Whitlach Investment Corporation v. American Trading and Investment Corporation, 2009 Ohio 203 (Ohio App. 1/21/2009)

• Decision Date: 21 January 2009
• Docket Number: C.A. No. 24294.
• Citation: 2009 Ohio 203
• Parties: Whitlach Investment Corporation, Appellee, v. American Trading and Investment Corporation, Appellant.
• Court: Ohio Court of Appeals

Page 1

2009 Ohio 203

Whitlach Investment Corporation, Appellee, v. American Trading and Investment Corporation, Appellant.

C.A. No. 24294.

Court of Appeals of Ohio, Ninth District, Summit County.

Dated: January 21, 2009.

Appeal from Judgment Entered in the Court of Common Pleas, County of Summit, Ohio, Case No. Cv 2006 10 6528.

David M. Leneghan, and K. Scott Carter, Attorneys at Law, for Appellant.

Mark I. Wachter, and Neil S. Sarkar, Attorneys at Law, for Appellee.

DECISION AND JOURNAL ENTRY

BAIRD, Judge.

{¶1} Defendant-Appellant, American Trading and Investment Corporation ("American"), appeals from the judgment of the Summit County Court of Common Pleas, awarding $21,016.08 to Plaintiff-Appellee, Twinsburg Town Center ("TTC"). This Court dismisses.

I

{¶2} On July 8, 1994, Whitlatch Investment Corporation ("Whitlatch") and American entered into two separate easement agreements. In one of the easements, Easement #8, American acted as the grantor and granted Whitlatch, as the grantee, an easement over its access drive so that Whitlatch could access its facilities from Aurora Road. Easement #8 contained the following provision:

"[Whitlatch] shall share equally in the cost of maintenance and repair of the drive within the easement area. [Whitlatch] shall indemnify and hold [American] harmless from any and all liability, claims, costs, expenses, actions, or causes of action whatsoever arising out of [Whitlatch's] exercise of the rights granted by this Access Easement."

In the other easement, Easement #4, Whitlatch acted as the grantor and granted American, as the grantee, an easement over its entryway so that American could access its facilities from Darrow Road. Easement #4 contained the following provision:

"[American] shall indemnify and hold [Whitlatch] harmless from any and all liability, claims, costs, expenses, actions, or causes of action whatsoever arising out of [American's] exercise of the rights granted by this Access Easement."

Unlike Easement #8, Easement #4 did not contain any additional language to indicate that the parties would "share equally in the cost of maintenance and repair of the drive within the easement area."

{¶3} On May 12, 2004, Whitlatch sent American a fax, which indicated that Whitlatch intended to repave its entranceway, the subject of Easement #4. The fax further indicated that Whitlatch believed American to be contractually obligated to share in repair and snow removal costs pursuant to the parties' easement agreement. Whitlatch's fax estimated the cost of the repaving to be $13,000. On April 20, 2005, Whitlatch sent American a letter indicating that it was ready to go forward with the repaving. The letter further specified that the winter weather caused additional damage to the entranceway and required more paving than initially anticipated. Accordingly, the letter estimated that the cost of the repaving would be $16,822. The letter again reminded American that Whitlatch anticipated receiving one half of its repaving and snow removal costs from American.

{¶4} Whitlatch ultimately sought $21,016.08 from American; half of the $16,822 repaving amount and $8,646.50 in snow removal costs. American refused to pay Whitlatch, claiming that Easement #4 was silent as to the party responsible for the payment of maintenance and repairs. On October 13, 2006, Whitlatch brought suit against American for breach of contract. Subsequently, Whitlatch assigned all of its interests in the real property at issue in the litigation to TTC, and the trial court permitted TTC to be substituted as the plaintiff in the action against American. The parties agreed to submit the matter to the court on trial briefs and joint stipulations.

{¶5} The trial court determined that TTC was entitled to judgment and found American liable in the amount of $21,016.08. TTC appealed from the court's order, but this Court ultimately dismissed the appeal for lack of a final, appealable order. See Whitlatch Investment Corp. v. American Trading & Investment Corp., 9th Dist. No. 23946. The trial court issued a new order on May 9, 2008. On May 20, 2008, however, the trial court issued a nunc pro tunc order, which ordered that the references to Easement #4 in its May 9, 2008 order be changed to refer to Easement #8. Finally, on May 30, 2008, the trial court issued another order vacating its May 20, 2008 nunc pro tunc order.¹ American appeals from the trial court's May 30, 2008 order and raises two assignments of error for our review.

II Assignment of Error Number One

"THE TRIAL COURT'S FINDING THAT DEFENDANT OWED PLAINTIFF $21,016.08 FOR MAINTENANCE AND REPAIRS OVER THE EASEMENT AREA WAS AGAINST THE MANIFEST WIEGHT (sic) OF THE EVIDENCE."

Assignment of Error Number Two

"THE TRIAL COURT'S FINDING THAT DEFENDANT OWED PLAINTIFF $21,016.08 FOR MAINTENANCE AND REPAIRS OVER THE EASEMENT AREA WAS PLAIN ERROR."

{¶6} In its first assignment of error, American argues that the trial court's finding that it owes TTC $21,016.08 is against the manifest weight of the evidence. Specifically, American argues that Easement #4 did not contain any provision indicating that American agreed to share TTC's maintenance and repair costs. In its second assignment of error, American forwards the same argument presented in its first assignment of error and concludes that the trial court's finding amounted to plain error. We cannot consider either argument because American has not timely appealed from the trial court's judgment.

{¶7} The Ohio Supreme Court has explained that:

"Pursuant to App.R. 3(A) and 4(A), notice of an appeal as of right must be filed with the clerk of the trial court within thirty days of the judgment or final order from which the appeal is taken. *** Where a notice of appeal is not filed within the time prescribed by law, the reviewing court is without jurisdiction to consider issues that should have been raised in the appeal. See State, ex rel. Curran, v. Brookes (1943), 142 Ohio St. 107, paragraph seven of the syllabus; Adkins v. Eitel (1966), 8 Ohio St.2d 10." State ex rel. Pendell v. Adams County Bd. of Elections (1988), 40 Ohio St.3d 58, 60.

Because the timeliness of an appeal affects this Court's jurisdiction, we are obligated to raise the issue sua sponte. See Apostolic Faith Assembly, Inc. v. Coventry Twp. Bd. of Trustees, 9th Dist. No. 23938, 2008-Ohio-2820, at ¶9, quoting App.R. 3(A) (providing that an appellate court has discretion whether to dismiss an appeal based on appellant's failure to take any step other than timely filing his appeal).

{¶8} The trial court issued its final order in this matter on May 9, 2008, but American did not file its notice of appeal until June 27, 2008, forty-nine days later. American...