[Cite as Ormandy v. Dudzinski, 2011-Ohio-5005.]


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

JOHN ORMANDY, JR., et al.                              C.A. No.       10CA009890

        Appellants

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
RUSSELL J. DUDZINSKI, et al.                           COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellees                                      CASE No.   07CV151538

                                DECISION AND JOURNAL ENTRY

Dated: September 30, 2011



        CARR, Judge.

        {¶1}    Appellants, John and Zelma Ormandy, appeal the judgment of the Lorain County

Court of Common Pleas, which granted summary judgment in favor of appellees, Russell and

Vicki Dudzinski. This Court affirms.

                                                  I.

        {¶2}    On June 28, 2007, the Ormandys filed a complaint against the Dudzinskis

seeking: (1) to quiet title to certain land under the theory of adverse possession, (2) a finding that

the Dudzinskis were estopped from asserting any right, title, or claim to the property at issue and

an order directing the Dudzinskis to enter into an agreement pursuant to R.C. 5301.21 to

establish a boundary line between the Ormandys’ and Dudzinskis’ adjoining properties under the

doctrine of acquiescence, and (3) damages for trespass. The Dudzinskis answered, denying the

allegations in the complaint and asserting as a defense that the Ormandys were estopped from

asserting any claim to the disputed property.
                                                 2


       {¶3}    The Dudzinskis filed a motion for summary judgment on all the claims on the

Ormandys’ complaint. The Ormandys filed a motion for summary judgment in regard to their

claim based on the doctrine of acquiescence.         The parties filed their respective briefs in

opposition to their opponents’ motion for summary judgment. On August 18, 2009, the trial

court issued a journal entry purporting to rule on the competing motions for summary judgment.

The trial court, however, merely entered summary judgment in favor of the Dudzinskis on the

Ormandys’ claim alleging adverse possession. The Ormandys filed a motion for reconsideration,

requesting that the trial court rule on all of their claims. The Ormandys then filed a notice of

appeal from the August 18, 2009 judgment.

       {¶4}    This Court dismissed the Ormandys’ first appeal for lack of a final, appealable

order because the August 18, 2009 journal entry failed to dispose of all the claims and lacked the

appropriate notice pursuant to Civ.R. 54(B). While the first appeal was pending, the trial court

ruled on the Ormandys’ motion for reconsideration and issued a journal entry on October 20,

2009, purporting to dispose of all pending claims. The Ormandys filed a second notice of

appeal. This Court dismissed the second appeal for lack of a final, appealable order because the

trial court lacked jurisdiction to issue its judgment going to the merits of the case while the first

appeal was pending.

       {¶5}    On August 31, 2010, the trial court issued a journal entry in which it incorporated

by reference its August 18, 2009 decision. The trial court entered judgment in favor of the

Dudzinskis and dismissed the Ormandys’ complaint with prejudice.1 The Ormandys filed a




1
  While we recognize that it was error for the trial court to dismiss the plaintiffs’ complaint after
it had already rendered judgment on the complaint in favor of the defendants, we do not address
the issue further because no party has raised the issue on appeal. See App.R. 12(A)(1)(b).
                                               3


timely appeal, raising four assignments of error for review. This Court consolidates some

assignments of error to facilitate review.

                                              II.

                                 ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
       JUDGMENT IN FAVOR OF DEFENDANT/APPELLEES DUDZINSKI ON
       THE ADVERSE POSSESSION CLAIM FOR THE REASON THAT THE
       TRIAL COURT FAILED TO CONSIDER ALL OF THE EVIDENCE
       PROPERLY BEFORE IT ON THAT CLAIM.”

       {¶6}    The Ormandys argue that the trial court erred by granting summary judgment in

favor of the Dudzinskis on the Ormandys’ claim for adverse possession. This Court disagrees.

       {¶7}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13

Ohio App.3d 7, 12.

       {¶8}    Pursuant to Civ.R. 56(C), summary judgment is proper if:

       “(1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.” Temple v.
       Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

       {¶9}    To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that show that there is no genuine issue

as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to
                                                  4


Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75

Ohio St.3d 447, 449.

       {¶10} To acquire title to property by adverse possession, the party claiming title must

prove “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, syllabus. Because a successful

claim of adverse possession results in the legal titleholder’s forfeiture of his ownership interest in

the property, the doctrine is disfavored and the burden of proof on each element is rigorous. Id.

at 580. This Court has stated that each case of adverse possession must be determined on its

particular facts and any such claim must be strictly construed in favor of the title owner.

Montieth v. Twin Falls United Methodist Church, Inc. (1980), 68 Ohio App.2d 219, 224.

       {¶11} The Third District Court of Appeals has clarified each necessary element of

adverse possession. “Exclusive possession” means that the use of the property need only be

exclusive of the title owner’s or third person’s entry upon the land coupled with an assertion of

his right to possession or claim of title to the property. Kaufman v. Geisken Ent., Ltd., 3d Dist.

No. 12-02-04, 2003-Ohio-1027, at ¶39. In other words, the use need not be exclusive of all

persons, but rather, exclusive only of those who assert by either word or act any right of

ownership or possession of the land. Id.

       {¶12} The open use element requires that there must not be any attempt to conceal the

use. Crown Credit Co., Ltd. v. Bushman, 170 Ohio App.3d 807, 2007-Ohio-1230, at ¶46. Open

use is distinguishable from notorious and adverse use in that the latter uses “require more than
                                                 5


merely conducting activities on the disputed property where others can observe.” Id. at ¶48. “To

be notorious, a use must be known to some who might reasonably be expected to communicate

their knowledge to the owner if he maintained a reasonable degree of supervision over his

premises. *** In other words, the use of the property must be so patent that the true owner of the

property could not be deceived as to the property’s use.” (Internal quotations omitted.) Id. This

Court has stated that ‘[a]dverse or hostile use is any use inconsistent with the rights of the title

owner.” Vanasdal v. Brinker (1985), 27 Ohio App.3d 298. To satisfy the adverse use element,

the claimant “must have intended to claim title, so manifested by his declarations or his acts, that

a failure of the owner to prosecute within the time limited, raises a presumption of an

extinguishment or a surrender of his claim.” (Internal quotations omitted.) Bushman at ¶48.

The Ohio Supreme Court has held that the intent to possess the property of another is objective,

rather than subjective, so that the party in possession need not have intended to deprive the

owner of the property at issue; instead, the claimant need only have treated the property as the

claimant’s own for the statutory period to satisfy the element of adverse use. Evanich v. Bridge,

119 Ohio St.3d 260, 2008-Ohio-3820, at syllabus.

       {¶13} The twenty-one year statute of limitations does not begin to run on a claim of

adverse possession “until there is some act of possession by the adverse claimant *** so open,

notorious and hostile that it constitutes, in law, notice to the real owner.” Montieth, 68 Ohio

App.2d at 225. Moreover, the statute may be tolled upon the titled owner’s “unequivocal

manifestation of intent to reclaim the property.” Id. On the other hand, “[t]he doctrine of

tacking permits adverse possession by successive owners, who are in privity, to be added

together to make up the twenty-one years required for title to vest in the current possessor.”
                                                 6


Ballard v. Tibboles (Nov. 8, 1991), 6th Dist. No. 91-OT-013, citing Zipf v. Dalgarn (1926), 114

Ohio St. 291.

       {¶14} The disputed land in this case consists of an approximately 18-foot wide strip of

land along the east-west boundary of the parties’ properties. The disputed land forms a lane

between the properties and is set off in places by two old wire fences.

       {¶15} The Dudzinskis attached the following evidence in support of their motion for

summary judgment: the Ormandys’ answers to interrogatories, the affidavits of Mr. Dudzinski

and Vincent Rawlin, and transcripts of the Ormandys’ deposition testimony. Mr. Dudzinski

averred in his affidavit that the Ormandys have never excluded him or his wife from the property

in question and that they (the Dudzinskis) have used the “strip” of land in question since they

purchased their property on August 20, 2003. Vincent Rawlin averred in his affidavit that he and

his wife owned the property now owned by the Dudzinskis from 1977 to 2003. He further

averred that the Ormandys never excluded the Rawlins from the lane and that the Ormandys

never laid claim to the lane. Mr. Rawlin averred that no one ever used the Rawlin property to the

Rawlins’ exclusion and that, when the Ormandys gave others permission to use the Rawlins’

land, Mr. Rawlin would tell those people to leave his property. Finally, Mr. Rawlin averred that

the Ormandys asked to buy a 7-acre portion of the southeast corner of the Rawlins’ property, that

he refused, and that the Ormandys never used that property without the Rawlins’ permission.

       {¶16} In their answers to interrogatories, both Mr. and Mrs. Ormandy listed six ways in

which they believed they had been “in actual, open, exclusive, continuous, and adverse

possession” of the “strip” of land at issue. The Ormandys asserted that certain livestock used the

path to reach a back pasture; the Ormandys used the area for horseback riding and lessons; the

Ormandys mowed and removed brush from the lane; the Ormandys and their son Phillip used the
                                                 7


lane as a driveway to access Phillip’s home; the Ormandys used the lane to access their back

fields; and anyone who rented or used the Ormandys’ back fields used the lane to access those

fields. Neither Mr. nor Mrs. Ormandy responded that these uses of the property in dispute were

exclusive of any use by the Rawlins. Both responded that the Dudzinskis were excluded from

the strip of land only as of May 26, 2006. The only other people the Ormandys swore they had

excluded from the property were unidentified “hunters, snowmobiles, persons driving

snowmobiles, and ATV-riders,” none of whom asserted any right of ownership or possession of

the land.

       {¶17} Mr. Ormandy testified during his deposition that the six ways in which he and his

wife believed they had been “in actual, open, exclusive, continuous, and adverse possession” of

the land at issue constituted a complete list. Again, he failed to explain how he and his wife

might have excluded the Rawlins from the property. Mr. Ormandy testified that he never

excluded the Dudzinskis from the strip of land in dispute and that he had never in fact met them.

Mrs. Ormandy testified during her deposition that the Rawlins once used the lane to retrieve their

horses which had strayed into the Ormandys’ fields. She testified that, while she was not aware

of any other time in which the Rawlins used the land in dispute, she never told the Rawlins that

the lane belonged exclusively to the Ormandys.

       {¶18} Based on a review of the Dudzinskis’ evidence, this Court concludes that the

Dudzinskis met their initial burden to demonstrate that the Ormandys had not used the lane to the

exclusion of any person who could assert a right of ownership or possession to the land in

question. The Ormandys, on the other hand, failed to meet their reciprocal burden of responding

by setting forth specific facts, demonstrating that a “genuine triable issue” exists to be litigated

for trial. See Tompkins, 75 Ohio St.3d at 449.
                                                 8


       {¶19} The Ormandys attached the following in support of their response in opposition to

the Dudzinskis’ motion for summary judgment: Mr. Ormandy’s affidavit; an identical affidavit

of Vincent Rawlin as that attached to the Dudzinskis’ motion; a copy of the May 26, 2006 letter

sent from their attorney to the Dudzinskis, directing them to cease further activity on property the

Ormandys were claiming by way of adverse possession; and transcripts of Mr. and Mrs.

Dudzinski’s deposition testimony.

       {¶20} While Mr. Ormandy averred in his affidavit that the Rawlins “never maintained or

used the property on my side of the fence[,]” he failed to explain which of the two fences he was

referencing and he did not mention a “lane” or “strip” of land set off by two fences. Mr. Rawlin,

however, averred in his affidavit that there were two fences which created a lane between the

properties and that he and his wife used the lane during the course of their 35-year residence to

walk their dogs. Mr. Rawlin admitted that the Ormandys’ son used the lane to access the

Ormandys’ back fields, but he averred that the Ormandys did not exclude them from the lane and

that the Ormandys never laid claim to the property.

       {¶21} Both Mr. and Mrs. Dudzinski testified regarding the existence of a lane along the

boundary of two properties. Mr. Dudzinski testified that two parallel fence lines create a lane

between the properties approximately thirty to fifty feet apart.

       {¶22} The evidence presented by both parties supports the conclusion that the Ormandys

did not use the land in question, i.e., the lane between the properties, to the exclusion of anyone

who could assert a claim of title or ownership of the land for the statutory period of twenty-one

years. The Dudzinskis’ grantors, the Rawlins, averred that they routinely used the land in

question during their 35-year residency.       The Ormandys presented no evidence that they

excluded anyone from the property except for unidentified recreational users who had no claim
                                                 9


of right to the property. Under the circumstances, the Ormandys failed to meet their reciprocal

burden under Tompkins to respond by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated in regard to their claim alleging adverse possession. The

Ormandys’ first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       “THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
       JUDGMENT IN FAVOR OF DEFENDANT/APPELLEES DUDZINSKI ON
       THE DOCTRINE OF ACQUIESCENCE CLAIM FOR THE REASON THAT
       THE TRIAL COURT FAILED TO CONSIDER ALL OF THE EVIDENCE
       PROPERLY BEFORE IT ON THAT CLAIM.

                                ASSIGNMENT OF ERROR IV

       “THE TRIAL COURT ERRED WHEN IT DENIED THE SUMMARY
       JUDGMENT MOTION OF PLAINTIFF/APPELLANTS JOHN AND ZELMA
       ORMANDY FOR THE REASON THAT IT FAILED TO CONSIDER THE
       EVIDENCE RAISED BY THE ORMANDYS CONCERNING THE DOCTRINE
       OF ACQUIESCENCE.”

       {¶23} The Ormandys argue that the trial court erred by granting summary judgment in

favor of the Dudzinskis on the Ormandys’ claim that the Dudzinskis were estopped from

asserting any right, title, or claim as to the disputed property pursuant to the doctrine of

acquiescence. This Court disagrees.

       {¶24} “The doctrine of acquiescence is applied in instances when adjoining land owners

occupy their respective properties up to a certain line and mutually recognize and treat that line

as if it is the boundary that separates their properties. Acquiescence rests on the practical reality

that oftentimes, the true boundary line location is uncertain and neighbors may themselves

establish boundaries. To apply this doctrine: (1) adjoining landowners must treat a specific line

as the boundary; and (2) the line must be so treated for a period of years, usually the period
                                                 10


required for adverse possession.” (Internal citations omitted.) Merriner v. Goddard, 7th Dist.

No. 08-MO-2, 2009-Ohio-3253, at ¶57.

       {¶25} The Ohio Supreme Court recognized the doctrine of acquiescence long ago:

“[W]e hold the principle to be well settled that an agreement upon a division line between

adjoining land-owners, different from the true line, the true line being a certain, and not a

disputed line, and acquiescence by all the parties in such agreed line, for a length of time that

would bar a right of entry under the statute of limitations in relation to real estate, would operate

to prevent a party purchasing from one of such owners, with notice of the agreed line, from

setting up a claim to any line other than that agreed upon, although the occupancy had not been

such as, aside from the marking of the agreed line, would amount to a continuous possession of

the entire premises up to the agreed line, for the whole time.” (Emphasis added.) Bobo v.

Richmond (1874), 25 Ohio St. 115, 122.

       {¶26} Although the concept of “tacking” has not been applied by name to situations

implicating the doctrine of acquiescence, it is clear that the Supreme Court intended to allow

landowners to rely on the acquiescence of an adjoining landowner for the requisite period of

years to preclude a subsequent grantee from asserting a claim of right, title, ownership, or

possession regarding the subject property as long as the subsequent grantee had notice of the

grantor’s acquiescence. It appears, therefore, that while adverse possession serves to vest title in

the adverse possessor by operation of law, the doctrine of acquiescence, if not invoked against

the party who acquiesced in the location of the property line, fails to deprive a subsequent

grantee of his title to property in the absence of notice of his grantor’s recognition of the property

line as mutually agreed by the adjoining landowners. In this case, therefore, a crucial issue

becomes whether, if the Ormandys have established that the Rawlins acquiesced in the location
                                               11


of the property line, the Dudzinskis purchased the property with notice of the Rawlins’

acquiescence. If not, then the Ormandys derive no benefit from the Rawlins’ acquiescence in the

location of the property line.

       {¶27} The Ormandys and Rawlins were adjoining landowners for almost twenty-six

years. Mr. Ormandy averred in his affidavit that “the” wire fence running through the tree line

between the adjoining properties “was always mutually recognized and treated as the north-to-

south boundary.” Mr. Rawlin averred in his affidavit that two wire fences ran along portions of

the property “on the common border.” He averred that he “was never certain” where the actual

north-south boundary line was located but that he assumed that “the old wire field fence” was the

property line and that he placed ten locust fences posts “there” with the intention of replacing

“the old wire fence.” Mr. Rawlin did not clarify which of the two fences constituted “the old

wire field fence.” Moreover, his assumption of the location of the property line was limited to

merely “the northern end of the property along our approximately 15 acre tilled field.”

According to the map which was marked as an exhibit to Mr. Ormandy’s deposition, the north-

south boundary between the adjoining properties is approximately 2700 feet long. Mr. Rawlin

did not clarify in his affidavit which portion of that boundary constituted the “northern end” to

which he referred. Nevertheless, Mr. Rawlin averred in his affidavit that neither he nor Mrs.

Rawlin ever agreed with anyone that either of the two fences constituted the boundary line

between the adjoining properties.

       {¶28} In his deposition, Mr. Ormandy testified that he never discussed the boundary line

with the Rawlins but that Mr. Rawlin only mowed up to the boundary as the Ormandys

understood it and that Mr. Rawlin asked permission to replace the fence at the location that the

Ormandys understood the boundary to be.
                                               12


       {¶29} The Dudzinskis both testified during their depositions that the Rawlins gave them

a tour of the property before they purchased it. They testified, however, that the Rawlins did not

walk the perimeter of the property with them or otherwise point out the boundary line between

the adjoining properties. Mrs. Dudzinski testified that the Rawlins merely informed them that

the culvert along the road on the northern border of the property belonged to them.

       {¶30} Based on a review of the evidence, a genuine issue of material fact exists

regarding whether the Rawlins acquiesced in the location of the boundary. Had they done so

during the entire time they were neighbors with the Ormandys, their acquiescence would have

continued for a period of time in excess of twenty-one years. The Ormandys, however, did not

seek to estop the Rawlins from asserting any right or claim to the property in dispute. The

Dudzinskis commissioned a survey of their property a mere two years after purchasing the land.

If they had no notice of any acquiescence by the Rawlins in the location of the boundary line, the

Ormandys could not take advantage of the period of the Rawlins’ acquiescence to estop the

Dudzinskis from asserting any right or claim to the disputed land. The Ormandys presented no

evidence to demonstrate that the Dudzinskis and the Rawlins discussed the Rawlins’

understanding of the location of the boundary line. Accordingly, the Ormandys did not meet

their initial Dresher burden to present evidence on the issue of the Dudzinskis’ notice of any

acquiescence by the Rawlins as to the location of the boundary line between the adjoining

properties. Therefore, no genuine issue of material fact existed and the Dudzinskis were entitled

to judgment as a matter of law on the claim premised on the doctrine of acquiescence.

Accordingly, the trial court did not err by granting summary judgment in favor of the

Dudzinskis.

       {¶31} The Ormandys’ second and fourth assignments of error are overruled.
                                                13


                                ASSIGNMENT OF ERROR III

        “THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
        JUDGMENT IN FAVOR OF DEFENDANT/APPELLEES DUDZINSKI ON
        THEIR AFFIRMATIVE DEFENSE OF ESTOPPEL.”

        {¶32} The Ormandys argue that the trial court erred by granting summary judgment in

favor of the Dudzinskis based on their affirmative defense of estoppel. Because the trial court

granted summary judgment in favor of the Dudzinskis based on the lack of evidence tending to

show the existence of a genuine issue of material fact as to the essential elements of the

Ormandys’ claims, the trial court did not reach the issue of the Dudzinskis’ affirmative defense.

Because this Court agrees with the trial court’s award of summary judgment in favor of the

Dudzinskis on those grounds, the Ormandys’ third assignment of error is moot and we decline to

address it.

                                                III.

        {¶33} The Ormandys’ first, second, and fourth assignments of error are overruled. As

this Court’s resolution of those assignments of error is dispositive of the appeal, we decline to

address the third assignment of error as it has been rendered moot. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, 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.
                                                14


       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(E). 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 Appellants.




                                                     DONNA J. CARR
                                                     FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR

APPEARANCES:

MARYANN C. CHANDLER, Attorney at Law, for Appellants.

JONATHAN E. ROSENBAUM, Attorney at Law, for Appellees.
