities, and sewer and water lines below ground; *** In 1979, the grantor conveyed the remaining eight-acre parcel of land to the Apels. The deed ("the Goodman/Apel deed") contained the following easement language: Together with an easement as described in Deed from Laura L. Goodman to Angela M. Saporito and Marie C. Saporito, recorded July 1, 1976 in Volume 14263, Page 493 of Cuyahoga County records, which easement provides ingress and egress to and from the above described property to Pike Drive, the right to keep and maintain a roadway, to install upon the easement Public utility lines and poles or underground utilities and sewer and water lines below ground ***. The Saporitos subsequently sold their parcel of real estate to the Katzes. A deed ("the Saporito/Katz deed") containing the following language, was recorded on December 12, 1988: [E]xcept taxes and assessments of the current half of the taxable year and thereafter, conditions and restrictions of record and any conditions, reservations or easements created therewith and local zoning regulations, if any ***. [A]nd the grantors [Saporitos] *** hereby covenant with the said Grantees [Katzes] *** that the said Grantors are the true and lawful owners of said premises and are well seized of same in fee simple have good right and full power to bargain sell and convey the same to the manner aforesaid and that the same after free and clear of all encumbrances, EXCEPT *** conditions and restrictions of record and any conditions, reservations or easement created therewith *** (Emphasis in the original). Subsequent to the Katzes' purchase of real estate from Maria Saporito, the Katzes decided to build on the property. A conflict ensued between the Apels and the Katzes as to their respective rights and burdens created by the express easement. -4- The Apels filed a verified complaint for declaratory judgment, injunction and damages pursuant to R.C. 2721.01 et seq. The Apels sought a declaration from the trial court that they, as the purchasers of the real estate, were conveyed an easement which included: (1) the right to ingress and egress the property by the Apels, their family, guests, employees, tradesmen and other persons with whom they do business and all persons whose use of the easement is reasonably necessary to the Apels' full enjoyment of the Easement; (2) the right to keep and maintain a roadway over the Easement; and (3) the right to install upon or under the Easement public utility lines and poles, or underground utilities and sewer and water lines. The Katzes answered the complaint, wherein they denied that the Apels' property included an easement over their property. The Katzes charged that the language contained in the Goodman/Saporito deed which referencing the right to keep and maintain the roadway, created only a license personal to the grantor and it did not run with the land and thus was not part of the easement reserved to the property. The Katzes also disputed the Apels' use of the easement. They counterclaimed against the Apels, alleging causes of action based on waste, conversion, trespass and intentional interference with their property and contract rights. The Katzes requested both compensatory and punitive damages. The Katzes filed a motion for partial summary judgment. The Apels opposed the motion on the ground that the right to keep and maintain a roadway was more descriptive of the easement of ingress -5- and egress, and, as such, runs with the land as part of the easement. The trial court granted the Katzes' motion for summary judgment and in a journal entry dated June 11, 1991, entered the following judgment: Motion of Defendants, Shai Katz,et al., for partial Summary Judgment in GRANTED. Motion of Plaintiffs, Zeev Apel, et al., for Summary Judgment is DENIED as there are no genuine issues of fact regarding interference with the easement. The case was set for trial and prior to the trial date, the Apels' counsel moved for a continuance. Less than one week before the trial date, the trial judge had not ruled on the Apels' motion for continuance. The Katzes' counsel called to inquire about the status of the motion, he was informed by the trial judge's law clerk that he should be prepared to go forward with the trial on the following Monday. On the day scheduled for trial, the Katzes' counsel was present in court and was prepared to go forward. The trial court's bailiff spoke with the Apels' counsel by telephone, and informed the Apels' counsel that the trial court would not be available to try the case and that a visiting judge would be assigned to try the case. The bailiff informed the Apels' counsel that no visiting judge was available at that time, but that he would be contacted when a visiting judge did become available. A visiting judge did become available that day. However, the Apels' counsel was not contacted. Moreover, the Katzes' counsel -6- represented to the visiting judge that the Apels' counsel had refused to appear at court for the trial date. As a result, an ex parte trial was conducted, and the visiting judge heard evidence on the Katzes' counterclaims. A judgment entry was journalized awarding the Katzes $12,530 in compensatory damages and $500 in punitive damages. Also, two nunc pro tunc journal entries were journalized assigning the case to the visiting judge for trial. Subsequently, the Apels filed an appeal to this court seeking relief from judgment due to lack of proper notice of the trial. Zeev Apel v. Shai Katz, et al. (Apr. 29, 1993), Cuyahoga App. No. 63084, unreported. ("Apel I"). This court in Apel I ruled that appellants were not afforded notice due to the ex parte hearing before the trial judge, and remanded the case for a new trial. Consequently, the trial court's ruling concerning the summary judgment was deemed an interlocutory, non-final appealable order. Id. On remand, the Katzes filed a motion for partial summary judgment which the Apels opposed. The trial court granted the Katzes' motion for partial summary judgment. The case went to trial before a jury, and at that time, the Katzes dismissed Mrs. Apel from their counterclaims and proceeded against Mr. Apel. At the close of the Katzes' case in chief, Mr. Apel moved the court for a directed verdict. The court denied Mr. Apel's motion, and the jury found in favor of the Katzes and -7- against Mr. Apel. The jury awarded compensatory damages of $500 and punitive damages and attorney fees of $14,298.78. Mr. Apel filed a notice of appeal. The Katzes filed a notice of cross appeal. However, the Katzes' cross-appellate brief is not part of the record before this court. I. Mr. Apel raises the following assignments of error for our review: I. THE TRIAL COURT ERRED IN SUSTAINING APPELLEES' MOTION FOR SUMMARY JUDGMENT WITHOUT RENDERING A DECLARATION PURSUANT TO OHIO REVISED CODE CHAPTER 2721. II. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN ZEEV APEL'S MOTION FOR DIRECTED VERDICT; AND, THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO INSTRUCT THE JURY PROPERLY ON THE ISSUE OF RESTORATION DAMAGES. IV. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO SUSTAIN ZEEV APEL'S MOTION TO DISMISS THE KATZES' PUNITIVE DAMAGES CLAIM. IV. THE TRIAL COURT ERRED AS A MATTER OF LAW IN PERMITTING THE JURY TO CONSIDER THE ISSUE OF PUNITIVE DAMAGES. II. The first assignment of error is dispositive to the remaining issues presented in this appeal. In the first assignment of error, Mr. Apel attacks the trial court's decision to grant the Katzes motion for partial summary judgment. He submits the trial court's ruling should be reversed because genuine issues of material fact remain pending for litigation relative to whether the grantor -8- conveyed to subsequent owners an express easement to maintain a roadway. We agree. Civ.R. 56 provides that summary judgment is proper if the trial court determines that: (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 the evidence most strongly in 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. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial when there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate when the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 15 Ohio St.3d 200. The granting of summary judgment is only appropriate if there is no genuine issue of material fact and reasonable minds can come to but one conclusion which is adverse to the nonmoving party. Toledo Great Eastern Shoppers City, Inc. v. Abdis Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198. The nonmoving party must produce evidence on any issue for which that party bears the production at trial. Wing v. Anchor Media Ltd. of Texas (1971), 59 Ohio St.3d 108, paragraph three of the syllabus. -9- In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50. Declaratory judgments are governed by R.C. 2721 et. seq. In pertinent part, R.C. 2721.03 provides: Any person interested under a deed *** may have determined any question of construction or validity arising under such instrument *** and obtain a declaration of rights, status, or other legal relations thereunder. *** An action for declaratory judgment which has as its principal purpose the interpretation of a written instrument, such as a deed, and a declaration of the rights of the parties, is equitable in nature. Skelton v. Skelton (1955), 163 Ohio St. 409. Equitable relief should not be granted unless a clear right to such relief has been demonstrated. Mock v. Boyle (1949), 53 O.L.Abs. 567. -10- "As a general rule, a court fails to fulfill its functions in a declaratory judgment action when it disposes of the issues by journalizing an entry merely sustaining or overruling a motion for judgment without setting forth any construction of the document of law under consideration." Wladeck v. North College Hill (1985), 24 Ohio App.3d 189, paragraph one of the syllabus; Szaller v. Roby (Oct. 22, 1987), Cuy. App. No. 53791, unreported. The law of easements follows the general contract rule of construction that the terms of the contract granting an easement will be construed most strongly against the drafter. Nobles v. Toledo Edison Co. (1940), 67 Ohio App. 414. For an easement to pass with the transfer of the property, some record of the easement must appear in the chain of title of the dominant parcel. Pierce v. Durst (1989), 62 Ohio App.3d 32. The cardinal rule in the construction of deeds is that the parties' intention at the time of the execution controls. Sword v. Sword (1993), 86 Ohio App.3d 161. We turn to Mr. Apel's contention that a genuine issue of material fact remains pending for litigation with respect to whether the grantor conveyed to subsequent owners an express easement to maintain a roadway. Mr. Apel relies on Deyling v. Flowers (1983), 10 Ohio App.3d 19, to support his contention that an "ingress/egress" easement was created by the grantor's deed language. In Deyling, this court addressed the scope of a general easement for an "ingress and egress" where the grantor intended the general grant to include the right to keep and maintain a roadway but the easement was silent with respect to a roadway. We find -11- that Deyling offers little insight/authority to the issue in the case herein, because the case sub judice involves an express easement with the special rights reserved to the grantor, and not to the grantor's heirs and assigns. The Katzes stress that it is accepted as a general principle of law, a reservation on behalf of the grantor will not be enlarged beyond the fair and natural import of the language used. Wolf v. Roberts (1945), 30 Ohio Op. 499. The rights of the grantees can rise no higher than the rights of their predecessors in title. Holly v. New York Central Rd Co., (1928), 35 Ohio App. 1. The Katzes submits that one sentence in the deed serves to contradict/undermine Mr. Apel's contention that the grantor's express easement was transferred to subsequent owners. According to the Katzes, the pivotal sentence to support their contention read, "Grantor shall be allowed to keep and maintain a roadway." This sentence indicates that the grantor intended to reserve a right personal to her, and not to subsequent owners nor to "heirs and assigns." The insertion of the "heirs and assigns" clause by the grantor, in sentences prior to and following the previously mentioned sentence indicates that grantor intended to reserve distinct and separate rights for herself with respect to easement benefits. The Katzes also cite Ewing v. Clanahan (1986), 33 Ohio App.3d 46, to buttress their argument. Upon our review of Ewing, we find Ewing to be distinguishable from the facts of this case primarily because Ewing addressed a deed executed in 1880 when the -12- Ohio statutes required the necessity for "heirs and assigns" clauses in real estate deeds. Moreover, R.C. 5301.02 does not require the "heirs and assigns" clauses in deeds. R.C. 5301.02 which pertains to the conveyance of real estate states: The use of terms of inheritance or succession are not necessary to create a fee simple estate, and every grant, conveyance, or mortgage of lands, tenements, or hereditament shall convey or mortgage the entire interest which the grantor could lawfully grant, convey, or mortgage, unless it clearly appears by the deed, mortgage, or instrument that the grantor intended to convey or mortgage a less estate. *** In applying the standard of review for an appeal from summary judgment, this court must look to the pertinent rule of law to determine whether issues of material fact remain pending for litigation. Upon this court's review of the facts, we believe a genuine issue of material fact remains pending for litigation relative to whether the grantor intended to reserve for herself an express easement with the right to maintain a roadway. In the case herein, the deed is ambiguous with respect to whether the grantor intended to convey an express easement to the subsequent owners of the real estate. The deed prescribed limitations specific to the grantor and not to the heirs and assigns. We note that even if the use of the "heirs and assigns" clause is no longer required pursuant to R.C. 5301.02, the grantor intended a different result because the "heirs and assigns" clause is inserted in parts of the deed and not in others. Given the foregoing, an issue of material fact remains pending for litigation with respect to the rights and -13- burdens of the Katzes and Apels relative to the express easement to keep and maintain a roadway. Temple. The trial court erred when it granted partial summary judgment in favor of the Katzes. Thus, Mr. Apel's contention is well taken. Accordingly, Mr. Apel's first assignment of error is sustained. Mr. Apel's second, third, fourth and fifth assignment of error will be addressed simultaneously, as they directly relate to the Katzes' counterclaim of trespass. The record before this court demonstrates that the Katzes' counterclaim of trespass was contingent upon their argument that the Apels trespassed upon the Katzes' property because an express easement was not conveyed to the Apels. Mr. Apel's second, third, fourth, and fifth assignments of error need not be addressed as a result of our disposition of Mr. Apel's first assignment of error, infra. Judgment reversed and cause remanded for proceedings to be consistent with this opinion. -14- It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, J., TIMOTHY McMONAGLE, J., CONCUR PRESIDING JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .