[Cite as Canton Asphalt Co. v. Fosnaught, 2011-Ohio-1329.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



CANTON ASPHALT COMPANY                                   JUDGES:
                                                         Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellant/Cross-Appellee               Hon. Sheila G. Farmer, J.
                                                         Hon. John W. Wise, J.
-vs-
                                                         Case Nos. 2010 CA 00201 and
DANIEL J. FOSNAUGHT                                                2010 CA 00202

        Def.-Appellee/Cross-Appellant
                                                         OPINION




CHARACTER OF PROCEEDING:                             Civil Appeal from the Court of Common
                                                     Pleas, Case No. 2009 CV 00644


JUDGMENT:                                            Reversed and Remanded



DATE OF JUDGMENT ENTRY:                              March 21, 2011



APPEARANCES:

For Plaintiff-Appellant/Cross-Appellee               For Defendant-Appellee/Cross-Appellant

JOHN J. RAMBACHER                                    LEE E. PLAKAS
STEPHEN P. GRIFFIN                                   AMANDA M. PAAR
WINKHART & RAMBACHER                                 TZANGAS, PLAKAS, MANNOS & RAIES
825 South Main Street                                220 Market Avenue South, 8th Floor
North Canton, Ohio 44720                             Canton, Ohio 44702
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202                                  2

Wise, J.

      {¶1}   Appellant Canton Asphalt Company and Cross-Appellant Daniel J.

Fosnaught appeals from the June 2, 2010, Judgment Entries entered in the Stark

County Court of Common Pleas determining the rights of the parties as they pertain to a

driveway.

                      STATEMENT OF THE FACTS AND CASE

      {¶2}   The facts relevant to this appeal are as follows:

      {¶3}   On February 17, 2009, Appellant Canton Asphalt Company filed a

Complaint against Appellee Daniel J. Fosnaught asserting claims of trespass, quiet title,

enforcement of an April 5, 2007, Agreement, and quiet title/adverse possession.

      {¶4}   On April 10, 2009, Appellee Fosnaught filed an Answer and Counter-

Claim. Appellee’s counterclaim asserted claims of adverse possession, easement by

prescription, easement by implication/necessity, quiet title and declaratory judgment.

      {¶5}   On February 1, 2010, this matter proceeded to trial before a Magistrate.

      {¶6}   On May 11, 2010, the Magistrate issued a Magistrate’s Decision wherein

the Magistrate found that Appellee Fosnaught did not have an easement by prescription

over the driveway; that Appellant Canton Asphalt’s claims to quiet title were without

merit and that the 2007 Agreement between the parties was enforceable and that such

terms control.

      {¶7}   On May 24, 2010, Appellant filed a Motion to Recover Legal Fees/Cost

from Appellee.

      {¶8}   On May 25, 2010, Appellee filed Objections to the Magistrate’s Decision.

      {¶9}   On June 3, 2010, Appellant filed Objections to the Magistrate’s Decision.
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202                            3


      {¶10} By Judgment Entry filed July 2, 2010, the trial court denied Canton

Asphalt’s motion for legal fees and court costs.

      {¶11} By separate Judgment Entry filed July 2, 2010, the trial court denied

Fosnaught’s objections and found Canton Asphalt’s Objections to be untimely.

      {¶12} On July 14, 2010, Appellant filed a Motion for Reconsideration. The trial

court has not ruled on this motion.

      {¶13} It is from the trial court’s July 2, 2010, decision that Appellant and

Appellee now appeal, raising the following assignments of error for review:

                              ASSIGNMENTS OF ERROR

                                        APPEAL

      {¶14} “I. THE TRIAL COURT ERRED IN DETERMINING WITHIN THE TRIAL

COURT’S JUNE 2, 2010 JUDGMENT ENTRY THAT APPELLANT’S OBJECTIONS TO

THE MAGISTRATE’S DECISION WERE NOT TIMELY FILED UNDER CIVIL RULE

53(D)(3)(b)(i) AND IN NOT REVIEWING AND ACTING/RULING UPON APPELLANT’S

OBJECTIONS AS REQUIRED UNDER CIVIL RULE 53(D)(4)(d).

      {¶15} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR RECOVERY OF LEGAL FEES/COURT COSTS WITHIN THE TRIAL COURT’S

JUNE 2, 2010 JUDGMENT ENTRY WHERE BY WRITTEN AGREEMENT (WHICH

AGREEMENT THE TRIAL COURT RULED TO BE ENFORCEABLE) APPELLANT

AND APPELLEE CONTRACTED THAT THE PREVAILING PARTY SHALL RECOVER

LEGAL FEES AND COSTS FROM THE NON-PREVAILING PARTY AS TO CERTAIN

CLAIMS (AS SPECIFIED THEREIN) UPON WHICH SUCH CLAIMS APPELLANT

PREVAILED.
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202                                  4


      {¶16} “III. THE TRIAL COURT ERRED IN RULING THAT APPELLANT’S QUIET

TITLE/ADVERSE POSSESSION CLAIM AGAINST APPELLEE CONSTITUTED A

COLLATERAL        ATTACK    UPON     A   JUDGMENT        AND    IN   NOT    OTHERWISE

ADJUDICATING SUCH CLAIM ON THE SUBSTANTIVE MERITS THEREOF.”

                                   CROSS-APPEAL

      {¶17} “I.   THE TRIAL      COURT      ERRED       IN   FAILING TO     FIND THAT

FOSNAUGHT HAS A PRESCRIPTIVE EASEMENT OVER THE DRIVEWAY.

      {¶18} “II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT

FOSNAUGHT HAS AN EASEMENT BY NECESSITY OVER THE DRIVEWAY.

      {¶19} “III. THE TRIAL COURT ERRED IN FINDING THE AGREEMENT

BETWEEN CANTON ASPHALT AND FOSNAUGHT ENFORCEABLE WHEN IT IS

VOIDABLE BASED UPON MUTUAL MISTAKE OF FACT.”

                                            I.

      {¶20} In Appellant’s first assignment of error, Appellant contends that the trial

court erred in finding that Appellant’s Objections to the Magistrate’s Decision were not

timely filed. We agree.

      {¶21} Civil Rule governs the role of magistrates. It provides in pertinent part:

      {¶22} “(D) Proceedings in Matters Referred to Magistrates.

      {¶23} ***

      {¶24} “(3) Magistrate's decision; objections to magistrate's decision.

      {¶25} ***

      {¶26} “(b) Objections to magistrate's decision.
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202                                     5

        {¶27} “(i) Time for filing. A party may file written objections to a magistrate's

decision within fourteen days of the filing of the decision, whether or not the court has

adopted the decision during that fourteen-day period as permitted by Civ.R.

53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections

not later than ten days after the first objections are filed. If a party makes a timely

request for findings of fact and conclusions of law, the time for filing objections begins to

run when the magistrate files a decision that includes findings of fact and conclusions of

law.”

        {¶28} In the case sub judice, Appellee timely filed his Objections on May 25,

2010, fourteen days after the May 11, 2010, Magistrate’s Decision.           Pursuant to the

above rule, Appellant therefore had ten days from the date of the filing of Appellee’s

Objections to file his Objections. The ten day period would run on June 4, 2010. As

Appellant filed his Objections on June 3, 2010, we find that such Objections were timely

filed. As such, we find that the trial court erred in failing to consider the Objections,

finding that Appellant’s Objections were not timely filed.

        {¶29} Accordingly, we therefore remand this matter back to the trial court to

review Appellant’s Objections and to rule upon same as provided in Civ.R. 53(D)(4)(d).

        {¶30} Appellant's first assignment of error is sustained.

        {¶31} Based on our disposition of Appellant’s first Assignment of Error and our

remand to the trial court with instructions to consider and rule upon Appellant’s
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202                           6


objections to the Magistrate’s Decision, we find that both Appellant and Cross-

Appellant’s remaining assignments are not ripe for review at this time.

      {¶32} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is reversed and remanded for further proceedings consistent with

the law and this opinion.



By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
JWW/d 0310
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202                               7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




CANTON ASPHALT COMPANY                  :
                                        :
     Plaintiff-Appellant/Cross-Appellee :
                                        :
-vs-                                    :             JUDGMENT ENTRY
                                        :
DANIEL J. FOSNAUGHT                     :
                                        :
     Defendant-Appellee/Cross-Appellant :             Case Nos. 2010 CA 00201 and :
                                                                2010 CA 00202




      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

      Costs to be split equally between Appellant and Appellee.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
