[Cite as Sherritt v. Leath, 2022-Ohio-2367.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JEFFREY SHERRITT, et al. JUDGES: Hon. John W. Wise, P. J. Plaintiffs-Appellants Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2021 CA 00094 JAMES LEATH, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2016 CV 02113
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 7, 2022
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees Leaths
SIDNEY N. FREMAN RICHARD P. GIBBS McNAMARA, DEMCZYK CO, LPA RICHARD P. GIBBS & ASSOCIATES LLC 12370 Cleveland Avenue, NW 1001 South Main Street P.O. Box 867 North Canton, Ohio 44720 Uniontown, Ohio 44685 For Defendant-Appellee Willowdale MICHAEL A. THOMPSON 4774 Munson Street STEVEN J. CHUPARKOFF Suite 400 50 South Main Street, Suite 615 Canton, Ohio 44718 Akron, Ohio 44308 Stark County, Case No. 2021 CA 00094 2
Wise, J.
{¶1} Plaintiffs-Appellants, Jeffrey and Donna Sherritt, appeal from the August 9,
2021 Judgment Entry by the Stark County Court of Common Pleas. Defendants-
Appellees are Willowdale Country Club Inc. (“Willowdale”) and James and Kay Leath (“the
Leaths”). The relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On September 23, 2016, Appellants filed a Complaint alleging trespass,
violation of quiet enjoyment, and adverse possession. On April 28, 1997, Appellants
leased Lot No. 240 from Willowdale. They have been in complete and uninterrupted
usage of a seven-foot strip of land on the Western Boundary of Lot No. 240 abutting Lot
No. 241 (“disputed property”) in excess of twenty-one years. The Leaths, lessors of Lot
No. 241, undertook construction on the disputed property.
{¶3} On October 28, 2016, Williowdale filed a response denying Appellants’
claims.
{¶4} On December 12, 2016, the Leaths filed their Answer containing a denial of
Appellant’s Complaint, Counterclaim, and Cross-claim.
{¶5} The Leath’s Counterclaim alleged Appellants trespassed onto their property
removing at least two trees from Lot No. 241, constructing a concrete driveway on Lot
No. 241, removing survey stakes placed into the ground by Hammontree and Associates,
Inc. depicting the boundary line between Lot No. 240 and Lot No. 241. The Leaths’
Counterclaim contained eight counts: (1) trespass by Appellants, (2) willful damage or
theft, (3) negligence, (4) punitive damages, (5) conversion, (6) continuing trespass, enjoin Stark County, Case No. 2021 CA 00094 3
Appellants from further trespass and harassment of occupants, and (8) frivolous filing of
a civil claim.
{¶6} The Leaths’ Cross-claim alleged a violation of covenant of quiet enjoyment
against Willowdale.
{¶7} On January 4, 2017, Willowdale filed and Answer to the Cross-Claim and a
Counterclaim against Appellants for removal of two trees from Lot 241.
{¶8} On February 6, 2017, Appellants filed an Answer to the Leaths’
Counterclaim.
{¶9} On February 16, 2017, Appellants filed an Answer to Appellee Willowdale
Country Club’s Counterclaim.
{¶10} On March 15, 2017, Appellants filed an Amended Complaint alleging these
counts: (1) Trespass, (2) Violation of Quiet Enjoyment, (3) Adverse
Possession/Prescriptive Easement or by Necessity, (4) enjoin the Leaths from further
trespass, (5) Injuring Trees, (6) criminal conversion of Appellants’ trees, and (7)
Negligence/Nuisance.
{¶11} On April 6, 2017, the Leaths filed an Answer to the Amended Complaint.
{¶12} On March 8, 2017, the Leaths filed a Motion for Partial Summary Judgment
opposed by Appellants. Appellants also filed a Motion for Summary Judgment opposed
by the Leaths.
{¶13} In support of the Leaths’ Motion for Summary Judgment, the Leaths
provided a plat map of Willowdale Country Club. The plat map hangs in the Willowdale
clubhouse and was provided to Appellants when Appellants leased Lot No. 240. The Stark County, Case No. 2021 CA 00094 4
Leaths also provided a survey done by Hammontree and Associates. The survey is
consistent with the Willowdale plat mat.
{¶14} Appellants provided an opinion by a licensed surveyor, Edward C. Metzger,
stating that the boundary lines could not be mathematically reproduced.
{¶15} On March 23, 2018, Willowdale filed a response in support of the Leaths’
Motion for Summary Judgment.
{¶16} On March 26, 2018, Appellants filed an untimely Memorandum in Response
to Leaths’ Motion for Summary Judgment.
{¶17} On May 31, 2018, the trial court issued a judgment entry striking Appellants’
untimely memorandum, granting Summary Judgment for Appellees dismissing all but
count seven of Appellants’ complaint, granting judgment on counts six and seven of the
Leaths’ Counterclaim, and dismissing counts one through five of the Leaths’
Counterclaim. The trial court found the only claims remaining for trial were Appellants’
count seven for negligence/nuisance against the Leaths, and the Leaths’ count eight for
frivolous conduct by Appellants.
{¶18} Appellants filed a notice of appeal from the May 31, 2018 judgment entry.
Appellants did not file a stay.
{¶19} On January 24, 2019, this Court dismissed the appeal finding that the
judgment entry was not a final appealable order.
{¶20} On July 5, 2019, the Leaths filed a separate motion for summary judgment
on Appellants’ count seven, trespass.
{¶21} On July 29, 2019, Willowdale filed a motion for summary judgment on count
seven. Stark County, Case No. 2021 CA 00094 5
{¶22} On August 15, 2019, the trial court granted the Leaths’ motion.
{¶23} On September 18, 2019, the trial court granted Willowdale’s motion
{¶24} On March 4, 2021, the Leaths’ filed a Motion for Contempt – Violation of the
trial court’s May 31, 2018 Judgment Entry Enjoining Plaintiffs from Further Trespass.
{¶25} On March 18, 2021, Appellants filed a Memorandum in Opposition to Motion
for Sanctions.
{¶26} On May 4, 2021, the trial court held an evidentiary hearing.
{¶27} On August 9, 2021, the trial court granted the Leaths’ Motion for Contempt.
ASSIGNMENTS OF ERROR
{¶28} On September 2, 2021, Appellant filed a timely notice of appeal. Appellant
herein raises the following three Assignment of Error:
{¶29} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW AND TO THE
PREJUDICE OF APPELLANTS, BY GRANTING MR. AND MRS. LEATH’S MOTION
FOR SUMMARY JUDGMENT.
{¶30} “II. THE TRIAL COURT ERRED, AS A MATTER OF LAW AND TO THE
PREJUDICE OF APPELLANTS, BY GRANTING WILLOWDALE COUNTRY CLUB’S
{¶31} “III. THE TRIAL COURT ERRED, TO THE PREJUDICE OF MR. AND MRS.
SHERRITT, BY FINDING THAT APPELLEES [sic] VIOLATED THIS COURT’S MAY 31,
2018 JUDGMENT ENTRY GRANTING SUMMARY JUDGMENT, AS WAS NECESSARY
TO SUPPORT THE ORDER OF CONTEMPT.” Stark County, Case No. 2021 CA 00094 6
I.
{¶32} In Appellants’ First Assignment of Error, Appellants argue the trial court
erred by granting Appellees James and Kay Leath’s Motion for Summary Judgment. We
disagree.
a. Standard of Review
{¶33} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may grant
summary judgment if it determines: (1) no genuine issues as to any material fact remain
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., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶34} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶35} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element of
the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 Stark County, Case No. 2021 CA 00094 7
(1996). Once the moving party has met this initial burden, the nonmoving party then has
a reciprocal burden of specificity and cannot rest on the allegations or denials in the
pleadings, but must set forth “specific facts” by the means listed in Civ.R. 56(C) showing
that a “triable issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
798, 801 (1988).
b. Expert Testimony
{¶36} Appellants allege the trial court erred by weighing the Hammontree survey
against Metzger’s opinion. We disagree.
{¶37} In support of Appellants’ argument, Appellants cite the Eleventh District
Court of Appeals:
In determining a motion for summary judgment, the trial court may
not weigh or assess the credibility of the evidence. Steele v. Auburn
Vocational School District, 104 Ohio App.3d 204, 207, 661 N.E.2d 767 (11th
Dist.1994). Further, where the parties present conflicting experts’ opinions,
the credibility of one expert opinion over another is not a proper
determination in ruling on summary-judgment [sic] motion. Morton
International, Inc. v. Continental Ins. Co., 104 Ohio App.3d 315, 323, 662
N.E.2d 29 (1st Dist.1995). Moreover, “[i]n reviewing a summary-judgment
[sic] motion, a trial court should not reject one expert opinion for another
simply because it believes one theory over another.” Miller v. Bike Athletic
Co., 80 Ohio St.3d 607, 613, 687 N.E.2d 735 (1998). For purposes of a
summary-judgment [sic] motion, expert opinions are to be accepted as true.
Smith v. Towns, 10th Dist. Franklin No. 91AP-1410, 1992 Ohio App. LEXIS Stark County, Case No. 2021 CA 00094 8
3221, *11, 1992 WL 142370 (June 16, 1992). Conflicting expert opinions
regarding the defendant’s liability raise a genuine issue of material fact,
precluding summary judgment.
DiBlasi v. First Seventh-Day Adventist Community Church, 11th Dist.
Geauga No. 2013-G-3169, 2014-Ohio-2702, ¶32.
{¶38} However, as noted in the Judgment Entry of August 9, 2022, the Metzger
opinion is not in conflict with the Hammontree survey, the only boundary survey submitted
to the court. Mr. Metzger does not opine upon the property lines based upon a survey,
but discussed the usage of the disputed property. As such, this evidence applies to
Appellants claims of adverse possession and easement by prescription, discussed below.
Therefore, the trial court did not weigh two surveys which were in conflict against each
other when partially granting the Leaths’ Motion for Summary Judgment. The trial court
correctly found the Hammontree survey and Metzger opinion did not raise any genuine
issue of material fact to preclude summary judgment.
c. Leaths’ Motion for Summary Judgment was not Supported by Competent Evidence.
{¶39} Appellants argue that because certain documents were not properly
authenticated, then summary judgment was inappropriate. We disagree.
{¶40} Civ.R. 56(C) states:
(C) Motion and Proceedings. The motion together with all affidavits
and other materials in support shall be served in accordance with Civ.R. 5.
Responsive arguments, together with all affidavits and other materials in
opposition, and a movant’s reply arguments may be served as provided by
Civ.R.6(C). Summary judgment shall be rendered forthwith if the pleadings, Stark County, Case No. 2021 CA 00094 9
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, 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. No evidence
or stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, 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, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶41} “Failure to move to object to the court’s consideration of the evidence
submitted in support of a motion for summary judgment constitutes a waiver of any
alleged error in the consideration of the evidence.” Asset Acceptance LLC v. Davis, 5th
Dist. Fairfield No. 2004CA00054, 2004-Ohio-6967, ¶45.
{¶42} In the case sub judice, Appellants did not file a timely response to the
Leaths’ Motion for Summary Judgment. Appellants’ untimely motion was struck from the
record. Appellants’ argument lacks any specific reference to the record where they made
a timely objection to the trial court in support of their argument. Appellants have not
demonstrated that any error was committed by the trial court in the submission of
evidence. Stark County, Case No. 2021 CA 00094 10
d. Adverse Possession, Boundary by Estoppel, Easement by Prescription, Easement by Necessity
{¶43} Appellants also claim they are entitled to a presumption that they acquired
the disputed property by adverse possession, an easement by prescription, or an
easement by necessity. We disagree.
{¶44} The Sixth District Court of Appeals has held, “the principles of adverse
possession are not applicable to a dispute between leaseholders regarding the extent of
the property they can possess. Hempel v. Zabor, 6th Dist. Erie No. E-06-032, 2007-Ohio-
5320, ¶13.
{¶45} In the case sub judice, Appellants are leaseholders of Lot No. 240, and as
such do not have standing to claim adverse possession, easement by prescription, or an
easement by necessity over the leased premises.
{¶46} Appellants also, for the first time on appeal, argue they are entitled to a
presumption of ownership over the disputed property by boundary by estoppel. We
{¶47} “It is well established that a party cannot raise any new legal issues or legal
theories for the first time on appeal.” Dolan v. Dolan, 11th Dist. Trumbull App. Nos. 2000-
T-0154 and 2001-T-0003, 2002-Ohio-2440, ¶7, citing Stores Realty Co. v. Cleveland
(1975), 41 Ohio St.2d 41, 43, 322 N.E.2d 629.
{¶48} Appellants failed to raise this argument in their Amended Complaint, and
did not file a timely response to the Leaths’ Motion for Summary Judgment. As such,
Appellants waived this argument.
{¶49} Accordingly, Appellants’ First Assignment of Error is overruled. Stark County, Case No. 2021 CA 00094 11
II.
{¶50} In Appellants’ Second Assignment of Error, Appellants argue the trial court
erred in granting Willowdale’s Motion for Summary Judgment. We disagree.
{¶51} Again, with regard to summary judgment, this Court applies a de novo
standard of review and reviews the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will
not give any deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs.,
87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court
may grant summary judgment if it determines: (1) no genuine issues as to any material
fact remain 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., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1997).
{¶52} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
{¶53} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion and identifying those portions of the record before the trial court
which demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996).
Once the moving party has met this initial burden, the nonmoving party then has a Stark County, Case No. 2021 CA 00094 12
reciprocal burden of specificity and cannot rest on the allegations or denials in the
pleadings, but must set forth “specific facts” by the means listed in Civ.R. 56(C) showing
that a “triable issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
b. Adverse Possession, Easement by Prescription, Easement by Necessity
{¶54} Appellants also claim they are entitled to a presumption that they acquired
the disputed property by adverse possession, an easement by prescription, or an
{¶55} Again, the Sixth District Court of Appeals has held, “the principles of
adverse possession are not applicable to a dispute between leaseholders regarding the
extent of the property they can possess. Hempel v. Zabor, 6th Dist. Erie No. E-06-032,
2007-Ohio-5320, ¶13.
{¶56} In the case sub judice, Appellants are leaseholders of Lot No. 240, and as
such, do not have standing to claim adverse possession, easement by prescription, or an
c. Breach of Covenant of Quiet Enjoyment
{¶57} Appellants claim the trial court erred in finding Willowdale did not breach its
Covenant of Quiet Enjoyment. We disagree.
{¶58} “In Ohio, a covenant of quiet enjoyment is implied into every lease contract
for realty.” Dworkin v. Paley (1994), 93 Ohio App.3d 383, 386, 638 N.E.2d 636. This
covenant protects Appellants’ right to a peaceful and undisturbed enjoyment of their
leasehold. Id. The covenant is breached when the landlord obstructs, interferes with, or
takes away from the tenant in a substantial degree the beneficial use of the leasehold. Id. Stark County, Case No. 2021 CA 00094 13
The degree of the impairment required is a question for the finder of fact. Id. To constitute
a breach of the covenant, “the interference with the tenant’s quiet enjoyment must be so
substantial as to be tantamount to an eviction, actual or constructive.” GMS Mgt. Co., Inc.
v. Datillo, 8th Dist. Cuyahoga No. 75838, 2000 WL 776982 (June 15, 2000); Hamilton
Brownsfield Redevelopment L.L.C. v. Duro Tire & Wheel, 156 Ohio App.3d 525, 2004-
Ohio-1365, 806 N.E.2d 1039, ¶23 (12th Dist.2004).
{¶59} Constructive eviction occurs when the landlord interferes with the tenant’s
possession and enjoyment of the premises, and the acts of interference by the landlord
compel the tenant to leave. Foote Theatre, Inc. v. Dixie Roller Rink, Inc., 14 Ohio App.3d
456, 457, 471 N.E.2d 866 (3d Dist.1984).
{¶60} In the case sub judice, Appellants’ leasehold is for Lot No. 240. Appellants
still reside on Lot No. 240. Lot No. 240 does not include the disputed property. As such,
any interference by Willowdale of Appellants’ use of the disputed property could not be
tantamount to an actual or constructive eviction of Lot No. 240.
{¶61} Therefore, Appellants failed to raise any genuine issue of material fact to
preclude summary judgment.
{¶62} Appellants’ Second Assignment of Error is overruled.
III.
{¶63} In Appellants’ Third Assignment of Error, Appellants argue the trial court
erred in finding Appellants violated the trial court’s Judgment Entry dated May 31, 2018.
We disagree.
{¶64} A trial court’s decision in a contempt proceeding is reviewed for an abuse
of discretion. Wadian v. Wadian, 5th Dist. Stark No. 2007 CA 00125, 2008-Ohio-5009. Stark County, Case No. 2021 CA 00094 14
{¶65} An abuse of discretion implies the trial court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983).
{¶66} “Civil contempt is defined as that which exists in failing to do something
ordered to be done by the court in a civil action for the benefit of the opposing party
therein.” Beach v. Beach (1955), 99 Ohio App. 428, 431, 130 N.E.2d 164. “It is irrelevant
that the transgressing party does not intend to violate the court order.” Pedone v. Pedone
(1983), 11 Ohio App.3d 164, 165, 463 N.E.2d 656, 658 (8th Dist.1983). “If the dictates of
the judicial decree are not followed, a contempt citation will result.” Id.
{¶67} The Ohio Supreme Court has explicitly held a party acting innocently and
not in intentional disregard of a court order could not use that innocence as a defense to
a charge of civil contempt. * * * An act does not cease to be a violation of a law and of a
decree merely because it may have been done innocently.” McComb v. Jacksonville
Paper Co. (1949), 336 U.S. 187, 191, 60 S.Ct. 497, 499, 93 L.Ed. 599.
{¶68} “A court has authority both under R.C. 2705.02(A) and on the basis of its
inherent powers to punish the disobedience of its orders with contempt proceedings.”
Zakany v. Zakany, 9 Ohio St.3d 192, 459 N.E.2d 870 (1984). “The purpose of sanctions
in a case of civil contempt is to compel the contemnor to comply with lawful order of a
court, and the fact that the contemnor acted innocently and not in intentional disregard of
a court order is not a defense to a charge of civil contempt.” Windham Bank v.
Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971). “It is irrelevant that the
transgressing party does not intend to violate the court order. If the dictates of the judicial
decree are not followed, a contempt citation will result.” Pedone at 165. Stark County, Case No. 2021 CA 00094 15
{¶69} In a civil contempt proceeding, the movant bears the initial burden of
demonstrating by clear and convincing evidence that the other party violated an order of
the court. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 (1980). “Clear
and convincing evidence” is evidence that will form a firm belief in the mind of the trier of
fact as to the facts sought to be established. Cincinnati Bar Assn. v. Massengale, 58 Ohio
St.3d 121, 568 N.E.2d 1222 (1991). Determination of clear and convincing evidence is
within the discretion of the trier of fact. Id.
{¶70} In the case sub judice, the record shows the Leaths met their burden of
demonstrating by clear and convincing evidence that Appellant violated the May 31, 2018
Judgment Entry by not removing the encroachments onto the Leaths’ property. The trial
court’s Judgment Entry, while read in conjunction with the counterclaim, provided
Appellants with their obligations and responsibilities. Appellants failed to remove their
encroachments onto the Leaths property.
{¶71} Based upon the record before us, we find the trial court did not abuse its
discretion in finding Appellants in contempt. We do not find the trial court’s decision to be
arbitrary, unreasonable, or unconscionable. Stark County, Case No. 2021 CA 00094 16
{¶72} Appellants’ Third Assignment of Error is overruled.
{¶73} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is hereby affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/br 0627