Hampton v. Lively

[Cite as Hampton v. Lively, 2020-Ohio-4713.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
CAROL JEAN HAMPTON, : Case No. 19CA9
Plaintiff-Appellant, :
v. : DECISION AND
JUDGMENT ENTRY
CHAD LIVELY, :
Defendant-Appellee. : RELEASED 9/28/2020
______________________________________________________________________
APPEARANCES:
Brigham M. Anderson, Ironton, Ohio, for appellant.
Randall L. Lambert, Ironton, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} The Estate of Carol Jean Hampton (the “Estate”) appeals from a judgment
of the Lawrence County Common Pleas Court denying its adverse possession claim
regarding certain real property in Lawrence County. The Estate contends that the court
misapplied the law and erred when it found that the Estate failed to prove adverse use of
the property for the requisite 21-year period. The evidence shows that in 1980, Carol
Jean Hampton and her family took possession of the property pursuant to a sales
contract after payment of the purchase price, and for over 21 years, they possessed the
property and treated it as their own even though no change in record ownership
occurred. This use was adverse, not permissive, because it was not accompanied by an
express or implied recognition of a right of the sellers to terminate it. The trial court
misapplied the law to the extent it suggested otherwise, and its related conclusion that
the Estate failed in its burden to show adverse use for 21 years is against the manifest
Lawrence App. No. 19CA9 2
weight of the evidence. Accordingly, we reverse the trial court’s judgment and remand
for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
{¶2} In October 2016, Carol Jean Hampton filed a complaint against Chad
Lively, the record owner of 1606 Charlotte Street, Ironton, Ohio, located in the Green
Valley Estates subdivision, alleging she had obtained legal ownership of the property by
adverse possession and asking the court to, among other things, quiet title.
Subsequently, she died, and the trial court substituted her estate as plaintiff.
{¶3} A magistrate conducted a bench trial and heard evidence that Chad
Lively’s grandparents, Thomas and Louise Lively, acquired the property in 1960 and
remained the record owners until 2016, when Chad Lively probated the estates of his
grandparents and his father, James Lively, and became the record owner. However,
from 1980 to 2012, Carol Jean Hampton lived on the property, which she shared for
many years with her husband, Paul Destocki, and their sons, Paul Eddie and Chris (the
“Hampton/Destocki family”).
{¶4} Beverly Nance (“Nance”), Carol Jean Hampton’s sister, testified that one
day in 1980, Nance and her mother, Leona Hampton, went to Green Valley Estates to
look for a house for the Hampton/Destocki family. They toured two homes on Charlotte
Street with “for sale” signs outside. They liked the property at issue, and her mother
decided to buy it. The next day, Nance saw her mother write a check but did not see the
face of it. They drove to the property, where her mother talked to Louise Lively and gave
her the check. Nance did not see or converse with the Lively family after that day. She
testified that the Hampton/Destocki family moved to the property about 30 to 45 days
Lawrence App. No. 19CA9 3
later and lived there for at least 30 years. Nance testified that from 1980 until 2016, tax
bills for the property, which had the names of Thomas and Louise Lively on them, came
to her home. Her family paid the property taxes from 1980 through 2015.
{¶5} Chris Hampton Destocki (“Destocki”) testified that shortly after his birth in
1980, his family moved onto the property. His brother moved out around 1992 or 1993,
and Destocki moved out in 1998. His parents remained on the property until 2012. His
father had a stroke and spent four months at a physical therapy facility. After his father
was discharged in May 2012, his parents moved in with him. Destocki testified that after
his father died in December 2013, his mother wanted to move back to the house, so they
began to remodel it. However, the last time Destocki was in the house was in 2015, and
his mother never moved back before her death. Destocki admitted that he could not
locate any documentation regarding the check his grandmother gave Louise Lively in
1980 and that he had never seen a deed to the property. However, he testified that
everything his grandmother bought was “always bought and paid for right there” with
cash or check. He was unaware of any other payments on the property, never
witnessed any interaction between his mother and the Lively family, and was unaware of
any agreement between them. He explained that it was not unusual for his family to not
record a deed because “they were afraid of law suits [sic]” and that his mother was a
hoarder who “put everything off” and “always thought she had tomorrow.” He testified
that a deed could have been in the house with other important documents, but he had no
reason to look for one prior to 2016 and did not have access to the house after 2016, so
“that stuff is gone forever.” Destocki testified that his grandmother added a garage to the
Lawrence App. No. 19CA9 4
house in 1992 or 1993, that his father had maintained homeowners’ insurance on the
property, and that his family had paid property taxes on it.
{¶6} Sara Francis Salisbury testified that she has lived next door to the property
for 61 years. She believed Carol Jean Hampton and her husband owned the property
because “[a]ccording to * * * Louise Lively they sold the house to them.”
{¶7} Chad Lively (“Lively”) testified that he was born in 1973 and lived on the
property with his grandparents and father from 1973 until 1980. Lively testified that in
late 1979 or early 1980, he witnessed a conversation between his grandmother, Carol
Jean Hampton, and Paul Destocki but did know the subject of it. In 1980, his
grandparents purchased a house in Florida because his grandfather had health issues
and needed to live in a warmer climate, and the family moved there. Lively
acknowledged the Hampton/Destocki family possessed the property between 1980 and
2012 and testified that “[t]here must have been some kind of an arrangement” between
them and his grandparents even though he did not know the details of it. Lively testified
that after moving to Florida, he observed his grandparents continue to hold themselves
out as the owners of the property, and he thought they owned it based on conversations
with them and his father. However, he had no knowledge of his grandparents or father
going back to the property, conversing with the Hampton/Destocki family, receiving rent
payments, maintaining the property, or expending money on it between 1980 and their
deaths. His grandfather died in 1989, and his grandmother sold the Florida house in
1992, moved to an apartment, and died in 1997. Lively’s father moved back to Ohio in
2004 and lived in Ironton for a year before his death in 2007. From 1980 until 2016,
Lively went to Lawrence County four or five times but went to the property only once
Lawrence App. No. 19CA9 5
around 2003 or 2004 and knocked on the door. Lively admitted that he never received
rent for the property, and prior to 2016, he did not converse with the Hampton/Destocki
family, maintain the property, or expend money on it. Lively lived in Florida until 2016
when he became the record owner of the property and moved onto it. Lively testified
that at that time, the house was in poor condition, contained a lot of garbage, and
showed no signs of a recent remodel.
{¶8} Brandy Lively testified that she met Lively around 1999 or 2000 and
married him in 2005. She witnessed conversations between Lively and his father about
the property in which Lively indicated that “the house was his,” that his family had “left
the house with people,” and that he “intended on one day coming back.” In 2007 and
2010, she and Lively came to Lawrence County for the funerals of his father and step-
father respectively, but she did not go to the property. Around 2010 or 2011, she
unsuccessfully tried to contact Carol Jean Hampton after getting a report that the
property “wasn’t in good condition.” In 2016, she obtained information about the local
health department possibly condemning the property. She sent Destocki a message
expressing interest in purchasing the property from his family to “bait” him into
responding because she wanted to get in touch with his mother to discuss the condition
of the property. She “had no intention of purchasing a house that we already owned.”
{¶9} The magistrate found that from 1980 to 2012, the Hampton/Destocki family
continuously, exclusively, openly, and notoriously possessed the property but that the
Estate failed to establish adverse use of the property for 21 years. The Estate filed
objections to the magistrate’s decision, which the trial court overruled. The court agreed
with the magistrate that the Estate established the elements of its adverse possession
Lawrence App. No. 19CA9 6
claim by clear and convincing evidence except adverse use for 21 years. The court
found that “[t]he evidence proffered by [the Estate] at trial indicated that some form of
financial transaction occurred in or around 1980 between Leona Hampton and Thomas
and Louise Lively, after which the Livelys vacated the house and moved to Florida and
Carol Jean Hampton and her family took up residency at 1606 Charlotte Street, but no
deed or written evidence regarding the transaction was produced at trial.” The court
stated that “[r]egardless of whether there was an alleged sale, lease or advanced rent
paid, the obvious conclusion is that the Hampton/Destocki family initially moved into the
property with the permission and consent of the Livelys.” The court explained that
possession is not adverse if it is with the owner’s permission, that the permission did not
terminate until Louise Lively died in 1997, and that two events—abandonment of the
property in 2012 and Chad Lively obtaining record title in 2016—“terminated the
Plaintiff’s consecutive years short of the 21-year requirement.”
II. ASSIGNMENT OF ERROR
{¶10} The Estate presents one assignment of error:
The Trial Court erred when it failed to find that the Plaintiff had adversely
possessed 1606 Charlotte Street, Ironton, Ohio 45638 and misapplied the
law and meaning of “adverse,” as it relates to an Adverse Possession
Claim.
III. LAW AND ANALYSIS
{¶11} The Estate maintains that the trial court erred when it held that the Estate
failed to prove adverse use of the property for 21 years. The Estate asserts that the
court misapplied the law and the meaning of “adverse” when it concluded that Carol
Jean Hampton’s initial possession of the property was not adverse “due to the fact that
Lawrence App. No. 19CA9 7
she purchased the property and a deed was never recorded.” The Estate contends that
“[t]here is no question that the facts at trial in this case established that Carol Jean
Hampton occupied what she believed to be her own property” and that the Estate proved
adverse use under Evanich v. Bridge, 119 Ohio St. 3d 260, 2008-Ohio-3820, 893 N.E.2d
481, because Carol Jean Hampton possessed the property and treated it as her own for
more than 21 years.
{¶12} Lively maintains that without documentary evidence of a sale, “it is
impossible to ascertain the arrangement” between his grandparents and the
Hampton/Destocki family, and the check Louise Lively accepted could have been a down
payment or rent. Lively claims that his grandparents believed they still owned the
property and notes that until 2016, they were the record owners, and the property tax
bills listed them as such. He also asserts that regardless of what the agreement was, it
is “obvious” the Hampton/Destocki family “moved in with permission.”
{¶13} In Turner v. Robinson, 4th Dist. Highland No. 16CA21, 2017-Ohio-7228,
¶ 29, we explained:
“An appeal of a ruling on an adverse possession claim is usually reviewed
under a ‘manifest weight of the evidence’ standard of review.” Nolen v.
Rase, 4th Dist. Scioto No. 13CA3536, 2013-Ohio-5680, ¶ 9. “In other
words, an appellate court will not reverse a trial court’s decision on this
issue if it is supported by some competent, credible evidence.” Id. “This
standard of review is highly deferential and even the existence of ‘some’
evidence is sufficient to support a court’s judgment and to prevent a
reversal.” Id. However, where the appellant challenges the trial court’s
choice or application of law, our review is de novo. Pottmeyer v. Douglas,
4th Dist. Washington No. 10CA7, 2010-Ohio-5293, ¶ 21.
{¶14} “To acquire title by adverse possession, a party 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, 692
Lawrence App. No. 19CA9 8
N.E.2d 1009 (1998), syllabus. “Clear and convincing evidence is that measure or degree
of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent
of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which
will produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
{¶15} The trial court determined that the Estate proved exclusive possession and
open, notorious, and continuous use of the property for a 21-year period; the dispute on
appeal centers on whether the Estate proved adverse use for the requisite period.
“[I]ntent is objective rather than subjective in determining whether the adversity element
of adverse possession has been established, and the legal requirement that possession
be adverse is satisfied by clear and convincing evidence that for 21 years the claimant
possessed property and treated it as the claimant’s own.” Evanich, 119 Ohio St. 3d 260,
2008-Ohio-3820, 893 N.E.2d 481, at ¶ 13. Adverse use is “non-permissive use.” Turner
at ¶ 37.
{¶16} The trial court misapplied the law when it suggested that possession
pursuant to a sales contract is never adverse use, and its related conclusion that the
Estate failed to prove adverse use for 21 years by clear and convincing evidence is
against the manifest weight of the evidence. If a buyer takes possession of property
after paying the purchase price, the buyer manifests an intent to treat the property as his
or her own because the buyer’s performance triggers the seller’s duty to convey legal
title to the buyer. See generally Coggshal v. Marine Bank Co., 63 Ohio St. 88, 57 N.E.
1086 (1900), paragraph one of the syllabus (“The interest of the vendee of land before
Lawrence App. No. 19CA9 9
conveyance is an equitable estate in the land, equal to the amount of the purchase
money paid, and which, upon full payment, may ripen into a complete equity, entitling
him to a conveyance of the legal title according to the terms of the contract * * *”); Adams
v. Wright, 353 Mo. 1226, 1232, 187 S.W.2d 216 (1945) (“One rule of real property law is
that where the vendor has delivered possession to the vendee, but retains the legal title
under a contract to deliver a deed when the purchase money is fully paid * * *, the
holding of the vendee will not be deemed adverse * * * until the purchase price is paid”
(Emphasis added.)). The buyer’s use is not permissive because it is not accompanied
by an express or implied recognition of a right of the seller to terminate the use. See
Cadwallader v. Scovanner, 178 Ohio App. 3d 26, 2008-Ohio-4166, 896 N.E.2d 748, ¶ 57
(12th Dist.), quoting Manos v. Day Cleaners & Dyers, Inc., 91 Ohio App. 361, 363, 108
N.E.2d 347 (9th Dist.1952) (a use is not adverse if it is accompanied by “ ‘an express or
implied recognition of the landowner’s right to put an end to the use’ ”); Tenney v.
Luplow, 103 Ariz. 363, 369, 442 P.2d 107 (1968), quoting Miller v. Conley, 96 Or. 413,
419, 190 P. 301 (1920) (permissive use exists when there is “ ‘permission merely to
occupy land in subordination to the legal title of the one granting the permission’ ” and
“ ‘does not include possession given with design to confer the legal title upon the one
who assumes the occupancy’ ”); see generally Fountain v. Lewiston Natl. Bank, 11 Idaho
451, 509-510, 83 P. 505 (1905) (“It is clear, * * * upon principle, that one who purchases
a tract of land and pays the purchase price and enters into the possession thereof,
believing he has title whether he receives a good deed of conveyance, an imperfect one,
or no deed at all, nevertheless enters into a possession adversely to the vendor and all
the rest of the world; and, while the entry is made with the permission of the owner, it is
Lawrence App. No. 19CA9 10
from that moment adverse to him, and an adverse and hostile possession is the real
intent of the party to such a contract”).
{¶17} Although the trial court did not specifically resolve whether the 1980
transaction was a sale or lease, there is no competent, credible evidence that would
support the conclusion that the Hampton/Destocki family took possession pursuant to a
lease agreement. Rather, the evidence shows that the family took possession pursuant
to a sales contract after having paid the purchase price and that for over 21 years, the
family possessed the property and treated it as their own. Nance testified about how in
1980, she went with her mother to Green Valley Estates to look for a house for the
Hampton/Destocki family, they toured the property at issue because it had a “for sale”
sign in the yard, and her mother decided to buy it and gave Louise Lively a check the
next day. Even though Nance did not see the face of the check, Destocki testified that
his grandmother always purchased things outright with cash or check; it was “how she
operated.” See Evid.R. 406 (“Evidence of the habit of a person * * * is relevant to prove
that the conduct of the person * * * on a particular occasion was in conformity with the
habit * * *”). And even though Thomas and Louise Lively remained the record owners of
the property until 2016, Destocki explained that it was possible that his family had a deed
to the property that was not recorded out of a desire to protect the property from potential
creditors and that was lost because his mother was a hoarder, and Destocki did not have
access to the property once Lively became the record owner in 2016.
{¶18} After Louise Lively accepted the check from Leona Hampton, there is no
evidence that the Lively family ever sought or received additional payments for the
property or of any other interaction between the families during the 32 years Carol Jean
Lawrence App. No. 19CA9 11
Hampton and her husband resided there. There is no evidence that any member of the
Lively family maintained the property or made expenditures on it between 1980 and
2016. There is no evidence Thomas, Louise, or James Lively even returned to the
property prior to their deaths. Notably, James Lively moved back to Ohio in 2004 and
lived in Ironton for a year before he died in 2007. There is evidence that Louise Lively
told a neighboring property owner, Salisbury, that the Livelys had sold the house to Carol
Jean Hampton and her husband.1 There is also evidence that the Hampton/Destocki
family treated the property as their own during the time they lived there. They added a
garage to the property with the help of Leona Hampton, ensured payment of the property
taxes from 1980 through 2015, and had homeowners’ insurance on the property.
{¶19} Lively directs our attention to his testimony that he observed his
grandparents holding themselves out as owners of the property after they moved to
Florida and asserts that his grandparents discussed him moving back to the property.
However, Lively did not articulate what his observations were and admitted that he had
no evidence that his grandparents went to the property, received rent, maintained the
property, expended money on it, or communicated with the Hampton/Destocki family
after moving to Florida—actions one would expect a property owner to take if there had
1 We recognize that to the extent the Estate relies on this testimony to prove a sale had occurred, the
testimony is hearsay, i.e., “a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). Even though Lively
did not object to this testimony, “when the trial court is the trier of fact, we presume that the judge
disregards improper hearsay evidence unless there is affirmative evidence in the record to the contrary.”
State v. Campbell, 8th Dist. Cuyahoga Nos. 100246 & 100247, 2014-Ohio-2181, ¶ 16. However, because
Lively did not object at trial or respond to the Estate’s reliance on Salisbury’s testimony on appeal, we are
without the benefit of arguments from the parties as to whether a hearsay exception applies. See
generally Evid.R. 804(B)(3) (“A statement that was at the time of its making so far contrary to the
declarant’s * * * proprietary interest * * * that a reasonable person in the declarant’s position would not
have made the statement unless the declarant believed it to be true” is “not excluded by the hearsay rule if
the declarant is unavailable as a witness”); Evid.R. 804(A)(4) (a declarant is unavailable as a witness if the
declarant “is unable to be present or to testify at the hearing because of death”). However, even if the
testimony was inadmissible hearsay, our conclusion in this case would be the same.
Lawrence App. No. 19CA9 12
been a landlord/tenant relationship or a sale with unpaid purchase money. Although
Lively testified that he believed his grandparents owned the property based on
conversations with them and his father, the court indicated that Lively could not testify
about what they said, presumably because it would have been inadmissible hearsay. In
addition, the testimony Lively cites for the position that his grandparents discussed him
moving back to the property is testimony of his wife—who never met his grandparents—
about statements that Lively made. Lively had no personal knowledge of the
arrangement between his grandparents and the Hampton/Destocki family.
{¶20} The Estate established the elements of its adverse possession claim by
clear and convincing evidence. We sustain the sole assignment of error, reverse the trial
court’s judgment, and remand for further proceedings consistent with this opinion.
JUDGMENT REVERSED AND
CAUSE REMANDED.
Lawrence App. No. 19CA9 13
Abele, J., dissenting:
{¶21} I respectfully dissent. The trial court determined that appellant did not
prove the adversity element of the adverse possession claim. I agree with the trial
court’s conclusion. When the original entry onto another’s property is permissive or
conferred by grant, any use consistent with such grant or permission is not adverse.
Rodgers v. Pahoundis, 178 Ohio App. 3d 229, 2008-Ohio-4468. Thus, a person who
initially occupies or possesses land with the owner’s permission cannot thereafter obtain
title by adverse possession unless the owner revokes permission, dies, sells his estate,
or the claimant makes an obvious change in the use or other distinct assertion of a right
hostile to the owner. Remund v. Stroud, Wash. App. No. 23264-2-11, 1999 WL 512505
(July 16, 1999). Consequently, I agree with the trial court’s conclusion that appellant’s
adverse possession claim should fail. Appellant, however, may have had a viable claim
to establish title and ownership through an action to quiet title. If appellant could
establish that a lost deed did, in fact, convey title to the real estate and the 1980
transaction involved the exchange of purchase money for a deed, appellant should be
the title holder, at least as against all others except for any subsequent purchaser
without notice. A grantor’s execution of a deed vests title in the grantee, whether or not
the deed is recorded, and is good against all the world except subsequent purchasers
without notice. Thus, a deed need not be recorded to pass title. Whether or not
recorded, an Ohio deed passes title upon proper execution and delivery, so far as the
grantor is able to convey it. See, generally, Wayne Bldg. & Loan of Wooster v.
Yarborough, 11 Ohio St. 2d 195, 228 N.E.2d 841 (1967). Thus, a purchaser can
Lawrence App. No. 19CA9 14
establish the execution and existence of a deed and its contents to enable a court to
determine the character of the instrument.
{¶22} In the case sub judice, it appears that some type of transaction occurred in
1980. Also, it appears that no other transactions occurred after 1980 (e.g. subsequent
sale to a purchaser without notice). Thus, it is conceivable that appellant could have
adduced evidence sufficient to establish the true nature of the original transaction.
Lawrence App. No. 19CA9 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J.: Concurs in Judgment and Opinion.
Abele, J.: Dissents with Dissenting Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.