[Cite as Vance v. Cibella, 2019-Ohio-5409.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


 MARY J. VANCE,                                   :         OPINION

                   Plaintiff-Appellee,            :
                                                            CASE NO. 2018-T-0082
         - vs -                                   :

 CAROL L. CIBELLA,                                :

                   Defendant-Appellant.           :


 Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2018 CV
 00239.

 Judgment: Reversed and remanded.


 Elise M. Burkey and James R. Scher, Burkey, Burkey & Scher Co., L.P.A., 200 Chestnut
 Avenue, N.E., Warren, Ohio 44483 (For Plaintiff-Appellee).

 Michael D. Rossi, Guarnieri & Secrest, PLL, 151 East Market Street, P.O. Box 4270,
 Warren, Ohio 44482 (For Defendant-Appellant).



THOMAS R. WRIGHT, P.J.

        {¶1}      Appellant, Carol L. Cibella, appeals the trial court’s decision denying her

motion for relief from judgment. Cibella and appellee, Mary Vance, own adjacent real

property. Vance’s dwelling, situated predominantly on her property, slightly encroaches

on Cibella’s property. Vance filed suit for adverse possession, among other things, and

the case was eventually settled pursuant to an agreed judgment entry granting Vance

partial summary judgment and dismissing her other claims. Cibella sought relief from the
parties’ amended agreed judgment entry arguing that the agreement authorized a

conveyance of more property than they had agreed, and the trial court improperly denied

her motion. For the following reasons, we reverse and remand.

      {¶2}   Cibella raises one assignment of error:

      {¶3}   “The trial court erred in denying Appellant’s motion for relief from judgment.”

      {¶4}   Cibella argues the trial court abused its discretion in failing to grant her

motion for relief from judgment. Cibella’s motion seeks relief pursuant to subsections

(B)(1) and (B)(3). She claims that it is evident that there is a mistake or misconduct by

Vance warranting relief from the parties’ agreed judgment because the documents

attached to the agreed judgment and the amended agreed judgment convey more

property to Vance than was agreed to by the parties.

      {¶5}   In response, Vance urges affirmance claiming that any mistake was that of

Cibella’s counsel alone, and as such, Civ.R. 60(B) relief is not warranted. Vance argues

that the parcel to be conveyed via adverse possession included the overhang of the house

and the six feet surrounding the encroachment to access the property for mowing and

access to wash and repair the home.        A plain language description of this nature

conveying this additional six feet, however, is not present in the body of the parties’

agreed judgment entry or the amended agreement.

      {¶6}   Vance argues that Cibella’s problem arose because her attorney failed to

comprehend the conveyance documents. And because he failed to understand and

adequately explain the documents to Cibella, there was no mutual mistake of fact

warranting relief from judgment.

      {¶7}   The trial court denied Cibella’s motion without explanation.




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       {¶8}   We review appeals from a denied motion for relief from judgment for an

abuse of discretion. State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 666 N.E.2d

1134 (1996), citing Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564

(1988). An abuse of discretion connotes judgment exercised by the trial court that does

not comport with reason or the record. Ivancic v. Enos, 11th Dist. Lake No. 2011-L-050,

2012-Ohio-3639, 978 N.E.2d 927, ¶ 70.

       {¶9}   “When an appellate court is reviewing a pure issue of law, ‘the mere fact

that the reviewing court would decide the issue differently is enough to find error (of

course, not all errors are reversible. Some are harmless; others are not preserved for

appellate review). By contrast, where the issue on review has been confined to the

discretion of the trial court, the mere fact that the reviewing court would have reached a

different result is not enough, without more, to find error.” Id. at ¶ 70, quoting State v.

Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 67.

       {¶10} Civ.R. 60 states:

       {¶11} “(B) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered

Evidence; Fraud; Etc. On motion and upon such terms as are just, the court may relieve

a party or his legal representative from a final judgment, order or proceeding for the

following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * (3) fraud

(whether heretofore denominated intrinsic or extrinsic), misrepresentation or other

misconduct of an adverse party; * * * or (5) any other reason justifying relief from the

judgment. The motion shall be made within a reasonable time, and for reasons (1), (2)

and (3) not more than one year after the judgment, order or proceeding was entered or




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taken. A motion under this subdivision (B) does not affect the finality of a judgment or

suspend its operation.”

       {¶12} “In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the

movant must establish that ‘(1) the party has a meritorious defense or claim to present if

relief is granted; (2) the party is entitled to relief under one of the grounds stated

in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and,

where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after

the judgment, order or proceeding was entered or taken.’ GTE Automatic Elec., Inc. v.

ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph

two of the syllabus. Civ.R. 60(B) relief is improper if any one of the foregoing requirements

is not satisfied. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174, 637 N.E.2d 914, 915.

       {¶13} “In addition, if the Civ.R. 60(B) motion contains allegations of operative

facts which would warrant relief from judgment, the trial court should grant a hearing to

take evidence to verify those facts before it rules on the motion. Kay v. Marc Glassman,

Inc. (1996), 76 Ohio St.3d 18, 665 N.E.2d 1102; Coulson v. Coulson (1983), 5 Ohio St.3d

12, 16, 5 OBR 73, 77, 448 N.E.2d 809, 812. Conversely, an evidentiary hearing is not

required where the motion and attached evidentiary material do not contain allegations of

operative facts which would warrant relief under Civ.R. 60(B). S. Ohio Coal Co. v.

Kidney (1995), 100 Ohio App.3d 661, 667, 654 N.E.2d 1017, 1021.” (Emphasis added).

State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 666 N.E.2d 1134 (1996).

       {¶14} “Where timely relief is sought * * * and the movant asserts a meritorious

defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment




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so that cases may be decided on their merits.” GTE Automatic, supra, paragraph three

of the syllabus.

       {¶15} Here, the first and third prongs are not in dispute. Cibella’s motion was filed

within a year of the amended agreed judgment entry from which she seeks relief. Cibella

also alleges a meritorious claim for relief, i.e., that the parties only agreed to a conveyance

of the property on which Vance’s dwelling sits, not an additional six feet.

       {¶16} The parties’ disagreement centers on the second prong, namely Cibella’s

claim that she is entitled to relief under either Civ.R. 60(B)(1) or (3) based on mistake and

inadvertence or due to Vance’s misrepresentation or other misconduct in attaching an

overinclusive property description to the amended agreed entry.

       {¶17} “In order to obtain relief on the basis of mistake, the court must find ‘a mutual

mistake shared by both parties as to a material fact in the case.’ Smith v. Smith, 8th Dist.

No. 83275, 2004 Ohio 5589, at ¶ 17.

       {¶18} “‘[T]he courts of this state have generally held that relief from the decree will

not be granted when the alleged “mistake” was merely a unilateral mistake on the part of

one party or her counsel.’ Irwin v. Irwin, 11th Dist. No. 95-L-102, 1996 Ohio App. LEXIS

4210, at 13, 1996 WL 586762; see, also, Cook v. Cook, 11th Dist. No.2000-P-0057, 2001

Ohio App. LEXIS 3448, at 10-11 (party agreed to settlement dividing marital property by

parcel rather than actual acreage); Hytree v. Hytree, 11th Dist. No. 93-L-036, 1994 Ohio

App. LEXIS 2544, at 7-8 (party failed to have marital property properly valued prior to

signing settlement agreement); In re Wise (1988), 46 Ohio App.3d 82, 83-84, 545 N.E.2d

1314, (party drafting settlement agreement failed to include the other party's military

pension). In these situations, the party alleging the mistake ‘must show why he was




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justified in failing to avoid mistake or inadvertence[;] gross carelessness is

insufficient.’ Galley v. Galley (May 18, 1994), 1st Dist. Nos. 93-CA-31 and 93-CA-32,

1994 Ohio App. LEXIS 2105, at 11, 1994 WL 191431 (citation omitted); cf. Najarian v.

Kreutz (Aug. 31, 2001), 6th Dist. No. L-00-1302, 2001 Ohio App. LEXIS 3887, at 9, 2001

WL 1001234 quoting Walther v. Walther (1995), 102 Ohio App.3d 378, 383, 657 N.E.2d

332 (‘neither a change of heart nor poor legal advice is a ground to set aside a settlement

agreement’).” Mamula v. Mamula, 11th Dist. Trumbull No. 2005-T-0148, 2006-Ohio-

4176, ¶ 13-14.

      {¶19} When seeking relief from judgment based on the adverse party’s

misconduct, “the fraud, misrepresentation, or other misconduct contemplated by Civ.R.

60(B)(3) refers to deceit or other unconscionable conduct committed by a party to obtain

a judgment and does not refer to conduct that would have been a defense to or claim in

the case itself.” Bank of America, N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275,

21 N.E.3d 1040, ¶ 13, citing PNC Bank, Natl. Assn. v. Botts, 10th Dist. Franklin No. 12AP-

256, 2012-Ohio-5383, ¶ 15.

       {¶20} Vance filed suit against Cibella for adverse possession, declaratory

judgment, and easement by prescription. Count one of Vance’s complaint alleges that

she and her predecessors have been in actual possession “of a portion of the lands” of

Cibella “due to a portion of her dwelling encroaching on a small portion of” Cibella’s land

for more than 21 years. Cibella’s answer admits this claim.

      {¶21} In count two, Vance claims that the encroachment clouds both parties’ titles

to their real estate and that the issue could be resolved pursuant to a permanent




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easement, but that because Cibella refused to execute or agree to an easement, the

parties’ titles are clouded. Cibella also admits this claim in her answer.

       {¶22} Vance’s demand for judgment sought a declaration that she is the owner of

the property described in Exhibit C attached to her complaint and that she be granted an

easement to access the housing encroachment for maintenance. Exhibit C attached to

her complaint is the same map titled “Building Encroachment” that is attached to the

parties’ original agreed judgment. Vance sought adverse possession only of the property

on which the house sits, not an additional six feet.

       {¶23} Vance’s affidavit, attached to the complaint as Exhibit D, states in part that

Vance “claims title to that portion of property upon which her dwelling sits on the land of

Carol L. Cibella by Adverse Possession.” She also avers that Cibella and her attorney

acknowledge Vance’s claim and that “as a result, no encroachment exists as Mary J.

Vance owns that portion of real property that her dwelling is constructed upon that was

previously the property of * * * Cibella and that Carol L. Cibella has disclaimed any right,

title and interest therein, together with reasonable area adjacent thereto to maintain,

repair or replace said structure.” (Emphasis added.) Vance attests that Exhibit A to her

affidavit describes the partial encroachment of her dwelling on the lands owned by

Cibella.

       {¶24} Exhibit C, attached to Vance’s affidavit, is a letter from Cibella’s attorney to

Vance’s lawyer in which Cibella concedes the ongoing encroachment and acknowledges

Vance’s adverse possession of “the portion of [Vance’s] residence that encroaches upon

[Cibella’s] property * * *.” The letter limits the scope of the concession to that property on

which the dwelling sits.




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         {¶25} As stated, Cibella admits the allegations in paragraphs one and two of the

complaint. Cibella also admits certain allegations in paragraphs three, four, and five.

Based on these admissions, Vance moved for partial summary judgment, and the parties

submitted an agreed judgment entry granting Vance summary judgment for adverse

possession on count one and dismissing counts two and three. Count one makes no

mention of an additional six feet for adverse possession; does not refer to a six-foot

easement for cleaning and access to the home; and only refers to the encroachment.

         {¶26} Throughout the pleadings the parties refer to the property underneath

Vance’s home that actually sits on Cibella’s property as the “encroachment” and the six-

foot perimeter around the encroachment as the “easement.”

         {¶27} An encroachment is “1. An infringement of another's rights. 2. An

interference with or intrusion onto another's property.” Black's Law Dictionary (10th ed.

2014).

         {¶28} Whereas an “easement” is “[a]n interest in land owned by another person,

consisting in the right to use or control the land, or an area above or below it, for a specific

limited purpose (such as to cross it for access to a public road). * * * Unlike a lease or

license, an easement may last forever, but it does not give the holder the right to possess,

take from, improve, or sell the land.” Black's Law Dictionary (10th ed. 2014).

         {¶29} The body of the May 9, 2018 original agreed judgment entry does not

describe or identify the property to be conveyed, but it includes an attached legal

description and separate map of the property to be conveyed to Vance. The land

measurement description is titled “Legal Description Building Easement,” and it describes

the amount of the property as 196.89 square feet or 0.0045 acres “to be reserved as a




                                               8
building easment.” And the map attached to the original agreed entry is titled “Exhibit

Map Building Encroachment,” and the enlarged “detail” on the map depicts only the

dwelling encroachment and does not depict an additional six feet around the dwelling.

       {¶30} The parties later executed and filed an amended agreed judgment entry,

dated June 6, 2019. According to both parties, the amended agreement was only

intended to correct a typographical error and change the letter “E” to “W” describing east

and west. However, the amended agreed judgment entry makes not only this change,

but also three additional substantive changes.

       {¶31} First, conspicuously absent from the legal description attached to the

amended judgment entry is the title identifying the description as a “building easement.”

And secondly, unlike the description attached to the original agreed judgment entry, the

legal description attached to the amended agreed judgment is missing the language

stating that the land described therein “is to be reserved as a building easement.”

       {¶32} Finally, the map attached to the amended agreed judgment entry is also

different than the one attached to the original agreed entry. The map affixed to the parties’

amended judgment entry is captioned, “Map of Survey Lands of Carol L. Cibella” and the

enlarged “detail” depicts more than that attached to the original entry. This map purports

to convey from Cibella to Vance both the land under the Vance dwelling that encroaches

on Cibella’s property and an additional six-foot perimeter around the encroachment.

       {¶33} Here, we agree that Cibella alleges operative facts that would warrant relief

from judgment, i.e., the parties’ agreement was to convey the property underlying the

dwelling to Vance, not an additional six feet around the encroachment. The pleadings

support this theory, and the attachments to the amended agreed judgment entry conflict




                                             9
with the statement in both agreements that Vance was granted summary judgment on

count one, which sets forth a claim for adverse possession of the encroached property,

not an additional six feet.

       {¶34} In light of the foregoing, the trial court must hold an evidentiary hearing to

allow evidence as to the scope of the agreed conveyance because the record is

conflicting. State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 666 N.E.2d 1134,

(1996), (“[T]he trial court should grant a hearing to take evidence to verify those facts

before it rules on the motion.”) Cibella’s answer and her attorney’s letter attached to

Vance’s complaint support Cibella’s argument that she agreed to convey the land on

which the dwelling sits, nothing more. Yet, the legal description and map attached to the

amended agreed judgment entry depict the property beneath the dwelling in addition to a

six-foot perimeter around it.

       {¶35} Vance never sought an additional six feet via adverse possession, and as

such, Cibella was not at risk of losing this property in the litigation. It would seemingly be

an odd twist that she would agree to just give it away, but perhaps.

       {¶36} Consequently, evidence is necessary to determine whether the parties

agreed that the conveyance was limited to the property on which the dwelling sits, as the

pleadings suggest, or if the parties agreed that Cibella was to convey the property on

which the dwelling sits plus an additional six feet. Moreover, if there was a mistake of

fact regarding the extent of the conveyance, evidence is necessary to assess whether the

mistake was unilateral or mutual and if unilateral, whether Cibella was justified in failing

to avoid the mistake. Mamula v. Mamula, 11th Dist. Trumbull No. 2005-T-0148, 2006-

Ohio-4176, ¶ 13-14.       Additionally, the court should assess whether Vance acted




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improperly by attaching a different legal description and map of the property that

exceeded the scope of the parties’ agreement while representing that the amended

agreed judgment entry was necessary only to change an E to a W. Accordingly, Cibella’s

assigned error has merit to the extent stated.

      {¶37} The trial court’s decision is reversed, and the case is remanded for an

evidentiary hearing on the motion for relief from judgment.



TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.




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