[Cite as Canton Asphalt Co. v. Fosnaught, 2011-Ohio-5902.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                             JUDGES:
CANTON ASPHALT CO.,                                 :        Hon. W. Scott Gwin, P.J.
                                                    :        Hon. Sheila G. Farmer, J.
              Appellee/Cross-Appellant              :        Hon. Patricia A. Delaney, J.
                                                    :
v.                                                  :
                                                    :        Case Nos.     2011-CA-00077
DANIEL J. FOSNAUGHT,                                                       2011-CA-00085
                                                    :
             Appellant/Cross-Appellee.              :
                                                    :        OPINION




CHARACTER OF PROCEEDING:                                Civil appeals from the Stark County Court
                                                        of Common Pleas, Case No. 2009CV00644


JUDGMENT:                                               Affirmed


DATE OF JUDGMENT ENTRY:                                 November 14, 2011


APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant

JOHN J. RAMBACHER                                       LEE E. PLAKAS
MICHAEL J. KAHLENBERG                                   AMANDA M. PAAR
WINKHART & RAMBACHER                                    TZANGAS, PLAKAS, MANNOS & RAIES
825 South Main St.                                      220 Market Avenue South, 8th Fl.
North Canton, OH 44720                                  Canton, OH 44702
[Cite as Canton Asphalt Co. v. Fosnaught, 2011-Ohio-5902.]


Gwin, P.J.

        {¶ 1} Defendant-appellant Daniel J. Fosnaught appeals a judgment of the Court

of Common Pleas of Stark County, Ohio, which overruled the parties’ objections and

adopted and approved the decision of the magistrate to whom the matter was referred.

The court found Fosnaught had not met his burden of proving he had a prescriptive

easement or an easement by necessity over property owned by Plaintiff-appellee

Canton Asphalt Company. The court found an agreement between the parties which

gave Fosnaught a permissive license over Canton Asphalt’s property was enforceable.

Fosnaught assigns three errors to the trial court:

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

FOSNAUGHT HAS A PRESCRIPTIVE EASEMENT OVER THE DRIVEWAY.

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

FOSNAUGHT HAS AN EASEMENT BY NECESSITY OVER THE DRIVEWAY.

        {¶ 4} “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.”

        {¶ 5} The trial court also found Canton Asphalt’s claim to quiet title is a collateral

attack on a prior judgment, and found Canton Asphalt was not entitled to recover its

legal fees and court costs. From this portion of the decision Canton Asphalt assigns

two errors:

        {¶ 6} Cross assignments of error:

        {¶ 7} “I. THE TRIAL ERRED IN DENYING CANTON ASPHALT’S MOTION

FOR RECOVERY OF LEGAL FEES/COURT COSTS BECAUSE CANTON ASPHALT
Stark County, Case Nos. 2011-CA-00077 and 2011-CA-00085                               3


WAS THE ONLY PREVAILING PARTY IN THE LITIGATION ENSUING FROM THE

AGREEMENT BETWEEN CANTON ASPHALT AND FOSNAUGHT.

      {¶ 8} “II. THE TRIAL COURT ERRED IN DISMISSING CANTON ASPHALT’S

QUIET    TITLE/ADVERSE        POSSESSION       CLAIM     WITHOUT         VISITING   THE

SUBSTANTIVE MERITS TEHREOF AND IN RULING THAT IT CONSTITUTED A

COLLATERAL ATTACK UPON A JUDGMENT.”

      {¶ 9} The two appeals have been consolidated.

      {¶ 10} The magistrate made extensive findings of fact. She found Fosnaught is

the owner of 12.5 acres of land situated in the Southeast Quarter of Section 13,

Jackson Township, Stark County, Ohio. The property has been in the Fosnaught family

since July 7, 1960. Fosnaught also has become the owner of 0.023 acres of land, more

or less, situated in the Southeast Quarter of Section 13, Jackson Township, Stark

County, Ohio by virtue of a judgment entry recorded in a prior case. This smaller parcel

is a narrow strip that extends from Whipple Avenue to the Fosnaught property.

      {¶ 11} A driveway consisting of 0.06 acres extends from Whipple Avenue to the

larger parcel of Fosnaught’s property. The driveway includes Fosnaught’s 0.023 acres

and an additional 0.037 acres, of which Canton Asphalt is the record owner. Canton

Asphalt’s property is also a long narrow strip that lies side by side with Fosnaught’s

property. Thus the source of the problem is that the driveway Fosnaught uses for

access to Whipple Avenue is wider than Fosnaught’s parcel, and overlaps onto Canton

Asphalt’s 0.037 acres. In this action, Fosnaught claims ownership of the property of

which Canton Asphalt is the record owner, while Canton Asphalt claims ownership of

the other side of the driveway of which Fosnaught is the record owner.
Stark County, Case Nos. 2011-CA-00077 and 2011-CA-00085                                 4


       {¶ 12} The magistrate found since acquiring the property in 1960, the Fosnaught

family, their invitees, and others have used the driveway continuously for ingress and

egress to the Fosnaught property. They have used it for cars, pickup trucks, semi-

trucks and large trailers.

       {¶ 13} The Fosnaughts have used the property to store U-Haul trucks, scrap

metal, and cars waiting to be crushed. The Fosnaughts leased a portion of the property

to a car dealership to store new cars, and the lessee used the driveway to transport the

cars on and off the Fosnaught property. The Fosnaughts have also used the property

to raise cows, a bull, a pony, a horse, chickens, turkeys and goats, and have planted

corn there. At the time the matter was heard, Fosnaught used the property to store

approximately 600 salvage vehicles, using the driveway to transport these vehicles on

and off his property. Fosnaught also presently has goats there, and uses the driveway

for access to care for the goats.

       {¶ 14} The parties were involved in a prior lawsuit over this property in 2006.

While the matter was pending, in March and April of 2007, they entered into an interim

agreement giving Fosnaught a license to use the entire driveway to access Whipple

Avenue. At the time the parties entered into an agreement, they both believed Canton

Asphalt held title to the entire driveway. Subsequently, the parties learned a portion of

the driveway belonged to a third party.      Fosnaught sued the third party, asserting

adverse possession, and took a default judgment.          Canton Asphalt attempted to

intervene in the case after the judgment, but the court overruled its motion to intervene.

Canton Asphalt did not appeal that decision.
Stark County, Case Nos. 2011-CA-00077 and 2011-CA-00085                                        5


       {¶ 15} In the case at bar, Canton Asphalt claimed adverse possession of the

property Fosnaught had acquired from the third party, and argued the court should find

it was the owner of the entire driveway. The court found this was a collateral attack on

the prior judgment, and rejected it.

       {¶ 16} In an easement action, the party claiming the easement bears the burden

of proving the existence of the easement by clear and convincing evidence. Fitzpatrick

v. Palmer, 186 Ohio App. 3d 80, 2009-Ohio-6008, 926 N.E. 2d 651 at paragraph 22.

Clear and convincing evidence is evidence which produces in the mind of the fact finder

a firm belief or conviction as to the facts sought to be established. Id., citation deleted.

       {¶ 17} Although the standard of clear and convincing evidence is higher than the

preponderance of the evidence standard generally used in civil cases, our standard of

review for weight of the evidence issues is still to determine whether their exists

competent and credible evidence supporting the court’s decision. Id., citing State v.

Schiebel (1990), 55 Ohio St. 3d 71, 564 N.E. 2d 54. Insofar as the matter involves

factual issues, we must defer to the trial court’s factual findings if there is competent and

credible evidence supporting the trial court’s decision. The Supreme Court has

instructed us that when reviewing weight of the evidence challenges we must defer to

the trial court. C.E. Morris Company v. Foley Construction Company (1978), 54 Ohio

St. 2d 279, 376 N.E. 2d 578.

       {¶ 18} However, we review the court’s determination of legal issues de novo.

Murray v. Lyon (1994), 95 Ohio App. 3d 215, 642 N.E. 2d 41.

       {¶ 19} We will address Fosnaught’s assignments of error first.
Stark County, Case Nos. 2011-CA-00077 and 2011-CA-00085                                  6


                                                I.

       {¶ 20} In his first assignment of error, Fosnaught argues the trial court erred in

failing to find he has a prescriptive easement over the portion of the driveway Canton

Asphalt owns. The magistrate properly stated the party claiming a prescriptive

easement has the burden of proving a use of the property that is (1) open; (2) notorious;

(3) adverse to the other party’s property rights; (4) continuous; and (5) at least 21 years

in duration. Decision of the magistrate, at p. 11 citing J.F. Gioia, Inc. v. Cardinal AM

Corporation (1985), 23 Ohio App. 3d 33. The magistrate noted prescriptive easements

are not favored in law because they deprive the legal property owner of rights without

compensation. Id., citation deleted. The claimant has the burden of setting out a prima

facie case, and then the burden shifts to the owner of the servient property to show that

the use was permissive rather than adverse.

       {¶ 21} The magistrate found Fosnaught proved his use of the driveway was

open and notorious, but found the use was not continuous and had not existed for the

required 21 years. The magistrate found Fosnaught’s use was uninterrupted, but prior

to 1994, the driveway was a straight west to east driveway to Whipple Avenue. In 1994,

a DIY store was constructed on the east side of Whipple and a traffic light and curb cut

was constructed on Canton Asphalt’s property. A traffic light metal pole was placed on

the southwest corner of the subject driveway, requiring vehicles to exit at a place further

north. In addition, at one point, Canton Asphalt also had a “tarp rack” located in the

area of the driveway, which necessitated another redirection of the driveway.         The

magistrate found further, after Canton Asphalt Company deconstructed its plant and
Stark County, Case Nos. 2011-CA-00077 and 2011-CA-00085                                7


operations in 2005, Fosnaught’s use of the driveway changed a third time, and

Fosnaught began to exit the driveway at a point further north.

       {¶ 22} A substantial change in the mode of use of a driveway interrupts the

element of continuous use. Keish v. Russell (February 17, 1995), Athens App. No.

94CA1618 at 2, citing to Ohio Jurisprudence 3d (1977), 524, Adverse Possession,

Section 25; and Railway Company v. Roseville (1907), 76 Ohio St. 106, 118.

       {¶ 23} We agree with the court Fosnaught’s use of the driveway was

uninterrupted but changed over time and thus not continuous.

       {¶ 24} The magistrate also found Fosnaught had not demonstrated his use of the

driveway was adverse to Canton Asphalt’s property rights, because Fosnaught’s use

was permissive, not adverse. The magistrate found Canton Asphalt’s president and

vice-president asserted Canton Asphalt tolerated and acquiesced to Fosnaught’s use of

the driveway. The magistrate concluded Fosnaught had not demonstrated he had a

prescriptive easement.

       {¶ 25} Fosnaught also argues his use of the driveway is adverse to the interest of

Canton Asphalt. He asserts the record indicates he never asked Canton Asphalt for

permission to use the driveway, and Canton Asphalt never told him he could use it. He

argues the two parties did not interact with each other and did not have a friendly or

neighborly relationship.

       {¶ 26} We find there is competent and credible evidence supporting the court’s

determination that Canton Asphalt was aware of Fosnaught’s use of its property and

acquiesced in it.
Stark County, Case Nos. 2011-CA-00077 and 2011-CA-00085                                  8


       {¶ 27} We conclude the trial court did not err in adopting the magistrate’s

decision that Fosnaught had not demonstrated he had a prescriptive easement over the

driveway. The first assignment of error is overruled.

                                                   II.

       {¶ 28} In his second assignment of error, Fosnaught argues the court erred in

failing to find he had an easement by necessity over the driveway.

       {¶ 29} The magistrate found an easement of necessity is an implied easement,

which is not favored in law because it is in derogation of the rule the written instruments

speak for themselves. Decision of the magistrate, page 16, citation deleted. In order to

establish an easement of necessity, a claimant must prove: (1) the two properties were

once one parcel but are now severed; (2) before the separation the use that gives rise

to the claimed easement was long and obvious, which shows that the easement was

meant to be permanent; (3) the easement is reasonably necessary to the beneficial

enjoyment of the land granted or retained; and (4) the servitude is continuous as

opposed to temporary or occasional.

       {¶ 30} Fosnaught argues prior to 1958, the Fosnaught property and the Canton

Asphalt property were one parcel on the same deed. Fosnaught alleges prior to the

severance of the two properties, his predecessors in interest had used this driveway at

least back to 1947. He further argues the driveway is necessary for purposes of ingress

and egress to the Fosnaught property.        Fosnaught concedes there is an alternate

access, but presented evidence using the alternate access is not economically feasible

and likely would invite future claims or issues.
Stark County, Case Nos. 2011-CA-00077 and 2011-CA-00085                                    9


       {¶ 31} The magistrate found the two properties were never unified in fee simple

because railroad tracks split the two properties at all relevant times. The magistrate

found even if Fosnaught could satisfy the first and second elements, supra,

nevertheless he cannot demonstrate the easement is strictly necessary for the use and

enjoyment of his property. The property is not landlocked. The magistrate found an

easement may not be implied where there is an alternative outlet to a public way, even

if it is less convenient or more expensive. Decision of the magistrate, at page 18, citing

Tiller v. Hinton (1985), 19 Ohio St. 3d 66, 69, 482 N.E. 2d 946 and Cadwallader v.

Scovanner, 178 Ohio App. 3d 26, 2008-Ohio-4166, 896 N.E. 2d 748.

       {¶ 32} We agree with the trial court Fosnaught did not establish by clear and

convincing evidence he had an easement by necessity over Canton Asphalt’s property.

The second assignment of error is overruled.

                                                III.

       {¶ 33} In his third assignment of error, appellant argues the trial court erred in

finding the agreement between the parties was enforceable, because it is voidable

based upon a mutual mistake of fact. The mutual mistake of fact is that the parties both

believed Canton Asphalt owned the entire driveway, when in fact, a strip of it belonged

to a third party.

       {¶ 34} The magistrate found this mistake was not material to the agreement. In

order for a mutual mistake to form the basis for cancellation or rescission of a contract,

the mistake must be material to the contract, must affect its substance, and must affect

both parties. A mistake is material for purposes of rescission of a contract if it frustrates

the intent of the parties. Rylee Ltd. v. Izzard Family Partnership, 178 Ohio App. 3d 172,
Stark County, Case Nos. 2011-CA-00077 and 2011-CA-00085                                 10


2008-Ohio-4506, 897 N.E. 2d 208.          The magistrate found the mistake here is not

material because it did not frustrate the intent of the parties, which was to grant

Fosnaught a license over property owned by Canton Asphalt. We agree.

       {¶ 35} The third assignment of error is overruled.

       {¶ 36} We will next address Canton Asphalt’s assignments of error.

                                                   I.

       {¶ 37} In its first assignment of error, Canton Asphalt argues the trial court erred

in denying its motion for recovery of legal fees and court costs because it was the

prevailing party in the litigation over the contract.

       {¶ 38} While Canton Asphalt prevailed on the question of the contract, it was

unsuccessful in its claim to quiet title/adverse possession of the property formerly

owned by the third party and granted to Fosnaught in his adverse possession action.

We conclude Canton Asphalt did not entirely prevail in the case. The Strip Delaware

LLC v. Landry’s Restaurants, Inc., 191 Ohio App. 3d 822, 2010-Ohio-6403, 947 N.E. 2d

2d 1233, at paragraphs 37-39, citations deleted.

       {¶ 39} The first assignment of error is overruled.

                                                  II.

       {¶ 40} In its second assignment of error, Canton Asphalt argues the trial court

erred in dismissing its quiet title/adverse possession claim without reviewing the merits,

and erred in ruling it constituted a collateral attack upon the prior judgment.

       {¶ 41} The magistrate found Canton Asphalt’s claims, if granted, would nullify the

prior judgment which found Fosnaught had acquired the property by adverse
Stark County, Case Nos. 2011-CA-00077 and 2011-CA-00085                             11


possession. Canton Asphalt attempted to intervene in the prior case, but did not appeal

the court’s refusal to permit it to join in the case.

       {¶ 42} We agree with the trial court a review of the ownership of the property

formerly owned by the third party, would re-open the prior case, and this constitutes a

collateral attack on the prior judgment.

       {¶ 43} The second assignment of error is overruled.

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

Stark County, Ohio, is affirmed.

                                                                        By: Gwin, P.J.,

Farmer and Delaney, JJ., concur.




                                                 _________________________________
                                                 HON. W. SCOTT GWIN

                                                 _________________________________
                                                 HON. SHEILA G. FARMER

                                                 _________________________________
                                                 HON. PATRICIA A. DELANEY
[Cite as Canton Asphalt Co. v. Fosnaught, 2011-Ohio-5902.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


CANTON ASPHALT CO.,                                  :
                                                     :
                Appellee/Cross-Appellant,            :
                                                     :
                                                     :
v.                                                   :       JUDGMENT ENTRY
                                                     :
DANIEL J. FOSNAUGHT,                                 :
                                                     :
                                                     :
                  Appellant/Cross-Appelle.           :       CASE NO. 2011-CA-00077




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

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to be

split between the parties.




                                                         _________________________________
                                                         HON. W. SCOTT GWIN

                                                         _________________________________
                                                         HON. SHEILA G. FARMER

                                                         _________________________________
                                                         HON. PATRICIA A. DELANEY
             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT

CANTON ASPHALT CO.,                        :
                                           :
     Appellee/Cross-Appellant,             :
                                           :
                                           :
v.                                         :         JUDGMENT ENTRY
                                           :
DANIEL J. FOSNAUGHT,                       :
                                           :
                                           :
     Appellant/Cross-Appellee.             :    CASE NO. 2011-CA-00085




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

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to be

split between the parties.




                                           _________________________________
                                           HON. W. SCOTT GWIN

                                           _________________________________
                                           HON. SHEILA G. FARMER

                                           _________________________________
                                           HON. PATRICIA A. DELANEY
