Szuber C, Ltd. v. Petrash

1

2022-Ohio-2694

SZUBER C, LTD., Plaintiff - Appellee v. SALVATORE PETRASH, et al., Defendants - Appellants

No. 21CA0000027

Court of Appeals of Ohio, Fifth District, Guernsey

August 3, 2022

Appeal from the Guernsey County Court of Common Pleas, Case No 19CV000689

For Plaintiff-Appellee

CODY SMITH

SEAN JACOBS

Emens Wolper Jacobs & Jasin Law Firm Co., LPA

And

TODD M KILDOW

Emens Wolper Jacobs & Jasin Law Firm Co., LPA

For Defendants-Appellants

DOUGLAS K. PAUL

NICHOLAS R. BROWN

Reitz Paul & Shorr

Judges: Hon. Earle E. Wise, P.J. Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

{¶1} Appellants, Salvatore Petrash, Sandra Petrash, Louis Neptune, William Neptune, and Lillian Neptune^[1], appeal the decision of the Guernsey County Court of Common Pleas granting summary judgment and finding that Appellee, Szuber C LTD, established an easement across their property and that Appellee was entitled to injunctive relief preventing Appellants from obstructing that easement.

STATEMENT OF THE CASE AND THE FACTS

{¶2} The history of the ownership of the Petrash/Neptune begins in the record, with ownership by the George S. Wallo, Jr. and Mary Z. Wallo in 1952. (Kapolka Affidavit, ¶ 3). For reasons not disclosed in the record, the property was sold to Lewis and Sophia Kapolka at a sheriffs sale in 1953. (Plaintiffs Motion for Summary Judgment, Exhibit D, Kapolka Affidavit, ¶ 5). The access road that is alleged to be an easement allowing access to the Szuber C property across the Petrash/Neptune property was present when the Kapolka's purchased the property and had been used for access to the Szuber C property prior to Kapolka's purchase. The road was neglected and did not appear to have been graveled. (Kapolka Affidavit, ¶ 6).

{¶3} When the Kapolkas purchased the Petrash/Neptune property, the Szuber C property was owned by Steve Modock, who resided in a home on the property and whose only means of access to the property was across the alleged easement. Mr. Modock spread gravel on the alleged easement in 1954 to improve the access to his home on the Szuber C parcel. The owners of the Petrash/Neptune parcel helped him spread the gravel. (Kapolka Affidavit, ¶ 9)

{¶4} Henry Szuber purchased the Szuber C parcel in the 1960s and became a close friend of Lewis Kapolka, one of the owners of the Petrash/Neptune parcel and his son, Louis Kapolka. Szuber and the Kapolkas assisted each other with projects as they were able and the Kapolkas told Szuber that he was permitted to use the easement. That permission was intended to be perpetual and was granted by the Kapolkas in recognition of the fact that the Szuber C property was inaccessible except via the alleged easement. (Kapolka Affidavit, ¶¶ 10-11).

{¶5} In 1974 Robert Sherby helped Henry Szuber harvest corn planted on the Szuber C property by Henry Szuber, and, from approximately 1975 to 1977, Sherby helped Szuber bale hay grown on the same parcel. During that time, Sherby and Szuber accessed the property by using the alleged easement. Sherby was also aware of Szuber's use of the property when he was not assisting him. He recalls Szuber moving the round bales of hay off the property one by one, transporting them to a nearby farm and comprising "hundreds" of trips each year. He recalled that the easement was well traveled and improved with "railroad cinders." (Plaintiffs Motion for Summary Judgment, Exhibit I, Sherby Affidavit, ¶¶ 3-8).

{¶6} Wayne Shriver began helping Henry Szuber bale hay on the Szuber C parcel in the 1980's. They used the alleged easement to gain access to the property. (Plaintiffs Motion for Summary Judgment, Exhibit O, Shriver Affidavit, ¶ 4). When the Petrash/Neptune Property was owned by Louis Kapolka, and Henry Szuber owned the Szuber C parcel, a gate was installed on the Petrash/Neptune Property at the edge of the access road where it meets State Route 313. (Shriver Affidavit, ¶ 6). Louis Kapolka, owner of the Petrash/Neptune property when the gate was installed, gave Wayne Shriver and Henry Szuber a key to the lock on the gate so they could continue to use the access road to farm on the Szuber C parcel. Henry Szuber replaced the lock on the gate with interlocking locks and gave Shriver a key so he could access the Szuber C parcel. (Shriver Affidavit, ¶ 8).

{¶7} Shriver baled hay on the Szuber C parcel annually, from 1980 to 2017 and twice per year if weather permitted. Each bale measured five feet by six feet and weighed approximately one ton. Shriver baled approximately 120 to 160 bales on the first cut and, if there was a second cut, 60 to 80 bales. (Shriver Affidavit, ¶ 10.12).

{¶8} Shriver removed the baled hay from the property and fed it to his livestock pursuant to a verbal agreement with the owners of the Szuber C parcel that extended back to the 1980's and continued up to 2017, when Salvatore Petrash warned Shriver not to use the access road. (Miley Deposition, p. 35, line 23 to p. 36, line 1; p. 64, lines 11-22; p. 68). Shriver also tended the property by application of fertilizer and/or lime. (Miley Deposition, p. 36, lines 2-9). The current members of Szuber C. LTD did not directly work on the property, but do consider the work that Shriver did to have been done at their direction.

{¶9} Oil and gas companies used the same access road to maintain wells. Shriver used the front end loader bucket on his tractor to smooth out rutting on the easement caused by the oil company using the road and, as necessary, cleared trees from the easement that came down during storms (Shriver Affidavit, ¶ 15).

{¶10} Mark Beros helped Henry Szuber bale hay on the Szuber C parcel starting before 1981. (Plaintiffs Motion for Summary Judgment, Exhibit N, Beros Affidavit, ¶ 6) When Beros helped Szuber, they used the alleged easement to access the property, but even when he was not working with Szuber he noticed that Szuber was so frequently accessing the property that it appeared that he was there on a daily basis. (Beros Affidavit, ¶¶ 6, 7) Beros also observed Shriver's use of the access a regular basis and noted that Shriver did so without any effort to conceal his use of the access and use of the Szuber C parcel for agricultural purposes. He concluded that the Shriver was present frequently enough to give the community at large notice that he was using the access road. (Beros Affidavit, ¶¶ 11 -14).

{¶11} Louis Kapolka was responsible for the handling the affairs of the Petrash/Neptune Property while he was an owner. (Petrash Deposition, p. 20, line 22 to p. 21, line 3). In April 1995, Louis Kapolka sent a letter to the Tiger Oil company complaining that they were damaging the Petrash/Neptune parcel. Kapolka arrived at this conclusion because it was his belief that no one other than Tiger Oil was using the roads. (Plaintiffs Motion for Summary Judgment, Exhibit Q). In August 1995, Louis Kapolka notified the Guernsey County Sheriff that no one was authorized to enter the property. (Plaintiffs Motion for Summary Judgment, Exhibit R).

{¶12} Sophia and Lewis Kapolka passed away and left the property to their children. Henry Szuber died in 1995 and, also in 1995, Louis Kapolka sold his one-third interest in the Petrash/Neptune Parcel to his niece and nephew, Sandra Petrash and Louis Neptune.

{¶13} Shriver continued to use the access road and bale hay on the Szuber C parcel until the Fall of 2017 when he was confronted on the access road by Appellant, Salvatore Petrash, and was told that he did not have permission to use it . Salvatore Petrash told Shriver that if he continued to trespass, he would call the county Sherriff. (Shriver Affidavit, ¶ 16).

{¶14} Appellee filed a complaint alleging that an implied easement was created by prescription or by estoppel and that Appellants had impermissibly blocked access to the access road, thereby preventing them from accessing their property. Appellee sought a declaratory judgment that the easement existed, that Appellants had trespassed, and an injunction against Appellants preventing them from blocking access to the easement.

{¶15} Appellants answered and filed a counterclaim, contending that no easement existed and that Appellee was trespassing on the property.

{¶16} Both parties requested compensatory damages and Appellee further sought punitive damages.

{¶17} After discovery was complete, both parties filed motions for summary judgment, memoranda contra and replies. The trial court considered the record and arguments and found that there was no genuine issue of material fact and that Appellee was entitled to judgment on the first three counts of its complaint, establishing an easement by estoppel and by prescription and an injunction prohibiting Appellants' interference with Appellee's use of the easement. Appellee's motion for summary judgment on the issue of trespass was denied. The trial court "denied" Appellants' counterclaim in its entirety.

{¶18} After the trial court modified its order by including a finding that its judgment was a final appealable order and that there was no just cause for delay, the matter was appealed and, pursuant to the same order further proceedings regarding the claim of trespass were stayed.

{¶19} Appellants submit five assignments of error:

{¶20} "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT FOR APPELLEE WITHOUT COMPETENT AND CREDIBLE EVIDENCE OFFERED BY APPELLEE TO SUPPORT ITS FINDINGS."

{¶21} "II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ORDERING APPELLANTS' COUNTERCLAIMS WERE "DENIED" IN THEIR ENTIRETY."

{¶22} "III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON ITS CLAIM FOR PRESCRIPTIVE EASEMENT."

{¶23} "IV. THE TRIAL COURT COMMITTED...