[Cite as Filip v. Wakefield Run Master Homeowners' Assn., Inc., 2017-Ohio-1179.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

JEFF FILIP                                                C.A. No.         15CA0050-M

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
WAKEFIELD RUN MASTER                                      COURT OF COMMON PLEAS
HOMEOWNERS' ASSOCIATION, INC.                             COUNTY OF MEDINA, OHIO
                                                          CASE No.   13CIV0661
        Appellant

                                DECISION AND JOURNAL ENTRY

Dated: March 31, 2017



        HENSAL, Judge.

        {¶1}    Defendant-Appellant, Wakefield Run Master Homeowners’ Association, Inc.,

appeals from the judgment of the Medina County Court of Common Pleas, quieting title on

approximately 0.1798 acres of land in favor of Plaintiff-Appellee, Jeff Filip, on the basis of

adverse possession. For the following reasons, this Court reverses.

                                                     I.

        {¶2}    In 1985, Plaintiff-Appellee, Jeff Filip, purchased a home located at 24 West

Boston Road in Medina County. Mr. Filip, his wife, and his parents originally owned the home.

Mr. Filip and his wife subsequently refinanced, and his parents’ interest was removed. Years

later, Mr. Filip and his wife divorced, leaving Mr. Filip as the sole title owner of the home.

        {¶3}    In 2013, Mr. Filip filed a complaint against Wakefield Run Master Homeowners’

Association, Inc. (“Wakefield Run”), seeking to quiet title on an approximately 0.1798 acre

piece of land located southwest of his property, which Wakefield Run owned. Mr. Filip asserted
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that he acquired ownership of the land through adverse possession or, in the alternative, by

prescriptive easement. His complaint also sought injunctive relief to prevent Wakefield Run

from interfering with his use of the land. Wakefield Run filed counterclaims for trespass and

unlawful tree cutting, which it later dismissed.

       {¶4}    The case proceeded to a bench trial. At trial, Mr. Filip presented testimony from

friends, family members, and neighbors who testified regarding his use of the disputed land over

the years, which included maintaining a garden, mowing the grass, planting and removing trees,

installing a culvert pipe, playing sports, and burying family pets. In summary, Mr. Filip argued

that his use of the disputed land was exclusive, open, notorious, continuous, and adverse for

more than twenty-one years.

       {¶5}    Wakefield Run argued that Mr. Filip’s use of the disputed land was inconsistent

over the years and, therefore, he could not satisfy the requirements for adverse possession.

Wakefield Run further argued that surveys were conducted in 1990, 1996, and 1999, which

interrupted the 21-year statutory period and evidenced Wakefield Run’s intent to reclaim the

disputed land as the true owner.

       {¶6}    The trial court granted Mr. Filip’s claims for adverse possession and injunctive

relief, and dismissed his alternative claim for a prescriptive easement. The trial court then

ordered Mr. Filip to submit a proposed legal description of the disputed land.         After two

additional hearings, the trial court entered its supplemental final judgment entry, which included

a legal description of the disputed land. Wakefield Run now appeals the trial court’s decision,

raising three assignments of error for our review. For ease of consideration, we have combined

Wakefield Run’s second and third assignments of error.
                                                3


                                                II.

                                  ASSIGNMENT OF ERROR I

       THE LOWER COURT ERRED AS A MATTER OF LAW BY FAILING TO
       APPLY THE CLEAR AND CONVINCING BURDEN OF PROOF TO
       DETERMINE FILIP’S CLAIM OF ADVERSE POSSESSION.

       {¶7}    In its first assignment of error, Wakefield Run argues that the trial court erred by

using the incorrect burden of proof in granting judgment in favor of Mr. Filip. “The burden of

proof applicable in a particular case is a question of law[,]” which we review de novo. In re

A.M.W., 9th Dist. Medina Nos. 06CA0078-M, 06CA0079-M, 2007-Ohio-682, ¶ 13; Long Beach

Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576 (1998) (“Questions of law are reviewed de novo.”).

       {¶8}    Both parties concede that the burden of proof for a claim of adverse possession is

clear and convincing evidence. Grace v. Koch, 81 Ohio St.3d 577, 580-581 (1998). The trial

court’s supplemental final judgment entry, however, states that “[t]he issue is whether [Mr.] Filip

has proven by a preponderance of the evidence exclusive possession of the adverse parcel and

open, notorious, continuous, and adverse use of the adverse parcel for a period of twenty-one

years.” (Emphasis added.) While Wakefield Run argues that the trial court’s error warrants

reversal, Mr. Filip argues that Wakefield Run has not established that it was prejudiced by the

trial court’s judgment. He further argues that, regardless of the standard the trial court applied,

Wakefield Run presented no evidence to contradict his claims and, therefore, the trial court

reached the correct conclusion.

       {¶9}    We find Mr. Filip’s arguments unpersuasive. “Because the trial court utilized an

incorrect burden of proof in reaching its decision, the court’s conclusion is erroneous as a matter

of law, and the judgment may not stand.” In re A.M.W. at ¶ 13. A consideration of the evidence

under the proper burden of proof must be performed in the first instance by the trial court.
                                                 4


Accordingly, we remand this matter to the trial court to consider the evidence under a clear and

convincing burden of proof.

       {¶10} Wakefield Run’s first assignment of error is, therefore, sustained.

                                  ASSIGNMENT OF ERROR II

       FILIP FAILED TO ESTABLISH BY CLEAR AND CONVINCING CASE
       THAT HIS USE OF THE DISPUTED LAND WAS OPEN, NOTORIOUS,
       CONTINUOUS AND ADVERSE FOR A PERIOD OF TWENTY-ONE YEARS
       AND THEREFORE WAKEFIELD RUN’S MOTIONS FOR DIRECTED
       VERDICT SHOULD HAVE BEEN [GRANTED].

                                 ASSIGNMENT OF ERROR III

       THE LOWER COURT’S FINDING THAT FILIP HAD MET THE REQUISITE
       CLEAR AND CONVINCING STANDARD OF PROOF FOR ALL ELEMENTS
       REQUIRED TO OBTAIN REAL PROPERTY BY ADVERSE POSSESSION
       WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶11} In light of our disposition of Wakefield Run’s first assignment of error, we

decline to address the merits of its second and third assignments of error.

                                                III.

       {¶12} Wakefield Run Master Homeowners’ Association, Inc.’s first assignment of error

is sustained. We decline to address Wakefield Run Master Homeowners’ Association, Inc.’s

second and third assignments of error. The judgment of the Medina County Court of Common

Pleas is reversed, and the cause is remanded for further proceedings.

                                                                                Judgment reversed
                                                                              and cause remanded.



       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, P.J.
SCHAFER, J.
CONCUR.


APPEARANCES:

THOMAS A. SKIDMORE, Attorney at Law, for Appellant.

DAVID M. LENEGHAN and K. SCOTT CARTER, Attorneys at Law, for Appellee.
