[Cite as Eckman v. Ramunno, 2010-Ohio-4316.]




                          STATE OF OHIO, MAHONING COUNTY

                                IN THE COURT OF APPEALS

                                     SEVENTH DISTRICT


ROSEMARIE ECKMAN,                              )
                                               )      CASE NO.    09 MA 162
       PLAINTIFF-APPELLEE,                     )
                                               )
       - VS -                                  )      OPINION
                                               )
SAMUEL RAMUNNO, et al.,                        )
                                               )
       DEFENDANTS-APPELLANTS.                  )


CHARACTER OF PROCEEDINGS:                          Civil Appeal from Common Pleas Court,
                                                   Case No. 07CV3883.

JUDGMENT:                                          Reversed and Remanded.

APPEARANCES:
For Plaintiff-Appellee:                            Attorney Andrew George
                                                   Attorney Steven Elder
                                                   731 Fife Avenue
                                                   Wilmington, Ohio 45177

                                                   Attorney Damian DeGenova
                                                   42 North Phelps Street
                                                   Youngstown, Ohio 44503

For Defendant-Appellee:                            Attorney Matthew Fekete
                                                   725 Boardman-Canfield Road, Unit L-1
                                                   Youngstown, Ohio 44512

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Frank D. Celebrezze, Jr., Judge of the Eighth District
      Court of Appeals, Sitting by Assignment.


                                                   Dated: September 10, 2010
VUKOVICH, P.J.

         ¶{1}   Defendant-appellant Samuel Ramunno appeals the decision of the
Mahoning County Common Pleas Court which granted summary judgment in favor of
plaintiff-appellee Rosemarie Eckman on her adverse possession claim and thus
quieted title of a portion of Ramunno’s property to Eckman. Ramunno argues that
Eckman and her predecessors’ use of his property was permissive. Eckman contends
that the use was adverse. For the following reasons, there exists a genuine issue of
material fact as to whether the use was adverse or permissive. Consequently, the trial
court’s grant of summary judgment for Eckman is reversed, and the case is remanded
for further proceedings.
                              STATEMENT OF THE CASE
         ¶{2}   On October 17, 2007, Rosemarie Eckman filed suit against her neighbor,
Samuel Ramunno.         Her complaint disclosed that she purchased her Lowellville
property in 1992 at which time a survey incorrectly showed that her attached garage
was well off the neighbor’s property line. A 2006 survey revealed that a small corner
of her garage and nearly half of a twenty-two foot long sidewalk (that she installed)
rest on Ramunno’s property. Eckman’s complaint asked to be granted quiet title over
the property underlying the encroaching portions of her garage and sidewalk on the
grounds of adverse possession. She attached the surveys to her complaint.
         ¶{3}   Ramunno filed his answer denying the elements of adverse possession
and a counterclaim seeking an injunction ordering Eckman to remove the
encroachments from his property. Eckman responded by asserting a claim under the
Occupying Claimant’s Law in case that her adverse possession case fails and she is
ordered to vacate.     See R.C. 5303.07 and R.C. 5303.08 (dealing with eviction of
occupying claimant after owner pays for improvements); R.C. 5303.14 (dealing with
owner’s tendering of title to the occupier in return for the unimproved value of the
land).
         ¶{4}   Eckman filed a partial motion for summary judgment only as to whether
she acquired title to the land underlying the garage by way of adverse possession,
expressly omitting the issue of the sidewalk from her motion. She attached the two
surveys and the affidavit of a prior landowner stating that the garage existed for more
than twenty-one years. She alleged that there was no genuine issue of material fact
that she had established by clear and convincing evidence that the use of the property
underlying the garage was open, exclusive, notorious, adverse, and continuous for a
period of at least twenty-one years.
       ¶{5}   Ramunno opposed this motion and filed his own motion for summary
judgment. In seeking summary judgment, he first alleged that twenty-one years had
not passed since the sidewalk had been put in, requiring summary judgment for him
on Eckman’s adverse possession claim in her complaint regarding the sidewalk. He
attached his own affidavit noting that he inherited his property in 1993 from his father
and stating that Eckman installed the sidewalk after she purchased the property in
1992. He also stated that an easement had never been granted for the sidewalk.
       ¶{6}   Regarding the garage, he contested only the element requiring that the
use be adverse or hostile, insisting that the use was permissive. He then cited law for
the proposition that permissive use cannot ripen into adverse use merely due to the
passage of time. In support, he attached the affidavit of the original owner of the
garage, Mr. Innocenzi, who had purchased the property in the early 1950’s from
Ramunno’s father, who owned both lots at the time. Mr. Innocenzi stated that while
his garage was being built in the late 1950’s or early 1960’s, Ramunno’s father
advised him that the corner of it rested on Ramunno’s property. Mr. Innocenzi said
that they were good neighbors and that he had no intent to encroach on his neighbor’s
land. His affidavit disclosed:
       ¶{7}   “We talked over the situation and I offered to pay for the property, but Mr.
Ramunno said it wasn’t necessary and it wasn’t a problem and that was the way the
matter was left.
       ¶{8}   “Based on our discussion, I feel that Mr. Ramunno gave me his
permission to leave that garage corner on his land.”
       ¶{9}   Eckman replied by arguing that Ramunno cannot claim permissive use
now because his answer and counterclaim admitted that the use was not permissive.
Eckman quoted portions of these filings, which she claimed supported her waiver
argument. In the alternative to this waiver argument, Eckman claimed that even if the
use was originally permissive, Mr. Innocenzi’s affidavit only covers the period from the
original use until 1968, when he moved. Eckman urged that there must be evidence of
permissive use in the past twenty-one years.
       ¶{10} Eckman attached a letter she received from Ramunno in February of
2007, prior to the filing of the lawsuit. This was written in response to a threat from her
lawyer that she would sue Ramunno if he did not sign over an easement. Regarding
the sidewalk, the letter asks her to remove it. Regarding the garage, the letter does
not seek removal and instead refers to his “family’s generosity and tolerance over the
last 50 years to the half dozen owners” of her property and advises her to disclose the
encroachment to any new buyers.
       ¶{11} As to the waiver argument, Ramunno replied that his answer’s denial of
the portion of Eckman’s complaint stating that the use was adverse is the same as
saying that the use was permissive.         He also urged that his use of the word
encroachment in his counterclaim did not admit that the use was not previously
permissive.   In response to Eckman’s claim that Mr. Innocenzi’s affidavit was not
relevant to the past twenty-one years, he reiterates his position that permissive use
cannot ripen into adverse use merely due to the passage of time.
       ¶{12} In the alternative, he stated that permission was expressed to each new
neighbor that occupied the encroaching garage. In support, he submitted his own
affidavit stating that he lived on his property most of his life as he grew up there and
then inherited it from his father. He reiterated that it was no secret that his father had
given Mr. Innocenzi permission to finish constructing the encroaching garage on his
property. He revealed that his father always pointed out the encroachment to new
occupiers and let them know that he was permitting them to keep it there. Ramunno
stated that when he inherited the property, he continued his father’s practice and
advised Eckman that the garage encroached upon his property, that he was permitting
her to maintain its position, but that she could not further encroach onto his property.
His affidavit also pointed to a letter he wrote, which Eckman had attached to her last
filing, as evidence that the use was permissive.
       ¶{13} On March 6, 2009, a magistrate granted summary judgment to Eckman,
quieting title to Eckman over her garage encroachment. Notably, her motion only dealt
with the land underlying the garage. However, in describing the land taken by adverse
possession, the decision refers to land circled and labeled in a survey attached to
Eckman’s motion for summary judgment; this includes not only the small garage
corner but also the encroaching portion of the sidewalk and seemingly a small strip of
land surrounding these encroachments.
       ¶{14} In support of its adverse possession decision, the magistrate first ruled
that Ramunno waived the right to argue permissive use by failing to plead it in his
answer.    The magistrate also construed various statements in his answer and
counterclaim as admissions. In the alternative, the magistrate set forth three reasons
why Ramunno allegedly failed to meet his burden to prove by the preponderance of
the evidence that the use was permissive. First, the magistrate held that Ramunno
was required to show permission within the relevant twenty-one-year period, not
merely at the origination of the use.     Second, the magistrate stated that even if
permissive use at the origination is sufficient, there is no evidence of permissive use
here because mere allowance of use through laziness, indifference, or neighborly
accommodation is not sufficient to invoke the permissive use doctrine. Third, the
magistrate stated that adverse possession could be imposed in any event due to the
equities involved.
       ¶{15} Ramunno filed timely objections responding to each of the reasons set
forth by the magistrate. On August 27, 2009, the trial court overruled Ramunno’s
objections and upheld the magistrate’s decision. Specifically, the court opined that
Eckman met her burden to show that the use by her and her predecessors was
adverse and that Ramunno failed to meet his reciprocal burden of demonstrating that
there was a genuine issue of material fact, finding that there was no evidence of
permissive use in the twenty-one years prior to the proceedings. In the alternative, the
court held that Ramunno failed to raise the affirmative defense of permissive use in his
answer and thus waived the defense. The trial court granted quiet title over the same
land as did the magistrate.
       ¶{16} Ramunno filed timely notice of appeal. Ramunno’s brief sets forth the
following assignment of error:
       ¶{17} “THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN GRANTING
APPELLEE’S MOTION FOR SUMMARY JUDGMENT UPON HER CLAIMS FOR
ADVERSE       POSSESSION        AND    QUIETING       OF   TITLE,   AND   IN   DENYING
APPELLANT’S CROSS MOTION FOR SUMMARY JUDGMENT UPON HIS CLAIMS
TO QUIET TITLE.”
       ¶{18} As there are various distinct lines of analysis existing herein, we shall
divide our analysis of the threshold issues for clarity.
                                      GENERAL LAW
       ¶{19} Pursuant to Civ.R. 56(A) and (B), a party seeking to recover on a claim
or a party defending against a claim, may move with or without supporting affidavits for
summary judgment. Summary judgment can be granted only where there remains no
genuine issue of material fact for trial and where, after construing the evidence most
strongly in favor of the nonmovant, reasonable minds can only conclude that the
moving party is entitled to judgment as a matter of law. Byrd v. Smith, 110 Ohio St.3d
124, 2006-Ohio-3455, ¶10, citing Civ.R. 56(C).
       ¶{20} The burden of showing that there is no genuine issue of material fact
falls upon the party who files for summary judgment. Id., citing Dresher v. Burt (1996),
75 Ohio St.3d 280, 294.         Thereafter, the nonmovant may not rest upon mere
allegations or denials of the party's pleadings but must respond by setting forth specific
facts showing that there is a genuine issue for trial. Id., citing Civ.R. 56(E). “If the
party does not so respond, summary judgment, if appropriate, shall be entered against
the party.” Civ.R. 56(E).
       ¶{21} “[T]o 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 (1998), 81 Ohio St.3d
577, 580. The elements are stringent, and the ancient doctrine is currently disfavored
due to the uncompensated loss of property rights of the landowner. Id. A failure of
any element defeats a claim for adverse possession. Id at 579. The only element
contested regarding the land underlying the garage is the adversity element.
       ¶{22} Possession is not adverse if it is done with the owner's permission (or
license). Mosesson v. Rach (Mar. 28, 2001), 7th Dist. No. 99CA321; Willett v. Felger
(Mar. 29, 1999), 7th Dist. No. 96CO40; Coleman v. Pendello (1997), 123 Ohio App.3d
125, 130 (7th Dist.). See, also, Pavey v. Vance (1897), 56 Ohio St. 162, ¶1 of syllabus
(use without permission is adverse even if the use is known to the owner). In Grace,
the Supreme Court held that where the claimant previously had permission to mow the
neighbor’s strip, his adverse possession claim cannot be based on such act of
mowing. Grace, 81 Ohio St.3d at 582.
       ¶{23} It has been stated that if the occupying claimant has set forth a prima
facie case that the use is adverse, then the landowner has the burden of showing by a
preponderance of the evidence that such a grant of permission was actually made.
See Goldberger v. Bexley Props. (1983), 5 Ohio St.2d 83, 84; Pavey v. Vance (1897),
56 Ohio St. 162, 174 (placing the burden on the landowner to prove permission on the
grounds that the burden is rarely placed on the party holding the negative in civil suits);
Gulas v. Tirone, 184 Ohio App.3d 143, 2009-Ohio-5076, ¶23; Willett, 7th Dist. No.
96CO46 (all dealing with prescriptive easements).1
       ¶{24} However, notwithstanding the First District’s statement in Grace that the
burden shifts to the landowner to prove permissive use, the Supreme Court did not
reiterate this holding upon reviewing the appellate decision. Instead, the Court only
spoke of the occupant’s burden by clear and convincing evidence to prove all the
elements, even though there were claims of permissive use and even though the
Court specifically found that the landowner’s permission given to the occupier to mow
did not ripen into an adverse use. Grace, 81 Ohio St.3d at 582.
       ¶{25} Due to this and the mere fact that permissive is the opposite of the
adversity element of the plaintiff’s case, there may no longer be a burden on the
landowner to prove permissive use.           That is, the 1998 Grace holding may have
abrogated the prior case law imposing such a burden. However, until the Supreme
Court expressly abrogates its Goldberger and Pavey cases, we maintain our post-
Grace position set forth in Gulas that the landowner has the burden to prove
permissive use by a preponderance of the evidence after the occupier has set forth a
prima facie case of adverseness.



       1
        A prescriptive easement does not require exclusivity, as does adverse possession, but the
remaining elements are the same. See Pennsylvania RR Co. v. Donovan (1924), 111 Ohio St.3d 341,
349-350. As such, various holdings regarding the remaining elements in prescriptive easement cases
have been extended to adverse possession cases.
       ¶{26} In any event, it is merely a burden of proof by preponderance of the
evidence after the occupier has set forth a prima facie case. Goldberger, 5 Ohio St.3d
at 84 (landowner’s burden under Pavey to prove that a use was permissive does not
arise until burden initially satisfied by occupier to prove legally adverse use of land).
Further, it appears that once some evidence of permission is presented, the landowner
will have rebutted the prima facie case and transferred the burden of persuasion by
clear and convincing evidence back to the occupier. See, e.g., Cyrus Investors, Inc. v.
Huffman (Nov. 26, 1991), 10th Dist. Nos. 91AP-373, 91AP-451, fn.7 (there is a
rebuttable presumption of adversity if all elements are shown to have existed for a
required time, which shifts the burden of going forward to the owner to present some
evidence of permission but leaves the ultimate burden of persuasion on the occupier).
See, also, Grace, 81 Ohio St.3d at 582 (burden on adverse possession claimant to
show adversity by clear and convincing evidence).
       ¶{27} Still, it must be pointed out that these are burdens applicable to trial,
whereas this case is at the summary judgment stage, at which point there must merely
exist a genuine issue of material fact on the elements in order defeat a request for
summary judgment. As will be discussed there is a genuine issue of material fact for
trial here which preclude summary judgment for either party regarding the land
underlying the garage.
       ¶{28} The occupier can meet his initial burden on the adversity element by
merely showing that a permanent structure was built on his neighbor’s land. See, e.g.,
Board of Edn. v. Nichol (1942), 70 Ohio App. 467, 473 (7th Dist.) (stating that in the
absence of a license, the building of a permanent structure on another’s land shows
adversity or hostility).   Contrary to Ramunno’s view then, his admission that the
disputed portion of Eckman’s garage occupied his land was sufficient evidence for
Eckman to meet her initial burden to show adversity and to raise a genuine issue of
material fact to avoid summary judgment herself. The landowner can rebut this by
presenting evidence that the use was permissive, shifting the ultimate burden back to
the occupier to prove its case by clear and convincing evidence. As will be shown
below, Ramunno did this.
                                       WAIVER
       ¶{29} Eckman alleges that there exist two reasons why Ramunno waived the
right to claim permissive use. First, Eckman quotes portions of Ramunno’s answer
and counterclaim, which she construes as admissions by Ramunno that the use was
hostile. For instance, she asks why Ramunno would seek quiet title or an injunction if
the use was permissive and why Ramunno would say the encroachment was unlawful
or illegal if it was permissive. As Ramunno points out, merely because the use has
always been permissive for purposes of her adverse possession claim, this does not
mean that he did not rescind the permission after she threatened to sue him and that
he now only seeks to enjoin her free use of his property in order to defend himself
against her claim on his title. Moreover, Ramunno does not claim that he ever gave
permission to construct the sidewalk, which would further explain his terminology.
       ¶{30} Eckman also states that paragraph 7 of Ramunno’s answer admits the
adversity element.     To the contrary, this paragraph denies paragraph 7 of the
complaint, which claimed that the encroachment was “open, notorious, exclusive,
continuous and adverse to the interest of Defendant Samuel Ramunno and has been
for a period greater than 21 years.” By denying this paragraph, Ramunno sufficiently
denied all elements, including the adversity element. See Civ.R. 8(B) (regarding the
contents of an answer).      Thus, his answer and counterclaim do not admit to the
twenty-one years of adversity.
       ¶{31} Second, Eckman claims that permissive use is a landowner’s affirmative
defense to an occupier’s adverse possession claim, which must be affirmatively set
forth in the answer or it is waived. Civ.R. 8(C) provides in pertinent part:
       ¶{32} “In pleading to a preceding pleading, a party shall set forth affirmatively
accord and satisfaction, arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, want of
consideration for a negotiable instrument, fraud, illegality, injury by fellow servant,
laches, license, payment, release, res judicata, statute of frauds, statute of limitations,
waiver, and any other matter constituting an avoidance or affirmative defense.”
       ¶{33} An affirmative defense is in the nature of a confession and avoidance as
it admits the plaintiff has a claim but asserts a legal reason why the plaintiff cannot
recover on it. State ex rel. Plain Dealer Pub. Co. v. Cincinnati (1996), 75 Ohio St.3d
31, 33 (holding that exceptions to the Public Records Act are not in the nature of
confession and avoidance because the assertion of an exception does not admit the
allegations are true, i.e. it does not admit that the requested records are “public”). An
affirmative defense attacks the legal right to bring a claim but does not attack the truth
of the claim. RC Olmstead, Inc. v. GBS Corp., 7th Dist. No. 08MA83, 2009-Ohio-
6808, ¶41.
       ¶{34} It is more than a mere denial or contradiction of evidence but is a
substantive or independent matter which the defendant claims exempts him from
liability even if the facts of the complaint are conceded. Id., citing State v. Poole
(1973), 33 Ohio St.2d 18, 19. Thus, where a defendant claims that an element of the
plaintiff’s case is lacking, an affirmative defense is not asserted. Id. at ¶38, 40-42
(holding that the defense that one’s signature was forged merely denies the element of
the contract’s existence), citing e.g. Schneider v. Schneider, 178 Ohio App.3d 264,
2008-Ohio-4495 (gift defense is not affirmative defense as it merely denies plaintiff’s
contract claim).
       ¶{35} Here, Ramunno is not saying that the adversity or hostility element is
satisfied (confession) and that there is another reason why he should not lose his
property (avoidance). Rather, he is disputing the element of adversity or hostility.
Adversity requires a lack of permission because if the use was permissive, then the
use was not adverse. See Grace, 81 Ohio St.3d at 582 (where the claimant previously
asked permission to mow the neighbor’s strip, his adverse possession claim cannot be
based on such act of mowing). See, also, Mosesson, 7th Dist. No. 99CA321; Willett,
7th Dist. No. 96CO40; Coleman, 123 Ohio App.3d 125, 130 (7th Dist.) (possession is
not adverse if it is done with the owner's permission).
       ¶{36} Thus, a claim that permission exists for the use is not an affirmative
defense but is a regular defense that is sufficiently raised by the denial of the plaintiff’s
claim that the use was adverse (an element of the plaintiff’s case). As such, the trial
court erroneously granted summary judgment to Eckman on this basis. We now turn
to the alternative reasons given by the trial court in granting summary judgment to
Eckman.
                           ORIGINAL PERMISSION TO USE
       ¶{37} Appellant complains that the magistrate failed to recognize that Mr.
Innocenzi’s affidavit showed that the original use was permissive. That is, this affidavit
states that during construction, the landowner advised the occupier that a corner of the
garage was on his land. They were “good neighbors,” and the occupier offered to buy
the small portion of land as he did not wish to encroach. However, the landowner said
“it wasn’t necessary and it wasn’t a problem and that was the way the matter was left.”
Mr. Innocenzi characterized this discussion of the unintentional encroachment as the
landowner’s grant of “permission to leave that garage corner on his land.”
       ¶{38} Contrary to the magistrate’s characterization, this is not the failure of the
landowner to act out of “indifference, laziness, acquiescence, or neighborly
accommodation.” See Shell Oil Co. v. Deval Co. (Sept. 24, 1999), 1st Dist. No. C-
980783. Rather, Ramunno presented evidence of actual or express permission. See
Gulas, 184 Ohio App.3d 143 at ¶25 (implied neighborly accommodation is different
than expressly made neighborly accommodation). See, also, EAC Prop. Ltd. v. Hall,
10th Dist. No. 08AP-251, 2008-Ohio-6224, ¶8. Thus, appellant has a valid complaint
about the magistrate’s suggestion that no reasonable person could find that the
original use was permissive.
       ¶{39} However, the trial court did not grant summary judgment on this basis.
Rather, the court granted summary judgment based upon its belief that the use by
Eckman and her predecessors was open, adverse, continuous, and in existence for
greater than twenty-one years and that Ramunno presented no evidence of a
permissive use in the relevant twenty-one years.
                             EXPIRATION OF PERMISSION
       ¶{40} In response to Eckman’s claim that original permission to the first
occupier is not everlasting where the occupier changes, Ramunno relies upon the
following holding: “Permissive use cannot ripen into an easement by prescription no
matter how long continued.” Coleman, 123 Ohio App.3d at 131 (7th Dist.), citing
Monroe Bowling Lanes v. Woodsfield Livestock Sales (1969), 17 Ohio App.2d 146,
152 (7th Dist.), citing Elster v. Springfield (1892), 49 Ohio St. 82, 97 (where the
Supreme Court held that if a use is permissive, no permanent right could be acquired
through long continuance).
       ¶{41} We note here that in order to show that the adversity element existed for
twenty-one years, the occupier may “tack” his adverse use with the adverse use of his
predecessors in privity. Willett v. Felger (Mar. 29, 1999), 7th Dist. No. 96CO40, citing
Zipf v. Dalgarn (1926), 114 Ohio St. 291, 296.         Ramunno adopts a tacking-like
argument and argues that the landowner’s original grant of permission to the first
occupier applies to every subsequent occupier, precluding all successors from using
the garage corner adversely.
       ¶{42} However, we refuse to adopt such a broad premise, and we are not cited
to any authorities holding that express permission to the first occupier extends to the
successor occupiers by implication so that all subsequent occupiers do so
permissively.   This conclusion is supported by the holding, discussed supra, that
permission is not implied through mere knowledge and indifference. See Gulas, 184
Ohio App.3d 143 at ¶25 (7th Dist.).
       ¶{43} We recognize that the Supreme Court’s Elster case involved a city’s
original grant of permission to the plaintiff’s predecessor to build a water line under a
street from a spring to a building. The Court generally stated that if the use was
permissive, then it could not change to adverse use by passage of time. Elster, 490
Ohio St. at 97. Yet, that case did not mention whether the plaintiff himself occupied
the premises for twenty-one years.       If not, then the reason behind the court’s
statement could merely be that the beginning of the twenty-one year period was
permissive. In addition, there was mention of some type of renewal after the original
1849 pipe installation.
       ¶{44} In our Coleman case, there was no issue with permission to a prior
occupier as the plaintiff was the original occupier (who had deeded the disputed land
away). Coleman, 123 Ohio App.3d at 131. See, also, Monroe, 17 Ohio App.2d at 152
(although this court mentioned that plaintiff’s predecessor was permitted to hook onto
the water line, plaintiff’s continued use was also with permission as plaintiff exchanged
the use of the water line for parking spaces). In another case cited by Ramunno, there
was also no issue of permission to a predecessor of the occupier. See Manos v. Day
Cleaners & Dryers, Inc. (1952), 91 Ohio App. 361, 365. Likewise, a Third District case
cited by Ramunno did not involve multiple occupiers but only multiple landowners and
dealt with an original landowner who gave permission and who sold his land less than
twenty-one years prior to trial. See Biegel v. Knowlton (June 20, 1989), 3d Dist. No. 1-
87-45. See, also, Shell Oil Co. v. Deval Co. (Sept. 24, 1999), 1st Dist. Nos. 980783,
980809 (involving multiple owners but only one occupier).
       ¶{45} If permission to one occupier remained for all successors of the original
occupier, then there would appear to be no meaning to the premise that use with
permission interrupts a stream of adversity prior and subsequent thereto. See, e.g.,
J.F. Gioia, Inc. v. Cardinal American Corp. (1985), 23 Ohio App.3d 33, 37-38
(speaking of extinguishing a maturing prescriptive right by the intervening grant of a
license to use).   As Eckman’s brief points out, the Ninth District has opined that
permission to an occupier’s predecessor does not carry forward to protect the
landowner from a subsequent occupier’s adverse use.          See Vanasdal v. Brinker
(1985), 27 Ohio App.3d 298. The Eighth District has similarly held:
       ¶{46} “If the permission once granted expires by its terms, or is otherwise
revoked, or if a new owner neither seeks nor obtains permission, adversity is
triggered.”   Brandt v. Daugstrup (Nov. 18, 1999), 8th Dist. No. 75065 (emphasis
added).
       ¶{47} Thus, we hold that the landowner’s permission needs to be renewed for
new occupants, who otherwise could begin establishing an adverse claim on the land
when they begin occupation. Although it is true that permission cannot ripen into
adversity by mere lapse of time, this concept applies only to those persons to whom
the permission was given. Where, for instance, the invited occupier leaves and a
wholly new occupier begins possession, the original permissive use is not
automatically extended. Rather, the landowner must renew his permission (license) to
subsequent occupiers in order to avoid adverse possession and to maintain the
express permission. In other words, although prior permissive use of a predecessor is
relevant to erase the adversity element for periods within the relevant twenty-one year
period, it does not make a current occupier’s use permissive.
                          SUBSEQUENT PERMISSIVE USE
       ¶{48} Regardless, in this case, Ramunno did present evidence that
subsequent permission was granted to subsequent occupiers after the original
permission was given to Mr. Innocenzi. As aforementioned, evidence established (for
purposes of avoiding summary judgment) that the garage builder was given express
permission and that he left the property in 1968.         The next landowner was Mr.
Hvisdak, who occupied the property from 1968 until 1971. In support of her claim that
the garage existed in the same position for more than twenty-one years, Eckman
submitted Mr. Hvisdak’s affidavit.    This affidavit made no mention of whether Mr.
Hvisdak was expressly permitted to occupy the encroachment by Ramunno’s father or
whether Rammuno’s father was silent on the issue.
       ¶{49} Eckman also attached a letter from Ramunno to her summary judgment
material, which was written after her attorney threatened to sue him but before the
lawsuit was filed. In this letter, Ramunno made reference to his “family’s generosity
and tolerance over the last 50 years to the half dozen owners” of Eckman’s property. It
expressed that the newest survey correctly shows “what we have been telling you all
along - that is ‘your garage is on my property’.” The letter then stated that she had no
permission to construct the sidewalk and asked that she remove it, noting that it was
not there when the garage was owned by the Innocenzis, the Hvisdaks, the Hubers, or
the Blinskys.
       ¶{50} An affidavit of Ramunno himself states that he lived on his property for
most of his life starting at age five and that he inherited the property from his father in
1993. He stated that it was no secret that the neighbor’s garage corner was on their
property because the family talked about it over the years. He disclosed that as the
property changed hands, his father always told the new owners that the garage corner
was on his property and that he was permitting them to leave it there with no charge.
The affidavit stated that this was told to many different neighbors who lived there
before Eckman including the Hvisdaks, the Hubers, and the Blinskys. He explained
that this is what he meant in his letter to Eckman about his family’s generosity.
Ramunno then stated that after his father passed away in 1993, he continued the
same tradition by telling Eckman, as his father told the other neighbors, that the
garage corner was on his property, that it could stay there, but that she could not build
anything else on his land without his permission.
      ¶{51} Eckman did not submit an affidavit claiming that she was not given
permission by Ramunno.       In fact, her submission of Ramunno’s letter allows an
inference to be drawn that he told her from the beginning that the garage corner was
on his land and (since he only asked her to remove the sidewalk) that she could keep
the garage there. Thus, for purposes of summary judgment, none of the time after
1993 counts toward the required twenty-one years of adverse use.
      ¶{52} There is a twenty-five year period between the 1968 expiration of the
original permission given to Innocenzi (when he moved out) and the permission
allegedly given to Eckman in 1993. As Hvisdak moved out in 1971, any permission
given to him would not break the twenty-one year period prior to Ramunno’s 1993
grant of permission. Thus, it is irrelevant that Eckman did not ensure that Hvisdak’s
affidavit mentioned express permission or the lack thereof.
      ¶{53} However, viewing the evidence in light most favorable to Ramunno and
considering the fact that adverse possession is highly disfavored by the Supreme
Court, a reasonable person could find that permission was granted by his father to the
various occupier’s within the twenty-one year period existing prior to the 1993
permission Ramunno himself granted to Eckman.         That is, the year after Hvisdak
moved out would begin the twenty-one year period.             There is evidence that
Ramunno’s father gave express permission to two sets of neighbors, the Hubers and
the Blinskys, who occupied the property between Hvisdak and Eckman, during the
relevant twenty-one-year period. Thus, there exists a genuine issue of material fact as
to whether the use was permissive as opposed to adverse for the proper twenty-one
year period. As such, the grant of summary judgment to Eckman regarding her claim
for quiet title to the garage based upon adverse possession is reversed.
      ¶{54} Contrary to Ramunno’s other argument, however, he was not entitled to
judgment as a matter of law regarding the garage either. As aforementioned, the
affidavit of the original owner of the garage concerning original permission was not
dispositive, nor was the failure of the second owner to mention permission dispositive
as neither person’s occupation of the land was within the relevant twenty-one year
period. Eckman’s failure to supply an affidavit regarding whether Ramunno gave her
express permission to maintain her garage’s position merely stopped the time from
running past 1993, a year after she purchased the property. Furthermore, as she
could not deny grants of which she had no knowledge, she could not state in her
affidavit that permission had not been given to her predecessors within the proper time
period.
        ¶{55} Contrary to Eckman’s suggestion at oral argument, the fact that there is
a structure does not prohibit the landowner from defending against the adversity
element with a claim of permission. See, e.g., Hamons v. Caudill, 6th Dist. No. H-07-
020, 2008-Ohio-248, ¶15-16. Rather, the presence of the structure merely allows the
occupier to meet their initial burden on adversity by establishing that the nature of the
use is inconsistent with the landowner’s rights.             See id.     See, also, Bowlander v.
Mapes, 6th Dist. No. OT-08-033, 2009-Ohio-664, ¶15 (“In order to be deemed
“adverse” for evidentiary purposes, the nature of the non-owner occupier's use of the
property must be sufficient to clearly manifest an intention to claim title such that it
gives notice to the owner of both the claim itself as well as the extent of the claim.”),
citing Humphries v. Huffman (1878), 33 Ohio St. 395, 402. The location of a corner of
a structure such as this garage on the neighbor’s land accomplishes this for purposes
of defeating Ramunno’s summary judgment motion. See id. As such, both parties
established genuine issues of material fact for trial. In accordance, we reverse the
grant of summary judgment to Eckman and remand the case for further proceedings.2
                                  OTHER ENCROACHMENTS
        ¶{56} Lastly, it is important to point out that where Eckman merely sought
summary judgment regarding the garage corner, and specifically stated that she was
not seeking summary judgment regarding the sidewalk, it was improper to grant
Eckman the portion of her survey which included the encroaching portion of the
sidewalk and the land surrounding it.                This is especially true considering the
uncontradicted evidence at the summary judgment stage that Eckman constructed the



        2
         In doing so, we disregard Eckman’s alternative suggestions in her appellee’s brief (such as
estoppel) as to why she should be granted the property as they were not raised in the summary
judgment motion which was only concerned with whether there existed a genuine issue of material fact
on the elements of adverse possession. As for Eckman’s reference to a “claim of right,” in Ohio, this is
merely the opposite of permissive use as it is a type of adverse use (another being knowing trespass).
See, e.g., Kimball v. Anderson (1932), 125 Ohio St. 241, 244.
sidewalk, she began occupying the property in 1992, and thus the sidewalk was in
existence for less than twenty-years.
      ¶{57} On the subject of this uncontradicted evidence, Ramunno states that he
was entitled to summary judgment regarding the sidewalk (and a certain landscaped
area). However, the Supreme Court’s position is forgiving to a party who fails to
adequately factually respond to a motion for summary judgment if that party proves
their case at trial, making the denial of summary judgment moot or harmless. See
Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, 156, 158. Here, the
issue is factual, and there were not cross-motions for summary judgment on this issue.
The Civ.R 54(B) language, which made the grant of summary judgment on the garage
appealable at this time, does not change the fact that the denial of summary judgment
on other matters is not appealable. See Hubbell v. City of Xenia, 115 Ohio St.3d 77,
2007-Ohio-4839, ¶9; State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23.
See, also, R.C. 2505.02.      Thus, we refuse to consider Ramunno’s request for
summary judgment on these other encroachments at this point. See Allen v. Johnson,
9th Dist. No. 01CA46, 2002-Ohio-3404, ¶10-11, 13 (accepting appeal granting
summary judgment but refusing to address, among other things, the denial of plaintiff’s
motion for summary judgment even where cross-motions existed). Cf. Bush v. Roelke
(Sept. 19, 1990), 9th Dist. No. 90CA4800.
      ¶{58} For the foregoing reasons, the judgment of the trial court is hereby
reversed and this case is remanded for further proceedings.

Waite, J., concurs.
Celebrezze, J., concurs.
