Wischt v. Heirs of Mourer , 98 N.E.3d 1307 ( 2017 )

[Cite as Wischt v. Heirs of Mourer, 2017-Ohio-8236.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JOHN WISCHT, ET AL : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiffs-Appellees : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 17 CA 8
THE HEIRS OF PEARL RUTH :
MOURER, ET AL :
: OPINION
Defendants-Appellants
CHARACTER OF PROCEEDING: Civil appeal from the Guernsey County
Court of Common Pleas, Case No.
15CV000280
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 18, 2017
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
BRETT HILLYER CHARLES PLUMMER
201 N. Main Street 139 West Eighth Street
P.O. Box 272 P.O. Box 640
Uhrichsville, OH 44683 Cambridge, OH 43725-0640
Guernsey County, Case No. 17 CA 8 2
Gwin, P.J.
{¶1} Appellants appeal the February 16, 2017 judgment entry of the Guernsey
County Court of Common Pleas denying their motion for summary judgment and granting
appellees’ motion for summary judgment.
Facts & Procedural History
{¶2} The parties in this matter are adjoining landowners of real estate on Boden
Road in Guernsey County. On July 15, 2015, appellees John and Lori Wischt filed a
complaint for quiet title and action to enforce settlement against appellants, the Heirs of
Ruth Pearl Mourer: Donald Mourer, Wanda Colvin, Wanita Oliver, Charles Mourer,
William Mourer, Timothy Mourer, Marsha Wilson, and Wayne Mourer. Appellees claimed
that, either via quiet title or via an agreed settlement, they had a right-of-way through
appellants’ property. Appellants filed an amended counterclaim against appellees for
adverse possession, prescriptive easement, ejectment, and trespass. Appellants claim
they, through adverse possession, have title to an eleven acre portion of appellees’ land.
{¶3} The chain of title to appellees’ property is as follows: appellees acquired
the property through a general warranty deed dated March 21, 2014, from James E. Kittle,
the trustee of the Cora E. Kittle Revocable Trust dated Feb. 23, 1993 to John and Lori
Wischt; the James and Cora E. Kittle Revocable Trust dated Feb. 23, 1993 acquired the
property via a quit-claim deed dated Feb. 23, 1993 from James and Cora Kittle. James
and Cora Kittle acquired the property via a warranty deed dated April 4, 1951 from Samuel
Gibson to James E. and Cora E. Kittle.
{¶4} The chain of title to appellants’ property is as follows: on April 1, 1949,
Arthur and Grace Mourer acquired the property via a deed from J.W. Angle and Grace
Guernsey County, Case No. 17 CA 8 3
Angle; via a deed dated December 11, 1967, Charles and Ruth Pearl Mourer acquired
the property from Arthur and Grace Mourer; on March 11, 2008, Charles and Ruth Pearl
Mourer signed a survivorship deed, deeding the property to themselves; on March 16,
2008, Ruth Pearl Mourer executed a transfer on death deed, from herself to her son
Donald Mourer, daughter Wanda Colvin, daughter Wanita Oliver, son Charles Mourer,
son William Mourer, son Timothy Mourer, daughter Marsha Wilson, and son Wayne
Mourer; and an affidavit dated June 29, 2015 by Donald Mourer provides that Ruth Pearl
Mourer died on April 29, 2015 and thus her interest in the property is terminated by her
death and her children are now the owners of the entire fee simple interest in the real
estate.
{¶5} The trial court issued a judgment entry on November 14, 2016. The trial
court: found appellees failed to provide any reliable evidence that an easement exists on
appellants’ property; dismissed appellees’ claim to quiet title alleging an easement on
appellants’ property; and dismissed appellees’ action to enforce settlement. The trial
court noted an issue remained as to the claimed adverse possession by appellants of an
eleven acre tract of land and stated it would come on for further hearing.
{¶6} On December 9, 2016, appellants filed a motion for summary judgment
regarding the eleven acres. In their motion, appellants agreed that according to the
deposition of James Kittle (“Kittle”), who was the prior owner of appellees’ property, Kittle
agreed in the 1950’s that the Mourers could use the eleven acres. However, appellants
argued since Kittle had not been on or used the property since the 1950’s, no additional
consent was given since the 1950’s and what began as consensual use developed into
an adverse use. Attached to appellants’ motion for summary judgment is the affidavit of
Guernsey County, Case No. 17 CA 8 4
one of the appellants, Wanita Oliver. Wanita Oliver avers that she has personal
knowledge that, “her mother and father, Charles and Pearl, openly, continuously,
exclusively, adversely, and notoriously used this property referred to as the “11 acres”
since they purchased the property in 1967.” Further, that the Mourers have used the
referenced acreage as pasture and cattle accessible property since at least 1967.
{¶7} Appellees filed their own motion for summary judgment regarding the
eleven acres and argued that, pursuant to the deposition of Kittle, appellants’ parents
used the land with permission. Appellees also filed a response in opposition to appellants’
motion for summary judgment, again citing the deposition of Kittle.
{¶8} Kittle, now deceased, testified during his deposition that he sold the property
at issue to appellees and he had been on the property three times since purchasing it as
an investment property. Kittle stated his parents were friends of Charles and Pearl
Mourer. Further, that Charles and Pearl knew both him and his parents. Kittle had a
good relationship with Charles and Pearl and he kept in contact with them through the
years. Kittle stated he and Charles and Pearl had a “very good relationship” with regards
to the property. Kittle never had any issues with the Mourers.
{¶9} Kittle testified there was a fence dividing the property that had fallen down.
He and his father did not want to rebuild the fence, so his father, representing him, told
Charles and Pearl they could water their cows without building a fence. Kittle stated, “so
that gave the Mourers the right to water the cows from the spring that was on my
property.” Kittle was unsure of the exact date his father, representing him, gave this
permission to Charles and Pearl. However, he believes it was after the 1950’s, but before
his father died in 1975. Kittle stated he never revoked the right he gave to the Mourers,
Guernsey County, Case No. 17 CA 8 5
through his father, to water their cows. When asked how Kittle permitted the Mourers to
water their cows on his land, he testified that his father made the arrangements with
Charles Mourer. Kittle confirmed he gave his approval of the permission his father gave
to Charles.
{¶10} Kittle testified the property was timbered a couple of times. He had it
timbered just prior to when he sold it in 2014, it had been previously timbered
approximately ten or fifteen years ago, and at least once before his father died. Kittle
stated he did not use the part of the property at issue. Kittle testified that he never saw
any cattle or other animals on his land.
{¶11} The trial court issued a judgment entry on February 16, 2017 on appellants’
and appellees’ motions for summary judgment. The trial court found Kittle granted
permission to use the real estate to the Mourer family to water their cattle and this
permission was never revoked. Thus, the trial court granted appellees’ motion for
summary judgment and denied appellants’ motion for summary judgment.
{¶12} Appellants appeal the February 16, 2017 judgment entry of the Guernsey
County Court of Common Pleas and assign the following as error:
{¶13} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
VIRTUE OF THE FACT THAT THERE IS A GENUINE ISSUE OF MATERIAL FACT
WHETHER PERMISSION WAS GRANTED TO CHARLES AND PEARL MOURER
WHEN THEY RECEIVED OWNERSHIP BY VIRTUE OF A WARRANTY DEED DATED
DECEMBER 11, 1967 AND RECORDED IN GUERNSEY COUNTY RECORD VOLUME
276, PAGE 163 (SEE “EXHIBIT D” ATTACHED HERETO).”
Guernsey County, Case No. 17 CA 8 6
Summary Judgment Standard
{¶14} Civil Rule 56(C) provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
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 of 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 mostly 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.
{¶15} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 474
N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
Guernsey County, Case No. 17 CA 8 7
applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733
N.E.2d 1186 (6th Dist. 1999).
{¶16} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
{¶17} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the record
which demonstrate the absence of a genuine issue of fact on a material element of the
non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).
Once the moving party meets its initial burden, the burden shifts to the non-moving party
to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.The non-moving party may not rest upon the allegations and denials in the pleadings, but
instead must submit some evidentiary materials showing a genuine dispute over material
facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).
I.
{¶18} Adverse possession focuses on the acts of the one claiming prescriptive
ownership and requires proof of exclusive possession and open, notorious, continuous,
and adverse use for a period of twenty-one years. Grace v. Koch, 81 Ohio St.3d 577,
692 N.E.2d 1009 (1998). To prevail on a claim for adverse possession, a claimant must
establish these factors by clear and convincing evidence. Id. A party who fails to prove
any of the elements fails to acquire title through adverse possession. Id.Guernsey County, Case No. 17 CA 8 8
{¶19} A successful adverse possession action results in a legal titleholder
forfeiting ownership to an adverse holder without compensation. Id. Such a doctrine
should be disfavored, and that is why the elements of adverse possession are stringent.
Id.{¶20} Appellants contend the trial court erred in finding their use of the property
was not adverse. Appellants make two specific arguments: first, that since there is no
evidence permission was given by Kittle since 1975 after his father’s death or since
Charles and Pearl obtained title to the property in 1967, Kittle’s previous permission is not
sufficient to defeat a claim of adverse possession. Further, appellants argue the affidavit
of Wanita Oliver is sufficient to create a genuine issue of material fact as to whether
permission was granted to Charles and Pearl to use the land.
{¶21} Adverse use is described as non-permissive use. McCune v. Brandon, 85
Ohio App.3d 697, 621 N.E.2d 434 (5th Dist. 1993). Possession is not adverse if it is done
with the owner’s permission. Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898 (1897).
{¶22} Appellants encourage this Court to adopt the reasoning of the Seventh
District Court of Appeals in Eckman v. Ramunno, 7th Dist. Mahoning No. 09 MA 162,
2010-Ohio-4316. The Seventh District stated:
Although it is true that permission cannot ripen into adversity by mere lapse
of time, this concept applies only to those persons to whom the permission
was given. Where, for instance, the invited occupier leaves and a wholly
new occupier begins possession, the original permissive use is not
automatically extended. Rather, the landowner must renew his permission
to subsequent occupiers in order to avoid adverse possession and to
Guernsey County, Case No. 17 CA 8 9
maintain the express permission. In other words, although prior permissive
use of a predecessor is relevant to erase the adversity element for periods
within the relevant twenty-one year period, it does not make a current
occupier’s use permissive.
{¶23} We first note that this Court has not adopted the holding of the Seventh
District and has stated in previous cases that, “when the original entry onto another’s
property is permissive or conferred by grant, then any use reasonably consistent with
such a grant or permission is not adverse.” Rodgers v. Pahoundis, 178 Ohio App.3d 229,
2008-Ohio-4468, 897 N.E.2d 680 (5th Dist.); Heggy v. Lake Cable Recreation Assn.,
1977 WL 201024; Cox v. Kimble, 5th Dist. Guernsey No. 13 CA 32, 2015-Ohio-2470.
{¶24} However, even if we were to review this case under the analysis of Eckman,
we find summary judgment was appropriate. Unlike in Eckman, where the occupiers were
different, unrelated individuals throughout the twenty-one years, the occupiers of the
property since 1949 are family members. See Harris v. Dayton Power & Light Co., 2nd
Dist. Montgomery No. 26796, 2016-Ohio-517 (holding “when calculating years of
continuous adverse use, continuity is not broken by a change in ownership between
family members”).
{¶25} Further, while the property was owned by Arthur and Grace Mourer until
1967 and Kittle was unclear what year he gave his permission, in his deposition, Kittle
unequivocally states the permission was given, through his father, “to Charles.” The
neighborly relationship Kittle describes in his deposition is between himself, his parents,
Charles, and Pearl. Kittle never mentions permission with regards to Arthur and/or Grace
Guernsey County, Case No. 17 CA 8 10
and does not testify to any relationship his family had with Arthur and/or Grace. Arthur
and/or Grace are not mentioned at all in Kittle’s deposition.
{¶26} Pursuant to Eckman, the relevant inquiry is the permission as it relates to
the occupier of the property, not the owner of the property. Appellants have provided no
evidence disputing Kittle’s testimony or providing evidence that permission was given to
Arthur and/or Grace rather than Charles. Thus, Charles was the person, “to whom the
permission was given” and this permission given to Charles cannot ripen into adversity
by the mere lapse of time. The first date Charles was not the occupier of the property
was after his death in 2008. A period of twenty-one years has not elapsed since that date
and thus appellants cannot demonstrate adverse use for a period of twenty-one years.
Accordingly, summary judgment is appropriate in favor of appellees.
{¶27} Appellants next contend the affidavit of Wanita Oliver, an appellant in this
case, is sufficient to create a genuine issue of material fact as to permission. Wanita
Oliver’s affidavit provides, “her mother and father, Charles and Pearl, openly,
continuously, exclusively, adversely, and notoriously used this property referred to as the
“11 acres” since they purchased the property in 1967.” We first note that appellants did
not file a response to appellees’ motion for summary judgment. Rather, Oliver’s affidavit
was attached to appellants’ own motion for summary judgment.
{¶28} However, even if we consider this in response to appellees’ motion for
summary judgment, as we stated in Patterson v. Licking Township, 5th Dist. Licking No.
17-CA-3, 2017-Ohio-1463, “a self-serving affidavit that is not corroborated by any
evidence is insufficient to establish the existence of an issue of material fact.” Further,
“to conclude otherwise would enable the nonmoving party to avoid summary judgment in
Guernsey County, Case No. 17 CA 8 11
every case, crippling the use of Civ.R. 56 as a means to facilitate the early assessment
of the merits of the claims, pre-trial dismissal of meritless claims, and defining and
narrowing issues for trial.” Id., citing Bank of New York v. Bobo, 4th Dist. Athens No.
14CA22, 2015-Ohio-4601; see also State of Ohio v. $317.49 in U.S. Currency & Ruger
9MM Handgun, 5th Dist. Stark No. 2006-CA-00318, 2007-Ohio-475. If such affidavits
were permitted, a party could avoid summary judgment under all circumstances solely by
submitting a self-serving affidavit containing nothing more than bare contradictions of the
evidence offered by the moving party. TJX Companies, Inc. v. Hall, 183 Ohio App.3d
236, 2009-Ohio-3372, 916 N.E.2d 862 (8th Dist.).
{¶29} As in Patterson, in this case, appellant has not corroborated her affidavit
with any evidence or included in her affidavit any specific facts which establishes the
existence of an issue of material fact. Rather, her affidavit contains bare contradictions
of the evidence offered by appellees through Kittle’s deposition. Accordingly, the trial
court did not err in granting summary judgment to appellees.
{¶30} Finally though appellants contend the open, notorious, and continuous
elements of adverse possession are not in dispute, appellees disagree.
{¶31} In order for possession to be considered open, the “use of the disputed
property must be without attempted concealment.” To be notorious, a use must be known
to some who might reasonably be expected to communicate their knowledge to the owner
or is so patent that the true owner of the property could not be deceived as to the
property’s use. McKenna v. Boyce, 5th Dist. Muskingum No. CT 2012-0014, 2012-Ohio-
5163. The occupancy must give notice to the real owner of the extent of the adverse
claim. Franklin v. Massillon Homes, II, LLC, 184 Ohio App.3d 455, 2009-Ohio-5487, 921
Guernsey County, Case No. 17 CA 8 12
N.E.2d 314 (5th Dist. Stark). The Ohio Supreme Court quoted the Vermont Supreme
Court in stating, “the tenant must unfurl his flag on the land, and keep it flying so that the
owner may see, if he will, that an enemy has invaded his dominions and planted his
standard of conquest.” Grace v. Koch, 81 Ohio St.3d 577, 692 N.E.2d 1009 (1998),
quoting Darling v. Ennis, 138 Vt. 311, 415 A.2d 228 (1980).
{¶32} This Court has previously considered the open, notorious, exclusive and
continuous elements of adverse possession in several cases. McKenna v. Boyce, 5th
Dist. Muskingum No. CT 2012-0014, 2012-Ohio-5163 (affirming finding of summary
judgment against adverse possession because mowing, trimming, removing limbs, and
burying roots is not clear and convincing evidence of adverse possession); Murphy v.
Cromwell, 5th Dist. Muskingum No. CT2004-0003, 2004-Ohio-6279 (finding no clear and
convincing evidence of adverse possession when the appellants had cleaned up
branches, mowed the property, raked the property, fertilized the property, and walked the
dog across the property); Arnholt v. Carlisle, 5th Dist. Licking No. 10CA91, 2011-Ohio-
2948 (finding adverse possession not against the manifest weight of the evidence when
appellants planted 100 trees and took care of them since that went beyond “mere
maintenance” and minor landscaping); Franklin v. Massillon Homes, II, LLC, 184 Ohio
App.3d 455, 2009-Ohio-5487, 921 N.E.2d 314 (5th Dist.) (finding a genuine issue of fact
when there was evidence appellants removed a tree on the property, planted a tree on
the property, took care of the lawn, hired third parties to maintain the property at issue,
parked cars there, and told trespassers to leave the area); Robinson v. Armstrong, 5th
Dist. Guernsey No. 03 CA 12, 2004-Ohio-1463 (holding the use of the property was not
exclusive because others used the property to access other fields). We have held that
Guernsey County, Case No. 17 CA 8 13
“mere maintenance of land, such as mowing grass, cutting weeds, planting a few
seedlings, and minor landscaping, is generally not sufficient to constitute adverse
possession.” McKenna v. Boyce, 5th Dist. Muskingum No. CT 2012-0014, 2012-Ohio-
5163; see also Grace v. Koch, (finding mowing grass, parking cars, using the land for
recreation, placing a swing set, firewood, and oil drums on the property to be a close case
as to adverse possession).
{¶33} In this case, the only evidence presented is Wanita Oliver’s assertion in her
affidavit that Charles and Pearl Mourer used the referenced acreage as pasture and cattle
accessible property since at least 1967.
{¶34} In a case factually analogous to this case, in which the property at issue
was used for pasture, we noted that “there are a surprising number of Ohio cases dealing
with adverse possession of pasture land.” Galbraith v. J.J. Detweiler Enterprises, Inc.,
164 Ohio App.3d 332, 2005-Ohio-6300, 842 N.E.2d 124 (5th Dist.). We found the cases
dealing with adverse possession of pasture land, “stand for the proposition that claimant’s
use of the property must be exclusive and adverse to the title owner, and pasturing does
not necessarily exclude the title owner from using the property in other ways and for other
purposes” and held the finding of adverse possession was against the manifest weight of
the evidence when the land was used for pasture and appellees did not improve the
property. Id, citing Sams v. Nolan, 4th Dist. Ross No. 1326, 1987 WL 13947 (July 1,
1987) (finding possession not sufficiently adverse and exclusive even though the claimant
fenced the property to keep goats in the pasture and children out); Bierhup v. Leaco, Inc.,
4th Dist. Jackson No. 94 CA 742, 1995 WL 389292 (June 28, 1995) (finding repairing a
Guernsey County, Case No. 17 CA 8 14
fence on disputed land, using the land as pasture, and removing timber was insufficient
to establish adverse possession).
{¶35} Accordingly, we find, based upon our decision in Galbraith, the use of the
land for pasture and cattle accessible property is insufficient to establish the elements of
adverse possession when there is no evidence appellants’ improved the property or
prevented the title owner from using the property in other ways or for other purposes such
as timbering. Thus, we find the grant of summary judgment was also appropriate for this
reason.
{¶36} Based on the foregoing, we find the trial court did not err in granting
summary judgment to appellees. Appellants’ assignment of error is overruled. The
February 16, 2017 judgment entry of the Guernsey County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle, J., concur