Franklin v. Massillon Homes II, L.L.C.

921 N.E.2d 314, 184 Ohio App. 3d 455
CourtOhio Court of Appeals
DecidedOctober 8, 2009
DocketNo. 08-CA-288
StatusPublished
Cited by11 cases

This text of 921 N.E.2d 314 (Franklin v. Massillon Homes II, L.L.C.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin v. Massillon Homes II, L.L.C., 921 N.E.2d 314, 184 Ohio App. 3d 455 (Ohio Ct. App. 2009).

Opinion

Delaney, Judge.

{¶ 1} Plaintiff-appellant, Pauline Franklin, appeals from the trial court’s granting of summary judgment, finding that she failed to establish a genuine issue as to any material fact that would result in judgment in her favor on a claim of adverse possession. Massillon Homes II, L.L.C., is defendant-appellee.

{¶ 2} Appellant is the title owner of the property at 1118 14th Street SE, Massillon, Ohio. She and her husband purchased the lot in 1956. According to appellant, they began using the area in dispute at 1110 14th Street SE, as soon as they moved in. Appellant submitted a property survey done by Stephen Campbell, a registered property surveyor in the state of Ohio, that designates both the deed line and the adverse-possession line between 1110 and 1118 14th Streets. The survey was established pursuant to his review of the matter and his understanding of appellant’s claim. Campbell’s affidavit was notarized on October 23, 2008, and was attached to appellant’s memorandum in opposition to Massillon Homes’ motion for summary judgment, filed on November 14, 2008.

{¶ 3} Pursuant to the boundary survey, a portion of the adverse area, which runs parallel to 14th Street, is bordered by a four-to-five-foot hedge fence. Appellant alleges that the hedge fence establishes a border of the adverse area and has existed in the same location for 50 years. Additionally, the adverse area [458]*458extends to the former garage of appellee’s predecessor in title, according to appellant’s affidavit and the boundary survey. Appellant stated that she continually planted flowers along the garage until it was torn down, and then after the garage was torn down approximately 25 years ago, appellant’s husband erected a lattice fence behind the garage. The fence is still standing today; it extends to the east towards the back of the property and marks another boundary of the adverse area. According to appellant, the adverse area is bordered by the hedge fence and lattice fence.

{¶ 4} In appellant’s affidavit, she additionally asserted that she and her family have mowed and maintained the lawn in the adverse area since 1956, that they have maintained the hedge fence since 1956, that she paid to have an oak tree removed on the adverse area, and that she did not seek permission before doing so. Additionally, appellant planted a red maple tree in the adverse area after removing the oak tree. Her husband took care of lawn care up until his death, and then appellant hired various third parties to maintain the lawn in the adverse area.

{¶ 5} Appellant asserted that she and her family would park cars in the adverse area and wash them there, that they would park their trailer in the area, that her children used the area to play in, and that her pets used the area as well. Moreover, she asserted that she would tell trespassers to leave the area and stated that other neighbors would also inform trespassers to stay out of the area because it was appellant’s property. According to appellant, no one used the area without her permission, the prior owners never used the area, and she never sought permission from them to use the area.

{¶ 6} The deposition of appellant’s daughter, Lydia Glaude, also confirmed that as a child she played in the disputed area, that they planted grass in the area, raked leaves, planted flowers, and washed cars in the area. She stated that her father put up both the lattice fence and a wire fence in the disputed area.

{¶ 7} Marian Longshore, the previous owner of 1110 14th Street SE, stated that she did not give appellant permission to cut down any trees in the disputed area, that appellant took care of the hedge fence, and that appellant also put up the lattice fence that was on the disputed area. She also testified that the property inside the hedge fence, which was partially in the disputed area, was appellant’s property. She also confirmed that appellant would park a mobile home in front of the tree on the adverse area.

{¶ 8} On February 8, 2008, appellant filed a complaint in the Stark County Court of Common Pleas for adverse possession, trespass, and to quiet title as it relates to the parcels at 1110 14th Street, Massillon, Ohio, and 1118 14th Street, Massillon, Ohio. Appellee filed its answer and counterclaim on April 14, 2008. [459]*459Appellant filed an amended complaint, with permission of the trial court, on October 24, 2008.

{¶ 9} The parties then filed cross-motions for summary judgment, and the trial court granted appellee’s motion, finding that appellant could not prove adverse possession by clear and convincing evidence. Specifically, the trial court found as follows:

{¶ 10} “Plaintiff is the title owner of the residential real estate located at 1118 — 14th Street SE, Massillon, Ohio. Plaintiff claims that she is the owner of land titled in the name of neighbor located to the North of her lot due to adverse possession. Plaintiff argues that she has met the requirements for adverse possession and that summary judgment should be granted in her favor. Defendant states that Plaintiff cannot prove an action for adverse possession and thus summary judgment should be granted in their favor.

{¶ 11} “A claim of adverse possession requires proof of exclusive possession and open, notorious, continuous, and adverse use for a period of 21 years. Grace v. Koch (1998), 81 Ohio St.3d 577, 692 N.E.2d 1009, syllabus. To establish title by adverse possession, a claimant must establish the above-listed factors by clear and convincing evidence. Id. at 580, 692 N.E.2d 1009.

{¶ 12} “First, there is a question as to whether the boundaries of the possession area are sufficient to sustain an adverse possession claim. Even if the boundaries are sufficiently identified, Defendant is granted summary judgment. To be notorious, a use must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. Crown Credit Co., Ltd. v. Bushman (2007), 170 Ohio App.3d 807, 820, 869 N.E.2d 83. I concur with the Defendant that Plaintiffs use of the property has not been notorious or exclusive.

{¶ 13} “Further, the Court agrees that Plaintiffs use of the alleged adverse area is insufficient for a claim of adverse possession. The landscaping and maintenance conducted by Plaintiff is not sufficient to constitute adverse possession. See Murphy v. Cromwell, 2004-Ohio-6279, 2004 WL 2676311 (5th Dist.Ct. Apps.); Robinson v. Armstrong, 2004-Ohio-1463, 2004 WL 585425 (5th Dist.Ct. Apps.); Nixon v. Parker, 2005-Ohio-2375, 2005 WL 1140789 (5th Dist.Ct.Apps.); Crown Credit Co., Ltd. v. Bushman (2007), 170 Ohio App.3d 807, 869 N.E.2d 83.”

{¶ 14} It is from this judgment that appellant now appeals.

{¶ 15} Appellant raises one assignment of error:

{¶ 16} “I. The trial court erred in granting Massillon Homes II, L.L.C.’s motion for summary judgment.

[460]*460I

{¶ 17} In her sole assignment of error, appellant argues that the trial court erred in granting appellee’s motion for summary judgment. We agree.

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Cite This Page — Counsel Stack

Bluebook (online)
921 N.E.2d 314, 184 Ohio App. 3d 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-massillon-homes-ii-llc-ohioctapp-2009.