[Cite as Ormandy v. Dudzinski, 2011-Ohio-5005.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
JOHN ORMANDY, JR., et al. C.A. No. 10CA009890
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE RUSSELL J. DUDZINSKI, et al. COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellees CASE No. 07CV151538
DECISION AND JOURNAL ENTRY
Dated: September 30, 2011
CARR, Judge.
{¶1} Appellants, John and Zelma Ormandy, appeal the judgment of the Lorain County
Court of Common Pleas, which granted summary judgment in favor of appellees, Russell and
Vicki Dudzinski. This Court affirms.
I.
{¶2} On June 28, 2007, the Ormandys filed a complaint against the Dudzinskis
seeking: (1) to quiet title to certain land under the theory of adverse possession, (2) a finding that
the Dudzinskis were estopped from asserting any right, title, or claim to the property at issue and
an order directing the Dudzinskis to enter into an agreement pursuant to R.C. 5301.21 to
establish a boundary line between the Ormandys’ and Dudzinskis’ adjoining properties under the
doctrine of acquiescence, and (3) damages for trespass. The Dudzinskis answered, denying the
allegations in the complaint and asserting as a defense that the Ormandys were estopped from
asserting any claim to the disputed property. 2
{¶3} The Dudzinskis filed a motion for summary judgment on all the claims on the
Ormandys’ complaint. The Ormandys filed a motion for summary judgment in regard to their
claim based on the doctrine of acquiescence. The parties filed their respective briefs in
opposition to their opponents’ motion for summary judgment. On August 18, 2009, the trial
court issued a journal entry purporting to rule on the competing motions for summary judgment.
The trial court, however, merely entered summary judgment in favor of the Dudzinskis on the
Ormandys’ claim alleging adverse possession. The Ormandys filed a motion for reconsideration,
requesting that the trial court rule on all of their claims. The Ormandys then filed a notice of
appeal from the August 18, 2009 judgment.
{¶4} This Court dismissed the Ormandys’ first appeal for lack of a final, appealable
order because the August 18, 2009 journal entry failed to dispose of all the claims and lacked the
appropriate notice pursuant to Civ.R. 54(B). While the first appeal was pending, the trial court
ruled on the Ormandys’ motion for reconsideration and issued a journal entry on October 20,
2009, purporting to dispose of all pending claims. The Ormandys filed a second notice of
appeal. This Court dismissed the second appeal for lack of a final, appealable order because the
trial court lacked jurisdiction to issue its judgment going to the merits of the case while the first
appeal was pending.
{¶5} On August 31, 2010, the trial court issued a journal entry in which it incorporated
by reference its August 18, 2009 decision. The trial court entered judgment in favor of the
Dudzinskis and dismissed the Ormandys’ complaint with prejudice.1 The Ormandys filed a
1 While we recognize that it was error for the trial court to dismiss the plaintiffs’ complaint after it had already rendered judgment on the complaint in favor of the defendants, we do not address the issue further because no party has raised the issue on appeal. See App.R. 12(A)(1)(b). 3
timely appeal, raising four assignments of error for review. This Court consolidates some
assignments of error to facilitate review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEES DUDZINSKI ON THE ADVERSE POSSESSION CLAIM FOR THE REASON THAT THE TRIAL COURT FAILED TO CONSIDER ALL OF THE EVIDENCE PROPERLY BEFORE IT ON THAT CLAIM.”
{¶6} The Ormandys argue that the trial court erred by granting summary judgment in
favor of the Dudzinskis on the Ormandys’ claim for adverse possession. This Court disagrees.
{¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial
court, viewing the facts in the case in the light most favorable to the non-moving party and
resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13
Ohio App.3d 7, 12.
{¶8} Pursuant to Civ.R. 56(C), summary judgment is proper if:
“(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
{¶9} To prevail on a motion for summary judgment, the party moving for summary
judgment must be able to point to evidentiary materials that show that there is no genuine issue
as to any material fact, and that the moving party is entitled to judgment as a matter of law.
Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once a moving party satisfies its burden of
supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to 4
Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere
allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a
reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine
triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75
Ohio St.3d 447, 449.
{¶10} To acquire title to property by adverse possession, the party claiming title must
prove “exclusive possession and open, notorious, continuous, and adverse use for a period of
twenty-one years.” Grace v Koch (1998), 81 Ohio St.3d 577, syllabus. Because a successful
claim of adverse possession results in the legal titleholder’s forfeiture of his ownership interest in
the property, the doctrine is disfavored and the burden of proof on each element is rigorous. Id.
at 580. This Court has stated that each case of adverse possession must be determined on its
particular facts and any such claim must be strictly construed in favor of the title owner.
Montieth v. Twin Falls United Methodist Church, Inc. (1980), 68 Ohio App.2d 219, 224.
{¶11} The Third District Court of Appeals has clarified each necessary element of
adverse possession. “Exclusive possession” means that the use of the property need only be
exclusive of the title owner’s or third person’s entry upon the land coupled with an assertion of
his right to possession or claim of title to the property. Kaufman v. Geisken Ent., Ltd., 3d Dist.
No. 12-02-04, 2003-Ohio-1027, at ¶39. In other words, the use need not be exclusive of all
persons, but rather, exclusive only of those who assert by either word or act any right of
ownership or possession of the land. Id.
{¶12} The open use element requires that there must not be any attempt to conceal the
use. Crown Credit Co., Ltd. v. Bushman, 170 Ohio App.3d 807, 2007-Ohio-1230, at ¶46. Open
use is distinguishable from notorious and adverse use in that the latter uses “require more than 5
merely conducting activities on the disputed property where others can observe.” Id. at ¶48. “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. *** In other words, the use of the property must be so patent that the true owner of the
property could not be deceived as to the property’s use.” (Internal quotations omitted.) Id. This
Court has stated that ‘[a]dverse or hostile use is any use inconsistent with the rights of the title
owner.” Vanasdal v. Brinker (1985), 27 Ohio App.3d 298. To satisfy the adverse use element,
the claimant “must have intended to claim title, so manifested by his declarations or his acts, that
a failure of the owner to prosecute within the time limited, raises a presumption of an
extinguishment or a surrender of his claim.” (Internal quotations omitted.) Bushman at ¶48.
The Ohio Supreme Court has held that the intent to possess the property of another is objective,
rather than subjective, so that the party in possession need not have intended to deprive the
owner of the property at issue; instead, the claimant need only have treated the property as the
claimant’s own for the statutory period to satisfy the element of adverse use. Evanich v. Bridge,
119 Ohio St.3d 260, 2008-Ohio-3820, at syllabus.
{¶13} The twenty-one year statute of limitations does not begin to run on a claim of
adverse possession “until there is some act of possession by the adverse claimant *** so open,
notorious and hostile that it constitutes, in law, notice to the real owner.” Montieth, 68 Ohio
App.2d at 225. Moreover, the statute may be tolled upon the titled owner’s “unequivocal
manifestation of intent to reclaim the property.” Id. On the other hand, “[t]he doctrine of
tacking permits adverse possession by successive owners, who are in privity, to be added
together to make up the twenty-one years required for title to vest in the current possessor.” 6
Ballard v. Tibboles (Nov. 8, 1991), 6th Dist. No. 91-OT-013, citing Zipf v. Dalgarn (1926), 114
Ohio St. 291.
{¶14} The disputed land in this case consists of an approximately 18-foot wide strip of
land along the east-west boundary of the parties’ properties. The disputed land forms a lane
between the properties and is set off in places by two old wire fences.
{¶15} The Dudzinskis attached the following evidence in support of their motion for
summary judgment: the Ormandys’ answers to interrogatories, the affidavits of Mr. Dudzinski
and Vincent Rawlin, and transcripts of the Ormandys’ deposition testimony. Mr. Dudzinski
averred in his affidavit that the Ormandys have never excluded him or his wife from the property
in question and that they (the Dudzinskis) have used the “strip” of land in question since they
purchased their property on August 20, 2003. Vincent Rawlin averred in his affidavit that he and
his wife owned the property now owned by the Dudzinskis from 1977 to 2003. He further
averred that the Ormandys never excluded the Rawlins from the lane and that the Ormandys
never laid claim to the lane. Mr. Rawlin averred that no one ever used the Rawlin property to the
Rawlins’ exclusion and that, when the Ormandys gave others permission to use the Rawlins’
land, Mr. Rawlin would tell those people to leave his property. Finally, Mr. Rawlin averred that
the Ormandys asked to buy a 7-acre portion of the southeast corner of the Rawlins’ property, that
he refused, and that the Ormandys never used that property without the Rawlins’ permission.
{¶16} In their answers to interrogatories, both Mr. and Mrs. Ormandy listed six ways in
which they believed they had been “in actual, open, exclusive, continuous, and adverse
possession” of the “strip” of land at issue. The Ormandys asserted that certain livestock used the
path to reach a back pasture; the Ormandys used the area for horseback riding and lessons; the
Ormandys mowed and removed brush from the lane; the Ormandys and their son Phillip used the 7
lane as a driveway to access Phillip’s home; the Ormandys used the lane to access their back
fields; and anyone who rented or used the Ormandys’ back fields used the lane to access those
fields. Neither Mr. nor Mrs. Ormandy responded that these uses of the property in dispute were
exclusive of any use by the Rawlins. Both responded that the Dudzinskis were excluded from
the strip of land only as of May 26, 2006. The only other people the Ormandys swore they had
excluded from the property were unidentified “hunters, snowmobiles, persons driving
snowmobiles, and ATV-riders,” none of whom asserted any right of ownership or possession of
the land.
{¶17} Mr. Ormandy testified during his deposition that the six ways in which he and his
wife believed they had been “in actual, open, exclusive, continuous, and adverse possession” of
the land at issue constituted a complete list. Again, he failed to explain how he and his wife
might have excluded the Rawlins from the property. Mr. Ormandy testified that he never
excluded the Dudzinskis from the strip of land in dispute and that he had never in fact met them.
Mrs. Ormandy testified during her deposition that the Rawlins once used the lane to retrieve their
horses which had strayed into the Ormandys’ fields. She testified that, while she was not aware
of any other time in which the Rawlins used the land in dispute, she never told the Rawlins that
the lane belonged exclusively to the Ormandys.
{¶18} Based on a review of the Dudzinskis’ evidence, this Court concludes that the
Dudzinskis met their initial burden to demonstrate that the Ormandys had not used the lane to the
exclusion of any person who could assert a right of ownership or possession to the land in
question. The Ormandys, on the other hand, failed to meet their reciprocal burden of responding
by setting forth specific facts, demonstrating that a “genuine triable issue” exists to be litigated
for trial. See Tompkins, 75 Ohio St.3d at 449. 8
{¶19} The Ormandys attached the following in support of their response in opposition to
the Dudzinskis’ motion for summary judgment: Mr. Ormandy’s affidavit; an identical affidavit
of Vincent Rawlin as that attached to the Dudzinskis’ motion; a copy of the May 26, 2006 letter
sent from their attorney to the Dudzinskis, directing them to cease further activity on property the
Ormandys were claiming by way of adverse possession; and transcripts of Mr. and Mrs.
Dudzinski’s deposition testimony.
{¶20} While Mr. Ormandy averred in his affidavit that the Rawlins “never maintained or
used the property on my side of the fence[,]” he failed to explain which of the two fences he was
referencing and he did not mention a “lane” or “strip” of land set off by two fences. Mr. Rawlin,
however, averred in his affidavit that there were two fences which created a lane between the
properties and that he and his wife used the lane during the course of their 35-year residence to
walk their dogs. Mr. Rawlin admitted that the Ormandys’ son used the lane to access the
Ormandys’ back fields, but he averred that the Ormandys did not exclude them from the lane and
that the Ormandys never laid claim to the property.
{¶21} Both Mr. and Mrs. Dudzinski testified regarding the existence of a lane along the
boundary of two properties. Mr. Dudzinski testified that two parallel fence lines create a lane
between the properties approximately thirty to fifty feet apart.
{¶22} The evidence presented by both parties supports the conclusion that the Ormandys
did not use the land in question, i.e., the lane between the properties, to the exclusion of anyone
who could assert a claim of title or ownership of the land for the statutory period of twenty-one
years. The Dudzinskis’ grantors, the Rawlins, averred that they routinely used the land in
question during their 35-year residency. The Ormandys presented no evidence that they
excluded anyone from the property except for unidentified recreational users who had no claim 9
of right to the property. Under the circumstances, the Ormandys failed to meet their reciprocal
burden under Tompkins to respond by setting forth specific facts, demonstrating that a “genuine
triable issue” exists to be litigated in regard to their claim alleging adverse possession. The
Ormandys’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEES DUDZINSKI ON THE DOCTRINE OF ACQUIESCENCE CLAIM FOR THE REASON THAT THE TRIAL COURT FAILED TO CONSIDER ALL OF THE EVIDENCE PROPERLY BEFORE IT ON THAT CLAIM.
ASSIGNMENT OF ERROR IV
“THE TRIAL COURT ERRED WHEN IT DENIED THE SUMMARY JUDGMENT MOTION OF PLAINTIFF/APPELLANTS JOHN AND ZELMA ORMANDY FOR THE REASON THAT IT FAILED TO CONSIDER THE EVIDENCE RAISED BY THE ORMANDYS CONCERNING THE DOCTRINE OF ACQUIESCENCE.”
{¶23} The Ormandys argue that the trial court erred by granting summary judgment in
favor of the Dudzinskis on the Ormandys’ claim that the Dudzinskis were estopped from
asserting any right, title, or claim as to the disputed property pursuant to the doctrine of
acquiescence. This Court disagrees.
{¶24} “The doctrine of acquiescence is applied in instances when adjoining land owners
occupy their respective properties up to a certain line and mutually recognize and treat that line
as if it is the boundary that separates their properties. Acquiescence rests on the practical reality
that oftentimes, the true boundary line location is uncertain and neighbors may themselves
establish boundaries. To apply this doctrine: (1) adjoining landowners must treat a specific line
as the boundary; and (2) the line must be so treated for a period of years, usually the period 10
required for adverse possession.” (Internal citations omitted.) Merriner v. Goddard, 7th Dist.
No. 08-MO-2, 2009-Ohio-3253, at ¶57.
{¶25} The Ohio Supreme Court recognized the doctrine of acquiescence long ago:
“[W]e hold the principle to be well settled that an agreement upon a division line between
adjoining land-owners, different from the true line, the true line being a certain, and not a
disputed line, and acquiescence by all the parties in such agreed line, for a length of time that
would bar a right of entry under the statute of limitations in relation to real estate, would operate
to prevent a party purchasing from one of such owners, with notice of the agreed line, from
setting up a claim to any line other than that agreed upon, although the occupancy had not been
such as, aside from the marking of the agreed line, would amount to a continuous possession of
the entire premises up to the agreed line, for the whole time.” (Emphasis added.) Bobo v.
Richmond (1874), 25 Ohio St. 115, 122.
{¶26} Although the concept of “tacking” has not been applied by name to situations
implicating the doctrine of acquiescence, it is clear that the Supreme Court intended to allow
landowners to rely on the acquiescence of an adjoining landowner for the requisite period of
years to preclude a subsequent grantee from asserting a claim of right, title, ownership, or
possession regarding the subject property as long as the subsequent grantee had notice of the
grantor’s acquiescence. It appears, therefore, that while adverse possession serves to vest title in
the adverse possessor by operation of law, the doctrine of acquiescence, if not invoked against
the party who acquiesced in the location of the property line, fails to deprive a subsequent
grantee of his title to property in the absence of notice of his grantor’s recognition of the property
line as mutually agreed by the adjoining landowners. In this case, therefore, a crucial issue
becomes whether, if the Ormandys have established that the Rawlins acquiesced in the location 11
of the property line, the Dudzinskis purchased the property with notice of the Rawlins’
acquiescence. If not, then the Ormandys derive no benefit from the Rawlins’ acquiescence in the
location of the property line.
{¶27} The Ormandys and Rawlins were adjoining landowners for almost twenty-six
years. Mr. Ormandy averred in his affidavit that “the” wire fence running through the tree line
between the adjoining properties “was always mutually recognized and treated as the north-to-
south boundary.” Mr. Rawlin averred in his affidavit that two wire fences ran along portions of
the property “on the common border.” He averred that he “was never certain” where the actual
north-south boundary line was located but that he assumed that “the old wire field fence” was the
property line and that he placed ten locust fences posts “there” with the intention of replacing
“the old wire fence.” Mr. Rawlin did not clarify which of the two fences constituted “the old
wire field fence.” Moreover, his assumption of the location of the property line was limited to
merely “the northern end of the property along our approximately 15 acre tilled field.”
According to the map which was marked as an exhibit to Mr. Ormandy’s deposition, the north-
south boundary between the adjoining properties is approximately 2700 feet long. Mr. Rawlin
did not clarify in his affidavit which portion of that boundary constituted the “northern end” to
which he referred. Nevertheless, Mr. Rawlin averred in his affidavit that neither he nor Mrs.
Rawlin ever agreed with anyone that either of the two fences constituted the boundary line
between the adjoining properties.
{¶28} In his deposition, Mr. Ormandy testified that he never discussed the boundary line
with the Rawlins but that Mr. Rawlin only mowed up to the boundary as the Ormandys
understood it and that Mr. Rawlin asked permission to replace the fence at the location that the
Ormandys understood the boundary to be. 12
{¶29} The Dudzinskis both testified during their depositions that the Rawlins gave them
a tour of the property before they purchased it. They testified, however, that the Rawlins did not
walk the perimeter of the property with them or otherwise point out the boundary line between
the adjoining properties. Mrs. Dudzinski testified that the Rawlins merely informed them that
the culvert along the road on the northern border of the property belonged to them.
{¶30} Based on a review of the evidence, a genuine issue of material fact exists
regarding whether the Rawlins acquiesced in the location of the boundary. Had they done so
during the entire time they were neighbors with the Ormandys, their acquiescence would have
continued for a period of time in excess of twenty-one years. The Ormandys, however, did not
seek to estop the Rawlins from asserting any right or claim to the property in dispute. The
Dudzinskis commissioned a survey of their property a mere two years after purchasing the land.
If they had no notice of any acquiescence by the Rawlins in the location of the boundary line, the
Ormandys could not take advantage of the period of the Rawlins’ acquiescence to estop the
Dudzinskis from asserting any right or claim to the disputed land. The Ormandys presented no
evidence to demonstrate that the Dudzinskis and the Rawlins discussed the Rawlins’
understanding of the location of the boundary line. Accordingly, the Ormandys did not meet
their initial Dresher burden to present evidence on the issue of the Dudzinskis’ notice of any
acquiescence by the Rawlins as to the location of the boundary line between the adjoining
properties. Therefore, no genuine issue of material fact existed and the Dudzinskis were entitled
to judgment as a matter of law on the claim premised on the doctrine of acquiescence.
Accordingly, the trial court did not err by granting summary judgment in favor of the
Dudzinskis.
{¶31} The Ormandys’ second and fourth assignments of error are overruled. 13
ASSIGNMENT OF ERROR III
“THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEES DUDZINSKI ON THEIR AFFIRMATIVE DEFENSE OF ESTOPPEL.”
{¶32} The Ormandys argue that the trial court erred by granting summary judgment in
favor of the Dudzinskis based on their affirmative defense of estoppel. Because the trial court
granted summary judgment in favor of the Dudzinskis based on the lack of evidence tending to
show the existence of a genuine issue of material fact as to the essential elements of the
Ormandys’ claims, the trial court did not reach the issue of the Dudzinskis’ affirmative defense.
Because this Court agrees with the trial court’s award of summary judgment in favor of the
Dudzinskis on those grounds, the Ormandys’ third assignment of error is moot and we decline to
address it.
III.
{¶33} The Ormandys’ first, second, and fourth assignments of error are overruled. As
this Court’s resolution of those assignments of error is dispositive of the appeal, we decline to
address the third assignment of error as it has been rendered moot. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27. 14
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
DONNA J. CARR FOR THE COURT
BELFANCE, P. J. WHITMORE, J. CONCUR
APPEARANCES:
MARYANN C. CHANDLER, Attorney at Law, for Appellants.
JONATHAN E. ROSENBAUM, Attorney at Law, for Appellees.