Garcia v. Ewais

[Cite as Garcia v. Ewais, 2024-Ohio-3024.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

MARIA GARCIA, :

Plaintiff-appellant, :

v. :

: No. 113272

ABDELJAWAD EWAIS, ET AL., :

Defendants-appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED IN PART; AFFIRMED IN PART; AND

REMANDED

RELEASED AND JOURNALIZED: August 8, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas,

Case No. CV-22-963518

Appearances:

Vargas & Elkhatib Law Co., LPA, and Kelly A. Rochotte,

for appellant.

ANITA LASTER MAYS, J.:

Plaintiff-appellant Maria Garcia (“Garcia”) appeals the bench trial

judgment in this civil action against defendants-appellees Abraham Ewais

(“Abraham”) and his brother Abdeljawad Ewais (“A.J.”).

We reverse in part, affirm in part, and remand to the trial court for

further proceedings pursuant to this opinion.

I. Preliminary Matters

As a preliminary matter, we observe that appellees failed to file

appellate briefs before this court. Consequently, “this ‘court may accept the

appellant’s statement of the facts and issues as correct and reverse judgment if

appellant’s brief reasonably appears to sustain such an action.”’ Smallwood v.

Shiflet, 2016-Ohio-7887, ¶ 8, fn. 1 (8th Dist.), quoting App.R. 18(C).

“App.R. 18(C) does not impose a form of appellate default judgment

where the court of appeals can reverse solely because the appellee failed to file a

brief.” In re S.M.T., 2012-Ohio-1745, ¶ 3 (8th Dist.). Reversal is warranted only if

the arguments in the appellant’s brief reasonably appear to support a reversal.1

II. Background and Facts

In September 2020, Garcia closed the purchase of a single-family

residence located on West 47th Place in Cleveland, Ohio (the “Property”). The sales

listing advertised that the Property included a “freshly poured [cement] driveway”

that “allows enough space for multiple vehicles to park side by side if desired.” The

driveway was 18 feet wide and extended from the base of the single-family residence

1 An “appellee will not be heard at oral argument except by permission of the Court

upon a showing of good cause submitted in writing prior to argument; and in determining

the appeal, the Court may accept the appellant’s statement of the facts and issues as

correct and reverse the judgment if appellant’s brief reasonably appears to sustain such

action.” App.R. 18(C).

on the Property to the base of the single-family residence of the adjacent property to

the north owned by appellee A.J. (“A.J.’s Property”). The driveway apron began at

the street and extended to the rear of the properties. Garcia observed that the

mortgage location survey reflected that the driveway was part of the parcel and was

included as part of the mortgage loan and appraisal.2 Though there was no garage,

Garcia would not have purchased the Property without a driveway for parking and

a play area for her children.

The Property was gifted to appellee Abraham in 2012 by Khalil Ewais

(“Khalil”), brother to Abraham and A.J., a civil engineer who owned rental

properties in the area. Appellee A.J., also an engineer, owned rental properties in

the area including A.J.’s Property. Abraham installed the driveway in 2019 or spring

2020 with A.J.’s consent to provide parking for the Property and to waterproof the

basements of both properties.

After closing, tensions arose between A.J., Garcia, and A.J.’s tenant

over the use of the driveway. The tenant used the driveway portion beside A.J.’s

house as a patio and for garbage can placement. The driveway to A.J.’s Property was

located on the northern side of his property and the tenant parked on the street in

front of his property in a handicapped space. A.J. claimed he told Garcia that the

entire driveway did not belong to her.

2 A mortgage location survey is solely for the use of a title insurer or mortgagee

while a boundary survey is used to establish boundary lines. State Farm Ins. Cos. v. Peda,

2003-Ohio-1092, ¶ 17-19 (11th Dist.), citing Adm.Code, Ch. 4733-33 and 4733-37.

More than a year after closing, boundary surveys revealed that A.J.’s

property line extended to more than one-half of the driveway. A.J. had an eight-

foot wooden fence bolted onto the length of the driveway marking his property line,

leaving Garcia just enough space to pull the front portion of her automobile into the

driveway. Pulling further into the driveway would not permit her car doors to open.

The back of her car extended over the sidewalk.

On May 17, 2022, Garcia filed suit against appellees for (1) trespass,

(2) temporary injunction/ breach of easement; (3) conversion; (4) fraud; and (5)

civil conspiracy to commit fraud by the Ewaises.3 Garcia requested punitive

damages and attorney fees and claimed entitlement to an equitable easement based

on the permanent nature of the driveway, A.J.’s agreement to the construction of the

driveway, and mutual knowledge and intent of A.J. and Abraham regarding the use.

Abraham and A.J. denied the claims. A.J. counterclaimed for trespass and

conversion.

III. Trial

Trial commenced on September 18, 2023.

A. Realtors

Abraham’s real estate agent Kaylee Battaglia (“Battaglia”) prepared

the listing narrative, had photographs taken, and placed the listing. The listing

advertised the freshly paved driveway as Battaglia said “it was one of the best aspects

3 The motion for preliminary injunction was withdrawn on September 8, 2022.

of the house.” Tr. 23. “Because there was no garage. So that was a big point.” Tr.

24. Battaglia stated the Property would have been listed for a lower price without

the driveway and the appraisal would have been lower.

Battaglia was familiar with the area where the property was located.

“I can tell you that not having a driveway makes a huge impact. It’s not exactly the

safest place. It’s a — I mean, it’s a one-way street on the west side of Cleveland, kind

of in not the best area. So I do think that that played a big part of it.” Tr. 24.

Battaglia read the text she received from Abraham that conveyed the

property information included in the listing:

Address is . . . West 47th Place Cleveland, Ohio, 44102. 3–4-bedroom

house for sale. Newly remodeled. New roof, siding, windows, hardwood

floors, carpet, new electrical, plumbing, freshly painted, steam heat,

new driveway, 1 and half bath, fenced in, and a basement.

(Emphasis added.) Tr. 27. Battaglia discussed the driveway and lack of a garage

with Abraham several times who assured her the driveway was part of the Property.

The published listing advertised:

Turnkey ready home in an up-and-coming neighborhood! If you’re

looking for space, look no further. This charming colonial has been

completely t0 [sic] refinished from top to bottom. Pull into your freshly

poured driveway that allows enough space for multiple vehicles to park

side by side if desired.

Tr. 28. Abraham reviewed a screen shot of the listing and photographs to confirm

the accuracy and said it was perfect. Tr. 40.

Battaglia was never told that a portion of the driveway belonged to

anyone else.

The only thing that came up was when the neighbors had their garbage

cans on that driveway. And I don’t remember if it was the final walk-

through or maybe inspection. For whatever reason the buyer was there.

That’s typically the only two points that they’re there before the close.

And I did mention it to [Abraham], and he sent me a picture back

saying that everything was clear and that the neighbors moved their

stuff. Outside of that, we never spoke about it.

Tr. 29.

Battaglia texted Abraham on August 13, 2020, “[i]t is so strange” that

the back door of A.J.’s Property exited into the driveway. Tr. 32. She did not know

who the owner was at the time. Abraham explained that the two- or three-foot

pathway along the dwelling was typical and allowed work to be done on the house.

Battaglia did not find that unusual, particularly since Abraham assured her the

entire driveway belonged to the Property.

Garcia’s agent, Amanda Mortach (“Mortach”), was employed by the

same brokerage firm. Mortach testified she saw the trash cans from A.J.’s Property

in the driveway and confirmed with Battaglia that the entire driveway would belong

to Garcia. After closing on the purchase, Garcia told Mortach that the neighbor said

the entire driveway was not hers.

Mortach confirmed that the seller’s residential property disclosure

form stated there had been no boundary change, there were no encroachments, and

the driveway was not shared. Mortach relied on the disclosure and the information

provided by the listing agent.

Mortach was familiar with the mortgage location survey that

contained a disclaimer stating it was not a boundary survey and may not show all

easements that affected the subject tract per Adm.Code 4733-38.4 Tr. 54. The

mortgage location survey contained a red highlighted area that said,

“Encroachment. Subject’s driveway encroaches over property line approximately 4.7

feet.” Mortach explained that the rear of the driveway encroached on the parcel

behind the Property and A.J.’s Property. There was no indication that the Property’s

driveway encroached onto A.J.’s Property.

Sabrina Semidey (“Semidey”), the real estate company team leader

for Mortach and Battaglia, provided general guidance to the realtors but became

more involved after closing.5 Garcia called the office to report that someone was

installing a fence in her driveway though it was her understanding the driveway

belonged to Garcia. Semidey went to the Property and saw a permit for the fence

posted on the window of A.J.’s Property. Research revealed that several individuals

with the last name Ewais owned properties in the area.

The Property was listed for $93,500, sold for $93,000, and Abraham

contributed $5,000 toward closing costs. “If there was no driveway, I would

probably have priced this at, like, $85[,000].” Tr. 92. “Nobody wants to buy a house

with no driveway.” Tr. 93. Semidey had never encountered a similar situation.

4 Adm.Code 4733-38(O) lists standards for mortgage location surveys. “A

statement shall appear on the plat indicating that the survey is a mortgage location survey

prepared in accordance with Chapter 4733-38 of the Administrative Code, and is not a

boundary survey pursuant to Chapter 4733-37 of the Administrative Code.” Adm.Code

4733-38-05(O).

5 Each agent provided their respective client with a dual agency disclosure that is

required by law where the agents of the parties work under a common brokerage firm.

B. Appraiser

Real estate appraiser Shelby Evans (“Evans”) appraised the Property

in 2020 and reappraised it in January 2023. No boundary survey was provided for

either, but a survey was not typically “provided in the normal course of business.”

Tr. 99.

Evans only appraised the exterior in 2020 due to COVID. Based on

the plat sketch posted on the county’s website and the appearance of the driveway,

Evans assumed that one-half of the driveway belonged to the Property, though the

listing information in the description area of the appraisal included the sentence:

“Pull into your freshly poured driveway that allows enough space for multiple

vehicles to park side by side if desired.”

Evans explained that indications of a shared driveway would have

appeared on the listing, a survey or title company information, and the driveway

usually splits off in a shared driveway. The 2020 appraised value was $94,000. The

appraisal would have been reduced by $3,000 without a driveway.

The 2023 appraisal value was $100,000. The driveway fence allowed

a vehicle to pull partially into the driveway but not to open the vehicle doors — at

least two more feet would be required. The value with a driveway would have been

$103,000 more.

Evans also prepared an appraisal for the Property that included a

value for the entire 18-foot cement driveway, but the copy was not in the trial exhibit

book, and she could not remember the amount.

C. Appellant Garcia

Garcia testified that her real estate agent brought the Property to her

attention. “When I first went to go see the house, the garbage cans of the neighbor

was in the driveway [on A.J.’s side], and I was very adamant with the [real estate

agents] in telling them that I didn’t want a shared driveway, and they kept stressing

to me that they have talked to the seller and he assured them that the driveway was

mine and that [the neighbor] was just using it.” Tr. 119.

Garcia chose the Property due to its convenient location near family

and the freeway, but would not have purchased the Property without a driveway.

“[I]t’s a big factor for me. There’s no — there’s barely any parking [on the street].

It’s a one-way street. My kids play in the driveway. They have bikes, basketball

hoops. It was — it was ideal for me and my two children.” Tr. 119-20.

The mortgage location survey did not indicate an irregularity or

encroachment onto A.J.’s Property — only that the back of the driveway encroached

4.5 feet onto the parcels behind the properties. To Garcia’s knowledge, A.J.’s

driveway was on the other side of his property and the tenant in A.J. ’s property did

not use the driveway for parking.

Garcia initially had a good relationship with the tenant, but conflicts

arose over the use of the driveway. Garcia attempted to contact A.J. about the issue.

On October 25, 2021, at the suggestion of an attorney friend, Garcia sent a letter to

A.J. at A.J.’s Property along with a copy of the mortgage location survey showing the

driveway as part of the Property, but A.J. did not reply. Garcia said that A.J. was

physically present in the area and reportedly resided about six houses down the

street, but Garcia could not find A.J. listed at the address. A.J. was present when

the fence was installed about four months later and told Garcia that he did not

respond to her letter because he did not have to.

At Semidey’s suggestion, Garcia reached out to the Cleveland building

department. She was informed that no prior records existed for the Property and

no driveway or construction permits had been granted.

Parking availability was scarce, and Garcia encountered problems

with the police because the rear of her car extended over the sidewalk. Her car was

stolen in November 2022 and recovered four months later. Garcia would not have

purchased the house without a driveway and asked that the fence be removed.

I just feel like — that it’s just unfair. I feel like I have been conned one

way or another and it’s just a game that I’ve been playing since I bought

this house. And I bought the house as a gift for me and my kids, not to

argue for three years. It’s been literally six months after [sic] I bought

this house I have been dealing with this, for two-and-a-half years.

Tr. 134.

Garcia was not concerned about the rear encroachment, “because I

was assured that . . . when they laid the driveway, they asked for that permission.”

Tr. 139. Garcia drove by the Property about five times prior to closing. Each time

she saw the tenant using the driveway she contacted the realtors who told her the

tenant “was using it because nobody was living’’ at the Property. Tr. 139.

Garcia affirmed during cross-examination that the realtors sent her

the paperwork including the mortgage location survey when she qualified to

purchase the home. Garcia did not know the difference between a mortgage location

survey and a boundary survey. She saw the lot width dimensions and believed the

remaining approximately eight feet for the newly poured driveway was sufficient for

parking and she would be able to get out of the car. When she saw that the rear area

encroached on the lot behind the driveway, Garcia “questioned everybody about

that” and she was assured that “they asked for that permission.” Tr. 138.

Garcia indicated on a photo exhibit of the driveway and fence that

“[b]efore the fence was erected, there was two poles, one on [A.J.’s] side and one on

mine [in front of the basement window].” Tr. 142. She measured the spacing

between the poles that indicated her portion of the driveway was ten to 11 feet, but

the boundary survey Garcia purchased in January 2023 showed the driveway space

was 7.5 feet.

Garcia confirmed she was told prior to purchase that the driveway

was a “side-by-side driveway” and learned that was not true “after the fact.” Tr. 146,

148. As a first-time buyer, Garcia was relying on the information provided by the

seller, realtors, and mortgage loan survey. Garcia met A.J. the night of Garcia’s

housewarming and told him she had just purchased the Property. A.J. did not tell

her that she did not own the entire driveway, nor did he contact her or show her the

boundary survey that he commissioned until after he installed the fence.

D. Appellee A.J.’s tenant

A.J.’s tenant testified she resided at A.J.’s property for 21 years and

referred to A.J.’s portion of the driveway as her patio. The tenant did not park in the

driveway to A.J.’s Property located on the opposite side of the residence but had a

handicapped permit that allowed her to park in front of the house. The bulk of the

testimony recounted the negative interactions between the tenant and Garcia

regarding use of the driveway.

E. Appellee A.J.

A.J. testified that he first met Garcia at her housewarming yard party

when she moved into the house in September 2020. “When they first closed in

buying the house, she was so happy, excited. She had a bottle of wine in her hand,

you know, to celebrate and everything.” Contrary to Garcia’s testimony about the

housewarming, A.J. said he “went over to her and I explained to her, you know, I

just want to be nice to you. The whole thing is not yours. This whole — you know,

this whole pad is not hers.” Tr. 183. “[M]y only condition was . . . just don’t bother

my tenant and you guys get along. I don’t care.” Tr. 184.

After ongoing encounters between Garcia’s household and the tenant

regarding use of the driveway, A.J. told Garcia, “You know this is not yours, and

she’s like: No, I have proof. And she brought me pictures from Google Earth

showing me before . . . the pad was constructed, there was a little concrete” on either

side of each house “and the middle [area in between the two houses where the

driveway was installed] was grass. And she said . . . this is only mine, and I’m, like:

No, that’s not true.” Tr. 184-185.

A.J. decided to have a boundary survey conducted “[j]ust to prove to

Garcia” that the driveway did not belong entirely to her. Tr. 185. The surveyor was

David Bruckner, and it contained the date of January 28, 2021. A.J. confirmed his

counsel’s statement that the survey revealed that Garcia owned 7.5 feet of the

concrete pad and he owned 10.5. A.J. contended his survey gave Garcia an

additional inch or two compared to Garcia’s survey. The fence was constructed to

prevent the possibility of physical altercations and because his tenant threatened to

move.

A.J. verified his driveway was on the opposite side of the house and

he had no reason to “make a shared driveway.” Tr. 197. A.J. and the tenant “always

looked at the concrete driveway “as a pad. . . . [I]t helps both houses. . . . These

houses, they leak water sometimes. This helps stop the leaks you know. It didn’t

stop it a hundred percent. I would say it helped maybe 70 percent on my side.”

Tr. 198.

A.J. believed the driveway was poured about three months before

Abraham sold the house. They did not discuss an easement. A.J. heard Abraham

was selling the house from their mother who also lived in the area. Their mother

inquired of A.J., “Your brother parks away from the house. Can you, you know, let

him park in there? And I’m, like: Fine. That’s okay. He’s my brother.” Tr. 200.

Though he testified at the deposition that he discussed the driveway with Abraham,

he could not recall doing so.

A.J. claimed that, as an engineer, he knew that “for one car to be

parked in” Garcia’s portion of the driveway, “you would need another two feet, if not

more. Then you would need another two feet on each side to be able to open the

doors. I’m an engineer, and I — I do — you know, I know about this stuff.” Tr. 200.

Asked whether Garcia needs more room to use her side as an actual driveway, A.J.

responded, “That’s not my problem. Sorry to say that. Exactly that’s what she

[would] need.” Tr. 214.

A.J. said he lives in the Middle East and travels to Cleveland to visit

family and pay taxes. When in Cleveland, he stays in one of his rental units located

down the street from the properties. A.J. knew that Khalil owned the Property prior

to Abraham.

During cross-examination, A.J. said he did not recall talking to

Abraham about the driveway, though at deposition he testified that he did. A.J.

confirmed that he noticed that Abraham was pouring the cement driveway at the

time of the construction but did not assert his property line.

F. Appellee Abraham

The final witness was Abraham whose ownership of the Property

began in 2012 when his brother Khalil gifted the house to Abraham. Contrary to

A.J.’s testimony that the driveway was installed a few months before the 2020

Property sale, Abraham said he believed the driveway was poured in April 2019 or

May 2019. He decided to finance the installation of the 18-foot cement driveway

because he “wanted to seal off the basements” of the properties “to make them

waterproof.” Tr. 220.

Regarding the parking motivation for the installation, Garcia’s

counsel inquired:

Counsel: Okay. And you decided to pour the driveway because there

was no parking on that parcel; is that correct?

Abraham: No, I wanted to seal both sides of the houses. I wanted to

waterproof the houses.

Counsel: Okay. I’m going to introduce Plaintiff’s Exhibit No. 17, which

is your deposition, page 21, line five:

You testified that you decided to pour a driveway because there was no

parking on that parcel. Would you like to amend your current

testimony?

Abraham: I mean, I did it for a driveway and to seal both basements.

Counsel: Okay. So you did it because there was no driveway on that

parcel a partial reasoning for pouring the driveway?

Abraham. Partial reasoning.

Tr. 233.

Abraham executed the residential disclosure form and indicated in

the purchase agreement that the Property was sold as is. He confirmed checking the

box on the Residential Disclosure Form that indicated he had no knowledge of a

boundary agreement, boundary dispute, recent boundary change, shared driveway,

party walls, or encroachments from or on the adjacent property.6 He did not

indicate that the driveway was shared on the real estate disclosure form because

“[e]veryone has their boundaries that they own” though he did not know the

boundaries of the properties until the lawsuit ensued. Tr. 236. He stated that those

6 This court observes that the form also indicates Abraham had no knowledge of

prior or current flooding or drainage problems though the cement driveway was installed

for parking and waterproofing.

representations were still correct. Abraham also affirmed signing the general

warranty deed.7

Abraham sent the July 27, 2020 text message to the realtor that lists a description

of the Property features including a “new driveway.” The realtor called while he was

at a meeting and asked him to look at the text description of the Property listing that

she prepared that included the new driveway. “I felt pressured to read it real quick

and answer back to her.” Tr. 228. He did not deny approving the “new driveway”

language but stated he did not approve the language that the driveway “allows

enough space for multiple vehicles to park side by side.” Tr. 229.

On August 13, 2020, the realtor texted regarding A.J.’s Property that

“[i]t is so strange that their back door goes to the driveway too[.]” Abraham read his

response:

That leads to the back of their house. There is a path that goes to the

back.

The next door house also has 2 or 3 feet on the side of their house as a

walkway in case work needs to be done on their house, like roof work

or siding, et cetera. That[’s] standard for any house.

Tr. 225.

Abraham understood that the $93,500 purchase price was for the

house including a driveway and that the driveway would be used by the buyer.

Abraham did not know the exact Property boundaries, never spoke with Garcia, and

7 A review of the warranty deed reflects that the warranty excepted coverage for

“encroachments as do not materially adversely affect the use or value of the property.”

(Emphasis added.)

said he never intended to mislead. He hired a construction company for the

driveway installation and did not know anything about a permit nor that the rear of

the driveway encroached four and one-half feet onto the rear property.

Abraham stated he did not discuss installing the driveway directly

with A.J. but communicated through their mother. “And I told her: Hey, I’m going

to pour a driveway. I’m going to pay the full thing. And then she talked to my

brother, and then he got — she got back to me, told me: then he’s okay with it.”

Tr. 221. At the deposition, Abraham testified that he discussed pouring the driveway

directly with A.J.

The trial court found Abraham liable for fraud and awarded $8,000

in damages. The remaining claims by the parties were denied.

On counts one, two, three, and five of plaintiff’s complaint, the court

enters judgment in favor of defendants. The court also enters judgment

in favor of defendants on plaintiff’s claim for punitive damages and

attorney fees.

The court enters judgment in favor of plaintiff on defendant

Abdeljawad Ewais’s counterclaims.

The court enters judgment in favor of plaintiff and against defendant

Abraham Ewais on plaintiff’s claim for fraud (count four of the

complaint).

Judgment is granted in favor of plaintiff Maria Garcia against

defendant Abraham Ewais in the amount of $8,000.00 plus interest at

5.00% per annum from the date of judgment and court costs.

Journal Entry 159299043 (Sept. 25, 2023).

Garcia appeals.

IV. Assignments of Error

Garcia assigns the following errors:

I. The trial court erred when it denied any finding of an equitable

easement in appellant’s favor.

II. The trial court erred when it did not issue any findings in support

for its damages award for fraud.

V. Analysis

A. Equitable easement

1. Standard of Review

An easement by estoppel must be established by clear and convincing

evidence, and we review whether the finding that Garcia did not establish such an

easement is against the manifest weight of the evidence. Fling v. Daniel, 2019-Ohio-

1723, ¶ 26 (4th Dist.), citing Pinkerton v. Salyers, 2015-Ohio-377, ¶ 17-18 (4th Dist.).

“Clear and convincing evidence” is a measure of proof that is more

than a mere “preponderance of the evidence.” Cross v. Ledford, 161 Ohio St. 469,

477 (1954). “It is intermediate, being more than a mere preponderance, but not to

the extent of such certainty as is required beyond a reasonable doubt as in criminal

cases. It does not mean clear and unequivocal.” (Emphasis in original.) Id., citing

Merrick v. Ditzler, 91 Ohio St. 256 (1915). Manifest weight is a question of fact.

State v. Thompkins, 78 Ohio St. 380, 387 (1997). In a manifest weight analysis, an

appellate court “reviews the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and . . . resolves conflicts in the

evidence.” Id.

2. Discussion

Garcia states that the permanent nature of the cement driveway

installed by Abraham with A.J.’s agreement to provide a driveway for the Property

for Abraham to park and to waterproof the basements of both properties created an

equitable easement. This court finds that the argument has merit.

‘“An easement is the interest in the land of another . . . that entitles

the owners of the easement, the dominant estate [in this case Garcia as owner of the

Property], to a limited use of the land in which the interest exists, the servient estate

[A.J.’s Property].’ (Citations omitted.)” Slosar v. Homestead Creek Homeowners

Assn., 2011-Ohio-4420, ¶ 26 (8th Dist.), quoting Crane Hollow, Inc. v. Marathon

Ashland Pipe Line, LLC, 138 Ohio App.3d 57, 66 (4th Dist. 2000).

“An easement may be created ‘by grant, implication, prescription, or

estoppel.”’ Gateway Park, LLC v. Ferrous Realty, Ltd., 2008-Ohio-6161, ¶ 29 (8th

Dist.), citing Kamenar R. S., Inc. v. Ohio Edison Co., 79 Ohio App.3d 685, 689 (3d

Dist. 1992). An express easement may be granted by deed or ‘“[t]he grant may also

be included in the language of a lease or similar document.’” Acorn Dev., LLC v. The

Sanson Co., 2022-Ohio-2576, ¶ 15 (8th Dist.), citing Kamenar at 689, citing 36 Ohio

Jur.3d, Easements and Licenses, § 18 (1982).

Easements may also be created by implication, prescription, or

estoppel. Id., citing Miller v. Romanauski, 2014-Ohio-1517, ¶ 17 (8th Dist.), citing

Gateway Park, LLC at ¶ 29. Garcia argues that a grant of easement by estoppel,

also known as an equitable easement, is the correct legal remedy in this case.

The easement by estoppel doctrine in Ohio applies where ‘“an owner

of land, without objection, permits another to expend money in reliance upon a

supposed easement, when in justice and equity the former ought to have disclaimed

his or her conflicting rights.’”8 Prymas v. Kassai, 2006-Ohio-3726, ¶ 12 (8th Dist.),

quoting Arkes v. Gregg, 2005-Ohio-6369, ¶28 (10th Dist.). ‘“The party seeking to

establish an equitable easement must show (1) a misrepresentation or fraudulent

failure to speak, and (2) reasonable detrimental reliance.’” Id., quoting id. See also

Safran Family Trust v. Hughes Property Mgt., 2018-Ohio-438, ¶ 17 (6th Dist.)

(“[A]n easement by estoppel arises when ‘an owner of property misleads or causes

another in any way to change the other’s position to his or her prejudice.”’ [Citations

omitted.”).

While courts are generally reluctant to find an easement by estoppel

based on, for example, passive acquiescence, ‘“[i]f injustice can be avoided only by

establishment of a servitude, the owner or occupier of land is estopped to deny the

existence of a servitude burdening the land when: (1) the owner or occupier

permitted another to use that land under circumstances in which it was reasonable

to foresee that the user would substantially change position believing that the

8 While “research has not revealed any cases in which the Supreme Court of Ohio

has explicitly or implicitly recognized easements by estoppel, it has also not revealed any

cases in which that court declined to recognize such an easement despite the presence of

actual or constructive fraud.” Fling v. Daniel, 2019-Ohio-1723, 130 N.E.3d 319, ¶ 21 (4th

Dist.). If an owner fails to object, the owner is estopped to deny the easement. Id. The

purpose of equitable estoppel is ‘“to prevent actual or constructive fraud and to promote

the ends of justice.’” Id. at ¶ 23, citing Doe v. Archdiocese of Cincinnati, 2008-Ohio-67,

¶ 7, quoting Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d 143, 145 (1990).

permission would not be revoked, and the user did substantially change position in

reasonable reliance on that belief . . . .’” Id. at ¶ 10, quoting Restatement of the Law,

3d, Property, § 2.10, at 143 (2000).

Garcia cites McCumbers v. Puckett, 2009-Ohio-4465 (12th Dist.), in

support of her position. The Twelfth District affirmed the trial court’s grant of an

easement by estoppel. The Pucketts owned real property immediately south of the

McCumberses’ property and a strip of land that ran “along the eastern boundary of

McCumberses’ property and extend[ed] to the Pucketts’ property.” Id. at ¶ 1. The

Pucketts and predecessors to the McCumbers shared the cost to install a driveway

on the strip that benefited both properties.

The relationship between the parties deteriorated. The McCumbers

hired someone to pave an approach to their new garage that connected to the

driveway strip. The Pucketts threatened to construct a fence along the driveway that

would block access to the McCumberses’ new garage. The McCumbers filed suit and

alleged they possessed an easement under the doctrine of adverse possession,

prescriptive easement, and/or easement by estoppel. Id. at ¶ 7.

The trial court relied in part on Restatement of the Law 3d, Property,

§ 2.10 (2000), entitled “Servitudes Created by Estoppel” in granting the easement

that states in pertinent part:

“If injustice can be avoided only by establishment of a servitude, the

owner or occupier of land is estopped to deny the existence of a

servitude burdening the land when:

“(1) the owner or occupier permitted another to use that land under

circumstances in which it was reasonable to foresee that the user would

substantially change position believing that the permission would not

be revoked, and the user did substantially change position in

reasonable reliance on the belief[.]”

McCumbers, 2009-Ohio-4465, ¶ 18-20 (12th Dist.). See also Prymas, 2006-Ohio-

3726, ¶ 10 (8th Dist.), quoting Restatement, § 2.10 at 143.

In addition, the ‘“[f]ailure to object to an investment made in

improvements to land by another may give rise to an estoppel against the owner

or occupier of the land, if the owner or occupier knows or reasonably should know

that the investment is being made on the basis of a mistaken belief that the investor

has a nonrevokable right to use the land.”’ (Emphasis in original.) McCumbers at

¶ 21. Restatement of the Law 3d, Property (Servitudes), §2.10, Comment e (2000).

A.J., an engineer and experienced real estate investor, as the owner of

the servient parcel, agreed that Abraham, the owner of the dominant parcel, could

finance and install a permanent 18-foot-wide concrete driveway to serve as a

driveway for the Property, and to waterproof both properties that A.J. testified

benefited his property.9 A.J. and Abraham testified that they did not know the

boundaries of the properties until the surveys were taken approximately two years

after Garcia’s purchase. A.J. also testified that he did not assert his property line

until after Garcia purchased the Property.

9 See Shanks v. Floom, 162 Ohio St. 479, 484 (1955), considering the permanence

and nature of an improvement constructed of concrete on the boundary line of

neighboring properties to substantiate an element of a prescriptive easement, which also

requires use over a period of time, versus a merely permissive use.

Thus, A.J. expressly agreed that Abraham could expend money to

install a permanent structure for parking for the Property in reliance on what

constitutes an equitable easement ‘“when in justice and equity’” A.J. ‘“ought to have

disclaimed his . . . conflicting rights.’” Prymas, 2006-Ohio-3726, at ¶ 12 (8th Dist.),

quoting Arkes, 2005-Ohio-6369, at ¶ 28 (10th Dist.).

A subsequent owner of realty as “one who is in privity with another

because of the transfer of property ‘stands in the same shoes’ as to the rights of the

prior owner of the same property, thereby giving the subsequent owner the same

rights and obligation as the original owner had in regard to the property.” Berardi

v. Ohio Turnpike Comm., 1 Ohio App.2d 365, 370 (8th Dist. 1965).

Abraham sold the Property with a newly poured driveway. No

construction permit was secured. There was no public record or other indication

that a boundary issue existed impacting the driveway. The trial court entered

judgment against Abraham for fraud. Garcia, as the successor owner of the

dominant parcel, expended money to purchase the Property with a driveway as

represented without notice of the boundary issue.

The Property appraisal was based on the inclusion of the driveway

and the listing included a driveway. The residential disclosure statement specifically

disclaimed encroachments “from or on [the] adjacent property,” boundary disputes

or agreements, or that the driveway was shared. Garcia is left without a functional

driveway that is not fit for the purpose represented or intended. A.J. agreed to the

installation, his property benefited from the installation, and he failed to exercise his

boundary rights prior to Garcia’s purchase. A party must show a misrepresentation

or fraudulent failure to speak in addition to a reasonable detrimental reliance to

establish an equitable easement. See Prymas, 2006-Ohio-3726, ¶ 12 (8th Dist.);

Arkes, 2005-Ohio-6369, ¶ 28 (10th Dist.).

We reiterate that while courts are generally reluctant to find an

easement by estoppel based on, for instance, passive acquiescence, the agreement

between A.J. and Abraham was expressed.

“[I]f injustice can be avoided only by establishment of a servitude, the

owner or occupier of land is estopped to deny the existence of a

servitude burdening the land when: (1) the owner or occupier

permitted another to use that land under circumstances in which it was

reasonable to foresee that the user would substantially change position

believing that the permission would not be revoked, and the user did

substantially change position in reasonable reliance on that belief . . . .”

Prymas, 2006-Ohio-3726, at ¶ 10 (8th Dist.), quoting Restatement of the Law 3d,

Property, at 143 (2000). We find this is one of those cases.

It would be “unconscionable” to deny an easement by estoppel

sufficient to allow Garcia to park in the driveway, open the car doors, and to

otherwise enjoy a reasonable use of the driveway. See McCumbers, 2009-Ohio-

4465, ¶ 22 (12th Dist.).

Based on a thorough review of the record, we find that it clearly and

convincingly shows that Garcia has established the elements of an easement by

estoppel and the judgment is against the manifest weight of the evidence.

Garcia has requested that the fence be moved back to allow her an

additional four feet for parking and use of the driveway, the amount of footage that

A.J. stated he knew as an engineer would be required. We remand the case to the

trial court for the limited purpose of establishing the width of the easement to allow

the additional footage for Garcia’s reasonable use of the driveway to park, open the

car doors, and exit the vehicle and order that the fence be removed to the boundary

of the easement.

The first assignment of error is sustained.

B. Fraud

In the second assignment of error, Garcia contends the trial court did

not issue findings and support for the amount awarded as damages for fraud. The

trial court awarded $8,000 for fraud by Abraham without further explanation, and

Garcia asserts it does not compensate her for breach of contract for the

nondisclosure or attorney’s fees for the fraudulent conduct.

The sole case law offered to support the argument sets forth the

elements of fraud. App.R. 16(A)(7) requires that Garcia include the following in her

brief: “An argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on

which appellant relies.” Baxter v. Thomas, 2015-Ohio-2148, ¶ 55 (8th Dist.). It is

not the duty of this court to root out an argument in the event it exists to support

this assignment of error. Id., citing Citta-Pietrolungo v. Pietrolungo, 2005-Ohio-

4814, ¶ 35 (8th Dist.), quoting Cardone v. Cardone, 1998 Ohio App. LEXIS 2028

(9th Dist. May 6, 1998).

The second assignment of error is overruled.

VI. Conclusion

The first assignment of error is sustained, the trial court’s judgment

denying an equitable easement is reversed, and the case is remanded for the sole

purpose of establishing the width of the easement by estoppel for the driveway and

ordering removal or relocation of the fence to the established easement boundary.

The second assignment of error is overruled. The remainder of the judgment is

affirmed.

It is ordered that costs are divided equally between the parties.

The court finds that 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.

ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS;

LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY