[Cite as Worthy v. Hawthorne , 2021-Ohio-813.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY LINDA WORTHY, et al., : : Plaintiffs-Appellants, : Case No. 20CA5 : v. : : DECISION AND KEVIN HAWTHORNE, : JUDGMENT ENTRY : Defendant-Appellee. : RELEASED: 03/10/2021

_____________________________________________________________ APPEARANCES: W. Graham Woodyard, Gallipolis, Ohio, for Appellants. Richard F. Bentley, Bentley Law Firm, LLC, Ironton, Ohio, for A ppellee.

_____________________________________________________________ Wilkin, J. {¶1} This is an appeal from a Lawrence County Common Pleas Court jud gment entry granting summary judgment in favor of Appellee, Kevin Haw thorne, and against Appellants, Linda and Kevin Worthy. On appeal, the Worthys rai se two assignments of error for our review, contending 1) that the trial court erred in granting summary judgment to Hawthorne; and 2) that that the trial court erred i n granting summary judgment based on the limited nature of Hawthorne’s evidence. Because we find the arguments raised under the Worthys’ first assignment of error a re meritorious, their first assignment of error is sustained. Further, in light of our dis position of the Worthys’ first assignment of error, their second assignment of error has been rendered moot and we need not address it. Accordingly, having sustained the Worthys ’ first assignment of error, we reverse the trial court’s grant of summary judgment i n favor of Hawthorne and we remand this matter to the trial court for further proceeding s.Lawrence App. No. 20CA5 2

FACTS {¶2} This matter began with the filing of a complaint for declarator y judgment by Linda and Kevin Worthy on April 25, 2018. The complaint allege d that the Worthys are owners of real property that abuts real property owned by Hawth orne. The complaint further alleged that there is a gravel driveway that leads to t he Worthy parcel which crosses a small strip of land on the edge of Hawthorne’s proper ty. The complaint alleged that the driveway had been continuously used since 1975 and that the Worthys, their tenants, or their predecessors in interest had never obta ined permission from Hawthorne or his predecessors in interest. Thus, the complaint further alleged that the Worthys owned an easement for ingress and egress and maintenanc e of the driveway by virtue of the fact that the driveway had been in continuous use, without Hawthorne’s permission, since at least 1975. Th e Worthys claimed the easem ent was based upon their actual, open, notorious, exclusive, hostile, and adverse use of the easement for more than twenty-one years preceding the commencement of the ac tion. The Worthys further sought to quiet title to the claimed easement against a ll claims by Hawthorne and his successors in interest, and they requested a judicial d etermination of their respective rights and duties, and a specific declaration that t hey were the owners of the

easement. {¶3} On the same day they filed their complaint for declaratory judg ment, the Worthys filed a motion to enjoin interference with the claimed easement, citing their concomitant filing of a complaint for declaratory judgment and quiet title action. The motion alleged that Hawthorne had erected fence posts on either side of the driveway, “which could be used to erect a gate, fence, or other barrier t o the driveway.” TheLawrence App. No. 20CA5 3

Worthys claimed they had no other means of ingress or egress to their property, that they had no adequate remedy at law for their anticipated injuri es as a result of Hawthorne’s interference and/or obstruction of their easement, and thus they requested a temporary restraining order, a preliminary injunction, and a permanent injunction restraining and enjoining Hawthorne and his agents from interfe ring with or obstructing

their easement. {¶4} Attached to the motion was the affidavit of Kevin Worthy. In h is affidavit, Worthy averred that his parcels of property had been owned with out interruption by his family for more than twenty-one years and for the entirety of t he time his family had owned the parcels a private drive had been openly and continuou sly used for ingress and egress. He further averred that the private drive crosses a portion of Hawthorne’s property. Additionally, he averred that no owner of the parcel in which the driveway crosses had ever given Kevin Worthy, his wife, his wife’s paren ts, or anyone else using the driveway permission or lic ense to cross the property. The Worthys’ motion was granted and the trial court issued a temporary restraining orde r on May 4, 2018. {¶5} Hawthorne filed his answer on May 23, 2018, denying the allegat ions and asserting several affirmative defenses, including failure to st ate a claim, estoppel, laches, untimely filing and waiv er. The matter thereafter proc eeded through discovery, with reciprocal requests for admissions, production of document s and interrogatories. Although the parties each filed notices of submission indicatin g their compliance with discovery, the actual discovery responses were not filed or mad e part of the record. {¶6} Hawthorne subsequently filed a motion for summary judgment on J uly 19, 2019, claiming there was no genuine issue of material fact and that he was entitled toLawrence App. No. 20CA5 4

judgment as a matter of law. In support of his motion, he atta ched his own affidavit, as well as the affidavits of Lawrence Skeens and Larry Sheline. I n his affidavit, Hawthorne averred that he purchased his real property on March 30, 2002, and that he walked the property prior to his purchase and he observed no physical evid ence of use of the road easement claimed by the Worthys at that time. He further averr ed that the houses on the Worthys property appeared “abandoned and overgrown” and tha t the area now claimed as a road easement is “grown over with weeds, brush and small trees, 6-7’ tall.” He averred that the area would not have been passable with a ve hicle at that time and that it remained overgrown until 2004 when the Worthys’ tenant, Larry Sheline, started clearing the area. Hawthorne averred that he “installed a gate over the roadway and gave Sheline permission to use with the understanding there was no easement and that a new road not over my real estate would be put in.” However, the affidavit stated that Sheline ceased use after six months, but then returned six mont hs later and resumed use with Hawthorne’s permission . Finally, Hawthorne averred th at “[i]n 2016, the [Worthys] started use of this road through Purchasers Pinkerman & McKinley[,]” and that he granted them use of the road at that time with the unde rstanding they would put in a new road when they completed their purchase. Hawthorne at tached a copy of the deed to his real property to the affidavit and referenced the d eed in his affidavit. {¶7} Lawrence Skeens is Hawthorne’s predecessor in title and his aff idavit averred that he purchased the property at issue on May 7, 1988 and sold it to Hawthorne on May 30, 2002. He averred that during the time he owned the property he “was at or on the property on a regular basis, almost daily[,]” and that during that time “the area now claimed by [the Worthys] as an easement was not u sed or traveled.” HeLawrence App. No. 20CA5 5

further averred that the area at issue was “overgrown” and the houses on the Worthys’ property “were abandoned and not used by this time.” {¶8} As indicated above, Larry Sheline, was a tenant of the Worthy p roperty. His affidavit averred that he was a tenant starting in approximatel y 2004 and that he “observed the property for 5 prior years and saw no use of the area [the Worthys] claim as a road.” He averred that at the time he started clearing th e area now claimed by the Worthys to be a road, the area had not been used in “probably 2 0 years” and that he had to clear the area of overgrowth. Finally, he averred that Hawthorne granted him permission to use the area at issue as a road, but only after i nforming him that “there was no easement granted * * *.” He further averred that he and Hawthorne agreed to put a gate up, and that he was on the property until 2017. {¶9} The Worthys did not file a responsive memorandum to Hawthorne’s motion for summary judgment. A hearing was held on the motion on Dece mber 30, 2019. At the hearing, Hawthorne’s counsel argued that the motion for sum mary judgment should be granted, in part, because the Worthys did not oppose the mot ion and had not met their burden of establishing a genuine issue of material fact. The Worthys’ counsel argued that Kevin Worthy’s prior affidavit, which was filed in support of his motion for an injunction, sufficiently alleged every element of a prescriptiv e easement and that the affidavits filed by Hawthorne in support of his motion for summ ary judgment, in effect, created a genuine issue of material fact when compared to the p rior affidavit of Kevin Worthy. The trial court reviewed all of the affidavits, consid ered the arguments of counsel, and stated on the record that the competing and contra dictory affidavits of Kevin Worthy and Kevin Hawthorne created a genuine issue of mat erial fact. However,Lawrence App. No. 20CA5 6

the court referenced Hawthorne’s filing of two additional affid avits by disinterested parties. The trial court concluded the hearing but granted the parties time to file supplemental briefs on the issue of whether Kevin Worthy’s prio r-filed, personal affidavit

was sufficient to overcome the declarations set forth in the af fidavits of Skeens and

Sheline. {¶10} Counsel for both parties filed supplemental briefs and the tria l court ultimately granted summary judg ment in favor of Hawthorne. In reaching its decision, the trial court characterized Kevin Worthy’s affidavit as a “se lf-serving affidavit” and stated that the Worthys’ reliance on the allegations in their p leadings and the sole selfserving affidavit was not enough to create a genuine issue of m aterial fact, or to overcome Hawthorne’s motion for summary judgment. The trial co urt also stated, in reaching its decision, that “the defendant filed affidavits of uninterested parties in support of his Civ.R. 56 motion and the plaintiffs filed nothin g.” The trial court issued its final order on February 28, 2020. The Worthys thereafter filed their timely appeal, setting forth two assignments of error for our review.

ASSIGNMENTS OF ERROR

I. “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE KEVIN HAWTHORNE.”

II. “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BASED ON THE LIMITED NATURE OF APPELLEE’S EVIDENCE.”

ASSIGNMENT OF ERROR I {¶11} In their first assignment of error, the Worthys contend that th e trial court erred in granting summary judgment in favor of Hawthorne. The Worthys claim the following issue must be considered under this assignment of err or: “Did the affidavit ofLawrence App. No. 20CA5 7

Appellant Kevin Worthy establish a genuine issue of material fa ct such that the trial court should have denied Appellee’s motion for summary judgment ?” Hawthorne responds by arguing that the trial court correctly granted summ ary judgment in his favor, claiming there were no genuine issues of material fact precludi ng summary judgment on the question of whether the Worthys had obtained a prescriptive easement across a portion of his property. We begin by setting forth the applica ble standard of review for a grant or denial of summary judgment.

Standard of Review {¶12} “Generally, appellate courts conduct a de novo review of trial court summary judgment decisions.” Greene v. Partridge, 2016-Ohio-84 75, 78 N.E.3d 197, ¶ 13, citing See Snyder v. Ohio Dept. of Nat. Resources , 140 Ohio St.3d 322, 2014-Ohio3942, 18 N.E.3d 416, ¶ 2; Troyer v. Janis , 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6; Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently rev iew the record to determine if summary judgment is appropriate and need not defer to the trial court's

decision. See Brown v. Scioto Bd. of Commrs. , 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993); Morehead v. Conley , 75 Ohio App.3d 409, 411-12, 599 N.E.2d 786 (4th Dist.1991). To determine whether a trial court proper ly granted a summary judgment motion, an appellate court must review the Civ.R. 56 s ummary judgment standard, as well as the applicable law. See Snyder at ¶ 2. Civ.R. 56(C) provides in relevant part: * * * Summary judgment shall be rendered forthwith if the plead ings, depositions, answers to interrogatories, written admissions, af fidavits, transcripts of evidence, and written stipulations of fact, if a ny, timely filed in the action, show that there is no genuine issue as to any mater ial fact andLawrence App. No. 20CA5 8

that the moving party is entitled to judgment as a matter of la w. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evide nce or stipulation, and only from the evidence or stipulation, that re asonable minds can come to but one conclusion and that conclusion is adverse t o the party against whom the motion for summary judgment is made, that part y being entitled to have the evidence or stipulation construed most str ongly in the party's favor. * * * * {¶13} Thus, trial courts may not grant summary judgment, pursuant to Civ.R. 56, unless the evidence demonstrates that: 1) no genuine issue of material fact remains to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) after viewing the evidence most strongly in favor of the nonmoving pa rty, reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party. See Snyder at ¶ 20; Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp. , 140 Ohio St.3d 193, 2014-Ohio-3095, 16 N.E.3d 645, ¶ 8; Smith v. McBride , 130 Ohio St.3d 51, 2011- Ohio-4674, 955 N.E.2d 954, ¶ 12; New Destiny Treatment Ctr., Inc. v. Wheeler , 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Vahila v. Hall , 77 Ohio St.3d 421, 429–30, 674 N.E.2d 1164 (1997). {¶14} The Supreme Court of Ohio has stated, regarding Civ.R. 56, that the purpose of the rule is as follows: “* * * to enable movement beyond allegations in pleadings and t o analyze the evidence so as to ascertain whether an actual need for a tr ial exists. Because it is a procedural device to terminate litigation, summ ary judgment must be awarded with caution.” (Citation omitted.) Ormet Primary Aluminum Corp. v. Employers Ins. of Wausau , 88 Ohio St.3d 292, 300, 725 N.E.2d 646 (2000). Thus, a court that is reviewing a summary judgment motion must construe all reasonable inferences that ca n be drawn from the evidentiary materials in a light most favorable to the nonmovin g party. See Moore v.Lawrence App. No. 20CA5 9

E.I. DuPont de Nemours Co ., 4th Dist. Pickaway No. 15CA12, 2015-Ohio-5331, ¶ 20, citing Hannah v. Dayton Power & Light Co ., 82 Ohio St.3d 482, 485, 696 N.E.2d 1044 (1998), and Turner v. Turner , 67 Ohio St.3d 337, 341, 617 N.E.2d 1123 (1993). Moreover, a court must not “consider either ‘the quantum’ or th e ‘superior credibility’ of

evidence.” McGee v. Goodyear Atomic Corp. , 103 Ohio App.3d 236, 242, 659 N.E.2d 317 (1995), quoting Hirschberg v. Albright , 67 O.O.2d 219, 2019-220, 322 N.E.2d 682 (1st Dist.1974). “The purpose of summary judgment is not to tr y issues of fact, but

rather to determine whether tria ble issues of fact exist. * * * Thus, a court should not pass upon the credibility of witne sses or weigh the relative va lue of their testimony in rendering summary judgment.” (Citation omitted.) McGee. at 242-43 (citation omitted.); see also Koeth v. Time Savers, Inc. , 11th Dist. Geauga No. 99-G-2211, 2000 WL 688826 (May 26, 2000) (“It is not the province of the trial cou rt in a summary judgment exercise to either weigh the evidence before it, or to accept o ne party's interpretations of that evidence in toto.”). {¶15} Under Civ.R. 56, the moving party bears the initial burden to i nform the trial court of the basis for the motion and to identify those portion s of the record that

demonstrate the absence of a material fact. See Griffith v. Aultman Hosp ., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 26; Vahila, supra ; Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). However, the movin g party cannot discharge its initial burden with a conclusory assertion that t he nonmoving party has no evidence to prove its case. Kulch v. Structural Fibers, Inc ., 78 Ohio St.3d 134, 147, 677 N.E.2d 308 (1997); Dresher, supra . Rather, the moving party must specifically refer to the “pleadings, depositions, answers to interrogatories, writte n admissions, affidavits,Lawrence App. No. 20CA5 10

transcripts of evidence in the pending case, and written stipul ations of fact, if any,” which affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C). {¶16} “[U]nless a movant meets its initial burden of establishing th at the nonmovant has either a complete lack of evidence or has an insu fficient showing of

evidence to establish the existence of an essential element of its case upon which the nonmovant will have the burden of proof at trial, a trial court shall not grant a summary judgment.” Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc. , 110 Ohio App.3d 732, 742, 675 N.E.2d 65 (2nd Dist.1996). Once the movin g party satisfies its burden, the nonmoving party bears a corresponding duty to set f orth specific facts to show that a genuine issue exists. Civ.R. 56(E); Dresher, supra at 289. More specifically, Civ.R. 56(E) states as follows: * * * * When a motion for summary judgment is made and supporte d as provided in this rule, an adverse party may not rest upon the m ere allegations or denials of the party's pleadings, but the party' s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate , shall be entered against the party. (Emphasis added). {¶17} Thus, “ ‘[m]ere speculation and unsupported conclusory assertio ns are not sufficient’ ” to meet the nonmovant's reciprocal burden to set forth specific facts to show that a genuine issue exists. Bank of New York Mellon v. Bobo , 2015-Ohio-4601, 50 N.E.3d 229 (4th Dist.), ¶ 13, quoting Loveday v. Essential Heating Cooling & Refrig.,

Inc. , 4th Dist. Gallia No. 08CA4, 200 8-Ohio-4756, ¶ 9. Additionally , “ ‘resting on mere allegations against a motion for summary judgment * * * is insu fficient’ ” to defeat a properly supported summary judgment motion. Jackson v. Alert Fire & Safety Equip.,Lawrence App. No. 20CA5 11

Inc ., 58 Ohio St.3d 48, 52, 567 N.E.2d 1027, 1032 (1991), quoting King v. K.R. Wilson

Co ., 8 Ohio St.3d 9, 10-11, 455 N.E.2d 1282 (1983). Moreover, “c onclusory affidavits that merely provide legal conclusions or unsupported factual as sertions are not proper under Civ. R. 56(E)” and are insufficient to establish a genuin e issue of material fact. (Citation omitted.) Moore v. Smith , 4th Dist. Washington No. 07CA61, 2008-Ohio-7004, ¶ 15; Wertz v. Cooper , 4th Dist. Scioto No. 06CA3077, 2006-Ohio-6844, ¶ 13, quoting Evans v. Jay Instrument & Specialty Co ., 889 F.Supp. 302, 310 (S.D.Ohio 1995) (“ ‘bald self-serving and conclusory allegations are insufficient to wit hstand a motion for summary judgment’ ”); accord Stetz v. Copley Fairlawn Sch. Dist ., 2015-Ohio-4358, 46 N.E.3d 165, ¶ 17 (9th Dist.), quoting Brannon v. Rinzler , 77 Ohio App.3d 749, 756, 603 N.E.2d 1049 (2d Dist.1991) (“ ‘Statements contained in affidavi ts must be based on personal knowledge and cannot be legal conclusions.’ ”); McCartney v. Oblates of St.

Francis deSales , 80 Ohio App.3d 345, 357–358, 609 N.E.2d 216 (6th Dist.1992) ( stating that a trial court considering a summary judgment motion is not required to accept conclusory allegations that are devoid of any evidence to creat e an issue of material fact). {¶18} A nonmoving party need not try its case when defending against a summary judgment motion; however, a nonmoving party must produc e more than a

scintilla of evidence to support its case. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Carsey v. Alexander Cemetery, Inc. , 4th Dist. Athens No. 00CA028, 2001 WL 315186. Thus, the essent ial question is “whether the evidence presents a sufficient disagreement to req uire submission to a juryLawrence App. No. 20CA5 12

or whether it is so one-sided that one party must prevail as a matter of law.” Anderson

at 251-252. {¶19} Additionally, when trial courts consider summary judgment motio ns, Civ.R. 56(C) specifies that the court may examine only “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, [that are] timely filed in the ac tion.” Id. ; see also Whitt v. Wolfinger , 2015-Ohio-2726, 39 N.E.3d 809, ¶ 12 (4th Dist.); Davis v. Eachus , 4th Dist. Pike No. 04CA725, 2004-Ohio-5720, ¶ 36; Wall v. Firelands Radiology, Inc. , 106 Ohio App.3d 313, 334, 666 N.E.2d 235 (6th Dist.1995). “ ‘Documents which are not sworn, certified, or authenticated by way of affidavit have no evident iary value and shall not be considered by the trial court.’ ” State ex rel. Shumway v. Ohio State Teachers

Retirement Bd. , 114 Ohio App.3d 280, 287, 683 N.E.2d 70 (1996), quoting Mitchell v.

Ross , 14 Ohio App.3d 75, 470 N.E.2d 245 (8th Dist.1984). A party m ay; however, introduce evidentiary material that does not fall within one of the categories of evidence listed in Civ.R. 56(C) when that material is incorporated by re ference in a properly

framed affidavit. See Thompson v. Hayes , 10th Dist. Franklin No. 05AP-476, 2006- Ohio-6000, ¶ 103. {¶20} According to Civ.R. 56(E), a properly framed affidavit is one t hat is: 1) “based on personal knowledge;” 2) “set[s] forth such facts as w ould be admissible in evidence;” and 3) “show[s] affirmatively that the affiant is co mpetent to testify to the matters stated in the affidavit.” Additionally, if the affiant refers to documentary evidence, “[s]worn or certified copies of all papers or parts o f papers * * * shall be attached to or served with the affidavit.” Civ.R. 56(E). Furt hermore, affidavits submittedLawrence App. No. 20CA5 13

to support or to oppose a summary judgment motion must be based on personal knowledge. Civ.R. 56(E); see also Bonacorsi v. Wheeling & Lake Erie Ry. Co. , 95 Ohio St.3d 314, 320, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 26, citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn ., 69 Ohio St.3d 217, 223, 631 N.E.2d 150 (1994). For obvious reasons, this is the same standard as applied to la y witness testimony in a court of law. Id. ; Evid.R. 602. “Personal knowledge” is “[k]nowledge gained through firsthand observation or experience , as distinguished from a belief based on what someone else has said .” Black's Law Dictionary (7th Ed.Rev.1999) 875. See also , Weissenberger's Ohio Evidence (2002) 213, Section 602.1 (“The subject of a witness's testimony must have been perceived through one or more of the senses of t he witness. * * * [A] witness is ‘incompetent’ to testify to any f act unless he or she possesses firsthand knowledge of that fact.”).

Bonacorsi at ¶ 26. “ ‘[P]ersonal knowledge can be inferred from the nature of the facts in the affidavit and the identity of the affiant.’ ” Salemi v. Cleveland Metroparks , 145 Ohio St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296, ¶ 18, quoting State ex rel. Lanham v.

DeWine , 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 15, citi ng State ex rel. Corrigan v. Seminatore , 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981). {¶21} Furthermore, “[i]f a party submits evidence that does not fall within Civ.R. 56(C)'s parameters, the opposing party may file a motion to str ike the improperlysubmitted evidence.” Whitt at ¶ 13. The failure to file a motion to strike or otherwise object to evidence that fails to comply with Civ.R. 56(C) resul ts in a forfeiture of the issue on appeal. See State ex rel. Chuvalas v. Tompkins , 83 Ohio St.3d 171, 699 N.E.2d 58 (1998). “ ‘A trial court may consider evidence other than the evidence specified in Civ.R. 56(C) where no objection has been raised.’ ” Carr v. State , 4th Dist. Vinton No. 14CA697, 2015-Ohio-3895, ¶ 31, quoting Cowen v. Lucas , 4th Dist. Scioto No. 96CA2456, 1997 WL 362013, *3 (June 30, 1997), and citing Rice v. Lewis , 4th Dist.Lawrence App. No. 20CA5 14

Scioto No. 13CA3551, 2013-Ohio-5890, ¶ 23 (holding that appell ant's failure to object to improper summary judgment evidence waived any error that the trial court may have committed by considering the evidence); accord Worthington v. Speedway , 4th Dist. Scioto No. 04CA2938, 2004-Ohio-5 077, fn. 1 (citations omitted) (“When the opposing party fails to object to the admissibility of the evidence unde r Civ.R. 56, the court may, but need not, consider such evidence when it determines whether summary judgment is appropriate.”). In the case at bar, although Hawthorne argued Kevin Worthy’s affidavit was self-serving, he did not file a motion to strike the affida vit. Prescriptive Easement {¶22} “ ‘Prescription is the acquisition of an easement, over the pr operty of another, through adverse use of that property.’ ” Dunn v. Ransom , 4th Dist. Pike No. 10CA806, 2011-Ohio-4253, ¶ 76, quoting Crawford v. Matthews , 4th Dist. Scioto No. 97CA2555, 1998 WL 720734, *2 (Sept. 21, 1998). As explained in Dunn: The required elements of a prescriptive easement are similar to those in the law of adverse possession. The person seeking the easement must demonstrate clear and convincing evidence of open, notorious, a dverse, and continuous use of the easement for a 21-year period. (Citation omitted.) Dunn at ¶ 77. “Prescriptive easements are not favored in law, because they deprive the legal property owner of rights without compensation.” Fitzpatrick v. Palmer , 186 Ohio App.3d 80, 2009-Ohio-6008, 926 N.E.2d 651, ¶ 25 (4th Dist.). {¶23} “ ‘Open’ and ‘notorious’ use requires that the actual use be o f a character that is capable of giving the legal owner notice.” Id. at ¶ 78, quoting Crawford, supra , at *3. “ ‘Property is used “openly” when it is used “without atte mpted concealment,” and it is used “notoriously” when its use is “known to some who might reasonably be expectedLawrence App. No. 20CA5 15

to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises.” ’ ” Dunn at ¶ 78, quoting Crawford at *3, in turn quoting

Hindall v. Martinez , 69 Ohio App.3d 580, 583, 591 N.E.2d 308 (3d Dist.1990). “Use of a claimed prescriptive easement is ‘adverse’ when it is without t he permission of, or inconsistent with the rights of the true property owner.” Dunn at ¶ 91

. Continuous use is “use that is ‘neither interrupted by acts of the owner nor aban doned by the adverse user’ throughout the 21-year statute of limitations.” Dunn at ¶ 99, quoting Crawford at *3. “The acts of the prescriptive claimant ‘do not need to be daily or constant; rather, occasional use that will “fairly indicate an uninterrupted use” to the true owner will suffice.’ ” (Citation omitted.) Dunn at ¶ 99, quoting Curry & Durham, Ohio Real Property Law and Practice, Section 7.02[5], 7-13 (6th Ed.2006). {¶24} To meet the 21-year requirement a claimant may tack time from w hen others owned the claimant's property onto the years the claiman t personally owned it if the claimant proves that “ ‘ “(a) persons in privity, (b) seque ntially and continuously used the disputed property, (c) in the same or similar manner, (d) o penly, (e) notoriously, (f) adversely to the title holder's interests, and (g) for at least twenty-one years.” ’ ” Queen

v. Hanna , 2012-Ohio-6291, 985 N.E.2d 929, ¶ 37 (4th Dist.), quoting Stillman v. T.W. Grogan Co ., 8th Dist. Cuyahoga No. 58579, 1991 WL 127265, *1 (June 27, 1 991), in turn quoting J.F. Gioia, Inc. v. Cardinal Am. Corp. , 23 Ohio App.3d 33, 37, 491 N.E.2d 325 (8th Dist.1985). Analysis {¶25} The Worthys’ complaint alleged that they owned real property ad jacent to real property owned by Hawthorne, and that a gravel driveway le ading to their propertyLawrence App. No. 20CA5 16

which crossed a portion of the Hawthorne’s property, had been “ continuously in use since a time unknown prior to 1975[.]” The complaint further a lleged that permission had never been granted by Hawthorne, or any of his predecessors -in-title, to the Worthys, or any of their tenants or predecessors-in-title. Thu s, the complaint alleged the Worthys had acquired an easement for ingress and egress as well as maintenance based upon their “actual, open, notorious, exclusive, hostile, and adverse use of the easement for more than twenty-one years preceding the commencem ent of this action.” {¶26} Further, as set forth above, Kevin Worthy filed an affidavit in support of his request for an injunction. In his affidavit, he averred that h e and his family had owned the property at issue, uninterrupted, for more than twenty-one years and that during the time of their ownership, a private drive had been openly and co ntinuously used for ingress and egress across a portion of Hawthorne’s property. W orthy further averred in his affidavit that neither he, his wife, his wife’s parents, “o r anyone else using the drive” had been granted permission by any owner of the subservient par cel. {¶27} Thus, the Worthy’s complaint alleged all of the required elemen ts of a prescriptive easement with respect to the gravel drive crossing a portion of Hawthorne’s property. Further, aside from the general allegations in their pleadings, evidence in the form of Kevin Worthy’s affidavit was made part of the record. Although it was not filed subsequent to Hawthorne’s moti on for summary judgment, it was n evertheless in the record and remained part of the record as Hawthorne never moved to strike the

affidavit. {¶28} Hawthorne’s motion for summary judgment included three affidavi ts in support, which were filed nearly one year after Worthy’s affida vit was filed. Hawthorne’sLawrence App. No. 20CA5 17

affidavits collectively disputed the averments contained in Wor thy’s affidavit. More specifically, Hawthorne averred that he purchased his property in 2002 and that there

was no evidence of a road in use at that time. He further aver red that it was not until 2004 that Larry Sheline, the Worthys’ tenant, was given permiss ion to cross a portion of Hawthorne’s property, only after Sheline had already begun clea ring a road. Sheline’s affidavit similarly averred that he was a tenant on the Worthy’ s property beginning in 2004, that he had observed no use of the claimed road for five years prior to 2004, and that Hawthorne had granted him permission to clear a road, but only to be used on a temporary basis. The final affidavit attached to Hawthorne’s m otion was that of Larry Skeens, Hawthorne’s predecessor-in-title. Skeens averred that he purchased the property now owned by Hawthorne in 1998 and that he was there d aily. He averred that during that time the area claimed as a road was never traveled and that the area was overgrown, and that the house on the Worthy’s property was aban doned. {¶29} As demonstrated above, the affidavits filed by Hawthorne in sup port of his motion for summary judgment directly contradicted the affidavit previously filed by Worthy. During the hearing on the motion for summary judgment, the trial court stated

as follows: There is a genuine issue of material fact that is created becau se I’ve got one party saying there’s no use of that property and I’ve got a nother party saying there has been. And that, at its essence, the simplest of the facts. It’s polar opposite. Thus, the trial court expressly acknowledged that the conflicti ng affidavits of the parties created a genuine issue of material fact. {¶30} Elsewhere in the hearing transcript, the trial court stated on the record as follows regarding its thought process:Lawrence App. No. 20CA5 18

When you file that Motion for Summary Judgement [sic] and you h ave supplemented your client’s position with additional affidavits of the uninterested, uh, individuals to the issue at hand, does that o vercome a genuine issue of material fact that exists only in the form of a self-serving affidavit and a complaint that was filed by the Plaintiff in th is case? That’s the only issue we have to look at.

* * * Were they using the property or were they not? We can determin e that in a quick, little bench trial in a day to see what it is. Howeve r, procedurally, are you allowed to create that genuine issue and material fact with only a self-serving statement. That’s the question that we have at th is stage and that’s what’s gotta be determined. {¶31} In its final order, the trial court expressly framed the issue it was deciding as whether “as a matter of law, * * * Kevin S. Worthy’s persona l affidavit was sufficient

to overcome the declarations set forth in affidavits of Mr. Ske ens and Mr. Sheline, which were attached in support of defendant’s Motion.” The trial cou rt ultimately granted Hawthorne’s motion for summary j udgment, basing its decision, a t least in part, upon its finding that Worthy’s affidavit was self-serving and, as such, his affidavit was not enough to overcome Hawthorne’s motion. {¶32} We believe the trial court erred in its reasoning and ultimatel y in its decision that summary judgment w as appropriate. As noted by th e trial court, the affidavits of Kevin Worthy and Kevin Hawthorne were polar oppos ites on the key elements needed to establish a prescriptive easement based upon a theory of adverse possession. It appears, however, that the trial court in essen ce determined Worthy’s affidavit to be self-serving because Hawthorne filed affidavits of two disinterested parties that contradicted the averments contained in Worthy’s a ffidavit. However, this constitutes an impro per credibility determination at the summar y judgment stage of the proceedings. Furthermore, such an analysis did not construe th e evidence in a lightLawrence App. No. 20CA5 19

most favorable to the non-moving party, but rather it construed it in a light most favorable to the moving party. {¶33} Importantly, we conclude that the trial court erred in characte rizing Worthy’s affidavit as self-serving, primarily because it contra dicted the affidavits of

Hawthorne’s two disinterested wi tnesses. “ ‘It is axiomatic th at “[a] self-serving affidavit that is not corroborated by any evidence is insufficient to est ablish the existence of an

issue of material fact.’ ” National Collegiate Student Loan Trust 2005-3 v. Dunlap , 2018-Ohio-2701, 115 N.E.3d 689, ¶ 37, quoting U.S. Bank Natl. Assn. v. Bobo , 4th Dist. Athens No. 14CA35, 2014-Ohio-4975, ¶ 16. Upon review, however, we find that Worthy’s affidavit was no more self-serving than Hawthorne’s af fidavit. Worthy claimed open and continuous use of the alleged easement area, without t he permission of Hawthorne or anyone else, for a period in excess of twenty-one years. Hawthorne denied Worthy’s claims. Thus, there exists a genuine issue of material fact. Worthy’s affidavit satisfied the elements of a properly-framed affidavit for purposes of Civ.R. 56(E) and it presented none of the concerns associated with sha m affidavits, as

discussed in Whitt v. Wolfinger , 2015-Ohio-2726, 39 N.E.3d 809, ¶ 39 (4th.Dist.2015) (a sham affidavit is “an affidavit that contradicts prior testimon y”). Here, Worthy’s affidavit was actually filed approximately one year prior to Hawthorne’s motion for summary judgment and there is no suggestion that anything contained in the affidavit conflicts with Worthy’s prior testimony. {¶34} The trial court’s distinction between the positions of the part ies appears solely to be based upon the fact that Hawthorne had affidavits from two disinterested parties that were consistent with his own affidavit. However, as noted above, a courtLawrence App. No. 20CA5 20

must not “consider either ‘the quantum’ or the ‘superior credib ility’ of evidence.” McGee,

supra , at 242, citing Hirschberg at 219-220. Moreover, and as also noted above, “[t]he purpose of summary judgment is not to try issues of fact, but r ather to determine

whether triable issues of fact exist.” McGee at 242; Koeth, supra

. {¶35} After conducting a de novo review, we conclude that genuine iss ues of material fact exist which precl ude summary judgment. As such, we further conclude that the trial court erred in granting summary judgment in favo r of Hawthorne. Accordingly, the Worthys’ first assignment of error is sustaine d, the judgment of the trial court is reversed, and this matter is remanded to the trial cou rt for further proceedings.

ASSIGNMENT OF ERROR II {¶36} In their second assignment of error, the Worthys contend that t he trial court erred in granting summary judgment based on the limited nature of Appellee’s evidence. More specifically, they argue that Hawthorne’s affidavits in su pport of his motion for summary judgment only addressed the time period from 1998 to pr esent, and even if this court finds there is no genuine issue of material fact reg arding the establishment of the easement during that time period, there remains a genuine i ssue of material fact regarding whether a prescriptive easement was established from a time prior to 1975 to 1996, as alleged in the complaint. Hawthorne responds by argui ng that the trial court did not address this particular issue because the Worthys never raised this argument during the summary judgment hearing. Hawthorne further argues that the trial court did not address the issue of abandonment because the Worthys did no t raise the issue of a prescriptive easement arising prior to 1998. However, we concl ude that in light of our disposition of the Worthys’ first assignment of error, which re sulted in a reversal of theLawrence App. No. 20CA5 21

trial court’s grant of summary judgment in favor of Hawthorne, as well as a remand for further proceedings, the arguments raised under their second as signment of error have been rendered moot. Thus, we need not address it.

JUDGMENT REVERSED AND REMANDED.Lawrence App. No. 20CA5 22

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special m andate issue out of this Court d irecting the LAWRENCE COUNTY COURT OF COMMON PLEAS to carry this judgment in to execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Hess, J. and Abele, J.: Concur in Judgment and Opinion.

For the Court,

BY: ______________________________ Kristy S. Wilkin, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, t his document constitutes a fin al judgment entry and the time period for fu rther appeal commences from the date of filing with the clerk.