[Cite as Spellman Outdoor Advertising Servs., L.L.C. v. Ohio Turnpike & Infrastructure Comm., 2016-Ohio-
7152.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
SPELLMAN OUTDOOR : OPINION
ADVERTISING SERVICES, LLC,
:
Plaintiff-Appellee,
: CASE NO. 2015-P-0081
- vs -
:
OHIO TURNPIKE AND
INFRASTRUCTURE COMMISSION, :
Defendant-Appellant. :
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2015 CV
00050.
Judgment: Affirmed.
Michael J. Sikora, III and Alexander E. Goetsch, Sikora Law, L.L.C., 8532 Mentor
Avenue, Mentor, OH 44060 (For Plaintiff-Appellee).
Bruce G. Rinker and John W. Monroe, Mansour Gavin LPA, North Point Tower, 1001
Lakeside Avenue, Suite 1400, Cleveland, OH 44114, and Tommie Jo Marsilio, Ohio
Turnpike and Infrastructure Commission, 682 Prospect Street, Berea, OH 44017 (For
Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Ohio Turnpike and Infrastructure Commission (“OTIC”), appeals
from the November 3, 2015 judgment of the Portage County Court of Common Pleas,
denying its motion for summary judgment and granting appellee’s, Spellman Outdoor
Advertising Services, LLC (“Spellman”), motion for summary judgment. For the reasons
stated, we affirm.
{¶2} Spellman is an Ohio limited liability company conducting an advertising
business in the state of Ohio. Martin Spellman is the president and owner of the
company. OTIC was created by the General Assembly through the enactment of R.C.
Chapter 5537. This matter involves a dispute between Spellman and OTIC concerning
whether an alleged restriction asserted by OTIC, which would preclude billboards and
other advertising, affects Spellman’s interest in particular real property located at 9175
Main Street N., Windham, Portage County, Ohio 44288.
{¶3} By way of background, on February 15, 1946, H.W. Donaldson executed a
deed conveying real property to David Mullett, Mary Mullett, Edward Mullett, and
Raymond Mullett. The Donaldson deed was recorded on April 26, 1946.
{¶4} On March 16, 1953, the Mulletts executed a Warranty deed conveying real
property to OTIC. The Spellman property was not described or conveyed in the
Turnpike deed. The Turnpike deed was recorded on April 27, 1953 and contained the
following Alleged Restriction:
{¶5} “Grantor(s), for his/her/their heirs, administrators, executors, and assigns,
hereby covenant(s) with the State of Ohio and the Ohio Turnpike Commission and their
successors and assigns that Grantor(s), his/her/their heirs, administrators, executors,
and assigns shall not establish or maintain or permit any natural or legal person to
establish or maintain on any of aforesaid remaining lands any billboard, sign, notice,
poster advertising device, or other display which is visible from the travelway of Ohio
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Turnpike Project No. 1, and which is not at the date hereof in existence. This covenant
shall run with the land.”
{¶6} On November 20, 1954, the Mulletts executed a Warranty deed conveying
the Spellman property to Joseph M. and Elizabeth Varga. The Mullett deed contained a
specific metes and bounds legal description of the Spellman property and only of the
Spellman property. The Mullett deed did not include or make any reference to the
foregoing Alleged Restriction contained in the Turnpike deed. The Mullett deed was
recorded on December 8, 1954.
{¶7} On October 23, 1989, Joseph Varga and Bruce Varga, as co-executors of
the Estate of Joseph M. Varga, conveyed the Spellman property to Willis Mulhern and
Gloria Mulhern by Fiduciary deed. The Fiduciary deed contained a specific metes and
bounds legal description of the Spellman property and only of the Spellman property.
Like the Mullett deed, the Fiduciary deed did not include or make any reference to the
foregoing Alleged Restriction contained in the Turnpike deed. The Fiduciary deed was
recorded on November 9, 1989.
{¶8} In 2007, Spellman entered into a Lease with the Mulherns for the
Spellman property. Spellman had no actual knowledge or constructive notice of the
Alleged Restriction contained in the Turnpike deed when Spellman acquired its interest
in the Spellman property. On August 9, 2007, a Memorandum of Lease was executed.
The Memorandum summarized the terms of the Lease which expressly allow Spellman
to erect and maintain outdoor advertising structures on the Spellman property. The
Memorandum was recorded on November 26, 2007.
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{¶9} On January 21, 2015, Spellman filed a complaint against OTIC in the
Portage County Court of Common Pleas requesting quiet title and declaratory relief. On
March 3, 2015, OTIC filed a motion to dismiss the complaint indicating that Spellman
must exhaust its administrative remedies that it seeks in a then-pending R.C. Chapter
119 proceeding before the Ohio Department of Transportation (“ODOT”).1 In response,
Spellman filed a memorandum in opposition. The trial court converted OTIC’s motion to
dismiss into a motion for summary judgment and granted the parties additional time to
submit evidence and briefing.
{¶10} On April 23, 2015, Spellman filed a combined memorandum contra and a
Civ.R. 56 motion for summary judgment. The next day, OTIC filed a motion for
summary judgment.
{¶11} On November 3, 2015, the trial court denied OTIC’s motion for summary
judgment and granted Spellman’s motion for summary judgment. Specifically, the court
found that the Alleged Restriction contained in the Turnpike deed excluding billboards or
other advertising does not encumber the Spellman property because it was not filed in
the chain of title to the Spellman property. On November 20, 2015, OTIC filed a Civ.R.
60(B) motion for relief from judgment which was denied by the trial court. On November
24, 2015, OTIC filed a supplemental motion for relief from judgment and included a
copy of ODOT’s decision in the administrative appeal, which also was denied by the trial
1. In April 2012, Spellman filed three applications for billboard permits with ODOT. In July 2014, ODOT
denied the applications. As a result, Spellman filed an R.C. Chapter 119 administrative appeal.
Thereafter, OTIC filed a motion to intervene, which was later granted. An adjudication hearing
commenced in May 2015. In August 2015, the hearing examiner recommended affirming the 2014
billboard application denial. The director of ODOT later accepted the recommendation and affirmed the
denial of the permit applications on November 16, 2015. Spellman filed an appeal of ODOT’s decision
with the Franklin County Court of Common Pleas pursuant to R.C. 119.12. On April 5, 2016, the Franklin
County Court of Common Pleas held that ODOT did not err in denying Spellman’s permit applications.
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court. Thereafter, OTIC filed a timely appeal with this court and asserts the following
two assignments of error:
{¶12} “[1.] The trial court committed reversible error by failing to apply the
judicial doctrine that requires the exhaustion of administrative remedies, in order to pre-
empt forum-shopping, where a pre-existing and statutorily-mandated administrative
appeal is pending in another state forum and whose adjudication is materially
dispositive of the instant case.
{¶13} “[2.] The trial court committed reversible error in granting summary
judgment when genuine issues of material fact exist.”
{¶14} Preliminarily, we note that this appeal stems from the trial court’s granting
summary judgment in favor of Spellman.
{¶15} “Summary judgment is a procedural tool that terminates litigation and thus
should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d
64, 66 * * * (1993). Summary judgment is proper where (1) there is no genuine issue of
material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter
of law; and (3) it appears from the evidence that reasonable minds can come to but one
conclusion, and, viewing the evidence in the non-moving party’s favor, that conclusion
favors the movant. See, e.g., Civ.R. 56(C).
{¶16} “When considering a motion for summary judgment, the trial court may not
weigh the evidence or select among reasonable inferences. Dupler v. Mansfield
Journal Co., 64 Ohio St.2d 116, 121 * * * (1980). Rather, all doubts and questions must
be resolved in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d
356, 359 * * * (1992). Hence, a trial court is required to overrule a motion for summary
5
judgment where conflicting evidence exists and alternative reasonable inferences can
be drawn. Pierson v. Norfork Southern Corp., 11th Dist. No. 2002-A-0061, 2003-Ohio-
6682, ¶36. In short, the central issue on summary judgment is, ‘whether the evidence
presents sufficient disagreement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law.’ Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-252 * * * (1986). On appeal, we review a trial court’s entry of
summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 * * *
(1996).” (Parallel citations omitted.) Meloy v. Circle K Store, 11th Dist. Portage No.
2012-P-0158, 2013-Ohio-2837, ¶5-6.
{¶17} In its first assignment of error, OTIC argues the trial court erred in failing to
apply the judicial doctrine that requires the exhaustion of administrative remedies.
OTIC alleges that the administrative appeal concerning ODOT in the Franklin County
Court of Common Pleas is materially dispositive of the instant case. OTIC maintains
that Spellman does not have the right to set up this “parallel case.”
{¶18} A party raising non-constitutional claims must exhaust any applicable
administrative remedies before seeking separate judicial intervention. San Allen v.
Buehrer, 8th Dist. Cuyahoga No. 99786, 2014-Ohio-2071, ¶72, citing Roosevelt
Properties Co. v. Kinney, 12 Ohio St.3d 7, 8 (1984); Herrick v. Kosydar, 44 Ohio St.2d
128, 130 (1975); Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, paragraph two of the
syllabus (1975); Silverberg v. State Bd. of Pharmacy, 8th Dist. Cuyahoga No. 51777,
1987 Ohio App. LEXIS 6905, *6-8 (Apr. 2, 1987).
{¶19} However, “[t]here are two exceptions to the above rule. First, if there is no
administrative remedy available which can provide the sought after relief, or if pursuing
6
administrative remedies would be wholly futile, exhaustion is not required. Karches v.
Cincinnati (1988), 38 Ohio St.3d 12, 17 * * *. Second, exhaustion of administrative
remedies is also unnecessary when the available remedy is onerous or unusually
expensive. Id.” (Emphasis added.) (Parallel citation omitted.) Bullard v. City of Warren,
11th Dist. Trumbull No. 99-T-0171, 2000 Ohio App. LEXIS 6123, *10 (Dec. 22, 2000).
{¶20} In this case, it is OTIC’s position that Spellman’s private cause of action
regarding substantive real property rights which is before this court and the
administrative permit application function concerning ODOT in the permit proceeding
are identical. Although there are factual similarities between the two cases, we
disagree with OTIC that they are one and the same.
{¶21} At issue in this case is Spellman’s complaint against OTIC in the Portage
County Court of Common Pleas requesting quiet title and declaratory relief concerning
real property. The Court of Common Pleas (and this court on appeal) has exclusive
jurisdiction and authority to decide such actions. ODOT does not. See generally
Sturgell v. Bott, 12th Dist. Fayette No. CA90-09-014, 1991 Ohio App. LEXIS 2357, *4
(May 20, 1991) (quiet title); Quayle v. Buckeye Loc. School Dist. Bd. of Ed., 11th Dist.
Ashtabula No. 94-A-0074, 1995 Ohio App. LEXIS 4020, *6-7 (Sept. 15, 1995)
(declaratory judgment).
{¶22} At issue in the ODOT case is the denial of Spellman’s permit applications.
ODOT has the authority to issue such permits under R.C. Chapter 5516. See R.C.
5516.03 (the director of ODOT shall adopt, amend, and enforce rules for outdoor
advertising); R.C. 5516.10 (in order to advertise on interstate highways individuals shall
obtain a permit from the director of ODOT); R.C. 5516.12 (the director of ODOT has
7
authority to cancel existing permits and order the removal of signs). In turn, Spellman
has the right to appeal ODOT’s decision regarding the permit applications, which it has
done, to a court of proper jurisdiction, i.e., the Franklin County Court of Common Pleas.
See R.C. 119.12. Although the permit issue was on appeal before the Franklin County
Court of Common Pleas, that appeal only involved the review of ODOT’s administrative
determination.
{¶23} The case here involves a real property issue. Spellman filed the action to
quiet title to the Spellman property and to obtain a declaration that the Alleged
Restriction in the 1953 Turnpike deed does not affect the Spellman property as a matter
of law. Pursuant to R.C. Chapter 5516, ODOT’s administrative authority is expressly
limited by statute to billboard permits. ODOT’s authority does not extend or include the
power to decide substantive real property rights. See State ex rel. Lucas Cty. Bd. of
Commr. v. Ohio Environmental Protection Agency, 88 Ohio St.3d 166, 171 (2000) (“An
administrative agency has no authority beyond the authority conferred by statute and it
may exercise only those powers that are expressly granted by the General Assembly.”)
{¶24} Contrary to OTIC’s suggestion, this case does not involve the
administrative function of issuing permits or, specifically, the denial by ODOT of
Spellman’s permit applications. Rather, this case and the ODOT proceedings are
narrowly focused and involve distinct issues. The relief Spellman is seeking in the quiet
title/declaratory judgment action is not available in the ODOT permit proceeding, as
ODOT does not have jurisdiction or authority to decide substantive real property rights.
Thus, based on the facts presented, as there is no administrative remedy that could
provide the sought after relief, exhaustion is not required. Karches, supra, at 17.
8
{¶25} OTIC’s first assignment of error is without merit.
{¶26} In its second assignment of error, OTIC contends the trial court erred in
granting Spellman’s motion for summary judgment and alleges that genuine issues of
material fact exist.
{¶27} “‘Pursuant to Civ.R. 56(C), a court may not consider any evidence when
ruling on a motion for summary judgment unless it conforms with Civ.R. 56.’” Rilley v.
Twp. of Brimfield, 11th Dist. Portage No. 2009-P-0036, 2010-Ohio-5181, ¶57, quoting
Douglass v. Salem Community Hosp., 153 Ohio App.3d 350, 2003-Ohio-4006, ¶21 (7th
Dist.). “‘Civ.R. 56(C) provides the exclusive list of documentary evidence to support a
summary judgment motion: affidavits, depositions, answers to interrogatories, written
admissions, transcripts of evidence in the pending case, and written stipulations. No
other evidence may be considered. Civ.R. 56(C). Other documentary evidence may be
admitted; however, the appropriate method to introduce this evidence is by way of an
affidavit that complies with Civ.R. 56(E).’” Rilley, supra, at ¶61, quoting Drawl v.
Cornicelli, 124 Ohio App.3d 562, 569 (11th Dist.1997), citing Martin v. Central Ohio
Trans. Auth., 70 Ohio App.3d 83, 89 (10th Dist.1990).
{¶28} As stated, Spellman filed a motion for summary judgment on April 23,
2015. Spellman’s motion was supported by the affidavits of its president and owner,
Martin Spellman, and James Masi, an attorney and title examination expert.
{¶29} Spellman stated in his affidavit that he is familiar with all aspects of
Spellman’s business, is the custodian of records for Spellman, and has personal
knowledge of all transactions involving Spellman. Spellman personally executed the
Lease Agreement on behalf of Spellman to lease the property at issue. The Lease
9
allows Spellman to erect and maintain outdoor advertising structures on the property. In
2007, a Memorandum of Lease was executed and recorded to memorialize the
existence of the Lease in the chain of title to the property. At all times before and during
the finalization and execution of the Lease and the Memorandum, Spellman had no
actual knowledge of any restrictive covenants including the Alleged Restriction at issue.
Spellman further said he is not an heir, administrator, executor, and/or assign of the
Mulletts.
{¶30} Masi has been a licensed title agent for over 24 years and has examined
the chains of title to thousands of parcels of real property. Masi examined the
documents at issue, explained how the chain of title to the Spellman property was
created, and stated how that chain flows to Spellman. Masi indicated that the Turnpike
deed and the Alleged Restriction contained therein are not filed in the chain of title to
the Spellman property and are not referenced in instruments in the chain of title to the
Spellman property. Based on his extensive experience, Masi opined to a reasonable
degree of certainty and under the applicable title standards that the Turnpike deed does
not afford constructive notice that the Alleged Restriction affects title to the Spellman
property and that the Mulherns and Spellman would not have had constructive notice
that the Alleged Restriction affects title to the property.
{¶31} On April 24, 2015, OTIC filed a motion for summary judgment. OTIC did
not argue in its motion that genuine issues of material fact exist that preclude an order
granting summary judgment in favor of Spellman. Rather, OTIC relied solely on the
following: a letter from ODOT’s administrator that attached a copy of ODOT’s July 8,
2014 letter denying Spellman’s permit applications; a copy of Spellman’s notice of
10
appeal in the permit proceeding; and copies of two letters regarding the scheduling of a
hearing in the permit proceeding. None of the documents relied on by OTIC in support
of its motion for summary judgment addressed in any manner the merits of the quiet title
and declaratory judgment claims at issue before the trial court. As such, OTIC failed to
meet its burden of production to submit Civ.R. 56 evidence to demonstrate a genuine
issue of material fact.
{¶32} We note that OTIC did not ask the trial court for additional time to obtain
and submit evidence pursuant to Civ.R. 56(F). Instead, after the trial court denied
OTIC’s motion for summary judgment and granted Spellman’s motion for summary
judgment, OTIC filed a Civ.R. 60(B) motion for relief from judgment which was denied
by the trial court. OTIC then filed a supplemental motion for relief from judgment which
was also denied by the trial court. We find the trial court committed no error in its
decisions.
{¶33} Civ.R. 60(B) is not intended to permit parties to have “‘do-overs.’” Adams
v. Pitorak & Coenen Invests., Ltd., 11th Dist. Geauga No. 2009-G-2931 and 2009-G-
2940, 2010-Ohio-3359, ¶84. Otherwise, a party who receives an unfavorable ruling
could use Civ.R. 60(B) to have potentially unlimited opportunities to submit additional
evidence or present new legal theories, “essentially asking the court each time, ‘is this
enough.’ Such ‘second bites at the apple’ are not authorized by the Rules of Civil
Procedure.” Id. at ¶85.
{¶34} On appeal, OTIC relies on evidence that was not before the trial court
when it rendered its decision denying OTIC’s motion for summary judgment and
granting Spellman’s motion for summary judgment. However, this court may not
11
consider evidence that the trial court did not consider. Bader v. Ferri, 3d Dist. Allen No.
1-13-01, 2013-Ohio-3074, ¶14, citing Reynoldsburg, supra, at 360. OTIC is not
permitted a “second bite at the apple.” Adams, supra, at ¶84-85.
{¶35} Based on the facts in this case, the Alleged Restriction in the Turnpike
deed does not encumber the Spellman property as a matter of law. The trial court’s
decision on this issue is consistent with a 2010 determination made by the Sixth District
Court of Appeals, which affirmed the judgment of the trial court, in a case involving both
OTIC and Spellman on virtually the same facts. Ohio Turnpike Comm. v. Spellman
Outdoor Advertising Servs., LLC, 6th Dist. Erie No. E-09-038, 2010-Ohio-1705, appeal
not allowed, 126 Ohio St.3d 1549 (there was no constructive notice of the restrictions
and the restrictions were not recorded in the chain of title for the property). The Alleged
Restriction at issue here is not in the chain of title to the Spellman property and,
therefore, the Spellman property is not subject to the restrictive covenant in question.
See Id. at ¶15; Spring Lakes, Ltd. v. O.F.M. Co., 12 Ohio St.3d 333 (1984).
{¶36} Similar to Spellman, OTIC argues on appeal in this case that the
Marketable Title Act, R.C. 5301.47 through 5301.56, is dispositive.
{¶37} The Ohio Marketable Title Act deals with marketability in commerce and
can always be raised as it should be construed in pari materia with the recording
statutes. See Chesapeake Exploration, L.L.C. v. Buell, 144 Ohio St.3d 490, 2015-Ohio-
4551, ¶109-111 (Kennedy, J., concurring and concurring in part).2 The Marketable Title
Act deals with a time period and is separate from a chain of title analysis.
2. We are aware that other districts have determined that the Ohio Marketable Title Act must be raised as
a defense. See Collins v. Moran, 7th Dist. Mahoning No. 02 CA 218, 2004-Ohio-1381, ¶20; Tivenan v.
Lons, 9th Dist. Medina No. 03CA0147-M, 2004-Ohio-4975, ¶7. However, we find that the Marketable
Title Act can always be raised by following the reasoning of the Ohio Supreme Court as the Act should be
12
{¶38} “The General Assembly enacted the Ohio Marketable Title act in 1961, ‘(*
* *) to simplify and facilitate land title transactions by allowing persons to rely on a
record chain of title (* * *).’ The act is to be construed liberally to effect that purpose.
Semachko v. Hopko (1973), 35 Ohio App.2d 205, 209 * * *.” (parallel citations omitted.)
Ealy v. Nixon, 6th Dist. Erie No. E-09-046, 2010-Ohio-2120, ¶26; see Evans v. Thomas
J. Evans Found., 5th Dist. Licking No. 09 CA 76, 2010-Ohio-541, ¶17 (“Ohio’s
Marketable Title Act, R.C. 5301.47 to 5301.56, which became law [over] fifty years ago
as a means of simplifying land title transactions by allowing persons to rely on a record
chain of title as set forth in the pertinent statutes and by eliminating ‘ancient interests’
which operate to cloud otherwise clear titles. * * * The Act functions as ‘a 40-year
statute of limitations for bringing claims against a title of record.’ * * * R.C. 5301.55
states that the Act ‘shall be liberally construed to effect the legislative purpose of
simplifying and facilitating land title transactions (***).’” (Citations omitted.)); see also
www.oilandgaslawreport.com/2013/11/14/the-ohio-dormant-minerals-act-part-1 (“Note
that there is no notice requirement to or for the benefit of possible adverse claimants.
It’s automatic.”)
{¶39} The Ohio Marketable Title Act states:
{¶40} “Any person having the legal capacity to own land in this state, who has
an unbroken chain of title of record to any interest in land for forty years or more, has a
marketable record title to such interest as defined in section 5301.47 of the Revised
Code, subject to the matters stated in section 5301.49 of the Revised Code.
construed in pari materia with the recording statutes. See Chesapeake, supra, at ¶109-111 (Kennedy, J.,
concurring and concurring in part).
13
{¶41} “A person has such an unbroken chain of title when the official public
records disclose a conveyance or other title transaction, of record not less than forty
years at the time the marketability is to be determined, which said conveyance or other
title transaction purports to create such interest, either in:
{¶42} “(A) The person claiming such interest; or
{¶43} “(B) Some other person from whom, by one or more conveyances or
other title transactions of record, such purported interest has become vested in the
person claiming such interest; with nothing appearing of record, in either case,
purporting to divest such claimant of such purported interest.” R.C. 5301.48.
{¶44} R.C. 5301.47(A) provides: “‘[m]arketable record title’” * * * operates to
extinguish such interests and claims, existing prior to the effective date of the root of title
* * *.”
{¶45} Similarly, R.C. 5301.50 provides: “* * * record marketable title shall be held
by its owner and shall be taken by any person dealing with the land free and clear or all
interests, claims, or charges whatsoever, the existence of which depends upon any act,
transaction, event, or omission that occurred prior to the effective date of the root of title.
All such interests, claims, or charges, however denominated, whether legal or equitable,
present or future, whether such interests, claims or charges are asserted by a person
sui juris or under a disability, whether such person is within or without the state, whether
such person is natural or corporate, or is private or governmental, are hereby declared
to be null and void.”
{¶46} Marketable record title is subject to matters specified at R.C. 5301.49:
14
{¶47} “(A) All interests and defects which are inherent in the muniments of
which such chain of record title is formed; provided that a general reference in such
muniments, or any of them, to easements, use restrictions, or other interests created
prior to the root of title shall not be sufficient to preserve them, unless specific
identification be made therein of a recorded title transaction which creates such
easement, use restriction, or other interest; and provided that possibilities of reverter,
and rights of entry or powers of termination for breach of condition subsequent, which
interests are inherent in the muniments of which such chain of record title is formed and
which have existed for forty years or more, shall be preserved and kept effective only in
the manner provided in section 5301.51 of the Revised Code;
{¶48} “(B) All interests preserved by the filing of proper notice or by possession
by the same owner continuously for a period of forty years or more, in accordance with
section 5301.51 of the Revised Code;
{¶49} “(C) The rights of any person arising from a period of adverse possession
or user, which was in whole or in part subsequent to the effective date of the root of title;
{¶50} “(D) Any interest arising out of a title transaction which has been recorded
subsequent to the effective date of the root of title from which the unbroken chain of title
or record is started; provided that such recording shall not revive or give validity to any
interest which has been extinguished prior to the time of the recording by the operation
of section 5301.50 of the Revised Code;
{¶51} “(E) The exceptions stated in section 5301.53 of the Revised Code.”
{¶52} “As stated in Toth v. Berks Title Ins. Co. (1983), 6 Ohio St.3d 338, 342 * *
*, ‘(i)n general, the Marketable Title Act operates to extinguish interests and claims in
15
existence prior to the effective date of the root of title.’ See R.C. 5301.47(A) and
5301.50. However, R.C. 5301.49 and 5301.51 provide for the preservation of certain
interests in existence prior to the root of title if properly noted subsequent to the root of
title. Thus, the Marketable Title Act does not bear upon interests which are created
after the date of the root of title.
{¶53} “‘“Root of title” means that conveyance or other title transaction in the
chain of title of a person, purporting to create the interest claimed by such person, upon
which he relies as a basis for the marketability of his title, and which was the most
recent to be recorded as of a date forty years prior to the time when marketability is
being determined. The effective date of the “root of title” is the date on which it is
recorded.’ R.C. 5301.47(E). See Toth, supra, at 338.” (Parallel citation omitted.)
Spellman, supra, at ¶17-18.
{¶54} A “‘[t]itle transaction’ means any transaction affecting title to any interest in
land, including title by will or descent, title by tax deed, or by trustee’s, assignee’s,
guardian’s, executor’s, administrator’s, or sheriff’s deed, or decree of any court, as well
as warranty deed, quit claim deed, or mortgage.” R.C. 5301.47(F).
{¶55} “‘(M)arketable title acts are intended to operate in conjunction with, rather
than as a substitute for, the recording statutes.’ Spring Lakes, [supra, at] 338 * * *
(Holmes, J., concurring). ‘(T)he purpose of the recording statutes is to give notice to all
persons subsequently acquiring rights or interests in the land.’ Marshall v. Ebling, 70
Ohio App. 145, 155 * * * (7th Dist.1942). As noted by the Supreme Court of Rhode
Island, ‘(t)he general purpose of land-recording statutes is to provide a public record of
16
transactions affecting title to land.’ (Emphasis added.) In re Barnacle, 623 A.2d 445,
447 (R.I.1993)
{¶56} “‘It is a well-settled rule of statutory interpretation that statutory provisions
be construed together and the Revised Code be read as an interrelated body of law.’
State v. Moaning, 76 Ohio St.3d 126, 128 * * * (1996). Where statutes address the
same subject matter, ‘(they) must be construed in pari materia and harmonized so as to
give full effect to the statutes.’ State ex rel. Westlake v. Corrigan, 112 Ohio St.3d 463,
2007-Ohio-375 * * * ¶20.
{¶57} “Because a marketable title requires an easily traceable chain of recorded
title consideration of the recording statutes is necessary.” (parallel citations omitted.)
Chesapeake, supra, at ¶109-111 (Kennedy, J., concurring and concurring in part).
{¶58} With that background, in the case at bar, the root of title is the most
recently recorded deed that was recorded 40 or more years prior to the November 26,
2007 date that the Memorandum was recorded, which is the 1954 Mullett deed. The
Alleged Restriction appeared only in the 1953 Turnpike deed which conveyed the
turnpike property to OTIC. A review of the instruments conveying an interest in the
Spellman property from the root of title (the Mullett deed) to November 26, 2007 reveals
no mention whatsoever of the Alleged Restriction and/or the Turnpike deed. Thus, the
Alleged Restriction was only contained in a prior recorded deed in the chain of title to
the turnpike property, not in an instrument within the chain of title to the Spellman
property. Therefore, the Alleged Restriction is outside the chain of title to the Spellman
property and, thus, does not attach to the Spellman property. See Spring Lakes, supra,
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at 335-337 (a restriction is not enforceable against real property if it is not recorded in
that particular property’s chain of title.)
{¶59} Although OTIC argues that the Alleged Restriction in the Turnpike deed
does attach to the Spellman property because OTIC is an instrumentality of the state,
we note that in 2007, when Spellman obtained its interest in the Spellman property,
OTIC was not an instrumentality of the state as such statutory language in R.C. 5537.02
took effect four years later in 2013. Thus, the Marketable Title Act did not apply to
preserve the Alleged Restriction. The Alleged Restriction does not afford constructive
notice that it encumbers the Spellman property and the Spellman property is not
encumbered or affected by the Alleged Restriction. The Alleged Restriction has no
effect on the Spellman property as a matter of law.
{¶60} OTIC’s second assignment of error is without merit.
{¶61} For the foregoing reasons, OTIC’s assignments of error are not well-taken.
The judgment of the Portage County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
______________________
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
{¶62} I agree with the majority’s holding in favor of Spellman and in its analysis
of the first assignment of error. I write separately to explain that, under the second
assignment of error, it is unnecessary to conduct a lengthy analysis of the Ohio
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Marketable Title Act, primarily due to OTIC’s failure to raise any arguments relating to
the merits of the property restriction claim below until filing the Civ.R. 60(B) Motion.
{¶63} While the majority cites an extensive body of law relating to the
Marketable Title Act, it is important to emphasize that it is unnecessary to apply this law
in order to rule in favor of Spellman. A thorough analysis of the chain of title issues
would adequately resolve this, were it necessary to reach the merits. See Ohio
Turnpike Commn. v. Spellman Outdoor Adver. Servs., LLC, 6th Dist. Erie No. E-09-038,
2010-Ohio-1705, ¶ 33 (“Even though the governmental exception under the Marketable
Title Act would apply to preserve an otherwise validly recorded restriction, the Salmons
did not have constructive notice of the restrictions; nor were the restrictions recorded in
the chain of title for the Salmons’ property.”).
{¶64} Importantly, OTIC failed to adequately raise the Marketable Title Act
exception as a defense below. Multiple appellate courts in Ohio have held that the
failure to raise issues relating to marketable title constitutes waiver. Tivenan v. Lons,
9th Dist. Medina No. 03CA0147-M, 2004-Ohio-4975, ¶ 7; Covert v. Koontz, 7th Dist.
Monroe No. 13 MO 8, 2015-Ohio-228, ¶ 16. In this case, OTIC is essentially asserting
that the Marketable Title Act cannot be used to prevent enforcement of the restriction,
an argument not raised in the summary judgment proceedings, either in OTIC’s Motion
or in response to Spellman’s Motion. Instead, OTIC focused solely on the argument
that the administrative proceedings prevented Spellman from pursuing this matter. This
was the sole basis for its arguments until the Civ.R. 60(B) Motion was filed.
{¶65} The majority contends that the applicability of the Marketable Title Act can
“always be raised,” noting the Ohio Supreme Court’s observation that “the Act should be
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construed in pari materia with the recording statutes.” Supra at ¶ 37, fn. 2. The
Supreme Court, however, did not actually reach a holding as to whether marketable title
issues can be raised at any time and the principle cited by the majority does not provide
support for such a conclusion. Whether the instrumentality exception to the Marketable
Title Act applies is entirely different from and, as noted above, not tied to, a
determination of whether a restriction is contained in a chain of title. Further, during
summary judgment, OTIC did not address the merits of the chain of title issue; it relied
solely on its argument that the matter was barred by the administrative proceedings and
that Spellman was forum shopping. Since the trial court rejected that argument, OTIC
essentially tried to assert alternative grounds for granting summary judgment through a
Civ.R. 60(B) motion, which is impermissible.
{¶66} It is unnecessary for this court to give due consideration to arguments on
the merits of claims that OTIC did not raise below, given its apparent, incorrect belief
that this case would be dismissed due to the pending administrative matter. OTIC
should not get a second chance to present evidence and argumentation that could have
been submitted prior to the court’s final judgment. See Citigroup Global Mkts., Inc. v.
Masek, 11th Dist. Trumbull No. 2008-T-0060, 2009-Ohio-1832, ¶ 30.
{¶67} For the foregoing reasons, I concur in judgment only.
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