Stark Cnty. Park Dist. v. Dickerhoof , 122 N.E.3d 608 ( 2018 )

[Cite as Stark Cty. Park Dist. v. Dickerhoff, 2018-Ohio-4319.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STARK COUNTY PARK DISTRICT, : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
PATRICIA DICKERHOFF, ET AL., : Case No. 2017CA00231
:
Defendants - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2015-
CV-01786
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 23, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
SARAH K. RATHKE BRUCE L. INGRAM
Squire Patton Boggs (US) LLP THOMAS H. FUSONIE
4900 Key Tower DANIEL E. SHUEY
127 Public Square Vorys, Sater, Seymour and Pease, LLP
Cleveland, Ohio 44114 52 East Gay Street, PO Box 1008
Columbus, Ohio 43216-1008
RACHAEL A. HARRIS
Squire Patton Boggs (US) LLP
2550 M. St, NW
Washington D.C. 20037
Stark County, Case No. 2017CA00231 2
Baldwin, J.
{¶1} Appellants are Patricia Dickerhoof, individually and as trustee for the Gene
L. and Patricia Dickerhoof Trust, Daniel Dickerhoof, individually and as Trustee for the
Gene L. And Patricia Dickerhoof Trust, and Doug Dickerhoof, individually and as
beneficiary of the Gene L. And Patricia Dickerhoof Trust. They appeal the July 31, 2017
decision of the trial court finding that appellee acquired title to the property, evidentiary
rulings of the trial court, the verdict of the jury finding that appellants’ adverse possession
claim was not proven, and the trial court’s denial of their motion to amend its orders to
provide for access over the appellee’s property. Appellee is the Stark County Park
District.
STATEMENT OF FACTS AND THE CASE
{¶2} In this case we review the results of a bench trial finding that the appellee
acquired record title to a strip of land that bisected appellants’ property and the results of
a jury trial, whose verdict rejected appellants’ contention they obtained title of the same
strip of property through adverse possession. The trial court ordered bifurcation of the
claims because the quiet title action was a purely legal, equitable argument whereas
adverse possession requires resolution of disputed facts. The bench trial preceded the
jury trial as a practical necessity. If the court had determined appellee had not acquired
title, the adverse possession claim would be moot.
{¶3} The appellants, collectively referenced by the trial court as the Dickerhoof
Family, came into possession of approximately 51 acres of real property in 1970. Before
they acquired title to the property, a railroad had established a line that ran through the
farm, but the railway had been abandoned and was unused when the Dickerhoof Family
Stark County, Case No. 2017CA00231 3
purchased the property. Appellants contend they cleared the property of scattered
railroad ties, spikes and other debris, leveled the railroad bed and used the property as
part of their farm beginning in 1972. They contend they have used it continuously,
exclusively, openly and notoriously for farming related purposes for at least twenty one
years prior to appellee purchasing the rail line.
{¶4} In 1997 American Premier Underwriters, the purported record owner of the
unused railroad line, approached appellee about purchasing the strip of property that ran
across appellants’ and several neighboring properties. Appellee was interested in
acquiring the property to add to its park program and began negotiations with American
Premier Underwriters.
{¶5} Appellee purchased the property in 1997, paying $49,700.00 for this parcel
and several others to extend what appellee describes as the Iron Horse Trail, a
recreational use trail. Appellee encountered delays in obtaining the proper legal
description and survey due to the nature of railroad lines and how railroads typically
described the property they acquired. The deed for the parcels was filed after the surveys
were completed in 2001.
{¶6} The purchase did generate some controversy when it became known that
the American Premier Underwriters, Inc., was auctioning many parcels, but that the strip
that crossed the appellants’ property would not be included in the auction. Gene
Dickerhoof, predecessor in title to the appellants, was disappointed to discover that the
parcel that divided his land was not part of the auction and that it had been purchased by
appellee. Gene Dickerhoof later retained an attorney, John Morris, who contacted the
appellee’s Director, Robert Fonte, and contended that because the property was subject
Stark County, Case No. 2017CA00231 4
to a reversionary clause in the original deed to the railroad, his client was the owner of
the property. He threatened legal action and sent a second letter demanding a response,
but curiously did not mention adverse possession and did not initiate any legal action.
{¶7} The Park Director, Robert Fonte and Gene Dickerhoof’s attorney, discussed
the claims of the parties for four years, but reached no resolution.
{¶8} On August 28, 2015, appellee filed an action to quiet title in the property
and, on November 16, 2015 filed an amended complaint including a claim to quiet title
and a claim for declaratory relief. Appellants filed an answer and counterclaim, denying
that the appellee had title and requesting that the court grant them an order to quiet title,
declaratory relief and that acquired title to the property through adverse possession.
Appellants asserted in an affirmative defense that, in the alternative, they had a
prescriptive easement to conduct farm activities on the subject property and that they had
an easement by necessity. Appellants also contended that the deed that created the
disputed corridor, referenced as the Styers deed, contained a reversionary clause that
was triggered when the railroad abandoned the line. Title to the property reverted to their
possession as a result, by their interpretation of the deed. Appellants and appellee filed
motions for summary judgment and both were denied. Appellants filed several motions in
limine that were addressed by the trial court.
{¶9} The Trial Court determined that the parties were not entitled to a jury for the
quiet title action, so a bench trial was scheduled to be followed immediately by a jury trial
regarding the adverse possession claim.
{¶10} The bench trial was conducted on July 24, 2017 and the only witness to
testify was Robert Fonte, appellee’s Executive Director. During his tenure with appellee
Stark County, Case No. 2017CA00231 5
he participated in the acquisition of the subject property and was able to identify several
exhibits that addressed ownership and location of the subject property. Appellee’s
exhibits included a title examination, a plat map completed by a registered surveyor and
several deeds. Appellant had the opportunity to cross examine Mr. Fonte and objected
to the admission of several exhibits for lack of foundation or because the documents
contained hearsay statements. Appellants’ objections were overruled with few
exceptions.
{¶11} Appellants did not present any evidence or argument at the bench trial
regarding their claim of quiet title or the existence, location, size or necessity of any
easement. Appellants moved for dismissal, the motion was overruled and the trial court
found that appellee held record title and that the Styers deed did not create a reversionary
interest.
{¶12} The jury trial began the following day and was limited to appellants’ claim of
adverse possession. At the outset of the trial, the court explained to the jury that appellee
“purchased this Railroad Corridor property in 1997 and it has been determined through a
separate proceeding that the Park District is the titled owner of this Railroad Corridor
property.” (Transcript, Volume No. I, page 7, lines 15-20, July 25, 2017).
{¶13} Appellants’ sole witness was Daniel Dickerhoof, son of Eugene Dickerhoof,
the prior owner of the farm. Mr. Dickerhoof was four years old when his father acquired
the property, and he lived in Columbus, Ohio for several years while he attended college,
but he testified without hesitation about the use of the abandoned rail line by his family.
He spoke at length about the railroad ties, spikes and other debris his family cleared from
the line. The family removed cinders from the rail line and leveled the area so it could be
Stark County, Case No. 2017CA00231 6
used for planting or pasture. He testified that the family had part of the property leveled
with a bulldozer in 1975 to further facilitate the use of the property and that the railroad
bed was used for access to the pastures. He remembered that his family began planting
in the northern section of the property in 1975 and the southern half of the property in
1978.
{¶14} Mr. Dickerhoof’s father installed barb wire fence to exclude pedestrians from
the corridor after 1972, yet in 1978, bicyclists were using the property. That fence has
been altered over the years to allow for livestock to graze. Daniel Dickerhoof testified
that the corridor was now bounded by a fence and that he installed no trespassing signs
at both ends of the corridor as it entered his property, and the fence and the signs were
still present. Because the railroad bed has been leveled on the appellants’ property, he
claimed that there was a noticeable difference in the elevation of the corridor on the
appellants’ property as compared to the abutting properties.
{¶15} Mr. Dickerhoof identified an aerial photograph of the property as well as a
plat map to show the current state of the property at the purported location of the rail line.
Mr. Dickerhoof admitted during cross examination that he was not aware of the fact that
deeds conveying the property between Dickerhoof family members contained a reference
to the abandoned rail line and that his family did not take any steps to remove that
reference. He also acknowledged that the Dickerhoof family attorney was John Morris
and that Mr. Morris had claimed title for his family, but not on the basis of adverse
possession.
{¶16} The appellants provided no further evidence at the jury trial. Appellee
moved to dismiss the complaint by directed verdict and that motion was denied.
Stark County, Case No. 2017CA00231 7
{¶17} Appellee offered the testimony of Robert Fonte and retired Judge R.R.
Denny Clunk. Robert Fonte, Park Director, described the appellee’s process of acquiring
property as part of a long term plan for the appellee. The appellee, under the direction of
Mr. Fonte, had previously purchased abandoned rail lines, so Mr. Fonte was familiar with
the process as well as the difficulties associated with the purchase of railroad property.
{¶18} Appellee retained the services of a title examiner to confirm that American
Premier Underwriters had authority to sell the property to the Park District. Thereafter the
Park District purchased the property for $49,700 and retained a surveyor to provide a
proper legal description. Due to the difficulty and complicated nature of the survey and
the fact that seventeen parcels were involved, the survey was not complete until 2001.
Mr. Fonte noted that the surveyor entered the properties to complete the survey, and to
his knowledge, the surveyor had no difficulty entering the appellants’ property and did not
encounter any farming activity on the railroad corridor. The surveyor provided appellee
a map showing the railroad corridor as it crossed the appellants’ property.
{¶19} Mr. Fonte communicated with the attorney for appellants’ predecessor in
interest, Gene Dickerhoof, after the appellee had purchased the property. Had the
appellee not purchased this property it would have been made available to the general
public at auction. When American Premier Underwriters disclosed that the corridor had
been purchased by the appellee, appellee was the subject of many complaints of
underhanded tactics to obtain the property. Appellee conducted a well-attended town hall
meeting in 1998 to address the objections and complaints and Gene Dickerhoof’s
attorney attended. Mr. Fonte was present and attempted to explain the appellee’s actions
and future plans, but his explanation did not satisfy John Morris, attorney for Gene
Stark County, Case No. 2017CA00231 8
Dickerhoof. Attorney Morris complained that the original deed to the corridor contained
a reversionary clause that was activated when the railroad abandoned the property. He
repeated this position in a letter delivered to the appellee, but never contended that the
Dickerhoofs held title by adverse possession. Mr. Fonte communicated with Mr. Morris
regarding the Dickerhoof farm for four years, but the issue of adverse possession was
never mentioned.
{¶20} Mr. Fonte met with the Dickerhoof family in 2009 and walked their property,
including the railroad corridor. Mr. Fonte noticed that despite the appellants’ assertion of
use of the corridor for farm purposes, it was still identifiable as the railroad corridor. Mr.
Fonte visited the property in the Spring of 2017 and took a photograph from the road
looking toward the Dickerhoof property at the point of the corridor. When asked whether
he was able to discern “what use the Dickerhoofs were making, if any, to the right of way”
he replied “None”. (Transcript, p. 474, lines 17-21) And, despite Daniel Dickerhoof’s
testimony that he installed “No Trespassing” signs and fence at the corridors, none was
visible. He also did not notice any change in the elevation of the railroad corridor, rebutting
Mr. Dickerhoof’s testimony regarding the leveling of the railroad bed as it entered
appellants’ property.
{¶21} Retired Judge R.R. Denny Clunk testified on behalf of the appellee
regarding his recollection of the Alliance Rotary Club’s involvement with the railroad
corridor on several parcels including the appellants’ property. Judge Clunk was a
practicing attorney in 1971 and a member of the Alliance Rotary Club. The Club planned
to create a walking path from Alliance to Minerva, but the plan was delayed due to
obstructions. The Club filed an action against the property owners, included Gene
Stark County, Case No. 2017CA00231 9
Dickerhoof as a defendant, and requested a temporary restraining order. The property
owners filed a counterclaim. The temporary restraining order was granted and the case
was dismissed in 1972.
{¶22} Judge Clunk walked the entire length of the corridor to determine what
would be required to make it usable for the public. The Rotary Club retained a bulldozer
operator who plowed a path at least eight feet wide all the way through the corridor,
including the Dickerhoof property, and the Club attempted to repair some bridges along
the new path in the early 1970s. Judge Clunk did note that the path was used by
motorbikes and ATV’s, but he admitted that the club ceased its efforts to create a public
trail due to the time commitment required and the controversy over the path. Judge Clunk
did not visit the rail line after 1972.
{¶23} Judge Clunk remained active in the community during the 1970s, and he
believes he would have heard about the Dickerhoof’s retaining a bulldozer to work on the
path, but he did not. He also did not hear that the Dickerhoof’s were farming the corridor.
Finally, Judge Clunk identified a document created by him in 1970, a chronology of the
1970 litigation that contains a reference to a lease between Dickerhoof and the Railroad
that was terminated by the railroad to allow the Rotary Club unrestricted access from
Alliance to Minerva.
{¶24} At the conclusion of its case, appellee offered exhibits into evidence.
Appellants objected to several on hearsay and foundation grounds, but most were
admitted over appellants’ objections.
{¶25} The jury returned a verdict for the appellee. While the jury found that the
appellants had exclusively and adversely possessed the property for over twenty-one
Stark County, Case No. 2017CA00231 10
years, it rejected the claim that appellants’ possession was open and notorious. The trial
court rendered judgment based upon the jury verdict on July 31, 2017 and completed
findings of fact and conclusions of law regarding the bench trial.
{¶26} On August 11, 2017 appellants filed a motion to amend the July 31, 2017
judgments to include a finding that appellants were entitled to crossings over the subject
property they claim were described in the Styers deed. Appellants also requested the
court include Civ.R. 54 (B) statements of “no just cause for delay” because codefendants
had not yet been dismissed from the case despite a reported settlement agreement.
{¶27} Appellee opposed that portion of the motion that requested a finding that
appellants were entitled to crossing over the disputed property. Appellees also filed a
motion to enforce the settlement agreement with the appellants’ codefendants. While that
motion was pending, the trial court denied the appellants’ motion to amend the July 31,
2017 judgment stating: “that issue was never raised before this court, was not briefed by
the parties, and was not addressed by the parties at either the bench trial or jury trial.
Whether the existing instruments of record require the farm crossings to be built is not
presently an issue before this court as having not been properly raised in a timely fashion.”
(Entry, October 11, 2017, Docket 112). On that same date, the trial court notified
appellants’ codefendants that they would be given the opportunity to show cause why
judgment should not be rendered against them for failing to appear at the trial and failing
to complete the purported settlement agreement that was represented to the court at trial.
(Entry, October 11, 2017, Docket 113).
Stark County, Case No. 2017CA00231 11
{¶28} The remaining parties dismissed all claims without prejudice on November
29, 2017 and November 30, 2017. Appellants filed a notice of appeal on December 22,
2017 and submitted five assignments of error:
{¶29} “I. THE TRIAL COURT ERRED IN NOT DISMISSING THE PARK
DISTRICT'S QUIET TITLE CLAIM, AND SUBSUMED DECLARATORY JUDGMENT
CLAIMS, AGAINST THE DICKERHOOFS FOR LACK OF STANDING AT THE TIME
PLAINTIFF FILED ITS COMPLAINT AGAINST THE DICKERHOOFS.”
{¶30} “II. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE PARK
DISTRICT'S CLAIM AND INSTEAD RULING THAT THE PARK DISTRICT HOLDS
RECORD TITLE TO THE ABANDONED RAILROAD CORRIDOR FOLLOWING THE
BENCH TRIAL.”
{¶31} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
ADMITTING INADMISSIBLE EVIDENCE DURING THE JURY TRIAL.”
{¶32} “IV. THE JURY'S VERDICT IN FAVOR OF THE PARK DISTRICT
REGARDING THE DICKERHOOFS' ADVERSE POSSESSION CLAIM WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶33} “V. THE TRIAL COURT ERRED IN REFUSING THE DECLARE THE
RIGHTS OF THE DICKERHOOFS TO CROSS THE DISPUTED PROPERTY.(SIC)”
ANALYSIS
{¶34} The first two assignments of error address the results of the bench trial that
was limited to the issue of the quiet title claims and defenses. Assignments three, four
and five claim error at the jury trial regarding adverse possession only. We begin our
review with the first two assignments.
Stark County, Case No. 2017CA00231 12
FIRST ASSIGNMENT OF ERROR
{¶35} Appellants assert, in their first assignment of error, that the trial court erred
by refusing to dismiss appellee’s complaint for quiet title for lack of standing, citing the
language of R.C. 5303.01 which states in part that: “An action may be brought by a person
in possession of real property, by himself or tenant, against any person who claims an
interest therein adverse to him, for the purpose of determining such adverse interest.”
Appellants cite to our decision in Paden v. Miller, 5th Dist. Guernsey No. 00CA29, 2001
WL 1782890, where “ [w]e agree[d] with the trial court. Appellant lacked standing to
pursue an action to quiet title pursuant to R.C. 5303.01. Because the statute requires
either possession or a claim of an interest in remainder or reversion, we find summary
judgment was properly granted as to Appellant's action for quiet title.“ Id at *3.
{¶36} We review the interpretation of R.C. 5303.01 de novo with no deference to
the trial court’s analysis. Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 1994-Ohio-322,
639 N.E.2d 425 (1994), amended, 71 Ohio St.3d 1211, 643 N.E.2d 138 (1994). Further,
an unambiguous statute must be interpreted so as to give effect to the words explicitly
used by the legislature, rather than deleting words or inserting words that were not used.
State v. Taniguchi, 74 Ohio St.3d 154, 1995-Ohio-163, 656 N.E.2d 1286 (1995).
{¶37} We agree that R.C. 5303.01 generally requires that the party seeking the
relief of quiet title be in possession to establish standing to proceed. Appellee contends
that its constructive possession of the real property was sufficient to satisfy the
requirement of the statute. The cases cited by appellee support recognition of
constructive possession only when the evidence of actual possession is, at best,
inconclusive. In Village of Procterville v. Boston, 4th Dist. Lawrence No. 1730, 1985 WL
Stark County, Case No. 2017CA00231 13
9484 the Court noted that “[t]he plaintiff in an action to quiet title must be in possession,
either actual or at least constructive, of the land at issue in order to maintain the action.”
Id at *4. That court relied on the holding in Haban v. Suburban Home Mortg. Co., 40 Ohio
Law Abs. 78, 57 N.E.2d 97 (2nd Dist.1943) for its definition of “constructive possession.”
However, that Court held that “where actual possession is found in neither party,
constructive possession is sufficient to support the action.” Id at 98. The record in the
case at bar does not establish the condition precedent of actual possession being in
neither party, so constructive possession provides no relief for appellee.
{¶38} Appellee relies on the case of City of Cleveland Hts. v. City of Cleveland,
8th Dist. Cuyahoga No. 79167, 2001 WL 1400015, to support its argument that the
reference in R.C. 5303.01 to political subdivisions of the state establishes standing for
appellee. The relevant section of the Code states: “Whenever the state or any agency or
political subdivision thereof has, or appears to have, an interest in real property adverse
to the person in possession claiming the right thereto, the state or such agency or such
political subdivision may be made a party in any action brought under this section.” This
court is not convinced this language provides standing to the appellee as it states that an
“agency or political subdivision *** may be made a party in any action brought under this
section” (emphasis added) but it does not state that the political subdivision may bring the
action. The case cited by appellee is not helpful as the plaintiffs in that case were political
subdivisions, but they were in possession of title to the property, and, in fact, were
attempting to foist title onto a different political subdivision. Therefore, that case provides
no support for appellee’s argument that the cited section of R.C. 5303.01 grants standing
to appellee.
Stark County, Case No. 2017CA00231 14
{¶39} Finally, appellee contends that the appellants asserted their own quiet title
claim as well as a request for declaratory judgment in a counterclaim and that those
claims were adjudicated by the court. Appellee contends, relying on Slane v. Mentz, 10th
Dist. Franklin No. 77AP-155, 1977 WL 200365 that the nature of a civil action established
by the complaint may be changed by an affirmative defense or counterclaim of the
defendant. The Supreme Court of Ohio addressed similar circumstances and concluded:
It is argued by counsel for the defendants in error that the petition
and proof of plaintiff below were insufficient to sustain an action **187 to
quiet title, because of failure to plead and prove possession. A complete
answer to that contention is that Wells and Keith in their cross-petition asked
for the same relief, and the cause was actually heard upon their cross-
petition. The defendants thereby sought to sustain their own affirmative
action to quiet title, which plaintiff resisted successfully in the trial court, but
unsuccessfully in the appellate court.
Logan Gas Co. v. Keith, 117 Ohio St. 206, 214, 158 N.E. 184, 186–87, 5 Ohio Law Abs.
422 (1927). See also W.C. McBride, Inc., v. Murphy, 111 Ohio St. 443, 446, 145 N.E.
855, 856 (1924) and Village of Procterville v. Boston, 4th Dist. Lawrence No. 1730, 1985
WL 9484, *4, fn 1.
{¶40} We hold the Logan Gas Co precedent is applicable to the case at bar. The
appellants, in their counterclaim, asked for an order quieting title, so this cause was
actually heard upon the counterclaim. The trial court adopted that analysis in its July 31,
2017 Memorandum of Decision where it concluded that “additionally, the court notes that
Stark County, Case No. 2017CA00231 15
defendants asserted a counterclaim in this case which included a claim for quiet title under
R. C. §5303.01, so this court has both the authority and the obligation to render a decision
on the quiet title action regardless of whether this court treated it as an action by plaintiff
against defendants, or the reverse.” (Memorandum of Decision with Findings of Fact and
Conclusions of Law Following Bench Trial, July 31, 2017, page 5, Docket 99)
{¶41} For the forgoing reasons, we find the court did not err in rendering a decision
regarding the quiet title action and appellants’ first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶42} Appellants argue, in their second assignment of error that the trial court
erred by failing to dismiss the appellee’s claim, finding that the appellee holds record title
to the abandoned railroad corridor, and that a purported reversionary clause did not
defeat appellee’s title. The appellants’ assignment of error attacks both the trial court’s
finding that appellee received title to the property and the court’s interpretation of the
alleged reversionary language in the Styers deed. With regard to the trial court’s
application of the law to the facts, we review the record to determine if the judgment was
against the manifest weight of the evidence. With regard to the interpretation of language
of the deed, our review is de novo. Maxwell v. Fry, 12th Dist. Butler No. CA2007-11-284,
2009-Ohio-1650, ¶ 12.
{¶43} The appellee has the burden to prove that it holds title to the disputed
property. Carson v. Second Baptist Church, 10th Dist. Franklin No. 09AP-922, 2011-
Ohio-1025, ¶ 14. Appellee relied upon the testimony of Robert Fonte, Director of appellee,
and his identification and discussion of several exhibits to establish appellee’s title. Exhibit
1 was the starting point for the chain of title. This exhibit, described throughout the bench
Stark County, Case No. 2017CA00231 16
trial and the jury trial as the Styers deed, described the strip of property transferred from
Mary and James Styers to Cleveland, Youngstown and Pittsburgh Railroad Company.
This deed was extensively discussed by Mr. Fonte and admitted into evidence without
objection at the bench trial. Appellee used other exhibits to demonstrate it had received
title to that strip of property from American Premier Underwriters in 1997.
{¶44} Mr. Fonte identified the deed appellee contends conveyed the disputed
property to it as Exhibit 21. Mr. Fonte was permitted to testify that this deed described the
property that was purchased from the railroad and that with the delivery of the deed,
appellee gained title. Mr. Fonte reviewed portions of Exhibit 21 with counsel and
confirmed that portion of the railroad corridor described in this exhibit extends from
Louisville Street to Salem Church Street, corresponding to the roads that border
appellants’ property where the rail line enters and exits as reflected in appellee’s Exhibit
41.
{¶45} Appellee next offered Exhibit 14, the title examination for the subject
property commissioned by appellee. Mr. Fonte explained that appellee typically obtained
title examinations to insure that the seller has the right to transfer the property and that
the title exam in this case confirmed that American Premier Underwriters, Inc. could
convey the subject property to appellee. Mr. Fonte noted that the title examination traced
ownership of the property back to the Styers deed which was cited by its volume and
page number within the examination. Then, after discussing the need for a survey, the
process of obtaining a survey and the complications caused by the fact the subject was
railroad property, Mr. Fonte identified a copy of the plat and survey completed by
Constitution Land and Surveying, Ltd, at appellee’s request, marked as Exhibit 22. In
Stark County, Case No. 2017CA00231 17
Exhibit 22, Mr. Fonte identified the portion of the property that is the subject of this
litigation as it passes through appellants’ property. Mr. Fonte confirmed, without objection,
that the property description in the corrected quit claim deed, Exhibit 29, accurately
described the property shown in Exhibit 22. He specifically identified Item 10, page 4 of
Exhibit 29 as a description of the intersection of the railroad with the appellants’ property.
{¶46} Mr. Fonte explained that the title examination, the survey and the parcel
descriptions all refer to the same properties described in the Styers deed and the deed
that conveyed title to the appellee.
{¶47} Mr. Fonte described a letter he received from Attorney John Morris in 1998
after appellee purchased the property. Attorney Morris asserted his clients, appellants’
predecessor in title, held title to the property due a reversionary clause that was triggered
by the abandonment of the rail line. Mr. Fonte identified Exhibit 17 as the letter and
acknowledged that he spent four years talking with Mr. Morris about the Dickerhoof
property and the rail line without reaching an agreement. Mr. Fonte confirmed that the
letter contained a reference to the Styers transfer of the corridor to the railroad by
reference to Exhibit 1, the Styers deed, and he testified the property described in the letter
was the same property that was the subject of this case.
{¶48} Appellee offered several exhibits at the conclusion of its case, including the
title exam, the survey and the letter from Attorney Morris. Appellants objected to the
admission of those exhibits citing a lack of foundation and a violation of the hearsay rule.
We find the appellee provided sufficient foundation and that the documents are exempt
from the hearsay rule.
Stark County, Case No. 2017CA00231 18
STANDARD OF REVIEW
{¶49} The trial court has discretion regarding the admission of evidence and “we
give further deference to a judge's decision when the evidence is introduced in a bench
trial.” State v. Fautenberry, 72 Ohio St.3d 435, 439, 650 N.E.2d 878 (1995). Unless the
record indicates otherwise, the judge is presumed to have considered only admissible
evidence.” Cleveland v. Welms, 8th Dist. No. 87758, 169 Ohio App.3d 600, 2006-Ohio-
6441, 863 N.E.2d 1125, ¶ 27.
{¶50} As a general rule, all relevant evidence is admissible. Evid.R. 402; cf.
Evid.R. 802. The term “abuse of discretion” connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 122,
573 N.E.2d 622 (1991). Absent an abuse of discretion resulting in material prejudice to
the defendant, a reviewing court should be reluctant to interfere with a trial court's decision
in this regard. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). It is well
settled that a trial court has broad discretion in the admission or exclusion of evidence,
and so long as such discretion is exercised in line with the rules of procedure and
evidence, its judgment will not be reversed absent a clear showing of an abuse of
discretion with attendant material prejudice. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271,
569 N.E.2d 1056 (1991). Moreover, error predicated on an evidentiary ruling does not
warrant reversal of the trial court's judgment unless the court's actions were inconsistent
with substantial justice and affected the substantial rights of the parties. Evid.R. 103(A);
Civ.R. 61. Poppy v. Whitmore, 8th Dist. Cuyahoga No. 84011, 2004-Ohio-4759, ¶ 38.
Stark County, Case No. 2017CA00231 19
EVIDENCE RULE 803(15)
{¶51} Appellant objected to exhibits claiming their consideration was prohibited
because they contained hearsay or lacked foundation. The critical exhibits offered by
appellee, including the title examination and the survey are documents that purport to
establish or affect an interest in property and whose statements are consistently relevant
to the purpose of the document. The record contains no evidence to establish that
dealings with the property since the document was made have been inconsistent with the
truth of the statement or the purport of the document. Consequently, these documents
are exempt from the Hearsay Rule pursuant to Evid. R. 803(15) which states:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
A statement contained in a document purporting to establish
or affect an interest in property if the matter stated was
relevant to the purpose of the document, unless dealings with
the property since the document was made have been
inconsistent with the truth of the statement or the purport of
the document.
{¶52} This Rule has been the basis of holdings that personal pension account
records were not barred by the hearsay rule, Yasinow v. Yasinow, 8th Dist. Cuyahoga
No. 86467, 2006-Ohio-1355, ¶ 83, and that documents that would otherwise be
considered hearsay may be used to prove chain of title regarding patent assignments.
Embs v. Jordan Outdoor Enterprises, Ltd., S.D.Ohio No. 2:03CV895, 2005 WL 2250681,
*4 (Addressing the application of the identical language in the Federal Rules of Evidence).
Stark County, Case No. 2017CA00231 20
See also Wells Fargo Bank v. Maxfield, 12th Dist. No. CA2016-05-089, 2016-Ohio-8102,
75 N.E.3d 864, cause dismissed sub nom. Wells Fargo Bank Natl. Assn. v. Maxfield, 149
Ohio St.3d 1460, 2017-Ohio-5540, 76 N.E.3d 1232, ¶ 59 (Exempting a Corrective
Mortgage Assignment).
{¶53} The comments to the Rule note “[t]he rule is consistent with prior Ohio law”
and provide a list of examples including a particularly relevant case, Garrett v. Hanshue,
53 Ohio St. 482, 497 (1895), where a title abstract was admitted to prove title. We find
that Rule 803(15) exempts the title examination and the survey from the hearsay rule.
EVIDENCE RULE 803(8)
{¶54} The documents presented by appellee, including the title exam, the survey
and the letters to Mr. Fonte in his role as the Park Director, qualify as “Records, reports,
statements, or data compilations, in any form, of public offices or agencies, setting forth
*** the activities of the office or agency *** .” Evid.R. 803(8). The Appellee Park District
is a public entity, a status the appellants tacitly admit when they argue in their reply brief
that status as a political subdivision does not grant standing to appellee. Mr. Fonte
testified that the acquisition of this property is part of a long range plan of appellee and
that appellee has acquired railroad property in the past. He testified that appellee
commissioned the completion of the title exam to insure that the title could be transferred
from American Premier Underwriters, Inc. and that the survey was ordered by appellee
to satisfy requirements for an up to date and accurate description. Mr. Fonte testified to
the receipt of letters from an attorney representing Gene Dickerhoof, appellants’
predecessor in title, objecting to the use of the Dickerhoof property for Park District
purposes and asserting a claim of title by reversion. The letters regarding the property,
Stark County, Case No. 2017CA00231 21
title examination, and survey document the activities of the appellee, a public office, in
the planning, negotiation and purchase of the railroad property. Nothing in the records
shows or implies any doubt that the source of the records or other circumstances indicate
lack of untrustworthiness, so we conclude that these exhibits qualify for the exception to
the hearsay rule under Evid. R. 803(8).
{¶55} We also conclude that the testimony of Robert Fonte provided sufficient
foundation for these exhibits. “The threshold for admission is quite low as the proponent
need only submit “evidence sufficient to support a finding that the matter in question is
what its proponent claims.” State v. Nixon, 11th Dist. No. 2013-P-0098, 2014-Ohio-4303,
20 N.E.3d 404, ¶ 33. Mr. Fonte played a pivotal role in this transaction such that his
testimony provided the jury a rational basis to find the documents submitted were what
he represented them to be.
{¶56} The unrebutted testimony of Robert Fonte provided sufficient evidence to
support the trial court’s decision to find the appellee acquired title to the property. The
description in the Styers deed, the acknowledgment of that description in the letter issued
by the Dickerhoof family attorney, the title examination and the survey all support the
conclusion that the appellee acquired title to the railroad corridor and we cannot find that
this is an “exceptional case in which the evidence weighs heavily against” the courts’
decision, State v. Thompson, infra at 387 and thus the trial court’s decision is not against
manifest weight of the evidence.
Stark County, Case No. 2017CA00231 22
REVERSIONARY PROVISION
{¶57} Appellant next claims, still within the second assignment of error, the trial
court erred when it did not find that the Styers deed contained a reversionary clause that
was triggered when the railroad ceased using the strip of property that bisects their
property. The Appellant states that the case relied upon by the trial court has been
abrogated by the Ohio Supreme Court and contends the currently applicable precedent
mandates a decision in their favor.
{¶58} The trial court relied on Petition of Copps Chapel M.E. Church, 120 Ohio St.
309, 166 N.E. 218, 7 Ohio Law Abs. 255 (1929) but shortly after the trial of this case, the
Ohio Supreme Court abrogated the Copps requirement that the deed contain explicit
language requiring the reversion upon the fulfillment of the condition. Instead, the Ohio
Supreme Court held that the descriptive phrase, “so long as” or the words “during” or
“until” when used in the deed could be sufficient to create a fee simple estate subject to
a reversion. Koprivec v. Rails-to-Trails of Wayne Cty., 153 Ohio St.3d 137, 2018-Ohio-
465, 102 N.E.3d 444 (2018), ¶¶ 31-32. Appellant contends that the Styers deed, the
purported root of title in this case, contains language that is sufficiently analogous to the
language in Koprivec that a reversion is created.
{¶59} Appellee notes that the Court in Koprivec found that the deed before it did
not create a reversion and that the language in the Styers deed is more similar to the
language in the deed in Koprivec. Appellee contends we should come to the same
conclusion and affirm the finding of the trial court.
Stark County, Case No. 2017CA00231 23
{¶60} As this assignment involves the interpretation of the language of a deed and
no factual issues, our standard of review is de novo. The relevant language of the Styers
deed (appellee’s Trial Exhibit 1) is:
Witneseth (sic) that said party of the first part [Mary and James
Styers] . . . have granted, bargained, sold, aliened, remised, released,
conveyed and confirmed, and by these presents, do grant, bargain, sell,
alien, remise, release, convey and confirm unto the said party of the second
part [Cleveland, Youngstown and Pittsburgh Railway Company], and to its
successors and assigns forever, all that certain piece or parcel of land
situate in the Township of Washington in County of Stark, in the State of
Ohio, described as follows:
[Excerpted real estate dimensions of the property].
Together with all and singular the tenements, hereditaments and
appurtenances thereunto belonging, or in anywise appertaining, and the
reversion and reversions, remainder and remainders, rents, issues and
profits thereof, and also all the estate right, title, interest, dower and right of
dower, prosperity, possession, claim and demand whatsoever of said party
of the first part, both in law and in equity of in and to the above granted
premises with the hereditaments and appurtenances. To have and to hold
the above granted premises with the appurtenances and every part thereof,
unto the said party of the second part, its successors and assigns, to their
proper use and behalf forever for the use and purposes of the party of the
second part for track and a roadway for said Company, and the proper
Stark County, Case No. 2017CA00231 24
appendages to such track and roadway to conveniently operate said
railroad, and for no other use or purpose. Provided always and these
presents are upon this express condition, that the said party of the second
part shall construct its railroad on said premises.
{¶61} The holding of Koprivec requires that we review the language in the deed
for the phrase “so long as” or “as long as”, the words “until” or “during” or some analogous
language to determine whether a reversion has been created. We have reviewed the
quoted language and the entire deed and no such language appears. The deed clearly
describes a restriction on the use of the property, but does not expressly state or imply in
any portion of the deed that a violation of that restriction would result in a reversion of the
title of the property to the grantor or their successors. We find that no reversion has been
created.
{¶62} Instead of a reversion, this language establishes a restriction or covenant
regarding the use of the land. “A restrictive covenant is a “private agreement, [usually] in
a deed or lease, that restricts the use or occupancy of real property, [especially] by
specifying lot sizes, building lines, architectural styles, and the uses to which the property
may be put.” *835 Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963,
¶ 28 (2002), citing Black's Law Dictionary 371 (7th Ed.Rev.1999). In the context of
property law, a “covenant” denotes a contract that is either personal or “runs with the
land.” Maasen v. Zopff, 12th Dist. Warren Nos. CA98–10–135, 1999 WL 552747 (July 26,
1999), *3. Restrictions running with the land are “intended to limit the grantee's use of the
land to specified purposes, with the object of protecting the interests of all landowners in
the same allotment.” Id.Stark County, Case No. 2017CA00231 25
{¶63} The deed contains language expressing the expectation that the grantee
will use the property “to conveniently operate said railroad, and for no other use or
purpose” but it contains no language qualifying the transfer of the property as being
effective only for “so long as” the property is used to operate the railroad and we cannot
add such language. The intention of the parties is clear and “the first rule of deed
construction in Ohio is that when the parties' intention is clear from the four corners of the
deed, we will give effect to that intention.” Koprivec, supra at ¶29.
{¶64} Further, as noted by the trial court, the deed grants all rights to any reversion
or reversions to the railroad. Consequently, even if we had found a reversion existed it
appears that all rights to that reversion were conveyed to the railroad and to their
successors in interest.
{¶65} For the forgoing reasons, we find that the trial court’s decision was
technically correct under the law that was applicable at the time the decision was rendered
because the deed did not contain any express language containing a reversion. Under
Koprivec we are obligated to review the language in the four corners of the deed for
language that would support a reversion. When we do so, we find that the deed contains
a restrictive covenant, analogous to the deed described in Koprivec, but no reversionary
language. Appellant assertion regarding that issue is overruled and their second
assignment of error is overruled.
JURY TRIAL
{¶66} We now turn to appellants’ assignments of error three through five, which
concern only the rulings and decisions arising from the jury trial conducted to decide
appellants’ claim of adverse possession.
Stark County, Case No. 2017CA00231 26
THIRD ASSIGNMENT OF ERROR
{¶67} In their third assignment of error, appellants contend the trial court received
inadmissible evidence during the jury trial to their prejudice. Our standard of review is
abuse of discretion. “The admission or exclusion of relevant evidence rests in the sound
discretion of the trial court.” Sage, supra at 180. The term “abuse of discretion” connotes
more than an error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary, or unconscionable. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum.
Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). Absent an abuse of discretion
resulting in material prejudice to the defendant, a reviewing court should be reluctant to
interfere with a trial court's decision in this regard. State v. Sage, 31 Ohio St.3d 173, 180,
510 N.E.2d 343 (1987). Moreover, error predicated on an evidentiary ruling does not
warrant reversal of the trial court's judgment unless the court's actions were inconsistent
with substantial justice and affected the substantial rights of the parties. Evid.R. 103(A);
Civ.R. 61. Poppy v. Whitmore, 8th Dist. Cuyahoga No. 84011, 2004-Ohio-4759, ¶ 38.
{¶68} Appellants contend that the erroneous introduction of irrelevant and
improper evidence led the jury to conclude that that the appellants’ exclusive, continuous,
and adverse possession was not open and notorious for twenty-one years. Appellants
submitted a list of the alleged erroneously admitted evidence:
Various deeds from 1970-1993 regarding the transfer of the
Dickerhoof Farm. See Trial Exs. 9, 10, 11; Tr. Vol. IV, at 547-548;
Testimony and documents related to the Park District's documentary
"due diligence" prior to purchasing the railroad property. See Tr. Exs. 14,
22; Tr.Vol. IV, at 548-549, 554;
Stark County, Case No. 2017CA00231 27
Letters from counsel representing Dan Dickerhoofs' father in 1998
and 1999 not expressly asserting adverse possession claim. See Trial Exs.
17, 20; Tr. Vol. IV, at549-550, 554;
A 1998 newspaper article about a meeting debating trails. See Trial
Ex. 18; Tr.Vol. IV, at 550-551;
A 2004 deed regarding the transfer of the Dickerhoof Farm. See Trial
Ex. 25; Tr. Vol. IV, at 555-556;
Testimony about how the Dickerhoofs did not expressly state an
adverse possession claim to Mr. Fonte in 2009, Tr. Vol. III, at 443-444, that
the Park District offered to "accommodate" the Dickerhoofs in 2009 id., at
471, and Mr. Fonte's impression of the disputed property in 2009, id., at
472-475;
Testimony about inconvenience to the Park District and public
officials to prepare for trial. Tr. Vol. III, at 475-477.
{¶69} Appellants assert that the exhibits described in this assignment are
irrelevant to the issue of whether appellants have provided clear and convincing evidence
that they and their predecessors were in possession of the contested property and that
their possession and use of the property was exclusive, continuous, open and notorious
for twenty-one years prior to the appellee acquiring title. We conclude appellants’ focus
is unduly limited and that the exhibits are relevant to the elements of adverse possession
and the credibility of appellants’ witness.
{¶70} Appellants’ relied entirely upon the testimony of Daniel Dickerhoof to
provide clear and convincing evidence for all elements of adverse possession, so his
Stark County, Case No. 2017CA00231 28
credibility was paramount and subject to challenge by appellee. “Generally, a witness's
credibility is put at issue whenever he or she testifies,” Redman v. Watch Tower Bible &
Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 1994-Ohio-514, 630 N.E.2d 676 (1994),
and the credibility of a witness may be attacked. Evid.R. 607(A). If the jury chose to
discount any of Mr. Dickerhoof’s testimony, appellants’ claim could fail. Appellee was
cognizant of this issue, and presented evidence that the trial court could reasonably
interpret as an attack on the credibility of Mr. Dickerhoof.
{¶71} Mr. Dickerhoof’s testimony was based, in part, on his memory as a very
young child. He was four years old when his family purchased the property and appellants
are claiming that their possession began soon after that purchase. Mr. Dickerhoof moved
from the property in 1990 and lived in Columbus for a period of time, so the appellants’
sole witness was very young at the beginning of the critical twenty-one year time period
and was absent from the property for some time during the end of that time. Mr.
Dickerhoof’s absence from the property, his youth, in his lack of knowledge regarding
deeds, letters and newspaper articles provides some evidence that Mr. Dickerhoof’s
knowledge of events and transactions regarding the disputed property was limited,
unreliable and should be rejected.
{¶72} Appellants presented Mr. Dickerhoof’s testimony to establish that their claim
to the property vested through adverse possession prior to appellee’s purchase in 1997.
Appellee used deeds, letters from family attorneys and newspaper articles to challenge
that assertion by demonstrating that Mr. Dickerhoof was unaware of the fact that
appellants and their predecessors in title made no claim of adverse possession prior to
this case but, instead, relied upon an allegation that a reversionary clause provided
Stark County, Case No. 2017CA00231 29
appellants’ title. He was also not aware of the deeds executed by Dickerhoof family
members that continued to reflect the railroads interest in the corridor that bisected their
property. The exhibits presented by appellee served to offer some evidence that Mr.
Dickerhoof’s knowledge was subject to gaps and that, consequently, his recollection
regarding the appellants’ possession and use may also suffer gaps.
{¶73} Appellants presented testimony describing what steps they took to
incorporate the rail line into their farm and make it evident to the world that they own that
parcel. Appellee offered several exhibits as evidence of actions the appellants did not
take to notify the world of their claim. Appellants did not remove the description of the
railroad corridor from their deeds, did not assert adverse possession through counsel,
and included the corridor in a drawing submitted as an exhibit. (Dickerhoof Exhibit 2). The
jury was entitled to receive all of this evidence, consider the credibility of the witnesses
and the weight of the evidence and render a decision based on the same. For this reason,
as well as the reasons discussed below, we find that the trial court did not abuse its
discretion in admitting the evidence described by appellant in this assignment.
{¶74} Appellants contend that deeds that reflect the continued existence of the
railroad line in the appellants’ property (Exhibits 9, 10, and 11) were improperly admitted,
yet they did not object to the presentation of the documents or testimony during the trial
of the matter. Each document was presented to the witness and the relevant portions
were read aloud to the jury without any objection by appellants. The title examination and
the survey (Exhibit 14 and Exhibit 22) received virtually the same treatment by the
appellants. When asked to identify Exhibit 14, appellants’ counsel stated “objection,
hearsay” but that objection was overruled. The witness then responded to questions
Stark County, Case No. 2017CA00231 30
about the content and effect of the title examination without objection. The testimony
regarding Exhibit 22, the survey, was interrupted by one objection, then the question was
rephrased and answered without objection. The balance of the testimony regarding
Exhibit 22 was not interrupted by any further objection.
{¶75} Because extensive testimony regarding exhibits was received without
objection, admission of those exhibits over objection is not an abuse of discretion. State
v. Shaw, 7th Dist. Jefferson No. 03 JE 14, 2004-Ohio-5121, ¶¶ 17, 18. Further, the deeds
are relevant to demonstrate what actions appellant failed to take to make their use and
possession more open and more notorious and the survey and title exam assisted the
jury in understanding the timing of the purchase as it relates to the possession of the
property by appellants.
{¶76} Appellant submitted a “continuing objection” to Exhibit 17, (the letter from
John Morris to Robert Fonte) but the grounds for the objection are not clear in the record.
Ultimately, that document was admitted only for purposes of impeachment. Appellee
questioned Mr. Dickerhoof extensively about another letter from John Morris to Robert
Fonte, Exhibit 20, but made no objection at the time the testimony was offered. We believe
the testimony at trial was such that the subsequent admission of the document was not
an abuse of discretion. Shaw, supra.
{¶77} Exhibit 18, a newspaper article regarding the “Packed Meeting” about the
use of the rail line by the appellee was submitted to the witness and extensively reviewed
before the jury without any objection.
{¶78} Exhibit 25, another deed that reflected the continued existence of the rail
line in the legal description of the appellee’s property, did bring an objection because it
Stark County, Case No. 2017CA00231 31
was dated 2004, purportedly after the time for vesting by adverse possession had
occurred. The Court overruled that objection and concluded that the date upon which title
to the property may have vested was an issue for the jury to decide, though the trial court
did make it clear that this ruling should not be interpreted as general approval of all
evidence outside the time period described by appellants.
{¶79} Appellant submitted cases that it describes as prohibiting the introduction
of post vesting evidence in adverse possession cases as irrelevant because title has
already vested. While the cases affirm that the use need only exist for twenty-one years,
the holdings in those cases do not stand for the proposition that all facts that might arise
after the purported twenty-one year use are irrelevant and inadmissible. We cannot state
that facts relevant to whether the use was continuous, exclusive, open and notorious for
twenty one years will not arise after the expiration of the relevant time period. Further,
evidence regarding the credibility of a witness can arise at any time and may be offered
not to establish the elements of the claim, but to attack the witness’s credibility.
{¶80} The Appellant next claims that the admission of testimony that appellee felt
a need to defend its purchase, that its actions would have changed had appellants notified
it of its adverse possession claim, that it had to prepare to rebut the appellants’ claim that
they paid property taxes on the disputed land and that the parties discussed an
accommodation of the Dickerhoof’s concerns at a 2009 meeting were inappropriately
permitted. The latter issue was the subject of a long discussion at the bench among the
trial court and the parties resulting in an agreed format for a question, so we are unwilling
to consider any objection to that question. With regard to the other issues we find that
even if we were to conclude this evidence was improperly admitted, ”there is no reason
Stark County, Case No. 2017CA00231 32
to apprehend that the improper or irrelevant testimony could have had any influence upon
the jury.” Hovanec v. Ondak, 71 Ohio Law Abs. 58, 60–61, 124 N.E.2d 774, 777 (8th
Dist.1955). Unlike the party in Pearstein, infra, these matters were not presented in “great
detail and to a considerable extent” Pearlstein v. A.M. McGregor Home, 79 Ohio App.
526, 528, 47 Ohio Law Abs. 615, 73 N.E.2d 106 (8th Dist.1947) but were only a minor
part of two days of testimony. We cannot find that inclusion of this evidence impacted a
substantial right. (Evid.R. 103(A)).
{¶81} The appellants next contend the trial court erred in allowing Park District to
testify at length and introduce documents regarding their "due diligence" in purchasing
the property and cites to Volume III pages 401-405 of the Transcript, but those pages
contain no objection to the testimony contained therein. Appellants complain of the
admission of the title exam, but only objected to the appellee asking the following:
And why don't you go ahead and turn to Exhibit 14 in your binder. And can
you tell us what Exhibit 14 is?
MR. FUSONIE: Objection; hearsay.
THE COURT: Overruled
{¶82} The trial court did not abuse its discretion in overruling this objection.
{¶83} Appellants also direct us to pages 405 to 411 of the transcript during which
their counsel complained of the appellees reference to obtaining a title exam. Appellants
did object and the trial court found that the appellees could introduce evidence regarding
the process and timing of obtaining title. The timing of acquiring title was inadvertently
emphasized by counsel for Appellant when he stated “The issue before the jury is whether
there was adverse possession that vested prior to them obtaining the quit-claim deed.”
Stark County, Case No. 2017CA00231 33
(Page 406, pages 8-11). The trial court concluded the appellee could introduce the
evidence to describe when and how they acquired title, but no more. We do not find this
ruling an abuse of discretion.
{¶84} The Appellant next complains of the Court permitting the lack of public
statement of adverse possession as evidence that the elements of adverse possession
were not satisfied. We addressed the admission of the exhibits that appellee used to
illustrate the absence of that information earlier and need not repeat our analysis here but
incorporate it by reference. We note that appellants did not object to appellee’s closing
argument and we disagree with their characterization of the goal of the argument.
Appellants suggest that the appellee argued that appellants were obligated to announce
their adverse possession claim to the world to preserve it. In fact, the argument is an
attempt to persuade the jury that the appellants and their attorney were aware of the law,
and concluded that the adverse possession claim was not established by the facts. The
trial court did not abuse its discretion by admitting the evidence or the argument,
particularly in the absence of an objection to the argument.
{¶85} Appellant did not object to the argument regarding deeds at pages 586-587
of the transcript and we have previously addressed the issue of using the deeds as
exhibits. The argument only makes the point that deeds announce the status of the
property. As noted above, we find these exhibits are relevant to the credibility of the
appellants’ sole witness, and the issue of whether the use and possession was open and
notorious and therefore, the trial court did not abuse its discretion in allowing its
admission.
Stark County, Case No. 2017CA00231 34
{¶86} Finally, because we find that the trial court did not err, we find that the
cumulative error doctrine does not apply. In State v. Brown, 100 Ohio St.3d 51, 2003–
Ohio–5059, 796 N.E.2d 506, the Ohio Supreme Court recognized the doctrine of
cumulative error. However, as explained in State v. Bethel, 110 Ohio St.3d 416, 2006–
Ohio–4853, 854 N.E.2d 150, ¶ 197, it is simply not enough to intone the phrase
“cumulative error.” State v. Sapp, 105 Ohio St.3d 104, 2004–Ohio–7008, 822 N.E.2d
1239, ¶ 103. Appellants cite the doctrine of cumulative error, but gives no analysis or
explanation as to why or how the errors have had a prejudicial cumulative effect, but
simply concludes that the jury verdict is evidence that the jury was misled.
{¶87} Further, where we have found that the trial court did not err, cumulative error
is simply inapplicable. State v. Carter, 5th Dist. Stark No. 2002CA00125, 2003–Ohio–
1313, ¶ 37. To the extent that we have found that any claimed error of the trial court was
harmless, or that claimed error did not rise to the level of plain error, we conclude that the
cumulative effect of such claimed errors is also harmless because taken together, they
did not materially affect the verdict. State v. Leonard, 104 Ohio St.3d 54, 89–90, 2004–
Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185.
{¶88} For those reasons we cannot conclude that the trial court abused its
discretion regarding the evidentiary rulings and the third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶89} In their fourth assignment of error, appellants argue that the jury’s verdict
was against the manifest weight of the evidence, relying solely on Daniel Dickerhoof’s
testimony about his family’s use of the property and contending that the appellee offered
no evidence regarding the use of the property from 1972 to 1997.
Stark County, Case No. 2017CA00231 35
{¶90} In Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517, 2012–Ohio–
2179, the Ohio Supreme Court distinguished the terms “sufficiency” and “weight” in civil
cases, declaring that “manifest weight” and “legal sufficiency” are “both quantitatively and
qualitatively different,” in the same manner the Supreme Court previously held regarding
criminal cases in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997),
paragraph two of the syllabus. The court found sufficiency of the evidence to be “a term
of art meaning that legal standard which is applied to determine whether the case may
go to the jury or whether the evidence is legally sufficient to support the jury verdict as a
matter of law. * * * In essence, sufficiency is a test of adequacy.” Eastley, ¶ 11, citing,
Thompkins, supra at 386 and Black's Law Dictionary 1433 (6th Ed.1990).
{¶91} By contrast, the weight of the evidence concerns:
the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other. It indicates clearly to
the jury that the party having the burden of proof will be entitled to their
verdict, if, on weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics, but depends on its
effect in inducing belief.
Eastley at ¶ 12, citing Thompkins, supra at 387, and Black's, supra at 1594. (Emphasis
omitted).
{¶92} A reviewing court must not substitute its judgment for that of the trial court
where there exists some competent and credible evidence supporting the judgment
Stark County, Case No. 2017CA00231 36
rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610,614 1993-Ohio-9, 614
N.E.2d 742 (1993).
{¶93} The inviolate nature of the jury process and its authority as a fact finding
body is affirmed by Section 3, Article IV, Ohio Constitution, as “[n]o judgment resulting
from a trial by jury shall be reversed on the weight of the evidence except by the
concurrence of all three judges hearing the cause” on appeal. However, an appellate
court may not merely substitute its view for that of the jury, but must find that “the jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” Thompkins, supra, at 387. Accordingly,
reversal on manifest weight grounds is reserved for “the exceptional case in which the
evidence weighs heavily against” the jury’s decision. Thompkins, supra.
{¶94} Parties asserting adverse possession “must prove, by clear and convincing
evidence, exclusive possession and open, notorious, continuous, and adverse use for a
period of twenty-one years. Grace v. Koch, 81 Ohio St.3d 577, 1998-Ohio-607, 692
N.E.2d 1009 (1998). The Ohio Supreme Court has defined “clear and convincing
evidence” as the measure or degree of proof that will produce in the mind of the trier of
fact a firm belief or conviction as to the allegations sought to be established. It is
intermediate, being more than a mere preponderance, but not to the extent of such
certainty as required beyond a reasonable doubt as in criminal cases. In re: Estate of
Haynes, 25 Ohio St.3d 101, 103–04, 495 N.E.2d 23(1986); see, also, State v. Schiebel,
55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990). While the appellants cite to time, money an
effort invested in developing this property, “there are no equities in favor of a person
Stark County, Case No. 2017CA00231 37
seeking to acquire property of another by adverse holding” Grace, supra at 880, citing 10
Thompson on Real Property (Thomas Ed.1994) 108, Section 87.05.
{¶95} The appellants focus on documents and testimony presented by appellee,
contending that the trial court erred in admitting several exhibits and statements. We
have previously addressed the admission of those exhibits and testimony and will not
repeat our findings here. Appellant overlooks evidence that was presented without
objection that the jury may have reasonably found of sufficient weight to conclude that the
appellants failed to demonstrate that their possession and use of the property was open
and notorious by clear and convincing evidence.
{¶96} Mr. Dickerhoof testified regarding the use of the abandoned railroad
property for pasture and for planting and by his testimony suggested that the strip of
property in question was indistinguishable from the surrounding area of the farm, urging
the jury to conclude from that testimony that the use was open and notorious. When
asked about photographs of the area, Mr. Dickerhoof insisted that he took photographs
and gave them to his attorney but he admitted that none had been shown to the jury.
{¶97} Mr. Dickerhoof also testified that he had installed a fence and no
trespassing signs at the points where the corridor crossed his property line, but no
photographs of the signs or fence was offered. The jury could reasonably draw a negative
inference from the failure to provide those photographs, particularly when the
photographs were submitted to counsel, as evidence that the use was not clearly and
convincingly open and notorious.
{¶98} The Dickerhoof family began planting the northern half of the property 1975
and the southern portion in 1978. This statement by Mr. Dickerhoof was never clarified
Stark County, Case No. 2017CA00231 38
and may have been relied upon by the jury to conclude that the possession of the property
did not become open and notorious until after 1978, far too late to establish adverse
possession by 1997 when the appellee purchased the property.
{¶99} Further, the jury may have reasonably viewed the need to install a fence
and no trespassing signs at the points were the corridor intersected the appellants’
property border as evidence that after several decades the rail way line was still
identifiable and that a view of the property would not clearly and convincingly show open
and notorious use. The testimony that bicyclists were using the path in 1978, years after
the Dickerhoof family purportedly began farming the property, may also raise doubts that
the use was open and notorious. We have commented on Mr. Dickerhoof’s youth during
the first years of the critical time as well as his absence from the property during that time.
These gaps also serve as a basis for a jury to doubt appellants have presented clear and
convincing evidence that the use was continuous for twenty-one years.
{¶100} Counsel for appellee asked Mr. Fonte about his trip to the property
in the Spring of 2017 whether he was able to discern what use appellants were making
of the property. He replied “none.”
{¶101} Judge Clunk did not hear any mention of the Dickerhoof’s farming
the corridor after his Rotary club pursued litigation to preserve the right to use it and then
abandoned the project due to time constraints. He confirmed that he would have expected
to hear about the appellants’ use of the property if it had occurred. During his testimony
he discussed the leases that were associated with portions of the corridor, providing
evidence that the Dickerhoof’s use may not have been adverse.
Stark County, Case No. 2017CA00231 39
{¶102} This testimony and evidence, if accepted by a jury, could lead to a
conclusion that appellants’ evidence was not clear and convincing.
{¶103} We have reviewed the entire record, weighed the evidence and all
reasonable inferences, considered the credibility of witnesses and after resolving any
conflicts in the evidence, we cannot find that the jury clearly lost its way and created such
a manifest miscarriage of justice that the decision must be reversed and a new trial
ordered. The appellants’ fourth assignment of error is overruled.
FIFTH ASSIGNMENT OF ERROR
{¶104} In their fifth assignment of error, appellants assert the trial court erred
by refusing to amend its entry of July 31, 2017 and declare the right of the appellants to
cross the railroad line. Appellants asserted a right to an easement, a prescriptive
easement or an easement by necessity in the form of affirmative defenses. As previously
noted, the appellants offered no evidence in support of its claims in the bench trial. The
record in the jury trial does not contain any reference to an easement or any right to cross
the subject property. After receiving the trial court’s findings of fact and conclusions of
law, the appellants petitioned the trial court to amend its decision to include a declaration
of the appellants’ rights to cross the subject property.
{¶105} We have reviewed the record regarding the bench trial and the jury
trial and find that it contains no testimony or exhibit in support of appellants’ right to cross
the railroad property. The Styers Deed (appellee’s Trial Exhibit 1) does contain the
following phrase immediately after the metes and bounds description of the property to
be transferred: “Two farm crossings to be built for grantors at a convenience point [for]
grantee [R. N.].’ Neither the intent of this phrase nor issues regarding the size, location
Stark County, Case No. 2017CA00231 40
and limitations regarding the use of any crossing as well as whether any right existed
after the appellee’s acquisition of the property were addressed during either the bench
trial or the jury trial. The appellants not only did not present any evidence regarding the
crossing, but they also did not make any specific request to the trial court to render such
a decision at any juncture during either trial.
{¶106} During the bench trial, the parties engaged in lengthy discussions
and argument regarding several issues. The trial court clearly asked the parties if there
were other issues or matters to be discussed and with the exception of proffering
testimony regarding possession of the property, the appellant offered nothing. This case
was pending for nearly two years before the jury verdict and was vigorously prosecuted
and defended, but, with the exception of the references in the appellants’ a&nswer to the
complaint, no clear reference to the need for a crossing over the property can be found
in the record.
{¶107} Appellants were seeking an order from the trial court regarding a
matter that could have been brought to the court’s attention at either trial, but was not.
“To require a trial court to grant a defendant judgment as a matter of law on an issue
never timely raised would fly in the face of fundamental rules of our adversarial system of
trial, which place specific responsibilities on parties involved in litigation to shape the
course of the trial.” Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77,
2002-Ohio-7113, 781 N.E.2d 121, ¶ 146, citations omitted. The trial court correctly
decided this issue. Appellants’ fifth assignment of error is overruled.
Stark County, Case No. 2017CA00231 41
{¶108} For the forgoing reasons, the decisions of the Stark County Court of
Common Pleas are affirmed.
By: Baldwin, J.
Wise, John, P.J. and
Delaney, J. concur.