Miller v. Romanauski

[Cite as Miller v. Romanauski, 2014-Ohio-1517.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100120
MATTHEW D. MILLER, ET AL.
PLAINTIFFS-APPELLEES
vs.
CLARENCE D. ROMANAUSKI, ET AL.
DEFENDANTS
[APPEAL BY KAREN AND LOREN STRAKA
DEFENDANTS-APPELLANTS]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-04-549932
BEFORE: E.T. Gallagher, J., Boyle, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: April 10, 2014
ATTORNEY FOR APPELLANTS
For Loren Straka, et al.
Avery S. Friedman
Avery Friedman & Associates
701 The City Club Building
850 Euclid Avenue
Cleveland, Ohio 44114
For Clarence D. Romanauski
Clarence D. Romanauski, pro se
25937 John Road
Olmsted Township, Ohio 44138
FOR APPELLEES
For Christopher Foran
Michael J. Sikora, III
Macallister A. West
Sikora Law, L.L.C.
8532 Mentor Avenue
Mentor, Ohio 44060
For Justin Abramovich
Michael J. Sikora, III
Sikora Law, L.L.C.
8532 Mentor Avenue
Mentor, Ohio 44060
For Sandy A. Babak
Sandy A. Babak, pro se
25937 John Road
Olmsted Township, Ohio 44138
For John H. Barnhart
John H. Barnhart, pro se
11962 South Maxwell Hill Road
Littleton, Colorado 80127-9604
For Betty J. and Frank X. Bechtel
Betty J. Bechtel, pro se
Frank X. Bechtel, pro se
2325 Quail Hollow Lane
Sandusky, Ohio 44870-6082
For Gerald Dahlke
Gerald Dahlke, pro se
25894 Fernhall Road
Olmsted Township, Ohio 44138
For Charlotte Dailey
Charlotte Dailey, pro se
25755 John Road
Olmsted Township, Ohio 44138
For Rubin DeJesus
Rubin DeJesus, pro se
25915 John Road
Olmsted Township, Ohio 44138
For John G., Loy G., and Susan M. Gnandt
John G. Gnandt, pro se
Loy G. Gnandt, pro se
Susan M. Gnandt, pro se
25873 Fernhall Road
Olmsted Township, Ohio 44138
For John E. Kaufman
John E. Kaufman, pro se
25755 John Road
Olmsted Township, Ohio 44138
For Brigina Kizzen
Brigina Kizzen, pro se
25916 Fernhall Road
Olmsted Township, Ohio 44138
For Grant Lenart
Grant Lenart, pro se
25915 John Road
Olmsted Township, Ohio 44138
For Charles A. and Jacqueline Miller
Charles A. Miller, pro se
Jacqueline Miller, pro se
25889 Fernhall Road
Olmsted Township, Ohio 44138
For Matthew D. Miller
Jonathan D. Clark
Stumphauzer O’Toole McLaughlin McGlamery & Loughman Co., L.P.A.
5455 Detroit Road
Sheffield Village, Ohio 44054
For John Pedaci, III and Sandra R. Pedaci
John Pedaci, III, pro se
Sandra R. Pedaci, pro se
23073 Royalton Road
Columbia Station, Ohio 44028
For Henry and Hilda Ruhr
Henry Ruhr, pro se
Hilda Ruhr, pro se
25887 Fernhall Road
Olmsted Township, Ohio 44138
For Karen and Robert Schilling
Karen Schilling, pro se
Robert Schilling, pro se
25803 John Road
Olmsted Township, Ohio 44138
For Loretta Toth
Loretta Toth, pro se
25914 Fernhall Road
Olmsted Township, Ohio 44138
For Ronald Wallace
Ronald Wallace, pro se
9959 Riverhead Drive
San Diego, California 92129-3225
EILEEN T. GALLAGHER, J.:
{¶1} Defendants-appellants, Karen and Loren Straka (“the Strakas”), appeal a
declaratory judgment that declared the existence of an easement on their property. We
find no merit to the appeal and affirm.
{¶2} Plaintiffs, Matthew and Laura Miller (“the Millers”),1 filed this declaratory
judgment action against numerous defendants asserting claims to an easement for ingress
and egress to their property located at 25879 Fernhall Road in Olmsted Falls. The
Strakas live and have lived at 25827 John Road in Olmsted Falls since January 1, 1973.
This parcel is known as sublot 51 in the Hall Acres Inc. subdivision (“Hall Acres
subdivision”). Since March 18, 1991, the Strakas have also owned an adjoining parcel to
sublot 51, known as sublot 50. Both of the Strakas’ properties front John Road and abut
Fernhall Road. The rear and south portions of the Strakas’ lots contain a portion of land
known as Fernhall Road and constitute the land at issue in this case.
{¶3} In December 2003, the Millers became the owners of property located at
25879 Fernhall Road (“the Miller property”). This property is known as sublots 12 and
13 in the Hall Acres subdivision. Fernhall Road is an undedicated strip of gravel and
asphalt, that provides access to more than eight homes on Fernhall Road, including the
Miller property. John Road is a public, dedicated road by which the Strakas access their
properties.
{¶4} The Hall Acres subdivision was originally owned by John and Minnie Hall
(“the Halls”). The Halls executed a deed conveying 44.80 acres of real property located
Linda and Christopher Foran were substituted as plaintiffs during the trial court
1
proceedings and are the appellees in this appeal.
in Olmsted Township (“the Hall Acres property”) to Hall Acres Inc. by virtue of a
warranty deed, which was recorded on July 29, 1926, in Volume 3409, page 44 in the
Cuyahoga County Recorder’s Office. Hall Acres Inc. created a subdivision from the
Hall Acres property, which was surveyed and platted by the Henry G. Reitz Engineering
Company (“Reitz Engineering”) on or about May 25, 1927. The plat, which was not
recorded, proposed a number of sublots bisected by two 50-foot roads designated on the
plat as Thornbrook Boulevard and Fernhall Road. The platting shows that the only
means of access to lots 12 through 20 would be via Thornbrook Boulevard and Fernhall
Road. The legal description contained in the deed describes all of the land depicted on
the plat.
{¶5} In 1927, Hall Acres Inc. conveyed the Hall Acres property to H. Frederick
Smith by warranty deed (“Hall Acres deed”), which was duly recorded in the Cuyahoga
County Recorder’s Office on June 11, 1927. In the early 1930s, H. Frederick Smith
subdivided the Hall Acres property into a number of sublots bisected by a 50-foot road
shown on the plat as Thornbrook Boulevard and Fernhall Road. In each of the deeds he
executed conveying title to the properties (“the Smith deeds”), H. Frederick Smith
reserved 25 feet of real property for the construction of Fernhall Road and Thornbrook
Boulevard in accordance with the plat. The legal description of each of the Smith deeds
used the centerline of Fernhall Road, proposed, and Thornbrook Boulevard, proposed, as
boundaries for the lots and reserved 25 feet of real property for Fernhall Road and
Thornbrook Boulevard. Fernhall Road and Thornbrook Boulevard were thereafter
constructed out of gravel and asphalt on the reserved portion of each property.
{¶6} H. Frederick Smith conveyed sublot 51 to John Bitten in 1932 and conveyed
lot 50 to Archie Cameron in 1941. The legal descriptions of the properties in both deeds,
which were duly recorded, define the property boundaries as “subject to all legal
highways and 25 feet off the south side thereof for Fernhall Road, proposed.” The first
deed conveying the Millers’ lots includes this same language. Some of the deeds
executed in subsequent conveyances of various sublots omitted the “subject to * * * 25
feet off the south side thereof for Fernhall Road” language. Instead, these deeds refer to
the unrecorded survey of the plat prepared by Reitz Engineering in their legal property
descriptions. For example, the legal description in the deed for the conveyance of sublot
51 to the Strakas in 1973 describes the dimensions of the sublot and adds that the property
is “further known as Sub Lot 51, in the Hall Acres Inc., proposed, according to a survey,
dated May 25, 1927, made by the Henry G. Reitz, Engineering Company, be the same
more or less, but subject to all legal highways.”
{¶7} The Strakas have vehicular access to their properties from John Road, an
improved road that runs parallel to and north of Fernhall Road. It is undisputed that the
residents of Fernhall Road can only access their property from the undedicated Fernhall
Road. It is also undisputed that the Millers and other residents of Fernhall Road have
been openly using some portion of the land that is legally described as Fernhall Road,
proposed, since the original subdivided lots were conveyed. The Strakas dispute the
exact location of the continued access.
{¶8} The subdivision depicted in the original plat was never completed, and for
years Fernhall Road was a single-lane, one-way access road. In 2003 or 2004, the
Strakas objected to the widening of the existing Fernhall Road, which resulted from
dumping additional gravel on the road. The Strakas allegedly sought to stop the mail
from being delivered and the trash from being collected from houses on Fernhall Road.
Consequently, the Millers filed a complaint, which was subsequently amended, seeking a
declaration that properties located along Fernhall Road, including the Strakas, are subject
to a non-exclusive easement for ingress and egress.
{¶9} In their second amended complaint (“the complaint”), the Millers alleged they
have a right to access their property from Fernhall Road by virtue of an express easement
by reservation. They also alleged that the non-exclusive easement was an easement by
prescription, an easement by necessity, and a common law dedication of Fernhall Road
and Thornbrook Boulevard. In 2006, the court granted the Millers’ default judgments
against 22 property owners and stated in its journal entries that the court would determine
the legal description of the easement upon resolution of the remaining claims.
{¶10} In March 2008, the Millers filed a motion for summary judgment.
Meanwhile, defendants, William and Mary Smith (“the Smiths”), obtained relief from the
default judgment against them and filed an answer. In their answer, the Smiths asserted
a cross-claim, counterclaim, and third-party complaint, alleging that when H. Frederick
Smith subdivided the Halls Acres property in the 1930s, he reserved 25 feet of real
property for the construction of Fernhall Road and/or Thornbrook Boulevard in the titles
to each of the subdivided lots. The Smiths also sought a declaratory judgment that the
interests of the Strakas and the Millers in their properties are subject to a non-exclusive
easement of ingress and egress. The Smiths also filed a motion for summary judgment.
{¶11} The trial court granted the Millers and the Smiths’ motions for summary
judgment. In its journal entry, the court declared that an easement exists that allows
ingress and egress for the properties in the Hall Acres subdivision on two alternative
grounds: (1) express easement by reservation, and (2) implied easement by necessity.
Following an evidentiary hearing, the court determined the exact location and dimensions
of the easement and found that the easement is a total of 12 feet wide; six feet on either
side of the centerline. The court further ordered the Millers to “cause a legal description
of said easement to be prepared using all proper legal descriptions and recorded upon all
subject properties.”
{¶12} The Strakas filed a notice of appeal, which was dismissed for lack of a final
appealable order. While the case was on remand to the trial court, Christopher and Linda
Foran (“the Forans”) were substituted as plaintiffs in lieu of the Millers after they took
possession of the Millers’ property. On March 1, 2013, a plat identifying the precise
location of the easement was recorded with the Cuyahoga County recorder, and the plat
was assigned Instrument No. 201303010647 (“Easement plat”). The Easement plat and
legal description specifying the exact boundaries of the easement were attached to an
order filed by the trial court on July 21, 2013, which was also filed with the county
recorder. In the July 21, 2013 entry, the trial court issued its final entry concluding that
there were no further pending claims. The Strakas now appeal the summary judgment
and raise six assignments of error, which we discuss out of order for the sake of economy.
Standard of Review
{¶13} We review an appeal from summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The party moving for
summary judgment bears the burden of demonstrating the absence of a genuine issue of
material fact as to the essential element of the case with evidence of the type listed in
Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once
the moving party demonstrates entitlement to summary judgment, the burden shifts to the
nonmoving party to produce evidence related to any issue on which the party bears the
burden of production at trial. Civ.R. 56(E). Summary judgment is appropriate when,
after construing the evidence in a light most favorable to the party against whom the
motion is made, reasonable minds can only reach a conclusion that is adverse to the
nonmoving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696
N.E.2d 201 (1998).
Express Easement by Reservation
{¶14} In the second assignment of error, the Strakas argue the trial court erred in
declaring the existence of an express easement by reservation. They contend the trial
court erroneously applied implied easement by estoppel principles to find that an express
easement existed.
{¶15} An easement is an interest in the land of another, created by prescription or
express or implied grant, that entitles the owner of the easement to a limited use of
another’s land in which the interest exists. Alban v. R.K. Co., 15 Ohio St.2d 229, 231,
239 N.E.2d 22 (1968). Easements may be appurtenant to the land or “in gross.”
Gateway Park, L.L.C. v. Ferrous Realty Ltd., 8th Dist. Cuyahoga No. 91082,
2008-Ohio-6161, ¶ 28. An easement “in gross” has been defined as “an easement that is
not appurtenant to any estate in land or does not belong to any person by virtue of
ownership of estate in other land but is mere personal interest or right to use land of
another.” Mourray v. Evanoff, 6th Dist. Wood No. WD-96-042, 1997 Ohio App. LEXIS
2168 (May 23, 1997), quoting Black’s Law Dictionary 509 (6th Ed. Rev.1990).
{¶16} By contrast, an easement appurtenant to the land “always implies an interest
in the land, * * * and constitutes a part of the real property, over or in which it is to be
enjoyed.” Warren v. Brenner, 89 Ohio App. 188, 192, 195, 101 N.E.2d 157 (9th
Dist.1950). An easement appurtenant requires a dominant estate to which the benefit of
the easement attaches and a servient estate upon which the obligation or burden rests. Id.Thus, easements appurtenant “run with the land,” as opposed to easements in gross,
which convey to another a personal privilege to use the land but expires with the party to
whom the privilege belongs. Gateway Park at ¶ 28, citing Warren v. Brenner at 195.
Once an easement appurtenant is established, it attaches to the dominant estate and passes
with every conveyance of that estate, even without mention of the easement in the
conveyance. Merrill Lynch Mtge. Lending Inc. v. Wheeling & Lake Erie Ry. Co., 9th
Dist. Summit No. 24943, 2010-Ohio-1827, ¶ 30, citing Shields v. Titus, 46 Ohio St. 528,
22 N.E. 717 (1889).
{¶17} An easement may be created by any one of four methods (1) by grant; (2)
implication; (3) prescription; or (4) estoppel. Gateway Park at ¶ 29. In this case, the
court determined that the easement was expressly created by grant in the “root deeds”
conveying title to the first owners of subdivided property in the Hall Acres subdivision.
The Strakas contend the “subject to” language contained in the root titles is a term of
qualification rather than of contract and does not sufficiently establish the grantor’s intent
to convey an easement. We disagree.
{¶18} In support of their argument, the Strakas cite Clark v. Butler, 4th Dist. Ross
No. 12CA3315, 2012-Ohio-5618, for the proposition that the “subject to” in the root
deeds is ambiguous. The legal description in the deed at issue in Clark stated: “The
4.890-acre tract conveyed herein is subject to an easement for the installation and
maintenance of a leach/sewage discharge pipeline granted herein from the adjacent 1.577
acre tract of land.” The Clark court found that although this language is a little
confusing, it did not rise to the level of ambiguity because the description expressly states
that the easement is granted “from” the 1.577 acre parcel.
{¶19} The Strakas argue Clark is distinguishable from the instant case because
unlike the language in the root deeds, the language in the Clark deeds identified the
easement as coming “from” the 1.577 acre parcel, the servient estate. However, the
Clark court also observed that Black’s Law Dictionary defines the term “subject to” as
“subordinate” and “subservient.” Id. at ¶ 9. It also adopted the trial court’s reasoning
that the word “‘subject’ connotes a servient estate.” Id. Therefore, Clark actually
stands for the proposition that the term “subject to” modifies the servient estate by virtue
of an easement.
{¶20} As previously stated, Hall Acres Inc. conveyed the Hall Acres property to H.
Frederick Smith when it executed the Hall Acres deed. H. Frederick Smith subdivided
the Hall Acres property into a number of sublots and conveyed titles to these sublots to
various grantees. The legal description in each of the Smith deeds used the centerline of
Fernhall Road, proposed, and Thornbrook Boulevard, proposed, as boundaries for the
sublots and reserved 25 feet of real property in each sublot for Fernhall Road and
Thornbrook Boulevard. Furthermore, the Smith deeds expressly define the property
boundaries as “subject to all legal highways and 25 feet off the south side thereof for
Fernhall Road, proposed.”
{¶21} Therefore, we agree with the trial court that the “root deeds” expressly
created the Fernhall Road easement, which is an appurtenant easement that “runs with the
land,” even though it was expressly not stated in the Strakas’ deeds. See Merrill Lynch
Mtge. Lending Inc. v. Wheeling & Lake Erie Ry. Co., 9th Dist. Summit No. 24943,
2010-Ohio-1827, ¶ 30, citing Shields v. Titus, 46 Ohio St. 528, 22 N.E. 717 (1889).
Accordingly, we overrule the second assignment of error.
Notice and Lack of Dedication
{¶22} In the third assignment of error, the Strakas argue the trial court erred in
declaring the existence of an express easement by reservation across their land because
the Strakas’ deed does not create an express easement by reservation. They contend that
the easement was never created by the root deeds because Fernhall Road was never
dedicated. They also contend that because they had no notice of the easement on their
property, the easement is unenforceable.
{¶23} The Strakas underscore the word “proposed” in the root deeds where they
state that the conveyances are “subject to” 25 feet “off the southerly side of Fernhall
Road, Proposed.” (Emphasis added.) They contend this language contemplates a
25-foot reservation off the south side of their property “in the event that Fernhall Road
becomes a dedicated road.” And since Fernhall Road has never become a dedicated
road, they contend the easement was never created.
{¶24} The Seventh District Court of Appeals addressed this same argument in
Burlenski v. Cheslock, 7th Dist. Belmont No. 1293, 1979 Ohio App. LEXIS 11929 (Aug.
21, 1979). In that case, the trial court granted plaintiffs a permanent injunction against
defendants enjoining them from building a fence to close off a private driveway that
provided the sole means of ingress and egress to and from the plaintiff’s premises. The
defendants argued they only gave plaintiffs permission to use the driveway temporarily
while they were building their home and that because the driveway was not necessary for
ingress and egress, there was no easement by necessity. In affirming the trial court’s
judgment, the Burlenski court determined that the easement arose from the express
language of the deed. In reaching this conclusion, the court explained:
[T]he deed expressly states that the north boundary of plaintiffs’ property is
the south line of a proposed 40 foot street. The evidence in this case * * *
established that the proposed 40-foot street was on a proposed plat prepared
by defendants but which was never recorded and that plaintiffs built their
house on the basis of their reliance on access to the existing driveway of
defendants that abuts their property at the location of the proposed 40 foot
street.
Thus, the fact that the easement existed in place of a proposed street rather than a
dedicated road had no bearing on the validity of the easement.
{¶25} In Burlenski, the easement was obviously intended to provide a means of
ingress and egress to homes built along the proposed 40-foot street of the proposed plat.
Indeed, no particular words are necessary to grant an easement if the manifest intention of
the grantor was to grant an easement. Lake White Community Assn. v. Armour, 4th Dist.
Pike No. 394, 1987 Ohio App. LEXIS 10065 (Dec. 15, 1987), citing Mansfield v.
Richardson, 4 Ohio L. Abs. 319 (9th Dist.1926). Ohio courts have uniformly held that
“an implied easement for the purposes of a road can be established by virtue of the
original lots in a subdivision having been purchased with reference to a plat showing said
road.” Manifold v. Gaydos, 6th Dist. Ottawa No. OT-06-021, 2007-Ohio-566, ¶ 19,
citing Clagg v. Baycliffs Corp., 6th Dist. Ottawa No. OT-96-023, 1997 Ohio App. LEXIS
752 (Mar. 7, 1997), aff’d, Clagg v. Baycliffs, 82 Ohio St.3d 277, 1998-Ohio-414, 695
N.E.2d 728. See also Burlenski; Krzewinski v. Eaton Homes, Inc., 108 Ohio App. 175,
161 N.E.2d 88 (9th Dist.1958); Finlaw v. Hunter, 87 Ohio App. 543, 96 N.E.2d 319 (1st
Dist.1949). Therefore, we find no merit to the Strakas’ argument that the easement was
never created because Fernhall Road was never dedicated.
{¶26} The Strakas also contend that although the easement was mentioned in the
root deeds, they did not have actual notice of the easement because the “25-feet”
language was not contained in their own deeds.
{¶27} Pursuant to R.C. 5301.25(A), a bona fide purchaser for value is bound by an
encumbrance upon land only if he has constructive or actual knowledge of the
encumbrance. Tiller v. Hinton, 19 Ohio St.3d 66, 482 N.E.2d 946 (1985), syllabus.
However, a purchaser may be charged with constructive notice if the encumbrance was
recited in any deed in the chain of title to the property. Emrick v. Multicon Builders,
Inc., 57 Ohio St.3d 107, 109, 566 N.E.2d 1189 (Jan. 30, 1991), citing Tiller. See also
Thames v. Asia’s Janitorial Serv., 81 Ohio App.3d 579, 611 N.E.2d 948 (6th Dist.1992);
Morris v. Daniels, 35 Ohio St. 406, 416 (1880); Blake v. Graham, 6 Ohio St. 580,
583-584 (1856).
{¶28} The Strakas concede in their brief that they “do not dispute that the language
making their property ‘subject to twenty-five (25) feet off the southern side of Fernhall
Road, Proposed’ is contained in the root deeds to lots 50 and 51, and, therefore, is within
their chain of title.” Moreover, their deed to sublot 51 identifies their property as “Sub
Lot 51, in Hall Acres Inc., proposed, according to a survey, dated May 25, 1927, made by
the Henry G. Reitz Engineering Company.” Identical language exists in their deed to
sublot 50 thereby giving notice of a possible encumbrance identified in the plat or chain
of title. Thus, not only was the easement expressly provided for in the root deeds to
sublots 50 and 51, but the Strakas’ own deeds make reference to the original proposed
plat for a complete description of the properties. Therefore, the Strakas had constructive
notice of the express easement provided in the root deeds in the chain of title to their
properties and are bound by them.
{¶29} Accordingly, we overrule the third assignment of error.
Express or Implied Easement
{¶30} In the first assignment of error, the Strakas argue the trial court erred by
simultaneously declaring both an express easement by reservation and an implied
easement by necessity. They contend that Ohio law does not permit an easement to be
simultaneously characterized as both an express easement by reservation and an implied
easement by necessity.
{¶31} In Tiller v. Hinton, the Ohio Supreme Court expressly held that “because
easements of necessity are implied by law to provide a right of way over land which could
have been effectuated by express grant but was not, one may not simultaneously have an
easement over another’s land both by express grant and an easement implied of
necessity.” Id. at 69. Further, “[e]asements implied of necessity are not favored
because, like implied easements generally, they are ‘in derogation of the rule that written
instruments shall speak for themselves.’” Id., quoting Ciski v. Wentworth, 122 Ohio St.
487, 172 N.E. 276 (1930), paragraph one of the syllabus.
{¶32} Evidence in the record establishes the existence of an express easement that
was created by the root deeds to the Strakas’ properties, and since the Strakas had
constructive notice of the easement, the easement is binding on them. Therefore, the
circumstances do not support the court’s finding of an easement implied of necessity.
However, for the reasons that follow, we find this error harmless.
{¶33} The first assignment of error is overruled.
{¶34} Having determined that the Strakas are bound by an express easement for
purposes of ingress and egress and that an express easement cannot simultaneously exist
with an implied easement of necessity, the remaining three assigned errors, which relate
to the trial court’s finding of an implied easement of necessity, are moot.
{¶35} Finally, the Strakas suggest, without an expressly assigned error, that the
trial court erred in declaring the existence of the easement without identifying who will
bear the cost of maintenance of the easement and/or liability for injuries sustained on the
easement running through the Strakas’ land. However, no one raised these issues in the
trial. Issues that could have been raised and resolved in the trial court cannot be raised
for the first time on appeal. Thompson v. Preferred Risk Mut. Ins. Co., 32 Ohio St.3d
340, 342, 513 N.E.2d 733 (1987); Hous. Advocates, Inc. v. Am. Fire & Cas. Co., 8th Dist.
Cuyahoga Nos. 86444 and 87305, 2006-Ohio-4880, ¶ 33. Therefore, issues not raised in
the trial court are forfeited on appeal. State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, 873 N.E.2d 306, ¶ 21-23.
{¶36} Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the 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.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR