[Cite as Ford v. West, 2018-Ohio-2626.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
DAVID MICHAEL FORD, SR., :
Plaintiff-Appellant, : CASE NO. CA2017-11-025
: OPINION - vs - 7/2/2018 :
PATRICIA WOLFE WEST, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CVH20150246
Kiger & Kiger, James A. Kiger, 132 South Main Street, Washington C.H., Ohio 43160, for plaintiff-appellant
Jess C. Weade, 220 East Market Street, Washington C.H., Ohio 43160, for defendant- appellee, Patricia Wolfe West
RINGLAND, J.
{¶ 1} Plaintiff-appellant, David Ford, appeals from the decision of the Fayette County
Court of Common Pleas denying his adverse possession claim following a bench trial in a
dispute over real property with defendant-appellee, Patricia West. For the reasons detailed
below, we affirm.
{¶ 2} This case involves an approximate 20-acre tract of farmland ("Property"), which Fayette CA2017-11-025
Ford claims by right of adverse possession. On September 4, 2015, Ford filed his quiet title
complaint. Patricia answered Ford's complaint and filed a counterclaim asserting that the
applicable statute of limitations had yet to expire and requesting that she be recognized as
the true owner of the Property.1
{¶ 3} Following a bench trial, the trial court ruled that Ford did not satisfy the 21-year
requirement to prove a claim for adverse possession. Therefore, the trial court granted
judgment in favor of Patricia. Ford now appeals the trial court's decision, raising two
assignments of error for review. For ease of discussion, Ford's two assignments of error will
be addressed together.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT
APPELLANT [sic] CAUSE OF ACTION DID NOT ACCUE [sic] UNTIL OCTOBER 27, 1995
AND THAT APPELLANTS [sic] FILING OF HIS CLAIM TOLLED THE RUNNING OF THE
STATUTE I.E. R.C. 2305.04
{¶ 6} Assignment of Error No. 2:
{¶ 7} THE TRIAL COURT'S DECISION DATED AUGUST 3, 2017 IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE, AS APPELLANT BY CLEAR AND CONVINCING
EVIDENCE PROVED HIS CLAIM OF RIGHT TO THE LAND IN QUESTION, AND THAT HIS
TITLE THERETO SHOULD BE QUIETED.
{¶ 8} Ford's assignments of error are interrelated. Ford alleges the trial court's
decision is against the manifest weight of the evidence. Following review, we find Ford's
assignments of error are without merit.
{¶ 9} When evaluating whether a judgment is against the manifest weight of the
1. Patricia initially answered Ford's complaint pro se. However, Patricia subsequently obtained counsel and filed an amended Answer and Counterclaim on December 16, 2015. -2- Fayette CA2017-11-025
evidence in a civil case, the standard of review is the same as in the criminal context. Jones
v. Holmes, 12th Dist. Butler No. CA2012-07-133, 2013-Ohio-448, ¶ 24, citing Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. As such, we weigh the evidence and
all reasonable inferences, consider the credibility of witnesses, and determine whether in
resolving conflicts in the evidence, the finder of fact "clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered."
Eastley at ¶ 20. A judgment will not be reversed as being against the manifest weight of the
evidence where the judgment is supported by some competent, credible evidence going to all
essential elements of the case. Carson v. Duff, 12th Dist. Fayette Nos. CA2017-03-005 and
CA2017-03-007, 2017-Ohio-8199, ¶ 11.
{¶ 10} "To acquire title by adverse possession, the party claiming title must show
exclusive possession and open, notorious, continuous, and adverse use for a period of
twenty-one years." Carson v. Duff, 12th Dist. Fayette No. CA2015-06-013, 2016-Ohio-5093,
¶ 17. The legal titleholder is entitled to a strong presumption that he is the legal owner of the
property. Judd v. Jackson, 12th Dist. Butler No. CA2002-11-291, 2003-Ohio-6383, ¶ 9. "The
burden of establishing the elements necessary to acquire title by adverse possession rests
heavily upon the person claiming such ownership." Hacker v. House, 12th Dist. Butler No.
CA2014-11-230, 2015-Ohio-4741, ¶ 20.
{¶ 11} The vast majority of the operative facts are not in dispute. John Riley held title
to the Property in fee simple. John died testate on November 11, 1934. Pursuant to the
terms of his will, John devised the Property to his surviving spouse for life, then to Annabel
Riley and Albert Anthoni for life with the remainder in fee simple to the heirs of the body of
Annabel. In the event of default, the remainder went to the heirs of the body of another
relative, Valerie Bugsby.
{¶ 12} Annabel purchased Albert's interest in the Property on May 18, 1946. -3- Fayette CA2017-11-025
Approximately two years later, Annabel then conveyed her interest in the Property to Howard
and Della Allison by quitclaim deed. On October 27, 1995, Annabel died. Annabel was
survived by her daughter, Patricia. It is undisputed that Patricia is an "heir of the body" of
Annabel.
{¶ 13} Patricia only disputes the timing element of Ford's adverse possession claim.
Therefore, the central challenge on appeal is whether Ford satisfied the 21-year time
requirement for adverse possession.
{¶ 14} Ford claims that "his predecessors in title have been in possession of this
acreage in question for over 30 years uninterrupted to this day." As part of his argument,
Ford references a series of deeds and title transfers occurring uninterrupted from Annabel
until the Property was transferred to his father. Ford was the sole beneficiary of his father's
estate.
{¶ 15} The trial court found that despite the transfers cited by Ford, Annabel
possessed only a life estate in the Property and could only transfer that interest, not the
remainder interest held by the heirs of Annabel's body. Therefore, the trial court found that
"[t]he Court need go no further in examining the theory of adverse possession posited by
[Ford] as the timeliness of the action is dispositive." As a result, the trial court concluded that
Ford's claim for adverse possession began on the date of Annabel's death, October 27,
1995, and therefore he failed to satisfy the 21-year requirement.
{¶ 16} We find the trial court's decision was supported by the manifest weight of the
evidence. The Ohio Supreme Court has held that the term "heirs of the body" creates a
class gift that cannot be determined until the class is closed. Tootle v. Tootle, 22 Ohio St.3d
244, 248 (1986). For a contingent remainder in a life estate, the remainder does not vest
"until the class is closed, i.e., with the death of the final life tenant." Id.
{¶ 17} In the present case, Annabel held a life estate interest in the Property and the -4- Fayette CA2017-11-025
"heirs of her body" held a contingent remainder in fee simple. Although Annabel conveyed
the Property, she was only able to convey her life estate interest. Upon Annabel's death, the
class closed and Patricia was the sole remaining heir of Annabel's body. Ford's complaint
and Patricia's Answer and Counterclaim were filed less than 21 years from Annabel's date of
death.
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[Cite as Ford v. West, 2018-Ohio-2626.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
DAVID MICHAEL FORD, SR., :
Plaintiff-Appellant, : CASE NO. CA2017-11-025
: OPINION - vs - 7/2/2018 :
PATRICIA WOLFE WEST, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CVH20150246
Kiger & Kiger, James A. Kiger, 132 South Main Street, Washington C.H., Ohio 43160, for plaintiff-appellant
Jess C. Weade, 220 East Market Street, Washington C.H., Ohio 43160, for defendant- appellee, Patricia Wolfe West
RINGLAND, J.
{¶ 1} Plaintiff-appellant, David Ford, appeals from the decision of the Fayette County
Court of Common Pleas denying his adverse possession claim following a bench trial in a
dispute over real property with defendant-appellee, Patricia West. For the reasons detailed
below, we affirm.
{¶ 2} This case involves an approximate 20-acre tract of farmland ("Property"), which Fayette CA2017-11-025
Ford claims by right of adverse possession. On September 4, 2015, Ford filed his quiet title
complaint. Patricia answered Ford's complaint and filed a counterclaim asserting that the
applicable statute of limitations had yet to expire and requesting that she be recognized as
the true owner of the Property.1
{¶ 3} Following a bench trial, the trial court ruled that Ford did not satisfy the 21-year
requirement to prove a claim for adverse possession. Therefore, the trial court granted
judgment in favor of Patricia. Ford now appeals the trial court's decision, raising two
assignments of error for review. For ease of discussion, Ford's two assignments of error will
be addressed together.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT
APPELLANT [sic] CAUSE OF ACTION DID NOT ACCUE [sic] UNTIL OCTOBER 27, 1995
AND THAT APPELLANTS [sic] FILING OF HIS CLAIM TOLLED THE RUNNING OF THE
STATUTE I.E. R.C. 2305.04
{¶ 6} Assignment of Error No. 2:
{¶ 7} THE TRIAL COURT'S DECISION DATED AUGUST 3, 2017 IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE, AS APPELLANT BY CLEAR AND CONVINCING
EVIDENCE PROVED HIS CLAIM OF RIGHT TO THE LAND IN QUESTION, AND THAT HIS
TITLE THERETO SHOULD BE QUIETED.
{¶ 8} Ford's assignments of error are interrelated. Ford alleges the trial court's
decision is against the manifest weight of the evidence. Following review, we find Ford's
assignments of error are without merit.
{¶ 9} When evaluating whether a judgment is against the manifest weight of the
1. Patricia initially answered Ford's complaint pro se. However, Patricia subsequently obtained counsel and filed an amended Answer and Counterclaim on December 16, 2015. -2- Fayette CA2017-11-025
evidence in a civil case, the standard of review is the same as in the criminal context. Jones
v. Holmes, 12th Dist. Butler No. CA2012-07-133, 2013-Ohio-448, ¶ 24, citing Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. As such, we weigh the evidence and
all reasonable inferences, consider the credibility of witnesses, and determine whether in
resolving conflicts in the evidence, the finder of fact "clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered."
Eastley at ¶ 20. A judgment will not be reversed as being against the manifest weight of the
evidence where the judgment is supported by some competent, credible evidence going to all
essential elements of the case. Carson v. Duff, 12th Dist. Fayette Nos. CA2017-03-005 and
CA2017-03-007, 2017-Ohio-8199, ¶ 11.
{¶ 10} "To acquire title by adverse possession, the party claiming title must show
exclusive possession and open, notorious, continuous, and adverse use for a period of
twenty-one years." Carson v. Duff, 12th Dist. Fayette No. CA2015-06-013, 2016-Ohio-5093,
¶ 17. The legal titleholder is entitled to a strong presumption that he is the legal owner of the
property. Judd v. Jackson, 12th Dist. Butler No. CA2002-11-291, 2003-Ohio-6383, ¶ 9. "The
burden of establishing the elements necessary to acquire title by adverse possession rests
heavily upon the person claiming such ownership." Hacker v. House, 12th Dist. Butler No.
CA2014-11-230, 2015-Ohio-4741, ¶ 20.
{¶ 11} The vast majority of the operative facts are not in dispute. John Riley held title
to the Property in fee simple. John died testate on November 11, 1934. Pursuant to the
terms of his will, John devised the Property to his surviving spouse for life, then to Annabel
Riley and Albert Anthoni for life with the remainder in fee simple to the heirs of the body of
Annabel. In the event of default, the remainder went to the heirs of the body of another
relative, Valerie Bugsby.
{¶ 12} Annabel purchased Albert's interest in the Property on May 18, 1946. -3- Fayette CA2017-11-025
Approximately two years later, Annabel then conveyed her interest in the Property to Howard
and Della Allison by quitclaim deed. On October 27, 1995, Annabel died. Annabel was
survived by her daughter, Patricia. It is undisputed that Patricia is an "heir of the body" of
Annabel.
{¶ 13} Patricia only disputes the timing element of Ford's adverse possession claim.
Therefore, the central challenge on appeal is whether Ford satisfied the 21-year time
requirement for adverse possession.
{¶ 14} Ford claims that "his predecessors in title have been in possession of this
acreage in question for over 30 years uninterrupted to this day." As part of his argument,
Ford references a series of deeds and title transfers occurring uninterrupted from Annabel
until the Property was transferred to his father. Ford was the sole beneficiary of his father's
estate.
{¶ 15} The trial court found that despite the transfers cited by Ford, Annabel
possessed only a life estate in the Property and could only transfer that interest, not the
remainder interest held by the heirs of Annabel's body. Therefore, the trial court found that
"[t]he Court need go no further in examining the theory of adverse possession posited by
[Ford] as the timeliness of the action is dispositive." As a result, the trial court concluded that
Ford's claim for adverse possession began on the date of Annabel's death, October 27,
1995, and therefore he failed to satisfy the 21-year requirement.
{¶ 16} We find the trial court's decision was supported by the manifest weight of the
evidence. The Ohio Supreme Court has held that the term "heirs of the body" creates a
class gift that cannot be determined until the class is closed. Tootle v. Tootle, 22 Ohio St.3d
244, 248 (1986). For a contingent remainder in a life estate, the remainder does not vest
"until the class is closed, i.e., with the death of the final life tenant." Id.
{¶ 17} In the present case, Annabel held a life estate interest in the Property and the -4- Fayette CA2017-11-025
"heirs of her body" held a contingent remainder in fee simple. Although Annabel conveyed
the Property, she was only able to convey her life estate interest. Upon Annabel's death, the
class closed and Patricia was the sole remaining heir of Annabel's body. Ford's complaint
and Patricia's Answer and Counterclaim were filed less than 21 years from Annabel's date of
death. As correctly noted by the trial court, this fact is dispositive to the outcome of the case.
{¶ 18} Although Ford and his predecessors possessed the Property for many years
prior to Annabel's death, a claim for "adverse possession does not begin to run against the
rights of a person holding a remainder or reversionary interest until they have possession of
the property." Hempel v. Zabor, 6th Dist. Erie No. E-06-032, 2007-Ohio-5320, ¶ 13, citing
Stein v. White, 109 Ohio St. 578, 583 (1924). Therefore, Ford's claim for adverse
possession against Patricia's interest did not begin until October 27, 1995 when she could
possess the Property. Ford did not satisfy the 21-year requirement for adverse possession
against Patricia's fee simple interest.
{¶ 19} On appeal, Ford makes a corollary argument that he is still in possession of
the Property, and Patricia's Answer and Counterclaim should not toll the statute of limitations.
In other words, Ford maintains that Patricia has never "disseized[d]" him and the filing of
Patricia's Answer and Counterclaim did not halt the 21-year period to establish a claim for
adverse possession. Ford cites the Ohio Supreme Court's decisions in Grace v. Koch, 81
Ohio St.3d 577 (1998); and Rosenthil v. Cherry, 114 Ohio St. 401 (1926). However, both
cases are distinguishable from the facts in the present case. In Grace, the Court based its
decision on other grounds, while noting that "[t]he act of mortgaging the property * * * was
probably insufficient to toll the statutory period." Grace at ¶ 581 fn. 3. Similarly, the Court's
decision in Rosenthil involved a situation where a judgment against an adverse possessor
was never enforced and therefore did not interrupt the adverse possession period because
"equity comes to the vigilant and not to those who slumber on their rights." Rosenthil at ¶ 12. -5- Fayette CA2017-11-025
Moreover, Patricia's Counterclaim was filed within 21 years, which is consistent with R.C.
2305.04, which provides "[a]n action to recover the title to or possession of real property shall
be brought within twenty-one years after the cause of action accrued." Patricia's
Counterclaim was brought within 21 years of the time of accrual.
{¶ 20} As a result, we find the trial court's decision was supported by the manifest
weight of the evidence. Ford failed to prove all the necessary requirements to establish a
claim for adverse possession. Therefore, we find the assignments of error to be without
merit and they hereby are overruled.
{¶ 21} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
-6-