[Cite as Ford v. West, 2018-Ohio-2626.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          FAYETTE COUNTY




DAVID MICHAEL FORD, SR.,                        :

        Plaintiff-Appellant,                    :       CASE NO. CA2017-11-025

                                                :              OPINION
    - vs -                                                      7/2/2018
                                                :

PATRICIA WOLFE WEST, et al.,                    :

        Defendants-Appellees.                   :



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                            Case No. CVH20150246



Kiger & Kiger, James A. Kiger, 132 South Main Street, Washington C.H., Ohio 43160, for
plaintiff-appellant

Jess C. Weade, 220 East Market Street, Washington C.H., Ohio 43160, for defendant-
appellee, Patricia Wolfe West



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, David Ford, appeals from the decision of the Fayette County

Court of Common Pleas denying his adverse possession claim following a bench trial in a

dispute over real property with defendant-appellee, Patricia West. For the reasons detailed

below, we affirm.

        {¶ 2} This case involves an approximate 20-acre tract of farmland ("Property"), which
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Ford claims by right of adverse possession. On September 4, 2015, Ford filed his quiet title

complaint. Patricia answered Ford's complaint and filed a counterclaim asserting that the

applicable statute of limitations had yet to expire and requesting that she be recognized as

the true owner of the Property.1

        {¶ 3} Following a bench trial, the trial court ruled that Ford did not satisfy the 21-year

requirement to prove a claim for adverse possession. Therefore, the trial court granted

judgment in favor of Patricia. Ford now appeals the trial court's decision, raising two

assignments of error for review. For ease of discussion, Ford's two assignments of error will

be addressed together.

        {¶ 4} Assignment of Error No. 1:

        {¶ 5} THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT

APPELLANT [sic] CAUSE OF ACTION DID NOT ACCUE [sic] UNTIL OCTOBER 27, 1995

AND THAT APPELLANTS [sic] FILING OF HIS CLAIM TOLLED THE RUNNING OF THE

STATUTE I.E. R.C. 2305.04

        {¶ 6} Assignment of Error No. 2:

        {¶ 7} THE TRIAL COURT'S DECISION DATED AUGUST 3, 2017 IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE, AS APPELLANT BY CLEAR AND CONVINCING

EVIDENCE PROVED HIS CLAIM OF RIGHT TO THE LAND IN QUESTION, AND THAT HIS

TITLE THERETO SHOULD BE QUIETED.

        {¶ 8} Ford's assignments of error are interrelated. Ford alleges the trial court's

decision is against the manifest weight of the evidence. Following review, we find Ford's

assignments of error are without merit.

        {¶ 9} When evaluating whether a judgment is against the manifest weight of the


1. Patricia initially answered Ford's complaint pro se. However, Patricia subsequently obtained counsel and filed
an amended Answer and Counterclaim on December 16, 2015.
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evidence in a civil case, the standard of review is the same as in the criminal context. Jones

v. Holmes, 12th Dist. Butler No. CA2012-07-133, 2013-Ohio-448, ¶ 24, citing Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. As such, we weigh the evidence and

all reasonable inferences, consider the credibility of witnesses, and determine whether in

resolving conflicts in the evidence, the finder of fact "clearly lost its way and created such a

manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered."

Eastley at ¶ 20. A judgment will not be reversed as being against the manifest weight of the

evidence where the judgment is supported by some competent, credible evidence going to all

essential elements of the case. Carson v. Duff, 12th Dist. Fayette Nos. CA2017-03-005 and

CA2017-03-007, 2017-Ohio-8199, ¶ 11.

       {¶ 10} "To acquire title by adverse possession, the party claiming title must show

exclusive possession and open, notorious, continuous, and adverse use for a period of

twenty-one years." Carson v. Duff, 12th Dist. Fayette No. CA2015-06-013, 2016-Ohio-5093,

¶ 17. The legal titleholder is entitled to a strong presumption that he is the legal owner of the

property. Judd v. Jackson, 12th Dist. Butler No. CA2002-11-291, 2003-Ohio-6383, ¶ 9. "The

burden of establishing the elements necessary to acquire title by adverse possession rests

heavily upon the person claiming such ownership." Hacker v. House, 12th Dist. Butler No.

CA2014-11-230, 2015-Ohio-4741, ¶ 20.

       {¶ 11} The vast majority of the operative facts are not in dispute. John Riley held title

to the Property in fee simple. John died testate on November 11, 1934. Pursuant to the

terms of his will, John devised the Property to his surviving spouse for life, then to Annabel

Riley and Albert Anthoni for life with the remainder in fee simple to the heirs of the body of

Annabel. In the event of default, the remainder went to the heirs of the body of another

relative, Valerie Bugsby.

       {¶ 12} Annabel purchased Albert's interest in the Property on May 18, 1946.
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Approximately two years later, Annabel then conveyed her interest in the Property to Howard

and Della Allison by quitclaim deed. On October 27, 1995, Annabel died. Annabel was

survived by her daughter, Patricia. It is undisputed that Patricia is an "heir of the body" of

Annabel.

       {¶ 13} Patricia only disputes the timing element of Ford's adverse possession claim.

Therefore, the central challenge on appeal is whether Ford satisfied the 21-year time

requirement for adverse possession.

       {¶ 14} Ford claims that "his predecessors in title have been in possession of this

acreage in question for over 30 years uninterrupted to this day." As part of his argument,

Ford references a series of deeds and title transfers occurring uninterrupted from Annabel

until the Property was transferred to his father. Ford was the sole beneficiary of his father's

estate.

       {¶ 15} The trial court found that despite the transfers cited by Ford, Annabel

possessed only a life estate in the Property and could only transfer that interest, not the

remainder interest held by the heirs of Annabel's body. Therefore, the trial court found that

"[t]he Court need go no further in examining the theory of adverse possession posited by

[Ford] as the timeliness of the action is dispositive." As a result, the trial court concluded that

Ford's claim for adverse possession began on the date of Annabel's death, October 27,

1995, and therefore he failed to satisfy the 21-year requirement.

       {¶ 16} We find the trial court's decision was supported by the manifest weight of the

evidence. The Ohio Supreme Court has held that the term "heirs of the body" creates a

class gift that cannot be determined until the class is closed. Tootle v. Tootle, 22 Ohio St.3d

244, 248 (1986). For a contingent remainder in a life estate, the remainder does not vest

"until the class is closed, i.e., with the death of the final life tenant." Id.

       {¶ 17} In the present case, Annabel held a life estate interest in the Property and the
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"heirs of her body" held a contingent remainder in fee simple. Although Annabel conveyed

the Property, she was only able to convey her life estate interest. Upon Annabel's death, the

class closed and Patricia was the sole remaining heir of Annabel's body. Ford's complaint

and Patricia's Answer and Counterclaim were filed less than 21 years from Annabel's date of

death. As correctly noted by the trial court, this fact is dispositive to the outcome of the case.

       {¶ 18} Although Ford and his predecessors possessed the Property for many years

prior to Annabel's death, a claim for "adverse possession does not begin to run against the

rights of a person holding a remainder or reversionary interest until they have possession of

the property."   Hempel v. Zabor, 6th Dist. Erie No. E-06-032, 2007-Ohio-5320, ¶ 13, citing

Stein v. White, 109 Ohio St. 578, 583 (1924).            Therefore, Ford's claim for adverse

possession against Patricia's interest did not begin until October 27, 1995 when she could

possess the Property. Ford did not satisfy the 21-year requirement for adverse possession

against Patricia's fee simple interest.

       {¶ 19} On appeal, Ford makes a corollary argument that he is still in possession of

the Property, and Patricia's Answer and Counterclaim should not toll the statute of limitations.

In other words, Ford maintains that Patricia has never "disseized[d]" him and the filing of

Patricia's Answer and Counterclaim did not halt the 21-year period to establish a claim for

adverse possession. Ford cites the Ohio Supreme Court's decisions in Grace v. Koch, 81

Ohio St.3d 577 (1998); and Rosenthil v. Cherry, 114 Ohio St. 401 (1926). However, both

cases are distinguishable from the facts in the present case. In Grace, the Court based its

decision on other grounds, while noting that "[t]he act of mortgaging the property * * * was

probably insufficient to toll the statutory period." Grace at ¶ 581 fn. 3. Similarly, the Court's

decision in Rosenthil involved a situation where a judgment against an adverse possessor

was never enforced and therefore did not interrupt the adverse possession period because

"equity comes to the vigilant and not to those who slumber on their rights." Rosenthil at ¶ 12.
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Moreover, Patricia's Counterclaim was filed within 21 years, which is consistent with R.C.

2305.04, which provides "[a]n action to recover the title to or possession of real property shall

be brought within twenty-one years after the cause of action accrued."                 Patricia's

Counterclaim was brought within 21 years of the time of accrual.

       {¶ 20} As a result, we find the trial court's decision was supported by the manifest

weight of the evidence. Ford failed to prove all the necessary requirements to establish a

claim for adverse possession. Therefore, we find the assignments of error to be without

merit and they hereby are overruled.

       {¶ 21} Judgment affirmed.


       S. POWELL, P.J., and PIPER, J., concur.




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