Ohio Appellate Reports
Unpublished
SMITH v. NEWELL, Unpublished Decision (1-11-2007)
2007-Ohio-72 Jude T. Smith, et al. Plaintiffs-appellees v.
Bonita Newell, et al. Defendants-appellants. No. 87697.
Court of Appeals of Ohio, Eighth District, Cuyahoga County.
January 11, 2007.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Civil Appeal from the Cuyahoga County Court
of Common Pleas, Case No. CV-528289.
AFFIRMED AND REMANDED.
Michael J. Sikora, ATTORNEYS FOR APPELLANT.
Andrew P. George Steven E. Elder Steven E. Elder
Co.,ATTORNEYS FOR APPELLEES FOR JUDE T. SMITH, ET AL.
Michael A. Jiannetti ATTORNEY FOR JAMES A. CONGIN.
Before: Gallagher, J., Sweeney, P. J., and Corrigan, J.
SEAN C. GALLAGHER, J.
{¶ 1} Defendant-appellant, Bonita Newell (“Newell”),
appeals from the decision of the Cuyahoga County Court of
Common Pleas that denied her motion for summary judgment
and the decision that granted the motion for partial
summary judgment of plaintiffs-appellees, Jude T. Smith and
Denise P. Smith (“the Smiths”), and that found the Smiths to
be the titled owners of Warwick Drive. For the reasons
stated below, we affirm. The case is remanded to the trial
court for further proceedings on the third-party complaint
that remains pending.
{¶ 2} This matter involves a dispute between
neighboring parcel owners over the ownership of a
fifty-foot strip of land (“the strip”). The evidence in
this case included various deeds reflecting the chain of
title history of the Smith property, the Newell property,
and the contested strip. Newell also submitted an affidavit
of attorney John P. Malone, Jr., who examined the records
pertaining to these properties. The evidence reflects that
at one time the properties were all included as part of a
41.3893 acre parcel of land owned by Frank Ciulla. In 1977,
Ciulla executed a warranty deed conveying the parcel to King
Ranch, an Ohio partnership. King Ranch was the most recent
common owner of the properties.
{¶ 3} In 1978, King Ranch executed a warranty deed
(“the Belluardo deed”) conveying three parcels to Anthony
Belluardo, Bonnie Jean Belluardo, Biaggio Belluardo, and
Patricia Belluardo. The strip was included in the legal
description of the property conveyed to the Belluardos.
Nonetheless, the deed contained a reservation that stated
as follows:
“Together with the right to use Warwick Drive Proposed,
50 feet wide, and Middlebury Drive, Proposed, 50 feet
wide, in the Don mar Land Company’s proposed Geauga Lake
Subdivision, for ingress and egress to and from Liberty
Road. As part of the consideration for this conveyance
the grantees agree that they have no interest in any
proposed streets in The Don mar Land Company’s proposed
Geauga Lake Subdivision except as hereinbefore set forth.
Reserving all of the interest and rights in said proposed
streets to the Grantor.”
{¶ 4} It is apparent from this reservation that King
Ranch reserved its interests and rights to the “proposed”
Warwick Drive, which was to be part of a proposed
subdivision. Nothing was said with respect to a reservation
of a fee simple interest in the land on which the proposed
street was to be located.
{¶ 5} In 1985, the Belluardos executed a warranty
deed (“the Sirna deed”) conveying the same three parcels
described in the Belluardo deed to Craig Raymond Sirna and
Ann Marie Sirna. The Sirna deed contained the same
reservation found in the Belluardo deed as to the proposed
Warwick Drive.
{¶ 6} In 1996, the Sirnas executed a warranty deed
(“the Smith deed”) conveying 5.1927 acres of their land,
which was parcel 1 of the Sirna deed, to the Smiths. It
appears that the legal description to the Smith deed
includes the contested strip. The Smith deed did not contain
the reservation found in the Belluardo deed and Sirna deed
with respect to the proposed Warwick Drive.
{¶ 7} Warwick Drive was never dedicated or
constructed. On November 20, 2001, the city of Solon filed
a vacation plat purportedly vacating Warwick Road.[fn1]
{¶ 8} Newell’s property, which at one point was part
of the King Ranch parcel noted above, went through several
conveyances as well. No evidence was shown that the strip
was ever conveyed by King Ranch through the chain of title
that led to Newell’s property. Newell acquired her property
from James A. Congin and Sherrie Congin in December 2002
via a general warranty deed (“the Congin deed”).
Apparently, the original Congin deed did not include the
strip within the legal description. However, the deed was
re-recorded on November 5, 2003, with an attachment
purporting to transfer the southern twenty-five feet of the
strip based on the vacation plat of Warwick Road. The deed,
which was “refiled to correct legal description,” did not
contain any new signatures of the Congins. Thereafter, on
March 21, 2005, King Ranch executed a quitclaim deed
purporting to convey the strip that was shown as vacated on
the vacation plat of Warwick Road. Attorney Malone opined
in his affidavit that until this conveyance, “King Ranch had
never conveyed title to Warwick Drive that it reserved by
virtue of the reservation” and that “Newell is the current
title owner of Warwick Drive.”
{¶ 9} The Smiths filed their complaint on April 20,
2004, claiming to be the owners of the strip, which the
Smiths represented as being the southerly fifty feet of
their land, and asserting that Newell was trespassing upon
their land.
{¶ 10} Newell filed an answer claiming that she was
the owner of the strip. Newell also filed a third-party
complaint against James A. Congin and Sherrie C. Congin,
who transferred Newell’s property to her through a general
warranty deed. Thereafter, the Congins filed their answer.
{¶ 11} On September 7, 2005, the Smiths filed a
motion for partial summary judgment against Newell with
respect to the ownership of the strip. On the same date,
Newell filed a motion for summary judgment on the claims of
the Smiths. The record also reflects that the Congins filed
a motion for summary judgment on the third-party complaint
on December 13, 2005.
{¶ 12} On December 28, 2005, the trial court issued
orders granting the Smiths’ motion for partial summary
judgment and denying Newell’s motion for summary judgment.
The trial court found the Smiths were the “owners of the
fifty — foot strip of land that was originally
proposed for use as Warwick Drive as this fifty —
foot strip of land was clearly contained in the legal
description of the 5.1927 acres of land granted to [the
Smiths] by the Sirnas * * *.” The trial court also found
that “the quitclaim deed from King Ranch to Newell that was
recorded on May 23, 2005 is void. King Ranch did not retain
a fee interest in Warwick Drive in the Belluardo deed as
argued by [Newell]. The greatest interest King Ranch
retained was a right to construct Warwick Drive when the
proposed subdivision was built.” The trial court further
indicated that the vacation of Warwick Drive was without
legal effect because the city of Solon never received any
interest in the proposed Warwick Drive, as the subdivision
was never platted and there was no dedication of the street
for public use.
{¶ 13} Newell filed an appeal to this court that was
dismissed for a lack of a final appealable order.
Thereafter, the parties submitted an agreed final judgment
entry and order with respect to ownership of the disputed
strip that was signed by the trial court judge. This entry
resolved the trespass and injunction claims, incorporated
findings from the trial court’s December 28, 2005 journal
entries, including that the Smiths were the titled owners
to the strip, and specified that the agreed final judgment
entry was a final appealable order and that there was no
just cause for delay. We note that the claims in Newell’s
third-party complaint and the Congins’ motion for summary
judgment still remain to be decided.
{¶ 14} Newell’s appeal was reinstated by this court
on September 14, 2006. Newell has raised three assignments
of error for our review.[fn2] Newell’s assignments of error
provide as follows:
{¶ 15} “I. The trial court erred in holding that the
Smiths are the titled owners of Warwick Drive.”
{¶ 16} “II. The trial court erred in holding that
King Ranch did not retain a fee interest in Warwick Drive
by virtue of the reservation.”
{¶ 17} “III. The trial court erred by denying
Newell’s motion for summary judgment.”
{¶ 18} This court reviews a trial court’s grant of
summary judgment de novo. Ekstrom v. Cuyahoga County Comm.
College, 150 Ohio App.3d 169, 2002-Ohio § 6228.
Before summary judgment may be granted, a court must
determine 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 nonmoving party, that conclusion is adverse to the
nonmoving party.” State ex rel. Dussell v. Lakewood Police
Department, 99 Ohio St.3d 299, 300-301, 2003-Ohio-3652,
citing State ex rel. Duganitz v. Ohio Adult Parole Auth.,
77 Ohio St.3d 190, 191, 1996-Ohio-326.
{¶ 19} Initially, Newell argues that the Smiths
presented none of the permissible forms of evidence under
Civ.R. 56 in support of their motion and thereby failed to
meet their burden on summary judgment. The Smiths provided
copies of several deeds and a property tax statement in
support of their motion. These copies were not accompanied
by an affidavit. However, Newell attached the same deeds,
together with an affidavit verifying the deeds, to her
motion for summary judgment.
{¶ 20} In Dresher v. Burt, 75 Ohio St.3d 280,
292-293, 1996-Ohio-107, the Ohio Supreme Court set forth
the following:
“[T]here is no requirement in Civ.R. 56 that the moving
party support its motion for summary judgment with any
affirmative evidence, i.e., affidavits or similar
materials produced by the movant. However, * * * the
moving party bears the initial responsibility of informing
the trial court of the basis for the motion, and
identifying those portions of the record before the trial
court which demonstrate the absence of a genuine issue of
fact on a material element of the nonmoving party’s claim.
That is, the moving party bears the initial burden of
demonstrating that there are no genuine issues of material
fact concerning an essential element of the opponent’s
case. To accomplish this, the movant must be able to point
to evidentiary materials of the type listed in Civ.R.
56(C) that a court is to consider in rendering summary
judgment. The evidentiary materials listed in Civ.R.
56(C) include `the pleading, depositions, answers to
interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, and written
stipulations of fact, if any.’ These evidentiary materials
must show that there is no genuine issue as to any
material fact, and that the moving party is entitled to
judgment as a matter of law. While the movant is not
necessarily obligated to place any of these evidentiary
materials in the record, the evidence must be in the
record or the motion cannot succeed.” (Internal citations
omitted.)
{¶ 21} In this case, the deeds relied upon by the
Smiths, and which were pertinent to determining title to
the strip, were included with attorney Malone’s affidavit
verifying the same. The affidavit and accompanying deeds
were relied upon by Newell in her own motion for summary
judgment and in her opposition to the Smiths’ motion. Newell
can hardly complain on appeal that the trial court
erroneously considered evidence when appellant herself
submitted the evidence through her own pleading. The trial
court properly considered these evidentiary materials in
ruling on the summary judgment motions.
{¶ 22} Newell next argues that the trial court erred
in declaring the Smiths the owners of the strip because
King Ranch reserved a fee simple interest in Warwick Drive
and the Sirnas never possessed an interest in Warwick
Drive. Newell also makes a corresponding argument that the
trial court erred in holding that King Ranch did not retain
a fee interest in Warwick Drive by virtue of the
reservation. Newell further claims that the trial court
erred by denying her motion for summary judgment. We find
no merit to these arguments.
{¶ 23} There is a fundamental rule that a deed is to
be construed most strongly against the grantor and in favor
of the grantee. Russell v. Russell (1940), 137 Ohio St.
153, 157. Although a deed should be construed, if possible,
to give effect to the intention of the parties, where the
language contained in a deed restriction is unclear and
capable of contradictory interpretation, the deed
restriction must be construed against the restriction and
in favor of the free use of land. See Frontier Cmty. Servs.
v. Knoll Group (Dec. 19, 2001), Jackson App. No. 00CA22.
Likewise, doubts as to the grantor’s intention should be
resolved in favor of a fee simple. See Ferris v. Schuholz
(May 20, 1957), 107 Ohio App. 63, 64.[fn3]
{¶ 24} In this case, the reservation made by King
Ranch in the Belluardo deed was that it was reserving all
of the interest and rights in the proposed Warwick Drive.
This language evinces only an intent on the part of King
Ranch to reserve a road over the land granted, and does not
except or reserve the land itself. King Ranch’s interest was
in the proposed street, which presumably was to be
constructed as part of the proposed Geauga Lake Subdivision
and dedicated to the city of Solon for public use. There is
no evidence that King Ranch intended to reserve any
ownership interest in the land on which the street was to be
located. Had King Ranch intended to except and reserve a
fee simple interest in the actual land, its intent should
have been manifested in the deed. Instead, the land on
which the proposed Warwick Drive was to be located was
included in the legal description of the property conveyed.
This shows an intent by the grantor to convey the strip of
land.
{¶ 25} Construing the deed most strongly against the
grantor, we find as a matter of law that King Ranch
reserved only a right to construct the proposed street and
dedicate it for public use, and that King Ranch conveyed a
fee simple interest in the actual strip of land to the
Belluardos. The Belluardos became the titled owners to their
property, including the strip in dispute. The strip was
conveyed to the Sirnas, who in turn conveyed the strip to
the Smiths. Accordingly, we find as a matter of law that
the Smiths are the owners in fee simple of the strip.
{¶ 26} We also find that because the proposed
subdivision was never platted and the proposed Warwick
Drive was never constructed, King Ranch abandoned its
interest and the land is no longer encumbered. Further, we
agree with the trial court’s finding that because there was
never a dedication of the proposed Warwick Drive to the
city of Solon, the vacation plat is void.
{¶ 27} Insofar as the re-recorded Newell deed
included an attachment purporting to transfer the southern
twenty-five feet of the strip, we are cognizant that the
original Newell deed did not include the strip in the legal
description and the Congins never signed the re-recorded
Newell deed. There was no evidence establishing the strip
had been conveyed through Newell’s chain of title from King
Ranch. Rather, the record reflects King Ranch conveyed the
strip through the Smiths’ chain of title and the Smiths now
hold title in fee simple to the strip.
Further, while Newell submitted a quitclaim deed executed
by King Ranch on March 21, 2005, after this action was
filed, that purported to convey the strip to Newell, King
Ranch no longer held any rights or interest in the strip.
As Newell aptly points out, one cannot convey that which
one does not own. Because King Ranch did not retain a fee
interest in the property that it purported to convey in the
quitclaim deed, the trial court correctly found that the
deed is void.[fn4]
{¶ 28} We conclude the trial court properly granted
the Smiths’ motion for partial summary judgment and denied
Newell’s motion for summary judgment on the claims of the
Smiths. Newell’s assignments of error are overruled.
Judgment affirmed. Case is remanded to the trial court for
further proceedings on the third-party complaint that
remains pending.
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 said 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.
JAMES J. SWEENEY, P. J., and MICHAEL J. CORRIGAN, J.,[fn*]
CONCUR
[fn*] Sitting by Assignment: Judge Michael J. Corrigan,
Retired, of the Eighth District Court of Appeals.
[fn1] We note that although the deed reservation referred to
the proposed street as “Warwick Drive,” the vacation plat
referenced the strip as “Warwick Road.”
[fn2] Newell’s assignments of error are inconsistently
phrased as they appear in the table of contents,
assignments of error, and argument section of her brief, as
well as in her reply. Although inconsistently stated, they
essentially raise the same errors. We shall list them as
they appear in the argument of her appellate brief.
[fn3] We note that R.C. 5302.04 provides the following: “In
a conveyance of real estate or any interest therein, all
rights, easements, privileges, and appurtenances belonging
to the granted estate shall be included in the conveyance,
unless the contrary is stated in the deed, and it is
unnecessary to enumerate or mention them either generally
or specifically.”
[fn4] The issues raised with respect to the Smiths’ fallback
arguments are moot.