[Cite as Huron v. McCune, 2023-Ohio-575.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
City of Huron, Ohio Court of Appeals No. E-22-027
Appellee Trial Court No. 2020 CV 0264
v.
Michael P. McCune Revised DECISION AND JUDGMENT Declaration of Trust Sally J. McCune, Trustee, et al. Decided: February 24, 2023
Appellant
*****
Todd A. Schrader, Gary A. Ebert, and Jeffrey S. Moeller, for appellee.
Daniel L. McGookey, for appellant.
MAYLE, J.
{¶ 1} Defendant-appellant, Sally J. McCune, trustee of the Michael P. McCune
Revised Declaration of Trust, appeals the May 24, 2022 judgments of the Erie County
Court of Common Pleas, (1) granting summary judgment in favor of plaintiff-appellee, the city of Huron; (2) denying her motion for summary judgment; (2) denying her motion
to convert her motion to dismiss into a motion for summary judgment; and (3) granting
judgment on the pleadings to the city of Huron and dismissing her amended
counterclaim. For the following reasons, we affirm the trial court judgment.
I. Background
{¶ 2} This action was filed by the city of Huron to quiet title to a parcel of land
referred to as Water Lot 1. The city was quitclaimed this property when it acquired
Water Lots 2 through 6, in November of 2013. Water Lots 1 through 6 are collectively
known as “the Showboat parcel” because that land was the former site of the Showboat
Restaurant, which operated from 1971 through 1993. Water Lot 1 is adjacent to Water
Lot 2, and is located at the mouth of the Huron River, east of Lake Erie. The parties
dispute whether Water Lot 1 is or has ever been fully or partially submerged beneath the
natural shoreline of Lake Erie.
{¶ 3} Water Lot 1 was originally surveyed in 1804 and no deed to Water Lot 1 has
been found for any period before 1906. In 1875, Water Lot 2 (but not Water Lot 1) was
deeded to Romanus Shepherd. Shepherd and his wife quitclaimed both Water Lot 2 and
Water Lot 1 to August Kuebler, Jr. in 1906, despite the fact that there is no evidence that
Shepherd held the deed to Water Lot 1. The grand tax list for Erie County for the years
1910-1914 reflects Kuebler as the owner of Lot 1, but states that the property is “in lake.”
2. Water Lot 1 was dropped from the Erie County grand tax list in the years 1915-1921.
From that point on, Water Lot 1 was not assigned a tax parcel number.
{¶ 4} In August of 1958, Kuebler and his wife quitclaimed Water Lot 2 (but not
Water Lot 1) to Robert Austin. In July of 1959, Austin and his wife deeded Water Lots 2
to 6 to Walter and Rosemary Hesenburg. Kuebler is the last known holder of a deed to
Water Lot 1.
{¶ 5} Sometime after July of 1959, Water Lots 2 to 6 were conveyed to Jacob and
June Claus. From 1971 to 1993, the Claus family operated Showboat Restaurant on
Water Lots 1 to 6. Water Lot 1 was used for restaurant parking. To get to Water Lot 1,
“you entered on the property on the Showboat Restaurant’s one-way-designated driveway
(around the west side of the building) and drove to the end of the building along a post-
and-chain fence.” The area was signed as “parking only for Showboat Restaurant.”
{¶ 6} In 1993, Showboat Restaurant ceased operation. Jacob and June Claus sold
Water Lots 2 to 6 to 10 North Main Street in 1994. The property fell into disrepair. The
city purchased Water Lots 2 to 6 from 10 North Main Street in November of 2013. At
the same time, 10 North Main Street quitclaimed any interest in Water Lot 1 to the city.
The city began a costly project to rehabilitate the Showboat parcel.
{¶ 7} Because Water Lot 1 had not been deeded to the city’s predecessors-in-
interest, there was a cloud on the title to the property. The city discovered that following
the death of the Kueblers and a series of devises, the McCune Trust was the most recent
3. successor-in-interest to the property, but it maintained that the trust had been divested of
any ownership interest in Water Lot 1 either because Water Lot 1 was submerged land
held in trust by the State of Ohio, Department of Natural Resources, or because the city’s
predecessors-in-interest had acquired the land by adverse possession. The city filed an
action to quiet title in the Erie County Court of Common Pleas, challenging any
purported interest that McCune may claim. It also named as defendants the Erie County
Treasurer and the Ohio Department of Natural Resources. McCune counterclaimed
against the city for (1) declaratory judgment and quiet title; (2) slander of title; and (3)
violation of rights under 42 U.S.C. 1983.
{¶ 8} The city moved for summary judgment on alternative bases: (1) Water Lot 1
is submerged below the natural shoreline of the lake, meaning that under Ohio law,
neither the city nor McCune has any enforceable ownership interest in it; or (2)
McCune’s ownership interest in Water Lot 1 was extinguished through adverse
possession of the property by the city and its predecessors-in-interest.
{¶ 9} McCune moved for summary judgment on the city’s claims and on the first
claim in her own complaint (she dismissed her second and third claims for relief). She
argued that Water Lot 1 is not submerged land. She maintained that the city’s claim of
adverse possession was (1) untimely, and (2) at odds with its submerged-land position.
And she insisted that she was entitled to summary judgment on equitable grounds—
4. including the doctrines of unclean hands, laches, estoppel, quasi-estoppel, and acceptance
of the benefits—preventing judgment in favor of the city.
{¶ 10} The city also moved for judgment on the pleadings on McCune’s
counterclaims. It argued that McCune’s action to quiet title was superfluous to its own
complaint to quiet title. It made further arguments respecting McCune’s second and third
claims, which need not be discussed in the context of this appeal because those two
claims were voluntarily dismissed.
{¶ 11} McCune moved to dismiss the city’s complaint for lack of subject-matter
jurisdiction. She argued that the city violated open meetings laws in its deliberations
leading up to the purchase of the Showboat parcel, therefore, its purchase of Water Lot 1
was invalid. She later moved to convert her motion to dismiss to a motion for summary
judgment, which the trial court denied.
{¶ 12} In judgments journalized on May 24, 2022, the court granted summary
judgment in favor of the city; denied McCune’s motion for summary judgment; granted
the city’s motion for judgment on the pleadings; denied McCune’s motion to dismiss; and
denied McCune’s motion to convert her motion to dismiss to a motion for summary
judgment. It entered judgment in favor of the city quieting title on the basis that any
claim McCune may have had to ownership of Water Lot 1 “was long ago extinguished”
by the adverse possession of the property by the city’s predecessors-in-interest.
5. {¶ 13} McCune appealed. She assigns the following errors for our review:
Assignment of Error No. 1: The Trial Court Erred in Granting the
City Summary Judgment Based on its Adverse Possession Claim and
Failing to Grant McCune Summary Judgment on that Claim[.]
Assignment of Error No. 2: The Trial Court Erred in Failing to
Grant McCune Summary Judgment Dismissing the City’s Submerged
Lands Claim Prior to Dismissing that Claim Without Prejudice[.]
Assignment of Error No. 3: The Trial Court Erred in Denying
McCune’s Motion to Convert her Motion to Dismiss into a Motion for
Summary Judgment and in Failing to Grant Summary Judgment Dismissing
the City’s First Amended Complaint Based on the City’s Violation of
Ohio’s Open Meeting Law.
Assignment of Error No. 4: The Trial Court Erred in Granting
Judgment on the Pleadings Dismissing McCune’s Amended Counterclaim
and in Failing to Grant Summary Judgment on the Amended Counterclaim.
II. Law and Analysis
{¶ 14} McCune challenges several judgments resolving motions she and the city
filed in this action, including the city’s motions for summary judgment and for judgment
on the pleadings, and her own motions for summary judgment and to convert her motion
to dismiss to a motion for summary judgment.
6. {¶ 15} We address each of McCune’s assignments of error in turn.
A. First Assignment of Error: Summary Judgment in Favor of the City and Against McCune
{¶ 16} As summarized above, the trial court concluded that any claim McCune
may have had to ownership of Water Lot 1 “was long ago extinguished” because the
parcel had been adversely possessed by the city’s predecessors-in-interest. In her first
assignment of error, McCune argues that the city should not have prevailed on its adverse
possession claim because (1) the city filed its action outside the 21-year statute of
limitations provided in R.C. 2305.04; (2) the city’s use of Water Lot 1 was not
continuous, so it cannot add on to the Showboat Restaurant’s possession of the lot, which
ended in 1993; (3) the evidence did not establish that the Showboat Restaurant’s use of
the property was exclusive; (4) the city cannot show that its use of the property was
“open” if, like it argued, the property was submerged; and (5) by arguing that Water Lot
1 was submerged and that it had been adversely possessed, the city took irreconcilable
positions giving rise to a genuine issue of material fact—i.e., its “submerged land” claim
prevented it from arguing adverse possession because it could prevail on its adverse
possession claim only if the land was not submerged.
{¶ 17} Appellate review of a summary judgment is de novo, Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same
standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,
7. 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 18} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526
N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,
662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is
made, an adverse party may not rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a genuine issue of material fact.
Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,
8. 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).
1. Statute of Limitations
{¶ 19} McCune argues that the statute of limitations for filing an adverse
possession action is 21 years, therefore, the city’s action accrued no later than 21 years
after the Showboat Restaurant closed its doors on September 23, 1993. It claims that the
city’s complaint—filed August 4, 2020—was filed seven years too late. The city
responds that there is no statute of limitations within which a party in possession must
challenge competing claimants to marshal their conflicting claims via a quiet title action.
{¶ 20} R.C. 2305.04 establishes a 21-year limitations period for a party who
professes an interest in property to bring an action against an adverse user of property
who is in possession of the real estate. State ex rel. A.A.A. Investments v. City of
Columbus, 17 Ohio St.3d 151, 153, 478 N.E.2d 773 (1985); Hays v. Nemenz, 7th Dist.
Columbiana No. 88-C-40, 1989 WL 53618, * 2 (May 22, 1989). It provides that “[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 * * *.” R.C. 2305.04. “If the dispossessed
party fails to bring such action within the 21-year period, then he is presumed to have
surrendered or abandoned his rights to that real property.” Hays at * 2–3. At that point,
the rights of the record owner are cut off and the possessor becomes the title owner.
Rader v. Brock, 12th Dist. Preble No. CA97-03-007, 1997 WL 632843, * 2 (Oct. 13,
9. 1997), citing 2 Ohio Jurisprudence 3d (1977) 612, Adverse Possession, Section 97. See
also State ex rel. A.A.A. Investments at 152 (explaining that once the 21-year period
expires, “the former titleholder has lost his claim of ownership and the adverse possessor
is thereafter maintaining its possession”).
{¶ 21} “If the plaintiff’s action is one to determine its interest in the property as
against another party in possession, the action is one to recover property * * *,” and R.C.
2305.04 applies. McCarley v. O.O. McIntyre Park Dist., 4th Dist. Gallia No. 99 CA 07,
2000 WL 203997, * 9 (Feb. 11, 2000). But R.C. 2305.04 does not apply to a party who is
in possession of the property. Karras v. Karras, 2017-Ohio-5829, 94 N.E.3d 1036, ¶ 33-
34 (2d Dist.). A party in possession of property need not seek to “recover” title or
possession under R.C. 2305.04. Id. Rather, a person in possession of real property may
bring an action to quiet title under R.C. 5303.01. Hays at * 3.
{¶ 22} To maintain a quiet title action under R.C. 5303.01, “a plaintiff must either
be in possession of the real property in question or be out of possession but claiming an
interest in the land by way of reversion or remainder.” McCarley at * 9, citing R.C.
5303.01. “[I]f a plaintiff is not in possession of the real property in question, an action to
quiet title would not lie.” Id
{¶ 23} In arguing that the City’s claim is governed by R.C. 2305.04 and that it
accrued 21 years after the Showboat Restaurant closed its doors on September 23, 1993,
McCune mischaracterizes the nature of the city’s claim and misunderstands the accrual
10. period provided under R.C. 2305.04. The 21-year period provided in R.C. 2305.04 is the
time within which a party claiming to be the formal titleholder of property (here,
McCune) can prevent an adverse possessor from divesting him or her of an ownership
interest in that property. The 21-year period in R.C. 2305.04 starts to accrue when the
adverse possessor begins to occupy the property. See Judd v. Jackson, 12th Dist. Butler
No. CA2002-11-291, 2003-Ohio-6383, ¶ 14 (“When appellant began to use the strip of
land in 1958 in an open, notorious, exclusive, and adverse manner, the 21–year period of
continuous use began.”). If the former titleholder fails to bring a claim within that 21-
year period, he or she is barred from doing so thereafter. Wargo v. Weaver, 7th Dist.
Mahoning No. 85 C.A. 26, 1985 WL 4795, * 4 (Dec. 27, 1985).
{¶ 24} Here, the city is the successor-in-interest to the adverse possessor
(Showboat Restaurant) and is in possession of the property. Its claim is not governed by
R.C. 2305.04. Rather, R.C. 5303.01 provided the mechanism for the city to quiet title to
the property.
{¶ 25} Ohio courts have recognized that “[i]n an action for quiet title pursuant
to R.C. 5303.01, the statute of limitations does not run against the one who has remained
in sole possession of the property.” Adcock v. Weaver, 5th Dist. Perry No. 07CA3, 2007-
Ohio-3630, ¶ 27, citing Swisher v. Swisher, 29 Ohio C.D. 307, 39 Ohio C.C. 307, 27
Ohio C.A. 122 (1916). See also Karras, 2017-Ohio-5829, 94 N.E.3d 1036, at ¶ 34
(finding that R.C. 2305.04’s 21-year statute of limitations did not bar action by possessor
11. of property); Chambers v. Wilcox, 15 Ohio Dec. 629, 630 (Franklin C.P.1905) (“The
right of a person in undisturbed possession to quiet his title is not subject to the statute of
limitations.”).
{¶ 26} Chambers explained (under an earlier version of the statute to quiet title)
that the statute of limitations will not bar “a pure and simple petition * * * to quiet title,”
the object of which “is to challenge and provoke any causes of action which may exist in
the premises, and by which it may be claimed some outstanding title or right exists in the
defendants as to the real estate under consideration.” Id. This is exactly the situation at
bar. Like these other courts, we find that the city’s action is not barred by R.C. 2305.04’s
21-year statute of limitations.1
2. Continuous, Exclusive, and Open Use
{¶ 27} “Under the doctrine of adverse possession, a plaintiff can acquire legal title
to another’s real property if he or she proves exclusive possession and open, notorious,
continuous, and adverse use for a period of 21 years.” Houck v. Bd. of Park Commrs. of
the Huron Cty. Park Dist., 116 Ohio St.3d 148, 2007-Ohio-5586, 876 N.E.2d 1210, ¶ 10,
citing Grace v. Koch, 81 Ohio St.3d 577, 580–581, 692 N.E.2d 1009 (1998). McCune
1 Moreover, even if R.C. 2305.04 were applicable to this action, the statute of limitations would not accrue until the city took possession of the property in 2013. See Downtown Enterprises Co. v. Mullet, 5th Dist. Holmes No. 17CA016, 2018-Ohio-3228, ¶ 43, citing Cox v. Kimble, 5th Dist. Guernsey No. 13 CA 32, 2015-Ohio-2470, ¶ 60.
12. contends that the city’s possession and use of Water Lot 1 was not exclusive, open, and
continuous for a period of 21 years.
{¶ 28} McCune first claims that the city did not establish the “continuous” element
of its adverse-possession claim because there was no evidence of continuity of use
between 1993, when the Showboat Restaurant ceased operation, and 2013, when the city
acquired it. She emphasizes that Mark Claus—whose affidavit was submitted in support
of the city’s motion for summary judgment—said nothing of any use of Water Lot 1 after
the restaurant closed. McCune insists that the lack of continuity of use between 1993 and
2013, destroyed the city’s ability to tack its possession and use of the property on to
Showboat Restaurant’s possession and use of the property.
{¶ 29} McCune is correct that to tack successive adverse use by different persons,
there must be privity or a contractual connection between them, and there must be “no
interval between the successive possessions during which the use was not adverse.’” Zipf
v. Dalgarn, 114 Ohio St. 291, 296, 151 N.E. 174 (1926), quoting Thompson on Real
Property, vol. 1, § 404. But this case did not require tacking because McCune had been
divested of her property interest long ago by the Showboat Restaurant’s continuous use
of Water Lot 1 for more than 21 years between 1971 and 1993, when the restaurant
operated.
{¶ 30} Where adverse possession continues for 21 years, the rights of the record
owner are cut off and title is established in the possessor. Rader, 12th Dist. Preble No.
13. CA97-03-007, 1997 WL 632843, at * 2, quoting 2 Ohio Jurisprudence 3d 612, Adverse
Possession, Section 97 (1977). See Alpha Church of Nazarene v. Hoos, 2d Dist. Greene
No. 99CA0036, 1999 WL 980338, * 3 (Oct. 29, 1999) (“[T]itle to property acquired
by adverse possession ripens into an absolute interest in the claimant after twenty-one
years * * *.”). “An interruption in the use of property after the continuous 21-year period
of open, notorious, exclusive, and adverse use does not defeat an adverse possession
claim.” Judd, 12th Dist. Butler No. CA2002-11-291, 2003-Ohio-6383, at ¶ 12, citing
Rader at * 2.
{¶ 31} Here, Showboat Restaurant’s possession of Water Lot 1 began no later than
1971, when it opened (and arguably earlier, during its construction) and lasted until 1993.
McCune’s rights were cut off in 1992, 21 years after Showboat began its adverse use of
the parcel. It does not matter whether or how the land was used after Showboat
Restaurant ceased operations. McCune had lost rights to the property by that time. The
city has shown the “continuous use” element of its adverse possession claim and McCune
has failed to demonstrate that a genuine issue of material fact exists concerning this
element.
{¶ 32} McCune also claims that the city did not establish exclusive use of the
property because there was evidence that the public used Water Lot 1 to park when
visiting the Huron Pier, both while the restaurant was operating and after it closed. He
14. also emphasizes that Claus never said that Showboat Restaurant excluded others from
using the property.
{¶ 33} In Koprivec v. Rails-to-Trails of Wayne Cty., 153 Ohio St.3d 137, 2018-
Ohio-465, 102 N.E.3d 444, the Ohio Supreme Court explained that generally, “‘exclusive
possession can be shown by acts that would ordinarily be exercised by an owner in
appropriating land to the owner’s own use and to the exclusion of others.’” Id. at ¶ 39,
quoting 16 Powell on Real Property, Section 91.06 (2017). However, the court also
acknowledged that to satisfy the exclusivity requirement, “the claimant’s possession need
not be absolutely exclusive; it need only be a type of possession that would characterize
an owner’s use.” Id. at ¶ 39, citing 16 Powell on Real Property, Section 91.06. See also
Schaffer v. Wietzel, 2019-Ohio-572, 132 N.E.3d 220, ¶ 28 (2d Dist.) (“[P]ossession does
not have to be absolutely exclusive in order to satisfy the exclusivity element of adverse
possession.”). “In other words, the adverse possessor must exclude third parties to the
extent that the true owner would do the same.” Jennewine v. Heinig, 2d Dist. Greene No.
95 CA 12, 1995 WL 766005, * 2 (Dec. 29, 1995).
{¶ 34} Claus averred in his affidavit that when the restaurant was constructed,
Water Lot 1 was “surrounded by pilings and backfilled within the piling system with
fill.” It could be accessed only by entering Showboat Restaurant’s property via a one-
way designated driveway, along which a post-and-chain fence had been erected. “The
area was signed as parking only for the Showboat Restaurant.”
15. {¶ 35} McCune offered evidence showing that the public used the parking lot to
access the pier and claims that this defeats the exclusivity requirement. But, as stated
above, the adverse possessor must exclude third parties only to the extent that the true
owner would do so. A true owner would retain discretion whether to take steps beyond
erecting a sign to prevent non-patrons from using its parking lot. That the city presented
no evidence indicating that Showboat Restaurant exercised such discretion does not lead
us to conclude that “exclusivity” has not been established. To the contrary, the Claus
affidavit satisfies the “exclusivity” element of the city’s adverse possession claim and
McCune has failed to demonstrate that a genuine issue of material fact exists concerning
this element.
{¶ 36} Finally, McCune argues that the city could not have openly possessed
Water Lot 1 if, in fact, it was submerged land. “To be open, the use of the disputed
property must be without attempted concealment.” (Internal quotations and citations
omitted.) Crown Credit Co. v. Bushman, 170 Ohio App.3d 807, 2007-Ohio-1230, 869
N.E.2d 83, ¶ 46 (3d Dist.). Claus’s affidavit and the affidavits offered by McCune in
opposition to the city’s motion for summary judgment indicate that for at least 22 years,
Water Lot 1 was used as a restaurant parking lot, which patrons, and the public in
general, knew. There was no evidence presented that the city or its predecessors-in-
interest attempted to conceal its use of Water Lot 1. The city has shown the “openly
16. used” element of its adverse possession claim and McCune has failed to demonstrate that
a genuine issue of material fact exists concerning this element.
{¶ 37} “[E]ach case of adverse possession rests on its peculiar facts.” Montieth v.
Twin Falls United Methodist Church, Inc., 68 Ohio App.2d 219, 224, 428 N.E.2d 870
(9th Dist.1980). Under the facts of this case, the city has demonstrated that its
predecessors-in-interest exclusively possessed and openly, notoriously, continuously, and
adversely used Water Lot 1 for a period of 21 years, effectively divesting McCune of any
claim of ownership of the parcel.
3. Mutually Exclusive Arguments
{¶ 38} The Ohio Supreme Court has recognized for many years that “‘the state
holds the title to the subaqueous land [of Lake Erie within the boundaries of Ohio] as
trustee for the protection of public rights.’” State ex rel. Merrill v. Ohio Dept. of Nat.
Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 51, quoting State v.
Cleveland & Pittsburgh RR. Co., 94 Ohio St. 61, 79, 113 N.E. 677 (1916). McCune
argues that summary judgment should not have been granted here because the city
asserted two mutually exclusive arguments: (1) it argued that Water Lot 1 was
submerged land, which would mean that the state holds it in public trust, and neither the
city nor McCune own it; and (2) it argued that Water Lot 1 was not submerged and that
the property had been adversely possessed. McCune maintains that the two arguments
17. are irreconcilable with one another, and by arguing both, the city itself demonstrated that
there exist genuine issues of material fact preventing summary judgment.
{¶ 39} In considering a motion for summary judgment, “[o]nly disputes over facts
that might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material fact only if it would affect the
outcome of the suit under the applicable substantive law. Russell v. Interim Personnel,
Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999), citing Needham v.
Provident Bank, 110 Ohio App.3d 817, 826, 675 N.E.2d 514 (1996), citing Anderson at
248. Accordingly, “to determine whether a fact is material, we look to the substantive
law of the claim being litigated.” Bd. of Commrs. Mill Creek Park Metropolitan Dist. v.
Less, 2022-Ohio-1289, 188 N.E.3d 641, ¶ 14 (7th Dist.), appeal allowed sub nom. Mill
Creek Metro. Park Dist. Bd. of Commrs. v. Less, 167 Ohio St.3d 1516, 2022-Ohio-3214,
195 N.E.3d 145, citing Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603,
662 N.E.2d 1088 (8th Dist.1995), citing Anderson at 248.
{¶ 40} The action at issue is one to quiet title. “A quiet title action is not designed
to adjudicate plaintiff’s title as superior to the whole world, but only as compared to the
other parties.” 65 Am. Jur. 2d Quieting Title § 34. “The effect of an action to quiet title
is to determine all matters affecting the title to the lands in question ‘as between the
parties to the suit.’” Yeager v. Beckley, 7th Dist. Carroll No. 636, 1996 WL 65942, * 2
18. (Feb. 12, 1996), quoting 37 Ohio Jurisprudence 3d (1982) 277, Ejectment, Section 242.
A third party who claims a superior interest would not be precluded from bringing his
own action to challenge the plaintiff’s interest and establish his own. Id.
{¶ 41} Here, we disagree that the city’s arguments are mutually exclusive as they
concern McCune’s claim of ownership of Water Lot 1. Under either theory asserted by
the city, McCune would be divested of any claim to Water Lot 1—either because the land
is submerged or because it has been adversely possessed. To that end, any dispute over
whether Water Lot 1 is submerged land would be material only if the trial court had
relied on that theory as the basis for its summary-judgment decision. It did not. It relied
on the city’s theory that McCune’s claim to the property had long ago been extinguished
by the Showboat Restaurant’s exclusive possession and continuous, adverse, notorious,
and open use of Water Lot 1 for a period exceeding 21 years. As such, the competing
assertions concerning Water Lot 1’s status as submerged land is not a dispute of fact that
is material to determining McCune’s property interest.
{¶ 42} Additionally, we recognize that the state was a party to the action.
However, in seeking summary judgment, the city presented the trial court with alternative
requests, one that would determine the rights to Water Lot 1 as between the city,
McCune, and the state, and one that would determine the rights to Water Lot 1 only as
between the city and McCune. The latter approach anticipated the dismissal without
prejudice of the quiet title action as against the state and suggested that a determination of
19. rights to Water Lot 1—as between the city and the state—could be resolved outside of
litigation. The trial court’s judgment was limited to extinguishing McCune’s interest and
did not address the superiority of interest as between the city and the state. Again, this
leads us to conclude that any dispute as to whether Water Lot 1 was submerged was not
material to determining title to the property as between these two particular parties—the
city and McCune.
4. Claims of Inequity
{¶ 43} Finally, McCune argues that the city’s own inequitable conduct prevents it
from succeeding on its claim to quiet title, a remedy rooted in equity. But as we have
explained, McCune was divested of any interest in Water Lot 1 long before the city
purchased it. McCune’s interest ceased when it failed to assert its rights during the 21
plus years that the Claus family operated the Showboat Restaurant—when it exclusively
possessed and openly, notoriously, continuously, and adversely used Water Lot 1 for
restaurant parking for its patrons. We reject McCune’s position that inequitable conduct
by the city prevents it from seeking to quiet title to Water Lot 1.
{¶ 44} Accordingly, we find McCune’s first assignment of error not well-taken.
B. Second Assignment of Error: Denial of McCune’s Motion for Summary Judgment
{¶ 45} In her second assignment of error, McCune argues that the trial court was
required to grant summary judgment in her favor when it granted summary judgment to
the city on its adverse-possession claim. She claims that in determining that Water Lot 1
20. had been adversely possessed, the trial court must necessarily have concluded that the
land was not submerged and the city is collaterally estopped from arguing otherwise. As
such, the trial court should have granted summary judgment to McCune on her claim that
Water Lot 1 was not submerged land. Finally, McCune contends that several equitable
doctrines required summary judgment in her favor.
{¶ 46} The city responds that as against the trust, it was not required to prove its
own perfect title, “but possession and the absence of a valid contrary claim by the Trust.”
It further insists that the trial court was not required to adjudicate every reason why
summary judgment in favor of the city should be granted. The city maintains that
submerged land determinations are not static, and it emphasizes that once the trial court
determined that McCune lost title through adverse possession, there was no remedy the
trial court could afford the trust.
{¶ 47} McCune’s motion for summary judgment sought a judgment quieting title
in favor of McCune and dismissal of the city’s amended complaint. McCune in her
motion for summary judgment did argue that “the city’s submerged land claim must be
dismissed.” But once the trial court elected to dispose of McCune’s purported interest in
the property under principles of adverse possession, the city’s claim that Water Lot 1 was
submerged land—and McCune’s insistence that it was not—became immaterial in
determining McCune’s rights to the property as against the city’s rights. Having
determined that Water Lot 1 had been adversely possessed by the city’s predecessor-in-
21. interest, the court was not required to render findings that had no bearing on its ultimate
conclusion that McCune was divested of her property interest after the Showboat
Restaurant utilized the property for more than 21 years as parking for its patrons. To the
contrary, the court’s conclusion that Water Lot 1 had been adversely possessed
necessitated denial of McCune’s motion because it determined that any claim McCune
may have had to the property had been cut off in the 1990’s.
{¶ 48} Had the trial court proceeded to consider the interests of the city as against
the state, resolution of the status of Water Lot 1 as submerged or non-submerged would
likely have been necessary. This is not what happened, however. Instead, the trial court
dismissed that claim without prejudice to provide the city and the state the opportunity to
resolve this dispute outside of litigation. In any event, a finding that the land was not
submerged would not have entitled McCune to judgment in her favor because her
ownership interest had already been extinguished. McCune could not have prevailed on
her action to quiet title under any scenario after the trial court found that Water Lot 1 had
been adversely possessed.
{¶ 49} We find McCune’s second assignment of error not well-taken.
C. Third Assignment of Error: McCune’s Motion to Dismiss and Motion to Convert
{¶ 50} In her third assignment of error, McCune argues that the trial court erred by
denying her motion to convert her motion to dismiss to a motion for summary judgment.
The motion to dismiss was premised on McCune’s contention that the city lacked
22. standing and the trial court lacked subject-matter jurisdiction over the city’s claim
because the city violated the open meetings laws in acquiring Water Lot 1, therefore, its
acquisition of it was void. In its underlying motion to dismiss, McCune argued that the
trial court should have dismissed the city’s complaint for unclean hands based on open
meeting violations—she did not seek to set aside the purchase, but argued that because
the purchase was illegal, the city cannot use it as a mechanism to gain title to Water Lot
1.
{¶ 51} The city pointed out that the motion to dismiss was filed after the
summary-judgment deadline; a lack of standing does not defeat subject-matter
jurisdiction; McCune pled no open-meetings violations and any such claim was time-
barred; a claim of adverse possession is premised on one’s possession of property, not its
title to it; and there was no evidence of actual violations of open-meetings law.
{¶ 52} “The trial court has discretion as to whether it converts a motion
to dismiss into a motion for summary judgment.” Seminatore v. Dukes, 8th Dist.
Cuyahoga No. 84032, 2004-Ohio-6417, ¶ 19. Here, we find no abuse of discretion in the
trial court’s denial of McCune’s motion to convert her motion to dismiss to one for
summary judgment. Allowing her to do so would have been futile here because (1)
McCune was divested of her interest in the property long before the city acquired it in
2013, and (2) regardless of the validity of the purchase (and regardless of the quitclaim
23. deed to the property), the city was in possession of the property, thus it could properly
seek to quiet title even if the purchase was deemed invalid.
{¶ 53} We find McCune’s third assignment of error not well-taken.
D. Fourth Assignment of Error: Dismissal of McCune’s Amended Counterclaim
{¶ 54} The city filed a motion for judgment on the pleadings on the basis that
McCune’s action to quiet title was superfluous to the city’s own action. In her fourth
assignment of error, McCune argues that the trial court erred in granting this motion.
McCune also claims in her fourth assignment of error that the trial court erred in failing
to grant summary judgment on her amended counterclaim.
{¶ 55} In arguing that the trial court erred in failing to grant summary judgment on
her amended counterclaim, McCune relies on the arguments made elsewhere in her brief,
which we have already addressed in disposing of her first assignment of error. We need
not repeat those conclusions here.
{¶ 56} As to McCune’s claim that the trial court erred in granting the city’s motion
for judgment on the pleadings, McCune maintains that a Civ.R. 12(C) motion may be
granted only when the allegations of the complaint fail to state facts under which relief
may be granted. She insists that her complaint stated facts under which relief could be
granted and that it is “inconceivable that the trial court would grant the City’s Motion for
Judgment on the Pleadings under Civ.R. 12(C), while at the same time grant the City’s
claim for quiet title relief on Water Lot 1.”
24. {¶ 57} Under Civ.R. 12(C), “[a]fter the pleadings are closed but within such time
as not to delay the trial, any party may move for judgment on the pleadings.” In
considering a Civ.R. 12(C) motion, the trial court may review only “the complaint and
the answer as well as any material incorporated by reference or attached as exhibits to
those pleadings.” Walker v. City of Toledo, 2017-Ohio-416, 84 N.E.3d 216, ¶ 19 (6th
Dist.). Employing the same standard as a Civ.R. 12(B)(6) motion for failure to state a
claim upon which relief may be granted, the trial court must construe as true the material
allegations in the complaint and draw all reasonable inferences in favor of the nonmoving
party. Id. at ¶ 18, citing McMullian v. Borean, 167 Ohio App.3d 777, 2006-Ohio-3867,
857 N.E.2d 180, ¶ 7 (6th Dist.); Ohio Manufacturers’ Assn. v. Ohioans for Drug Price
Relief Act, 147 Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, ¶ 10, citing Rayess v.
Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676,
983 N.E.2d 1267, ¶ 18. If it appears from the pleadings and the materials incorporated by
reference or attached as exhibits that the nonmoving party can prove no set of facts
entitling it to relief, the trial court may dismiss the plaintiff’s claims under Civ.R.
12(C). Ohio Manufacturers’ Assn. at ¶ 10. We review the trial court’s judgment de
novo. Reister v. Gardner, Slip Opinion No. 2020-Ohio-5484, ¶ 17.
{¶ 58} Here, the city filed its motion for judgment on the pleadings on McCune’s
amended counterclaim on February 18, 2022. McCune filed her motion for summary
judgment on her amended counterclaim two months later, on April 26, 2022. The city’s
25. motion for judgment on the pleadings was granted on the same day that McCune’s
motion for summary judgment was denied and on the same day that the city’s motion for
summary judgment was granted. Given our conclusion that the trial court properly
granted summary judgment in favor of the city and against McCune, it is unnecessary for
us to resolve the question whether the court erred in granting the city’s motion for
judgment on the pleadings. The trial court judgment extinguishing McCune’s interest in
Water Lot 1 resolved the parties’ dispute and determined their legal relations. A finding
that the trial court erred in granting the Civ.R. 12(C) motion would not entitle McCune to
any relief, therefore, we decline to consider her fourth assignment of error. See Tonti v.
Hayes, 6th Dist. Lucas No. L-05-1202, 2006-Ohio-2229, ¶ 28 (declining to address
additional assignments of error where there was “no longer any existing legal relations
between appellant and appellees” and “determination of appellant’s remaining
assignments of error would be purely academic”).
{¶ 59} We find McCune’s fourth assignment of error not well-taken.
III. Conclusion
{¶ 60} We conclude that the trial court properly granted the city’s motion for
summary judgment on its claim to quiet title as against McCune, and it properly denied
summary judgment to McCune on her amended counterclaim to quiet title. The record
evidence demonstrates that there exist no genuine issues of material fact that McCune
was divested of her ownership interest in Water Lot 1 by Showboat Restaurant’s adverse
26. possession of the property from 1971-1993. We find McCune’s first assignment of error
not well-taken.
{¶ 61} We conclude that the trial court was not required to grant summary
judgment in McCune’s favor on the city’s submerged-land claim when it granted
summary judgment to the city on its adverse-possession claim. Having determined that
Water Lot 1 had been adversely possessed by the city’s predecessor-in-interest,
extinguishing McCune’s interest, the court was not required to determine whether Water
Lot 1 was submerged land. This issue was not material to resolving rights to Water Lot 1
as between the city and McCune. We find McCune’s second assignment of error not
well-taken.
{¶ 62} We conclude that the trial court did not abuse its discretion when it denied
McCune’s motion to convert her motion to dismiss to one for summary judgment.
Allowing her to do so would have been futile under the circumstances of this case. We
find McCune’s third assignment of error not well-taken.
{¶ 63} We find that it is unnecessary to consider whether the trial court erred in
granting the city’s motion for judgment on the pleadings because a finding that the trial
court erred in granting the Civ.R. 12(C) motion would not entitle McCune to any relief
under the circumstances of this case. We find McCune’s fourth assignment of error not
27. {¶ 64} We affirm the May 24, 2022 judgments of the Erie County Court of
Common Pleas, (1) granting summary judgment in favor of the city of Huron; (2)
denying McCune’s motion for summary judgment; (2) denying her motion to convert her
motion to dismiss into a motion for summary judgment; and (3) granting judgment on the
pleadings to the city of Huron and dismissing McCune’s amended counterclaim.
McCune is ordered to pay the costs of this appeal under App.R. 24.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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