Document for 11-CV-0083 - KOPRIVEC, DON & CAROLYN vs. RAILS-TO-TRAILS OF WAYNE COUNTY

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                IN THE COMMON PLEAS COURT
OF WAYNE COUNTY, OHIO

DON & CAROLYN KOPRIVEC, } CASE NO. 11-CV-0083
etal. )
) JUDGE COREY E. SPITLER
Plaintiffs, )
)
vs. )
) DEFENDANT RAILS-TO-TRAILS OF
RAILS-TO-TRAILS OF WAYNE ) WAYNE COUNTY’S MEMORANDUM
COUNTY, ) IN OPPOSITION TO PLAINTIFFS’
) MOTION FOR SUMMARY
Defendant. ) JUDGMENT ON DEFENDANT'S
) COUNTERCLAIMS

L INTRODUCTION

Defendant Rails-to-Trails of Wayne County (“Rails-to-Trails”), pursuant to Rule 56 of
the Ohio Rules of Civil Procedure, hereby submits this Memorandum in Opposition to Plaintiffs’
Motion for Summary Judgment on Defendant’s Counterclaims. Plaintiffs are not entitled to
Summary Judgment on Rails-to-Trails’ Counterclaims as a matter of law. Instead, Rails-to-
Trails is entitled to Summary Judgment on Counts One and Two of its Counterclaims, as
demonstrated by its Motion for Summary Judgment previously filed with the Court.

Through Plaintiffs’ Motion, they attempt to defend against Rails-to-Trails’ counterclaims
for declaratory relief, quict title, and trespass by claiming a reversionary interest, and therefore

title, from an 1882 deed. Plaintiffs impermissibly advance a claimed interest in Rails-to-Trail’s

' Rails-to-Trails’ Motion for Summary Judgment, filed on May 4, 2012, is incorporated in the
instant Memorandum in Opposition. by reference as if fully rewritten. The evidence filed by
Rails-to-Trails with this Court on May 2, 3, and 4, 2012 in support of its Motion for Summary
Judgment, including various deposition transcripts, affidavits, exhibits; and the Appendix to
Rails-to-Trails’ Motion for Summary Judgment, is also incorporated herein by reference.

{01226925 -3}property through an alleged reversionary interest, which should have been pled either as an
affirmative claim for relief or as an affirmative defense. Having failed to do either, Plaintiffs are
barred from raising it in their Motion.

Even if Plaintiffs had raised ther claim previously, it would still fail because (1)
purported evidence submitted by Plaintiffs in support of their Motion, including a deed from
1882, 1s improper and must be struck; and (2) Plamtiffs’ arguments regarding the contended
reversionary character of that deed are not supported by the plain language of the referenced
deed or Ohio law. Plaintiffs additional attempts to defeat Rails-to-Trails’ counterclaims, based
on purported lack of standing and ancillary nghts with respect to the property at issue, are also
without merit Accordingly, and as set forth more fully below, this Court should deny Plaintiffs’
Motion for Summary Judgment on Defendant’s Counterclamms.

IL. LAW AND ARGUMENT

A. The Affidavits Attached To Plaintiffs’ Motion Must Be Struck.

Contemporaneously with the filing of the current Memorandum in Opposition, Rails-to-
Trails has filed its Motion to Stnke Affidavits attached to Plaintiffs’ Motion for Summary
Judgment on Defendant’s Counterclaims (“Motion to Strike”), which is incorporated herein by
reference as if fully rewritten. The affidavits of Plaintiffs, Bnan Bilinovich, Joseph Koontz, and
Don Koprivec, must be struck in their entirety because they are not based solely on the affiants’
personal knowledge. Additionally, even if the affidavits are not struck in their entirety, then
numerous statements contained there must be struck because (1) they are not based on personal
knowledge as required by Crvil Rule 56(E), (2) they constitute conclusions of law, not statements
of fact, (3) they contain inadmissible hearsay evidence, and (4) they set forth averments of

matters that are wholly irrelevant to the issues in this case

{01226925 -3}The Bussard Deed, which is attached to the Affidavit of Brian Bilinovich, and Mr.
Bilinovich’s conclusions regarding that deed, should not be considered by this Court for the
reasons set forth in the Motion to Strike. Because Plaintiffs’ Motion 1s dependent upon that deed
and Mr. Bilinovich’s inadmissible conclusions therefrom, Plaintiffs’ Motion may be denied on
the sole basis that Plaintiffs have failed to support their Motion with sufficient evidence as
required by Rule 56 of the Ohio Rules of Civil Procedure.

B. Plaintiffs Cannot Raise A Defense Based On A Deed’s Purported

Reversionary Character For The First Time Through Their Motion For
Summary Judgment.

Rule 8(C) of the Ohio Rules of Civil Procedure mandates that a party “shall set forth
affirmatively” certain specified defenses “and any other matter constituting an avoidance or
affirmative defense.” Civ. R. 8(C). The purpose of requiring that affirmative defenses be
specifically pled 1s so that the parties will be on notice as to matters on which to prepare See
Matthews v Matthews, No. 80AP-841, 1982 WL 3990, at *2 (Ohio Ct. App. 10" Dist.). The
intent of the requirement of specific pleading is to avoid unfair surprise. Reed v Multi-County
Juvenile Systems, 2010-Ohi0-6602, {| 42 (Ohio Ct. App. 7” Dist.), appeal not allowed, 128 Ohio
St.3d 1482 (2011). Failure to plead an affirmative defense as required by Rule 8(C) results in
waiver of that defense. Jim's Steakhouse, Inc v Cleveland, 81 Ohio St.3d 18, 20 (1998).
“Affirmative defenses cannot be asserted for the first time in a motion for summary judgment.”
Miller v Munchel, 2011-Ohio-3734, ¥ 18 (Ohio Ct. App. and Dist.)

Numerous cases recognize that a party’s claim that it holds a reversionary or other
contingent interest in property constitutes an affirmative defense that must be specifically pled.
See, eg, URS Corp v. Ash, 427 N.E.2d 1295, 1301 (Ill. App. 1981) (“The second affirmative

defense in the eminent domain area alleged that a reversion by operation of law occurred when

401226925 -3}the public purpose was no longer being served.”); Fishman v Tupps, 257 P 2d 579, 579-80 (Col.
1953) (“[A]nd as an affirmative defense, they pleaded abandonment by plaintiffs of a
nonconforming use and a reversion under the zoning ordinance by reason of an ordinance
abolishing trailer camps in Aurora”); Williams v Downing, 95 P.2d 612, 614 (Okla. 1939) (per
curiam) (“The claim of the plaintiff in error . . . to reversion and right of reentry constituted an
affirmative defense the burden of establishing which rested upon him.”); see also Millville
Christian Church v Henton, 2003 WL 23008506 (Ky. App.) (tral court’s discussion related
solely to question of whether litigant “should be granted leave to assert reversion as an
affirmative defense”)

Contrary to this rule, however, nothing in Plaintiffs’ Reply to Rails-To-Trails’
Counterclaim asserts that Plaintiffs are entitled to ownership of the disputed tracts of land based
on a claimed reversionary interest arising from the Bussard Deed. As a result, Rails-to-Trails
was denied the opportunity to conduct discovery on this issue so as to develop a full and
complete factual record for presentation to the Court Accordingly, particularly in light of the
fact that failure to plead an affirmative defense results in waiver, the Court must decline to
consider the merits of Plaintiffs’ claim to ownership by a reversionary interest. See, eg, Brown
vy Village of Lincoin Hts., 195 Ohio App.3d 149 (1* Dist. 2011) (reversing tnal court’s entry of
summary judgment in defendant’s favor where defendant had not asserted affirmative defense of
recreational-user immunity 1n its answer), appeal not allowed, 130 Ohio St.3d 1477 (2011); Fifth
Third Bank v Werner, 2010-Oh10-4689, § 15 (Ohio Ct. App. 8" Dist.) (“Ohio law prohibits a
defendant from asserting an affirmative defense not raised in a responsive pleading for the first

time in a motion for summary judgment.”)

{01226925 -3}Cc. The Language Of The Bussard Deed Does Not Create A Fee Simple
Determinable Or Fee Simple Subject To Condition Subsequent, But Rather
A Fee Simple Absolute.

Plaintiffs have advanced the argument that the language in the Bussard Deed creates a fee
simple determinable or, in the alternative, a fee simple subject to a condition subsequent.
Plaintiffs’ Motion, pp. 7-9, 14-15. While Plaintiffs present their arguments relative to the
Bussard Deed in two different sections of ther Motion, Rails-to-Trails will address both here as
the law in Ohio demonstrates that neither of the estates suggested by Plaintiffs was created by the
Bussard Deed

The 1882 deed attached to the Affidavit of Brian Bilinovich (the “Bussard Deed”)
contains the following language in the granting clause

...[ Philip Bussard of Chippewa in the County of Wayne and State of Ohio in
consideration of the sum of six hundred dollar received to my full satisfaction of
the Akron Branch of the Cleveland and Pittsburgh Rail Road Company have
bargained and sold and do freely grant bargain sell and convey unto the said
Akron Branch of the Cleveland and Pittsburgh Rail Road Company and to
its assigns forever the land hereinafter described... (Emphasis added.)

After describing the land conveyed, the deed contains the following habendum clause:

To have and to hold said premises unto the said Akron Branch of the Cleveland
and Pittsburgh Rail Road Company and to it assigns forever for the purpose of
constructing and using thereon a Rail road and other works connected
therewith under and by virtue of the several acts of the Legislature of the state of
Ohio incorporating and regulating said Akron Branch Rail Road Company. And
the said Phillip Bussard for himself and heirs does hereby covenant with said
Akron Branch Rail Road Company and its assigns that he is lawfully seized of the
premises aforesaid and that the premises are free and clear from all incumbrances
whatsoever and that he will forever Warrant and defend the same with the
appurtenances unto the said Rail road Company and its assigns against the lawful
claims of all persons whomsoever (Emphasis added )

The Supreme Court of Ohio reaffirmed the test for determining whether a determinable
fee 1s created by its decision /n re Copps Chapel Methodist Episcopal Church, 120 Ohio St. 309,

166 N. E 218 (1929) Where “the deed in question contains no reverter clause, that there is no

{01226925 -3}condition or limitation of the grant, and no provision for the reversion of the property to the heirs
of the grantor,” the entire estate passes to the grantees. Jd at 310 Citing simular language in
cases from other jurisdictions, the Court noted that such general statements “for no other
purpose, in fee, does not create a condition subsequent, with consequent forfeiture in case of use
for any other purpose.” Jd, at 313
The Supreme Court of Ohio also held that the statement contained in the deed, “so long
as said lot is used for church purposes” was not a condition, nor limitation of the grant, but a
mere covenant that the property shall be used in a particular way.” Copps Chapel, 318-319. The
Court noted that “it 1s an elementary proposition of law that conditions subsequent are not
favored by the law, because on the breach of such conditions there is forferture and the law 1s
adverse to forfeitures.” fd at 314. The Court ruled.
There are no words of condition or forfeiture in the deed. There is no reverter
clause, nor any provision establishing the right of re-entry. Hence, taking the
deed by it four corners, it shows that the grantor intended to convey, and did
convey, to the grantees all of his estate in the land.”

Id. at 315.

To determine whether a conveyance 1s a fee simple determinable, the court “must first
ascertain the intent of the parties at the time of the conveyance, for 1t 1s an accepted principle of
construction that all doubt will be resolved against finding that such an estate exists.” Board of
County Commissioner of Van Wert County v. Consolidated Rail Corp , 14 Ohio Misc.2d 4, 469
N.E.2d 1361, 1362 (Van Wert Cty. Common Pleas 1983) (emphasis added). In Van Wert, the
Court found that the habendum clause contained “very plain language” of the determinable
event, as well as reverter language (“the same shall revert to Van Wert County”) /d. at 1363
The Court, following Copps Chapel, reiterated the two-part rule to find a fee simple

determinable:

{01226925 -3}In Ohio, it 1s necessary, in order to create a fee simple determinable, that there
must be the limiting words, such as “so long as,” and 1f these words are contained
in the habendum clause rather than in the granting clause, then there must also be
a provision for forfeiture or reversion. The court finds that both exist im the
present case and that, therefore, there exists a fee simple determinable.

Id

Where a deed uses the language “‘so long as’ the land is ‘used...for the purpose of

creating and maintaming a public park.. ,’” that conveyance “does not create a determinable fee,
nor indeed an estate with a condition subsequent, without other language in the deed providing
for reversion or forfeiture in the event of broken conditions.” PCK Properties, Inc, v. City of
Cuyahoga Falls, 112 Ohio App. 492, 176 N.E.2d 441, 445 (9" Dist. 1960). Where “there is no
provision for forfeiture or reversion, the entire estate of the grantor is divested, and the title of
the municipality thereto is not a determinable fee, but a fee simple.” /d. (quoting Miller v.
Village of Brookville, 152 Olo St. 217 (1949))

In a similar case involving railroad property, the Ohio Court of Appeals for the First
District held:

That where, as here, the granting clause conveys ali the described real estate and

contains no words of condition or forfeiture, there 1s no reverter clause or

provision for a right of re-entry, and the only words of limitation appear in a

prefatory clause describing the purpose of the acquisition (a purpose that was, we

note, fully realized), the intention of the parties 1s to convey, and the deed, in

effect, does convey, an indefeasible fee stmple interest in the property
Lutle Miami, Ine v. Wisecup, 13 Ohio App.3d 239, 468 N.E.2d 935, 938 (1 Dist. 1984). Based
on the law set forth in Copps Chapel, the Court found that “words of limitation concermng the
use of the property only for the construction of a railroad appeared not in the granting clause, but

im a separate clause that served, in our judgment, merely to describe the purpose of the

acquisition.” /d, at 937.

{01226925 -3}An examination of the Bussard Deed reveals none of the requirements of Ohio law to
create any type of reversionary interest or reverter to establish a determinable fee or a condition
subsequent. The Bussard Deed does not contam a reverter clause, a condition or limitation on
the grant, or any provision which would cause a reversion of the property to the heirs of Phillip
Bussard The reference to the Railroad in the Bussard Deed is not a condition or limitation of the
grant, but rather, a statement of the purpose for the conveyance Further, the deed contains no
reverter language, which is required under Ohio law to create a reversion.

Realizing that the Bussard Deed does not contain any reverter language, Plaintiffs entreat
this court to look outside the four corners of the deed and engage in a legal review and analysis
of an 1835 Act of the Ohio Legislature, and impute words from a statute to determine the intent
to Philp Bussard. Such an exercise 1s prohibited by Ohio law.

Under Ohio law, the reversionary language must be in the four corners of the deed. If
the intention of the parties is apparent from an examination of the deed ‘from its four corners,” it
will be given effect regardless of the technical rule of construction” Hinman v. Bares, 146
Ohno St. 497, 66 N.E.2d 911 (1946). In other words, “whether a conveyance by deed amounts to
an indefeasible fee or a qualified fee 1s also dependent upon the intention of the grantor taken
from the four corners of the instrument.” Waldock v Unknown Heirs, No E-89-53, 1991 WL
97317.944 (o" Dist.) (citing Copps Chapel, 120 Ohio St at 315) (emphasis added).

Nothing in the deed suggests anything more than a mere reference to the “several acts of
the Legislature of the State of Ohio incorporating and regulating said Akron Rail Branch Rail

Road Company.” Contrary to the assertions of the Plaintiffs, the deed in no way “incorporates”

{01226925 -3}any legislation And, contrary to the assertions of the Plaintiffs, the deed does not “incorporate,”
much less mention, the 1835 Act or the 1851 Amendment.”

The cases cited by Plaintiffs in their Motion regarding interpretation of deeds are cases
either conceming the construction of contracts and not deeds, and therefore are inapplicable to
this case, or cases that support Rails-to-Trails’ position rather than Plaintiffs. For example, in
Board of Educ of Rolling Hills Local School Dist v George, 1990 WL 200377 (Ohio Ct. App.
5th Dist. 1990), the specific words “so long as” were used in both the granting and habendum
clauses of the deed. In fact, in Rolling Hills the court found that Copps Chapel stands for “the
proposition of Ohio law that limitations of conditions which appear subsequent to the Granting
Clause of a conveyance, are not considered as a condition subsequent when all of the estate was
conveyed in the granting clause, unless the Deed contains a provision for reversion or forfeiture
for a violation of the condition” /d at 4/4.

Likewise, Board of Education of Lebanon Village School Dist. v. Hollmgsworth, 56 Ohio
App 95, 10 N.E.2d 25 (1* Dist. 1936), cited by Plaintiffs, explains in detail the distinction in the
deed language that does and does not created a reversionary interest or reverter, citing to both
Copps Chapel and Sperry v. Pond. The deed examined by the Court in Sperry v. Pond, 5 Ohio
387, 24 Am. Dec. 296 (1832), and cited by Plaintiffs in their motion, specifically provided “so

long as they should continue to use and improve the same for the express purpose of grinding,

> The Cleveland and Pittsburgh Railroad Company (C&PRR) was established by the 1836 Act.
The 1836 Act was amended in 1851 to create the entity of the Akron Railroad Company. A bnef
review of history relative to the establishment railroads in the 1800s shows that the corporate
entity and all of 1ts powers was establish by act of the legislature. See generally, Coe v. Pennock,
6 Am. Law Reg, 27, 5 F. Cas. 1172, 1174 (1857) The Act gives rather broad, not limited power
to the railroad company, just as any corporation might have and not as limited as Plaintiffs
suggest.

401226925 -3}and no longer.” /d at 318 The significant “and no longer” language, which existed in the Sperry
Case, is absent from the Bussard Deed

The principle of Ohio law is well established: Without proper and specific language in
the deed itself, there cannot be a reverter or reversionary interest established. The terms of the
Bussard Deed’s conveyance are unambiguously set forth within the four corners of the deed, and
no form of reversionary interest is reserved for Mr. Bussard or his heirs. The clear language of
the Bussard Deed makes it unnecessary to look to any other documents or information to
determine the intent of Phillip Bussard, and it is improper to do so under Ohio law

The intent of Philp Bussard could not be clearer as it 1s written in the Bussard Deed: He
intended to sell in fee simple the described property to the Akron Branch Rail Road, and on
behalf of himself and his heirs “forever.” The language of the Bussard Deed thus establishes a
fee simple conveyance under Ohio law with no reversionary interest or reverter created. The
deed of Phillip Bussard created a fee simple absolute in the Akron Branch, and that interest has
been properly passed through succession to Norfolk Southern. Norfolk Southern recerved title in
fee simple and was thereby able to convey and sell that land to whomever it chose and then did
so to Rails-to-Trails. Since the Bussard Deed does not create an interest in the property for
Plaintiffs, the defense raised to the Rails-to-Tratls counterclaim of trespass fails as well.
Plaintiffs’ attempt to convince this Court otherwise 1s not grounded in fact or law and their
Motion for Summary Judgment must be denied.

D. Rails-to-Trails Has Standing To Assert Its Claim For Quiet Title.

In their Motion, Plaintiffs make the argument that Rails-to-Trails has no standing to
pursue its quiet title counterclaim pursuant to Ohio Revised Code Section 5303.01, which

provides. “An action may be brought by a person in possession of real property, by himself or

{01226925 -3}tenant, against any person who claims an interest therein adverse to him, for the purpose of
determining such adverse interest”  Plamtiffs then assert that Rails-to-Trails “cannot
demonstrate physical possession of the Koprivec Section, Bilinovich Section, or Koontz Section
at the time this action was imtated,” claiming that Rails-to-Trails must have “physically
possessed” the Railroad Right-of-Way for the two months between the filing of Plaintiffs’
Complaint and Rails-to-Trails Answer and Counterclaim. Plaintiffs’ Motion, p. 12.

As an imtial matter, no authority exists, and none has been cited by Plamntiffs, in support
of Plaintiffs’ novel theory that a quiet ttle claimant must take any action between the filing of a
complaint and counterclaim in order to maintain standing. Even if such authomity existed,
however, Plaintiffs could not use any inaction on behalf of Rails-to-Trails pursuant to the
agreement reached between the parties at the onset of this litigation. See correspondence
between counsel, attached hereto as Exhibit “A.”

There also exists no legal support for Plaintiffs’ contention that Rails-to-Trails must have
“physically possessed” the Railroad Right-of-Way prior to bringing suit for quiet title. That
being said, however, Rails-to-Trails did assert physical possession over the Railroad Right-of-
Way prior to asserting its counterclaim. In November 2009, on two occasions, Donald Noble,
the President of Rails-to-Trails, inspected the entire length of the Railroad Right-of-Way, Noble
Depo, pp 99-104; Noble Affidavit, | 7. As such, Rails-to-Trails exerted “physical possession” of
the Railroad Right-of-Way in November 2009.

In any case, Rails-to-Trails’ possession of the Railroad Right-of-Way 1s created by its
legal right to possess the property pursuant to the deed from Norfolk Southern. Because

Plaintiffs have asserted an adverse interest, Rails-to-Trails has direct standing to assert its quiet

{01226925 -3}title clam. Therefore, Plaintiffs’ Motion for Summary Judgment must be overruled and

judgment granted to Rails-to-Trails.

E. Any Right That Plaintiffs May Have To Cross The Railroad Right-of-Way
Does Not Bar Rails-to-Trails’ Counterclaims.

Plaintiffs provide absolutely no legal support for the proposition that a right of way or
easement across the property now owned by Rails-to-Trails somehow defeats its ownership
interest or bars its counterclaims. If the property conveyed to Rails-to-Trails through the line of
succession contained permanent easements, then those easements may potentially be of a
perpetual nature and remain in place. However, an easement does not destroy the fee simple
interest conveyed to Rails-to-Trails from Norfolk Southern Moreover, an easement across the
property of Defendant does not prevent it from quieting title. Ochsenbine v Cadiz, 166 Ohio
App.3d 719, 853 N E 2d 314 (7" Dist. 2005).

In an attempt to overcome the counterclaim for trespass, Plaintiffs rely on the argument
that the Bussard Deed creates a reversion or reversionary interest, vesting title in them rather
than Rails-to-Trails, Since Ohio law does not create an interest mn the property by reversion or
reverter in Plaintiffs, but rather, a proper fee simple absolute transfer from Norfolk Southem to
Rails-to-Tratls, Plaintiffs did not obtain title to the Trail Property in 2009 as they claim.
Therefore, any “possession” or use of the Trail Property by Plaintiffs is a trespass by them on the
land now owned by Rails-to-Trails.

While certain Plaintiffs may have valid rights to cross the property of Rails-to-Trails,
those nghts would not create a higher interest to Plaintiffs in the property, and Rails-to-Trails
would still be entitled to declaratory relief and to quiet title. The law simply does not prohibit
relief for Rails-to-Trails’ claims as to the validity of its fee simple interest because of a potential

lesser estate.

{01226925 -3}
12If. CONCLUSION

The deed from the Norfolk Southern to Rails-to-Trails was a fee simple absolute
conveyance. Moreover, nothing in the Bussard Deed created any form of reversionary interest to
the Plaintiffs as determined from the “four corners of the deed” in accordance with the well-
established law of Ohio. The Bussard Deed created a fee simple absolute conveyance with no
rights of reversion.

Further, Plaintiffs have standing to maintain their claim for quiet title, and Plaintiffs’
potential nghts to cross Rails-to-Trails’ property does not bar its Counterclaims. Accordingly,
Plaintiffs’ Motion for Summary Judgment on Defendant’s Counterclaims must be denied and the
Motion for Summary Judgment on Rails-to-Trails’ Counterclaims granted.

Respectfully submitted,

“— os aoe” : a“
7 2 CNT co.
Ralph E. Cascarilla (Reg. No. 0013526)

Email reasearilla@ walterhay com
Darrell A. Clay (Reg. No. 0067598)
Email delayia walterhay com
Bonnie S Finley (Reg. No.0065565)
Email bfinleww walterhay com
WALTER & HAVERFIELD LLP
1301 East 9th Street, Suite 3500
The Tower at Erieview
Cleveland, Ohio 44114
(PH) 216-781-1212 / (FAX) 216-575-0911

Attorneys for Defendant
Rails-to-Trails of Wayne County

401226925 -3)

13CERTIFICATE OF SERVICE

A copy of the foregoing Defendant Rals-to-Trails of Wayne County's Memorandum
in Opposition to Plaintiffs Motion for Summary Judgment on Defendant's Counterclaims
was served via regular U.S. mail, postage prepaid, this 18th day of May, 2012 on the
following:

John K. Keller

Thomas H. Fusonie

VORYS, SATER, SEYMOUR AND PEASE LLP
52 East Gay Street

Post Office Box 1008

Columbus, Ohio 43216

Attorneys for Plaintiffs
eo oD NU

Je 8 o>
1 oS’ r

set NS Oe

2

One of the Attorneys for Defendant

{01226925 -3}
14Bon

From: Ralph E Cascarilla

Sent: Wednesday, March 09, 2011 9 39 AM
To: ‘ykkeller@vorys com’

Subject: Rails-To-Tratls of Wayne County

John, this emails follows up our conversation of yesterday. Thank you for agreeing to a 30 day
extension of time for the defendant to move, plead, answer or otherwise respond to the

complaint. The stipulation will be sent to the Court today and | will also send you a copy by regular
mail

With regard to your other inquiry, | can state that my client will not undertake any effort to construct
trails or other improvements to the property until the issues presented by the complaint are
resolved. We will coordinate with your before any intrusive activities are undertaken at the site.

In addition, | would also like to receive your agreement that the failure of the defendant to require
removal of the personal and other property of your clients from the property at issue during the
pendency of the case will not be raised by the plaintiffs in support of their adverse possession
claims. | believe this is a reasonable approach for all parties as we proceed with the

ligation Please let me know if you are agreeable to this proposal.

Please call with any questions or comments Regards, Ralph

IRS RULES OF PRACTICE REQUIRE US TO INFORM YOU THAT TO THE EXTENT THIS COMMUNICATION,
INCLUDING ATTACHMENTS, MENTIONS ANY FEDERAL TAX MATTER, IT IS NOT INTENDED OR WRITTEN, AND
CANNOT BE USED, FOR THE PURPOSE OF AVOIDING FEDERAL TAX PENALTIES IN ADDITION, THIS
COMMUNICATION MAY NOT BE USED BY ANYONE IN PROMOTING, MARKETING OR RECOMMENDING THE
TRANSACTION OR MATTER ADDRESSED HEREIN ANYONE OTHER THAN THE RECIPIENT WHO READS THIS
COMMUNICATION SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR CIRCUMSTANCES FROM AN
INDEPENDENT TAX ADVISOR

Ralph E. Cascarilla
Partner

0 reascarilla@walterhav com | # 216 928 2908 direct phone | ~ 216 916 2346 direct fax

Walter &

Haverfield ‘1p The Tower at Erieview
1301 East Ninth Street, Suite 3500, Cleveland, Ohio 44114-1821
attorneys al law 216 781 1212 tel | 216 575 0911 fax | www walterhay com

My Bio Firm Web Si My V-card

ATTENTION This e-mail message, including any attachment, is sent by the law firm of Walter & Haverfield LLP and may contain
PRIVILEGED and CONFIDENTIAL INFORMATION If you are not the intended recipient, then please (1) do not print, forward, or copy
this e-mail, (11) notify us of the error by a reply to this e-mail, and (111) delete this e-mail from your computer Thank you

OSs

EXHIBIT

EXSEUUL EdUNREPORTED
CASESWestlaw

Page |

Not Reported in N E 2d. 1982 WL 3990 (Ohio App 10 Dist.)

(Cite as: 1982 WL 3990 (Ohio App. 10 Dist.))

Only the Westlaw citation is currently available

CHECK OHIO SUPREME COURT RULES FOR
REPORTING OF OPINIONS AND WEIGHT OF
LEGAL AUTHORITY

Court of Appeals of Ohio, Tenth District, Franklin
County
Glenna Sue Matthews by Janice R Mathews, her
Natural Guardian and Next Friend, et al , Plaintiffs-
Appellants
Vv

Wilham Steele Matthews, aka William S Mat-
thews, et al , Defendants-Appellees

No 80AP-841
80AP-841 February 25, 1982

MATAN, RINEHART & SMITH, MR EUGENE
L MATAN, MR JAMES D COLNER, of Coun-
sel, 26] South Front Street, Columbus, Ohio 43215,
For Plaintiffs-Appellants

TYACK & ASSOCIATES CO, LPA, MR
THOMAS M TYACK, 536 South High Street,
Columbus, Ohio 43215, For Defendant-Appellee,
William S. Matthews, and BRICKER & ECKLER,
MR FREDERICK W RICE and MR MICHAEL J
RENNER, of Counsel, 100 East Broad Street,
Columbus, Ohio 43215, For Defendant-Appellee,
Gamet Marshall Hensley, and CRABBE, BROWN,
JONES, POTTS & SCHMIDT, MR WILLIAM L
SCHMIDT, One Nationwide Plaza, Columbus,
Ohio 43215, For Defendant-Appellee, Ohio Nation-
al Bank of Columbus

DECISION
MOYER, J
*] Substituted counsel for defendant-appellee,
The Ohio National Bank of Columbus, Trustee, has
applied for a reconsideration of our judgment
entered on August 4, 1981, stating as the reason

therefor that the briefs filed in the appeal for the
trustee failed to fully inform the court of all the rel-
evant facts and of the issues raised by the appeal A
memorandum contra was filed by plaintiffs-appel-
lants

Appellate Rule 26, which provides for the fil-
ing of an application for reconsideration in this
court, includes no guidelines to be used in the de-
termination of whether a decision 1s to be recon-
sidered and changed The test generally applied is
whether the motion for reconsideration calls to the
attention of the court an obvious error in its de-
cision or raises an issue for our consideration that
was either not considered at all or was not fully
considered by us when it should have been

In this case, substituted counsel for the trustee
has brought to our attention in the motion for re-
consideration one issue that was fully considered in
our decision and another that was not

The trustee first argues that Corwin Matthews’
intent with respect to his desire to provide support
from his testamentary trust for his grandchild,
Glenna Sue Matthews, can be determined from his
action following the birth of his granddaughter,
who Is the daughter of the trust beneficiary, Wilh-
am Matthews Corwin Matthews’ last will and testa-
ment, in its original form, provided that the remain-
ing assets of the testamentary trust were to be dis-
tributed to the issue of William Matthews Follow-
ing the birth of William Matthews’ daughter, Cor-
win Matthews changed his will to provide that the
trust assets would not pass to the issue of William
Matthews upon his death, but, rather, to the resid-
uary legatees

The trustee’s argument, which 1s based on
sound legal rationale, was considered by us in our
decision and rejected in favor of what we perceive
to be the better and majority rule in the jurisdictions
that have considered the question We should first
emphasize that the Ohio Supreme Court, in the case

© 2012 Thomson Reuters. No Claim to Orig US Gov WorksPage 2

Not Reported in N E 2d, £982 Wi. 3990 (Ohio App 10 Dist )

(Cite as: 1982 WL 3990 (Ohio App. 10 Dist.))

of Martin v Martin (1978), 54 Ohio St 2d LO), did
not consider this issue The court expressly stated
that “the question of whether the trust income is
reachable for child support is not presented.” be-
cause the trust instrument im Martin expressly
provided for the support of the beneficiary's issue
Martin, at page 111 As we stated in our decision,
we believe there 1s a distinction between requirmg
the trustee to pay alimony, which was the issue in
Martin, and requiring the trustee to pay child sup-
port

The general rule is that the income from a trust
which is neither a purely discretionary nor a strict
support trust and which contains no express exclu-
sion therefrom of the beneficiary's children, may be
attached for the purpose of paying for the support
of the beneficiary's children 1 Restatement of
Trusts 2d 328, Section 157, 76 American Jurtspru-
dence 2d 413-15, Trusts, Section 178 The holding
of our original decision on this issue 1s affirmed

*2 The trustee also asserts that, even if the
trustee can be required to pay child support as it
comes due after the trust has come into existence, It
cannot be required to pay unpaid child support that
became an arrearage prior to the death of the testat-
or While that question was not briefed by the trust-
ee's original counsel, the issue was resolved in our
decision in favor of the plaintiff That holdimg in
our original decision 1s affirmed

With respect to the second issue, the trustee ar-
gues that the trial court had no jurisdiction to render
a judgment against tt or the residuary legatees be-
cause they were not parties to the orginal action
upon which the creditors’ bill was filed in this case,
and that they should have been allowed to collater-
ally attack the original judgment in the trial court

The avoidability of the orginal judgment was
not raised as an affirmative defense by the trustee
or by the residuary legatee Assuming it should
have been asserted as an affirmative defense, the
failure to so plead does not bar our reconsideration
of our decision

The purpose of Civ R_ &(C) and (D) ts to place
the plaintiff on notice that a defendant will present
a defense for which the plaintiff may need to pre-
pare Unreported decision of this court in Wilham
H Perry, et al v Ronald Bronn, et al, case No
JAAP-521, rendered July 17, 1975 (1975 Decisions,
page 1732, at 1750)

In the case before us, the avoidabilty of the
judgment was raised as a legal issue in the trial
briefs filed by the plaintiff, the trustee and the leg-
atee, and it was raised at the beginning of the short
evidentiary hearmg by counsel for the residuary
legatee with whom the trustee was in privity No
objection was raised by counsel for the plaintiff at
that ime However, counsel for the legatee objected
to plaintiff's motion that the trial court take judicial
notice of the original judgment upon which this was
brought The legatee argued that the judgment was
voidable At the end of the hearing, there was fur-
ther discussion regarding plaintiff's request that the
tnal court take judicial notice of said default judg-
ment, and there was further discussion regarding
the status of that yudgment, including discussion of
the question of whether the default judgment was
for more than the amount prayed The trial delayed
tuling on that issue until after the filing of briefs

The trial court, in its decision and journal
entry, referred to the fact that the trustee and resid-
uary legatee were not parties to the original judg-
ment upon which the creditors’ bill was founded
However, it does not appear that the trial court
based sts judgment on that fact and the court did not
tule on the legatee's motion on thal issue No appeal
was filed by the trustee or residuary legatee on that
issue to preserve the alleged error, assumedly be-
cause they were the prevailing parties in the trial
court

The trustee argues that the original judgment 1s
voidable and that a collateral attack may be brought
against such a judgment where the persons against
whom it is sought to be enforced were not parties to
the action in which the default judgment was
rendered It is generally held that, “where the rights

©2012 Thomson Reuters No Claim to Orig US Gov. WorksPage 3

Not Reported in N E 2d, 1982 WL 3990 (Ohio App 10 Dist )

(Cite as: 1982 WL 3990 (Ohio App. 10 Dist.)

of persons not parties or privies to a proceeding are
adversely affected by the judgment rendered
therein, such persons are allowed to impeach it
whenever it 1s attempted to enforce such judgment
against them, or whenever, in any suit, its validity
is drawn in question, since they have no remedy
against the judgment by appeal or otherwise im the
case itself.” 46 American Jurisprudence 2d 787,
Judgments, Section 628, Coe v Erb (1898), 59
Ohio St 259, 32A Ohio Jurisprudence 2d 243,
Judgments, Section 702 Civ R 60(B) affords no
relief to the trustee because it permits only parties
or their legal representatives to file a motion for re-
lief from judgment

*3 The trustee asserts five reasons that the
Judgment is voidable They are the same five reas-
ons argued to the trial court in the post-trial brief
filed by defendant Hensley. We will not discuss the
issues here because they may properly be raised on
remand However, in the interest of judicial eco-
nomy, we make the following observation with re-
spect to the characterization of the original judg-
ment as a “default judgment” Throughout the pro-
ceedings in the trial court in this case, the attorneys
for the trustee and the legatee, and the trial court in
its judgment entry, refer to the original entry as a
“default judgment” The copy of the judgment entry
from the original case, which is attached to the
complaint filed in this case, causes us to conclude
that the reference to said original judgment as a de-
fault judgment is in error The entry recites that a
hearing was held on June 8, 1978 on plaintiff's
(Glenna Sue Matthews) complaint, the answer of
defendant (William Steele Matthews) and the evid-
ence presented. The entry also reflects that the de-
fendant, although advised by his attorney of the
tme, date and place of the trial, did not appear and
that judgment was rendered against defendant The
entry also states that’ “* * * the pleadings are
hereby amended to conform with the evidence
presented to the court”

The staff notes to Civ R 55(A) state that a
Judgment against a defendant who has answered but

who fails to appear for a trial 1s technically not a
default judgment and such a defendant could not ar-
gue that he had not received the seven day notice
required by Civ R_ 55(A) before the default judg-
ment was taken However, even assuming the ort-
ginal judgment 1s not a default yudgment, it may be
attacked under Civ R 54(C) Unreported decision
of this court in Chempace Corp v Victor Herbert,
et al, case No 80AP-528, rendered May 14, 1981
(1981 Decisions, page 1242) While the trial court
had before it the issue of the enforceability of the
defautt judgment against the trustee and the resid-
uary legatees, it never ruled on the objection to the
default judgment, although ihe trial court indicated
such a ruling would be made The tral court's fail-
ure to rule on the objection constitutes error but,
because the trial court rendered judgment in favor
of the trustee and the residuary legatees, the error
was not made the subject of a cross-appeal by the
onginal attorney.

It appears that, even though the trustee and re-
siduary legatees received a judgment in their favor
by the trial court, they should have filed a cross-
appeal! pursuant to App R 4(A) No appeal or as-
signments of error, pursuant to R C 2505 22, were
filed The question of whether the judgment upon
which the creditors’ bill was founded could be col-
laterally attacked by the trustee and the residuary
legatees was not considered by us because it was
not argued by their counsel.

While we may disregard errors not specifically
pointed out in the record and separately argued by
brief [App R 12(A)], we also may consider those
errors in the record and determine such issues in the
interest of justice that have not been raised by the
parties. State v Eddington (1976), 52 Ohio App 2d
312, at 313, C_ Miller Chevrolet v Willoughby
Hills (1974), 38 Ohio St 2d 298, at 301, Garrison
Carpet Mills v Lenest, Inc (1979). 65 Ohio App
2d 251, paragraph one of the syllabus Those cases
must be read in conjunction with another line of
cases that hold we may not grant affirmative relief
to an appellee who has filed no appeal but who has

© 2012 Thomson Reuters No Claim to Orig. US Gov. WorksPage 4

Not Reported in N E.2d, 1982 WL 3990 (Ohio App 10 Dist )

(Cite as: 1982 WL 3990 (Ohio App. 10 Dist.))

filed assignments of error and that we may consider
such assignments of error when necessary to pre-
vent a reversal of the judgment under review Par-
ton v Weilnau (1959), 169 Ohio St 145, second
paragraph of the syllabus, Moncol v Bd of Educa-
Gon (1978), S$ Ohio St 2d 72, 78 It has also been
held that the Supreme Court will not grant affirmat-
ive rehef by modifying the judgment of the Court
of Appeals in appellee's favor where the appellee
has not filed a cross-appeal from the judgment of a
court of appeals F Enterprises v Kentucky Fried
Chicken Corp (1976). 47 Ohio St 2d 154. para-
graph five of the syllabus

*4 If the law of the cited cases is applied liter-
ally to the case before us, the arguments raised by
substituted counsel for the trustee, while not stated
as assignments of error, could be used to protect
against reversal of the judgment of the tial court
Such a hteral application of the case law does not
comply with the purpose of the rule of Parton. The
purpose of the rule of Parton is to prevent an ap-
pellee from obtaining more relief from an appellate
court than he obtained from the court from which
an appeal is taken A remand of the cause before us
here will not have that effect but, instead, will place
the tnistee m the position of trying to prove the
judgment sought to be enforced against it 1s valid.
We conclude from an analysis of the cases that the
affirmative relief to which the cases refer does not
clude a reversal and remand of the case to the tri-
al court to consider an obyection upon which at did
not rule The Court of Appeals for Hamilton
County in the case of Easy Living v Whitehead
(1979), 68 Ohio App 2d 206, considered a similar
question and held that the appellee's cross-as-
signment of error would be considered The court
stated:

“* * * Although this issue was raised below,
the trial court did not rule on it, but, having determ-
ined that Easy Living had not violated the Truth in
Lending Act, the court did not consider whether
Whitehead was barred from alleging these viola-
tions Appeliee is entitled to put forth any argument

in support of the trial court's judgment which was
advanced below Accordingly, we consider this
‘cross-assignment “” [At page 210 ]

We conclude that, although the memorandum
in support of the motion for reconsideration does
not designate the arguments therein as cross-
assignments of error, the arguments do constitute,
in effect, cross-assignments of error The arguments
raised by substituted counsel for the trustee per-
suade us that, in the imterest of justice, the trial
court should determine whether the judgment
against William Matthews can be avoided collater-
ally for one of the reasons asserted by the trustee
and the residuary legatees However, procedurally
we need not change our decision of August 4, 1981
because the trial court has jurisdiction under our
original decision, which remanded the case for fur-
ther proceedings, to consider the issue of the avoid-
ability of the judgment upon which the creditors’
bill was founded The trial court stated it would rule
on that issue but did not, apparently because it de-
cided the case for the reasons stated im its decision
Because we have reversed the trial court's judg-
ment, it continues to have jurisdiction to now con-
sider the issue of the avoidability of the underlying
judgment

For the foregoing reasons, our decision
rendered August 4, 1981 1s reconsidered only to the
extent that judgment of the trial court 1s reversed
and the cause 1s remanded to the trial court with in-
structions to consider the issue of the avordability
of the original judgment against Willam Matthews

*5 Motion to reconsider sustained, Judyment

reversed, cause remanded with instructions,

REILLY, J, concurs
WHITESIDE, J. dissents

WHITESIDE, J, dissenting

Being unable to join with the majority in recon-
sidering and changing the nature of the judgment
previously entered herein by this court, | must re-
spectfully dissent

© 2012 Thomson Reuters No Claim to Orig US Gov. WorksPage 5

Not Reported in N E 2d, 1982 WL 3990 (Ohio App. 10 Dist )

(Cite as: 1982 WL 3990 (Ohio App. 10 Dist.))

There are several basic reasons why this court
should not reconsider our prior decision and judg-
ment predicated upon the arguments made for the
first time in this case by new counsel for appellee
Ohio National Bank (1) The Supreme Court of
Ohto has already determined that the judgment pre-
viously entered by this court in this case 1s not one
justifying review by overruling a motion to certify,
(2) the issues presented for the first time on motion
for reconsideration were not raised in the trial
court; (3) the movant failed to file any notice of ap-
peal or cross-assignments of error in this case at an
earlier time, (4) the movant has demonstrated no
valid reason why this court should reconsider our
prior decision as the majority opimion pots out,
(5) at 1s inappropriate for this court to attempt to af-
ford a party a second opportunity to appeal to the
Supreme Court after that court has overruled a mo-
tion to certify our yudgment in the case

The rationale of the majority appears to be that
defendant-appellee trustee should be afforded by
this court an opportunity to raise an tssue in the tri-
al court, which it failed to ratse prior to judgment in
that court and failed to raise upon appeal to this court.

The basic issue, which the majority would af-
ford the trustee an opportunity to raise, 1s the valid-
ity of the prior judgment of the Common Pleas
Court upon which this action 1s predicated Con-
trary to assertions by the trustee and a reference in
the majority opinion, there 1s nothing in the record
on appeal indicating that this issue was raised in
any manner whatsoever by the trustee at trial or
upon appeal to this court By its answer, the trustee
denied the allegation of the existence of the judg-
ment for past support only for want of knowledge
or information No allegation, by means of denial
or affirmative defense, was raised as to the validity
of any such judgment All that appears in the record
is a statement by counsel that nerther the trustee nor
the beneficiary were parties to the prior action
However, the pretrial statement filed on behalf of
the beneficiary does not indicate validity of the pri-

or judgment to be an issue to be determined upon
this appeal. The record does not contain a pretrial
statement filed by defendant trustee, and its trial
brief does not raise any issue with respect to valid-
ity of the prior judgment

The judgment in the prior case was the result of
a trial at which evidence was adduced and judgment
entered accordingly, even though defendant Mat-
thews failed to appear.

At trial, counsel for defendant beneficiary
Hensley did make argument in a pretrial brief and
did state in his opening statement that he felt the
prior judgment was “void” because it was in default
and exceeded the prayer in the action. First, it was
not a default judgment but a judgment predicated
upon evidence received at a tria] at which defendant
Matthews failed to appear, and entry of an excess-
ive judgment would constitute error but would not
subject a judgment to a collateral attack It 1s not
clear as to which respect it is contended the judg-
ment exceeded the prayer, since the judgment in
this case ts predicated only on a portion of the judg-
ment in that prior case However, Civ R 54(C)
lumits only the amount of the judgment not the
validity thereof

*6 Although defendant Hensley did suggest in
the trial court there might be some issue, the matter
was not pursued further at trial, and defendant
Hensley 1s not in privity with defendant Witliam
Matthews. Defendant trustee, however, clearly 1s in
privity with defendant Willam Matthews, the ini-
tal beneficiary of the trust. Any duty of the trustee
necessarily exists because of an obligation of de-
fendant Wilham Matthews, which under the terms
of the trust should be paid for his benefit from the
trust income A clearer case of privity could not be
found The issue is not one of initial obligation of
the trustee to plaintiffs but, rather, whether or not
the trustee 1s required under the trust to make pay-
ment of defendant William Matthews' obligation of
support to plaintiffs as adjudicated in the prior ac-
ton There can be no obligation of defendant trust-
ee unless there exists an obligation of defendant

© 2012 Thomson Reuters No Claim to Ong US Gov. Works.Page 6

Not Reported in N E.2d, 1982 WL 3990 (Ohio App 10 Dist.)

(Cite as: 1982 WL 3990 (Ohio App. 10 Dist.))

Wilham Matthews. Privity 1s clear,

In addition, the attempted collateral attack
upon the prior judgment is an affirmative defense
which ts required to be set forth specifically and af-
firmatively in an answer pursuant to Civ R 8(C)
Defendant trustee's answer did not raise such an af-
firmative defense, nor was it raised as an affirmat-
tve defense by any other party defendant, nor was
any evidence presented which concetvably could be
the predicate for raising the issue pursuant to Civ
R_ 15(B) as having been tried with implied consent
of the parties

the basic issue involved 1s one which has been
apparent at all times in this case. The fact that some
of the support obligation predated the death of th