[Cite as Gallaher v. Gelske, 2022-Ohio-3097.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
TIMOTHY GALLAHER, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 7-22-02
v.
FRANCIS GELSKE, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Henry County Common Pleas Court Trial Court No. 21CV0023
Judgment Affirmed
Date of Decision: September 6, 2022
APPEARANCES:
Zachary J. Murry for Appellant
Kayla A. Baker for Appellee Case No 7-22-02
ZIMMERMAN, P.J.
{¶1} Plaintiffs-appellants, Timothy and Deanna Gallaher (jointly as the
“Gallahers”), appeal the judgment of the Henry County Court of Common Pleas
dismissing their claim for declaratory judgment to quiet title (based upon the
doctrine of adverse possession) and their claim for injunctive relief (against the
defendants-appellees, Francis and Kelly Gelske (jointly as the “Gelskes”)), and
granting the Gelskes’ claims to quiet title and for ejectment.
{¶2} This case stems from the Gallahers’ purchase of his parent’s property
located on County Road 424, Liberty Center, Henry County, Ohio in 2017 and his
ensuing use of a portion of an adjacent landowner’s property (to the west) identified
as parcel number 30040014000 and owned by the Gelskes.1 The Gelskes’
purchased their property from Timothy Woodyard (“Woodyard”), in 2020.
Woodyard purchased the property in 1986.
{¶3} On March 22, 2021, the Gallahers filed a complaint in the trial court
against the Gelskes for a declaratory judgment to quiet title under the doctrine of
adverse possession. They further requested injunctive relief. On April 9, 2021, the
Gelskes’ filed their answer and counterclaims to quiet title and for ejectment of the
Gallahers.
1 It is unclear from our review of the record precisely how much of the adjacent landowner’s property was actually being utilized by the Gallahers; although, in their complaint, the Gallahers assert it is +/- 0.341 acres.
-2- Case No 7-22-02
{¶4} On December 16, 2021, the Gelskes’ filed a motion for summary
judgment as to all claims against the Gallahers. (Doc. No. 24). The Gallahers’ filed
a memorandum in opposition to the Gelskes’ motion for summary judgment and
cross-motion for summary judgment on January 18, 2022. (Doc. No. 29).
{¶5} On April 1, 2022, the trial court granted summary judgment in favor of
the Gelskes as to all of their claims and denied the Gallahers’ motion for summary
judgment as to all of their claims. (Doc. No. 36).
{¶6} The Gallahers’ filed timely notice of appeal and raise two assignments
of error for our review.
Assignment of Error No. I
The trial court committed reversible error in [sic] entering judgment as a matter of law in favor of Defendants-Appellees.
Assignment of Error No. II
The trial court committed reversible error by denying Plaintiffs- Appellants’ Motion for Summary Judgment.
{¶7} In their assignments of error, the Gallahers’ assert that the trial court
erred by granting the Gelskes’ motion for summary judgment and denying their
respective motion for summary judgment. Specifically, the Gallahers’ argue that
the trial court erred by failing to determine that they had properly acquired
ownership and possession of the property in question through adverse possession.
-3- Case No 7-22-02
Standard of Review
{¶8} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and
without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.
Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S.
Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary
judgment is proper where there is no genuine issue of material fact, the moving party
is entitled to judgment as a matter of law, and reasonable minds can reach but one
conclusion when viewing the evidence in favor of the non-moving party, and the
conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶9} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of material
fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is
not required to produce any affirmative evidence, but must identify those portions
of the record which affirmatively support his argument.” Id., citing Dresher at 292.
“The nonmoving party must then rebut with specific facts showing the existence of
a genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).
-4- Case No 7-22-02
{¶10} Material facts are those facts “that might affect the outcome of the suit
under the governing law.” Turner v. Turner, 67 Ohio St.3d 337, 340 (1993) citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).
“Whether a genuine issue exists is answered by the following inquiry: Does the
evidence present ‘a sufficient disagreement to require submission to a jury’ or is it
‘so one-sided that one party must prevail as a matter of law[?]’” Id., citing Anderson
477 U.S. at 251-252, 106 S.Ct. at 2507.
Adverse Possession
{¶11} Adverse possession is a means of acquiring title to property through
hostile possession by lapse of time. Anderson v. Village of Alger, 3d Dist. Hardin
No. 6-98-10, 1999-Ohio-777, *3 (May 14, 1999), citing Montieth v. Twin Falls
United Methodist Church, Inc., 68 Ohio App.2d 219, 224 (9th Dist.1980). Title to
property by adverse possession ripens into an absolute interest after the statutory
period expires. Ohio Dept. of Adm. Serv. v. Morrow, 67 Ohio App.3d 225, 234 (4th
Dist.1990). At the same time, the record owner is divested of his estate in the subject
property. Id.; see also McNeely v. Langan, 22 Ohio St. 32, 37 (1871). However,
the transfer of property by adverse possession is generally disfavored. Montieth at
224.
{¶12} The Supreme Court of Ohio has held that in order to acquire title by
adverse possession, a party most prove, by clear and convincing evidence, exclusive
-5- Case No 7-22-02
possession and open, notorious, continuous, and adverse use for a period of 21 years.
Grace v. Koch, 81 Ohio St.3d 577 (1998), paragraph one of the syllabus. Clear and
convincing evidence is that “which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v. Ledford,
161 Ohio St. 469 (1954), paragraph three of the syllabus. The elements of adverse
possession are stringent because a successful action “results in a legal titleholder
forfeiting ownership to an adverse holder without compensation.” Grace at 580.
{¶13} “[T]he burden of proving adverse possession falls upon the party
asserting title through such possession.” Thompson v. Hayslip, 74 Ohio App.3d
829, 832 (4th Dist.1991). Failure of proof as to any of the elements results in the
failure to acquire title by adverse possession. Grace at 579, citing Pennsylvania R.
Co. v. Donovan, 111 Ohio St.
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[Cite as Gallaher v. Gelske, 2022-Ohio-3097.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
TIMOTHY GALLAHER, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 7-22-02
v.
FRANCIS GELSKE, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Henry County Common Pleas Court Trial Court No. 21CV0023
Judgment Affirmed
Date of Decision: September 6, 2022
APPEARANCES:
Zachary J. Murry for Appellant
Kayla A. Baker for Appellee Case No 7-22-02
ZIMMERMAN, P.J.
{¶1} Plaintiffs-appellants, Timothy and Deanna Gallaher (jointly as the
“Gallahers”), appeal the judgment of the Henry County Court of Common Pleas
dismissing their claim for declaratory judgment to quiet title (based upon the
doctrine of adverse possession) and their claim for injunctive relief (against the
defendants-appellees, Francis and Kelly Gelske (jointly as the “Gelskes”)), and
granting the Gelskes’ claims to quiet title and for ejectment.
{¶2} This case stems from the Gallahers’ purchase of his parent’s property
located on County Road 424, Liberty Center, Henry County, Ohio in 2017 and his
ensuing use of a portion of an adjacent landowner’s property (to the west) identified
as parcel number 30040014000 and owned by the Gelskes.1 The Gelskes’
purchased their property from Timothy Woodyard (“Woodyard”), in 2020.
Woodyard purchased the property in 1986.
{¶3} On March 22, 2021, the Gallahers filed a complaint in the trial court
against the Gelskes for a declaratory judgment to quiet title under the doctrine of
adverse possession. They further requested injunctive relief. On April 9, 2021, the
Gelskes’ filed their answer and counterclaims to quiet title and for ejectment of the
Gallahers.
1 It is unclear from our review of the record precisely how much of the adjacent landowner’s property was actually being utilized by the Gallahers; although, in their complaint, the Gallahers assert it is +/- 0.341 acres.
-2- Case No 7-22-02
{¶4} On December 16, 2021, the Gelskes’ filed a motion for summary
judgment as to all claims against the Gallahers. (Doc. No. 24). The Gallahers’ filed
a memorandum in opposition to the Gelskes’ motion for summary judgment and
cross-motion for summary judgment on January 18, 2022. (Doc. No. 29).
{¶5} On April 1, 2022, the trial court granted summary judgment in favor of
the Gelskes as to all of their claims and denied the Gallahers’ motion for summary
judgment as to all of their claims. (Doc. No. 36).
{¶6} The Gallahers’ filed timely notice of appeal and raise two assignments
of error for our review.
Assignment of Error No. I
The trial court committed reversible error in [sic] entering judgment as a matter of law in favor of Defendants-Appellees.
Assignment of Error No. II
The trial court committed reversible error by denying Plaintiffs- Appellants’ Motion for Summary Judgment.
{¶7} In their assignments of error, the Gallahers’ assert that the trial court
erred by granting the Gelskes’ motion for summary judgment and denying their
respective motion for summary judgment. Specifically, the Gallahers’ argue that
the trial court erred by failing to determine that they had properly acquired
ownership and possession of the property in question through adverse possession.
-3- Case No 7-22-02
Standard of Review
{¶8} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and
without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.
Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S.
Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary
judgment is proper where there is no genuine issue of material fact, the moving party
is entitled to judgment as a matter of law, and reasonable minds can reach but one
conclusion when viewing the evidence in favor of the non-moving party, and the
conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶9} “The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of material
fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is
not required to produce any affirmative evidence, but must identify those portions
of the record which affirmatively support his argument.” Id., citing Dresher at 292.
“The nonmoving party must then rebut with specific facts showing the existence of
a genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).
-4- Case No 7-22-02
{¶10} Material facts are those facts “that might affect the outcome of the suit
under the governing law.” Turner v. Turner, 67 Ohio St.3d 337, 340 (1993) citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).
“Whether a genuine issue exists is answered by the following inquiry: Does the
evidence present ‘a sufficient disagreement to require submission to a jury’ or is it
‘so one-sided that one party must prevail as a matter of law[?]’” Id., citing Anderson
477 U.S. at 251-252, 106 S.Ct. at 2507.
Adverse Possession
{¶11} Adverse possession is a means of acquiring title to property through
hostile possession by lapse of time. Anderson v. Village of Alger, 3d Dist. Hardin
No. 6-98-10, 1999-Ohio-777, *3 (May 14, 1999), citing Montieth v. Twin Falls
United Methodist Church, Inc., 68 Ohio App.2d 219, 224 (9th Dist.1980). Title to
property by adverse possession ripens into an absolute interest after the statutory
period expires. Ohio Dept. of Adm. Serv. v. Morrow, 67 Ohio App.3d 225, 234 (4th
Dist.1990). At the same time, the record owner is divested of his estate in the subject
property. Id.; see also McNeely v. Langan, 22 Ohio St. 32, 37 (1871). However,
the transfer of property by adverse possession is generally disfavored. Montieth at
224.
{¶12} The Supreme Court of Ohio has held that in order to acquire title by
adverse possession, a party most prove, by clear and convincing evidence, exclusive
-5- Case No 7-22-02
possession and open, notorious, continuous, and adverse use for a period of 21 years.
Grace v. Koch, 81 Ohio St.3d 577 (1998), paragraph one of the syllabus. Clear and
convincing evidence is that “which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v. Ledford,
161 Ohio St. 469 (1954), paragraph three of the syllabus. The elements of adverse
possession are stringent because a successful action “results in a legal titleholder
forfeiting ownership to an adverse holder without compensation.” Grace at 580.
{¶13} “[T]he burden of proving adverse possession falls upon the party
asserting title through such possession.” Thompson v. Hayslip, 74 Ohio App.3d
829, 832 (4th Dist.1991). Failure of proof as to any of the elements results in the
failure to acquire title by adverse possession. Grace at 579, citing Pennsylvania R.
Co. v. Donovan, 111 Ohio St. 341, 349-350 (1924). Moreover, each case of adverse
possession must be evaluated on its particular facts, and such a claim is to be
“‘construed strictly in favor of the owner of * * * title.’” (Omission sic.) Montieth
at 224, quoting 2 Corpus Juris Secundum, Adverse Possession, Section 5, at 648-
649.
Analysis
{¶14} Although the Gallahers’ raise arguments related to all of the elements
of adverse possession, and because it is dispositive of Gallahers’ assignments of
error, we need only address whether a genuine issue of material fact remains as to
-6- Case No 7-22-02
the Gallahers’ adverse use of the property for the 21-year statutory period. Since
the Gallahers’ purchased their property from Timothy Gallaher’s parents (Dennis
and Jeanette Gallaher) in 2017 (whom the Gallahers’ argue also adversely possessed
Woodyard’s property since 1988), we look to the record on appeal as to whether a
genuine issue of material fact exists regarding the Gallahers’ parents’ adverse use
of the Gelskes’ predecessor in interest, Woodyard’s property.
{¶15} Where successive possessors of real property are asserting adverse
uses, privity must be established between the possessors. Privity of possession is
the “successive possession of real property.” Black’s Law Dictionary (11th
ed.2019). In order to tack adverse uses, it must be established that (a) the parties
and their predecessor are in privity, (b) the property was sequentially and
continuously used, (c) the property was used in the same or similar manner, and (d)
that the use was open, notorious, and adverse to the titleholder’s interest. (Emphasis
added.) McNeely v. Langan, 22 Ohio St. 32 (1871). See also Zipf v. Dalgarn, 114
Ohio St. 291, 296 (1926).
{¶16} Importantly, evidence from Woodyard’s uncontroverted deposition
testimony reveals that Woodyard permitted the Gallahers (Dennis & Jeanette) to
mow approximately 10 feet of his property to “square off” their backyard to curb
their weeds.2 (Lester Woodyard Depo. at 7-8). To us, Appellant’s “use” of the land
2 Significantly, Dennis Gallaher was deceased at the time of the action was filed in the trial court, and Jeanette Gallaher was in hospice unable to appear for any court proceedings or to offer deposition testimony.
-7- Case No 7-22-02
subject to their adverse-possession claim is the 10-foot stretch of land mowed (over
the years) and not the one third of an acre set forth in the Gallaher’s complaint.
{¶17} However, even if we assume without deciding that the Gallahers are
in privity with Timothy’s parents and that the property was sequentially and
continuously used in a similar manner, in our de novo review, we conclude that
there is no genuine issue of material fact that the Gallahers’ can meet the 21-year
statutory requirement of adverse use since it is undisputed in the record that
Woodyard permitted Timothy’s parents to use the property by mowing a 10 foot
stretch of land to contain weeds. Thus, we conclude that there is no genuine issue
of material fact that Timothy Gallaher’s parents’ use was ever adverse to Woodyard.
Hence, even though the Gallahers and their predecessor in interest are in privity as
to their use of the property, such use is not subject to tacking because Timothy’s
parents’ use was permissive.
{¶18} Accordingly, the trial court did not err by granting summary judgment
in favor of the Gelskes as to their claims seeking to quiet title and ejectment of the
Gallahers and by denying the Gallahers’ motion for summary judgment against the
Gelskes. Based upon the foregoing, the Gallahers’ first and second assignments of
error are overruled.
-8- Case No 7-22-02
{¶19} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
MILLER and SHAW, J.J., concur.
/jlr
-9-