Holy Donut, LLC v. Gee, CV 12 790472

CourtCourt of Common Pleas of Ohio
Writing for the CourtJohn P. O'Donnell, J.:
PartiesHOLY DONUT, LLC, Plaintiff, v. MO UN YEE GEE, et al., Defendants
Decision Date26 December 2013
Docket NumberCV 12 790472

HOLY DONUT, LLC, Plaintiff,

MO UN YEE GEE, et al., Defendants

No. CV 12 790472

Court of Common Pleas of Ohio, Cuyahoga

December 26, 2013


John P. O'Donnell, J.:

This is a lawsuit by a property owner, Holy Donut, LLC, for a declaratory judgment that it is entitled to an easement over part of the property owned by its neighbor to the east, defendant the Mo Un Yee Gee Trust, and occupied by defendant Dervish Grill, LLC. The plaintiff also seeks damages caused by the defendants' interference with the easement. Each side has now moved separately for a summary declaratory judgment. The plaintiff has asked for a declaration that an implied easement exists and is enforceable against the defendants, and the defendants seek the opposite declaration. The motions are fully briefed and this entry follows.


Plaintiff Holy Donut, LLC owns the property at 27624 Lorain Road in North Olmsted. The property has permanent parcel number 232-10-067. The land is on the north side of Lorain just east of Porter Road. The building there has been used as a doughnut shop since 1965 and it sits essentially on the middle of the parcel but the east side of the building is very near the eastern edge of the parcel so, as a practical matter, access to the side and rear of the building requires traveling over the western edge of the neighboring property.

The neighboring property at 27600 Lorain is permanent parcel number 232-10-056. It is owned by defendant the Mo Un Yee Gee Trust and leased to defendant Dervish Grill, LLC. The building on parcel 56 is closer to the eastern edge of its property, leaving a swath of asphalt about 50 feet wide between the two buildings. It is over the western portion of this patch of asphalt that the plaintiff claims an implied easement.

The two separate parcels were originally part of a single parcel owned by Gizella Johnson. She owned the land when a doughnut shop first opened in the building on what is now parcel 67 in 1965. Johnson sold the single parcel in 1974 to Rose and Raymond Jenne. The unity of ownership of the parcels was severed two years later when the Jennes divided the single parcel into its current configuration and the new parcel 67 was deeded to Rose Jenne alone while parcel 56 remained under Rose and Raymond Jenne's joint ownership.

The deed of parcel 67 to Rose Jenne did not include an easement over parcel 56 even though the doughnut shop was so close to the eastern edge of the new parcel.

In 1981, the Jennes leased parcel 56 to Angelo Karouzos. That lease included a 20-feet wide easement in favor of parcel 67 running the length of the north-south boundary between the two parcels. The Jennes divorced in 1984 and ownership of parcel 56 went to Raymond Jenne only. The documents evidencing that transfer did not reserve an express easement in favor of parcel 67 but the lease to Karouzos remained in effect -- with the easement in favor of the doughnut shop -- until 1994. In August 1995, Raymond Jenne transferred parcel 56 to Christopher and Traudel Moore and Daniel J. Fronczak. Simultaneously, the Moores and Fronczak deeded the property to Ming Sun Gee and Mo Un Yee Gee. Neither deed reserved an easement for the doughnut shop.

Ming Sun Gee and Mo Un Yee Gee were husband and wife.[1] On October 11, 1996, Ming Sun Gee transferred his ownership in parcel 56 to Mo Un Yee Gee by a quitclaim deed. The parcel was transferred to its current owner -- defendant the Mo Un Yee Gee Trust -- by Mo Un Yee Gee through a quitclaim deed dated February 24, 2011. The quitclaim deeds did not mention an easement in favor of parcel 67.

Despite there being no express easement in the deed giving her title to the property, sometime in late 1996 or early 1997 Mo Un Yee Gee leased parcel 56 to Minotti Beverage subject to the 20-foot easement.[2] Then, in 1999, Mo Un Yee Gee conducted herself as if the easement were in effect by approaching the Donut Connection, then the tenant at parcel 67, with a request that the Donut Connection pay a portion of " recent repairs made on the drive areas of common usage." [3] Finally, on February 7, 2012, Mo Un Yee Gee, as trustee of the trust, negotiated a lease of parcel 56 to Dervish Grill, LLC. That lease includes, at page 7, an acknowledgment that " the leased premises are subject to two twenty (20) foot driveway easements." [4] The lease also attached as an exhibit a diagram showing a 20-foot driveway easement on the border between parcels 67 and 56 that was first created more than 30 years earlier as part of the lease between the Jennes and Karouzos.


Holy Donut concedes that the easement it seeks was never expressly granted. Instead, the plaintiff argues that there is " an implied easement for ingress, egress and parking" [5] that has been recognized by all occupants and owners of the two parcels since 1965. The defendants, in their cross-motion for summary judgment and a brief opposing the plaintiff's motion, deny that an implied easement ever existed. In addition, the trust claims that if an implied easement was created before it took ownership, then the easement is not enforceable against the trust because the trust took ownership of parcel 56 without any knowledge, actual or constructive, of the existence of the implied easement.

An easement is an interest in the land of another. It can be created in one of three ways: by express grant, by implication or by prescription. See , State ex rel. Wasserman v. City of Fremont , 6th Dist. No. S-10-031, 2013-Ohio-762, ¶ 18 . This case does not involve an express easement -- typically included in a deed -- or an easement by prescription, which can only arise after continuous, adverse use of another's land for 21 years. Instead, Holy Donut claims that an implied easement exists through the prior use of the land that existed at the time ownership of the parcels was severed in 1976, when the dominant estate -- parcel 67 -- was conveyed to Rose Jenne.[6]

Easements may be implied from an existing use at the time of the severance of ownership in land. Trattar v. Rausch , 154 Ohio St. 286, 291-292, 95 N.E.2d 685 (1950). Holy Donut has an implied easement if it can establish (1) that there was a severance of the unity of ownership in an estate, (2) that before the separation, the use that gives rise to the easement was so long continued and obvious or manifest as to show that it was meant to be permanent, (3) that the easement is reasonably necessary to the beneficial enjoyment of the land granted or retained, and (4) that the servitude is continuous as distinguished from a temporary or occasional use only. Shangrila Ohio, L.L.C. v. Westridge Realty Co ., 8th Dist. No. 99784, 2013-Ohio-3817, ¶ 18.

The first element is satisfied in this case. The two parcels were owned as one until parcel 67 was deeded to Rose Jenne in 1976 while the rest of the parcel was still owned by both Jennes.

There is evidence showing that the easement area was used for access and parking prior to the separation of the parcels. On August 31, 1965, Mister Donut entered into a lease of " that southwesterly part of Permanent Parcel No. 232-10-57, having a frontage on Lorain Road of 72 feet, extending back a distance of 161 feet on the northwesterly side." [7] This is exactly the land that became parcel 67 in 1976. The lease included the right to use the western edge of the abutting tenant's property " for egress and ingress." [8] After the Jennes acquired the property, but before they split it, they made a new lease with Mister Donut using the identical easement language effective June 1, 1974. Moreover, a diagram attached to that lease[9] shows perpendicular parking spaces along the east side of Mister Donut's part of the property, demonstrating that the easement was not only for egress and ingress but parking too. Hence, there is no question that the use sought by the plaintiff here existed before 1976, when ownership of the parcels was severed.

But in addition to showing that before ownership was divided the property was put to the use intended to be established by implication, Holy Donut must demonstrate that the prior use was " so long continued and obvious or manifest as to show that it was meant to be permanent." Since ownership was severed in 1976, the continuous nature of the use must have been apparent by then. This portion of the test is easily satisfied here. The evidence, although limited to the leases, is sufficient to eliminate any genuine issue of material fact about whether the use of the west side of the other part of the property was intended to always be used for access to, and parking at, the doughnut shop. First, the building there since at least 1965 was almost touching what became the property line. That suggests that, for as long as the building was there, the owners intended to use the area that became the easement for the benefit of the area that became parcel 67 because otherwise the building would have had no parking to the side and no vehicle access to the...

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