[Cite as Bennett v. Peters, 2013-Ohio-1467.]




               IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO

T. ROBERT BENNETT, et al.                                :

        Plaintiffs-Appellees                             :       C.A. CASE NO.      2012 CA 5

v.                                                       :       T.C. NO.    11CV689

ROBERT A. PETERS, et al.                                 :        (Civil appeal from
                                                                   Common Pleas Court)
        Defendants-Appellees                             :

and                                                      :

AMERICAN PREMIER UNDERWRITERS,                           :
INC.
                                                         :
        Defendant-Appellant
                                                         :

                                               ..........

                                               OPINION

                         Rendered on the          12th       day of         April      , 2013.

                                               ..........

JOHN F. MARCHAL, Atty. Reg. No. 0005408, 116 W. Fourth Street, Greenville, Ohio
45331
      Attorney for Plaintiffs-Appellees

JASON D. GROPPE, Atty. Reg. No. 0080639, 1700 PNC Center, 201 East Fifth Street,
Cincinnati, Ohio 45202
       Attorney for Defendant-Appellant

WESTERN OHIO TRAX, 531 S. Main Street, Ansonia, Ohio 45303
    Defendant-Appellee
                                           ..........
DONOVAN, J.

        {¶ 1}    Defendant-appellant American Premier Underwriters, Inc. (hereinafter

“APU”), appeals a decision and judgment entry of the Darke County Court of Common

Pleas, General Division, quieting title in a 1.5 acre strip of real property to plaintiff-appellees

T. Robert and Sara Bennett (hereinafter “the Bennetts”). The trial court’s decision was

issued on July 6, 2012. APU filed a timely notice of appeal with this Court on August 3,

2012.

        {¶ 2}    On November 8, 2011, the Bennetts filed a complaint against APU, Western

Ohio Trax (hereinafter “WOT”), and Robert and Sherie Peters (hereinafter “the Peters”),

seeking to quiet title in a 1.5 acre strip of property previously used as a rail corridor which

adjoined the Bennetts’ property. 1 In their complaint, the Bennetts argued that they had

acquired title to the property through adverse possession.          Alternatively, the Bennetts

asserted that APU had “abandoned it use” of the subject property, and title had, therefore,

reverted to the Bennetts.




           1
           The record establishes that the Peters, landowners adjacent to the
   Bennetts in relation to the 1.5 acre strip of land, purportedly acquired their
   interest in the subject property by limited warranty deed from WOT in 2011.
   Prior to that, WOT acquired its interest from APU by quitclaim deed in 1992.
   APU allegedly acquired its interest in the subject property through a deed
   executed by Thomas C. Brawley to Richmond & Covington R.R. Co. We note
   that the record also reflects that unlike APU, neither WOT nor the Peters filed a
   notice of appeal from the decision of the trial court issued on July 6, 2012.
   Accordingly, neither the Peters nor WOT are parties to the instant appeal.
[Cite as Bennett v. Peters, 2013-Ohio-1467.]
        {¶ 3}      In response, APU filed a motion to dismiss the complaint, arguing that the

Bennetts are currently class members in an earlier filed action pending in Trumbull County,

Ohio, captioned Paula D. Maas v. Penn Central Corporation, et al., Case No. 99CV723

(hereinafter “the Trumbull action”). One of the central issues to be litigated in the class

action related to whether APU abandoned its interests in the subject property, which

arguably includes the viability of APU’s subsurface reservations and occupations in said

property. APU asserted that the Bennetts’ complaint should be dismissed because their

claims related to the same property interests that were already being adjudicated in the
                                                   2
earlier-filed Trumbull County class action.            Accordingly, APU argued that the

jurisdictional priority rule (JPR) applied and acted to divest the trial court in the instant

litigation of subject matter jurisdiction.

        {¶ 4}      In their memorandum in opposition to APU’s motion to dismiss, the

Bennetts argued that their claim for adverse possession was unaffected by the JPR, and

should, therefore, not be dismissed. The Bennetts, however, conceded that the JPR did, in

fact, divest the trial court of jurisdiction over their abandonment claim because it was

already being litigated in the Trumbull County class action. Correspondingly, the Bennetts

also conceded that they were members of the Trumbull County class action, and therefore,

bound by the judgment of the trial court in Trumbull County.

        {¶ 5}      Despite the Bennetts’ concession regarding the applicability of the JPR to

their abandonment claim, on January 18, 2012, the trial court overruled APU’s motion to

dismiss in its entirety. Specifically, the trial court found that “it is apparent that the claims

            2
                The Trumbull County case was certified as a class action on August 7,
   2003.
                                                                                            4

asserted and the relief requested in the Trumbull County case differs [sic] from the claim

asserted and the relief requested [in the instant case]. *** As such, the [JPR] *** does not

divest this Court of jurisdiction over the claims raised in the complaint.”

            {¶ 6}   Following the ruling of the trial court, the Bennetts filed an amended

complaint on April 5, 2012, in which they dropped their abandonment claim against APU.

Thus, the only remaining claim to be litigated against APU in the Bennetts’ complaint was

the claim for adverse possession of the subject property. On June 14, 2012, a trial was held

before the court regarding the Bennetts’ claims against all of the defendants. As a result of

the Bennetts’ amended complaint, the only claim pending against APU was the claim for

adverse possession. With respect to the remaining defendants, WOT and the Peters, the

Bennetts maintained claims for adverse possession, abandonment of easement, and slander

of title.

            {¶ 7}   On July 6, 2012, the trial court issued a “Judgment Entry and Decision”

quieting title in the subject property to the Bennetts.       In its decision finding that the

Bennetts lawfully acquired the property by adverse possession, the trial court also made

findings regarding APU’s purported abandonment of, interest in, and/or use of the subject

property. On July 20, 2012, APU filed a “Motion to Alter or Amend Judgment” pursuant to

Ohio Civ. R. 59(A). In its motion, APU argued that the trial court erred by ruling on

matters not properly before it and that the JPR precluded the trial court from ruling on such

matters. The trial court subsequently overruled APU’s motion to amend the judgment and

stated as follows:

            The Court previously found that the [JPR] was not applicable herein. The
                                                                                            5

       Court refused to concede that Trumbull County possessed exclusive

       jurisdiction of the issues herein. The Court was concerned about the lack of

       adjudication in the decade since the case was filed in Trumbull County and

       the lack of decision of an issue of increasing importance.

       {¶ 8}    Defendant-appellant APU appeals from the “Judgment Entry and Decision”

issued by the trial court on July 6, 2012.

       {¶ 9}    Because they are interrelated, APU’s first and second assignments of error

will be discussed together as follows:

       {¶ 10} “THE TRIAL COURT ERRED IN RENDERING FINDINGS RELATED

TO APU’S PURPORTED ABANDONMENT OF THE SUBJECT RAIL CORRIDOR AND

THE VALIDITY OF APU’S PROPERTY INTERESTS THEREIN BECAUSE THE

JURISDICTIONAL PRIORITY RULE DIVESTED THE TRIAL COURT OF SUBJECT

MATTER JURISDICTION TO MAKE SUCH FINDINGS.”

       {¶ 11} “THE TRIAL COURT ERRED IN RENDERING FINDINGS RELATED

TO APU’S PROPERTY INTERESTS IN THE SUBJECT RAIL CORRIDOR BECAUSE

THAT ISSUE WAS NOT BEFORE THE COURT FOR ADJUDICATION.”

       {¶ 12} In its first assignment, APU contends that the trial court erred when it

rendered findings regarding its alleged abandonment of the subject property. Specifically,

APU argues that application of the JPR divested the trial court of subject matter jurisdiction

to make any findings regarding APU’s purported abandonment of, interest in, and/or use of

the subject property.

       {¶ 13} Initially, we note that the Bennetts point out that they eliminated the claim
                                                                                           6

for abandonment against APU from their amended complaint. The Bennetts concede that

the JPR divested the trial court of subject matter jurisdiction over the abandonment claim

against APU because the same claim was already being litigated in the Trumbull County

class action.

       {¶ 14} The jurisdictional priority rule provides that:

       [a]s between [state] courts of concurrent jurisdiction, the tribunal whose

       power is first invoked by the institution of prior proceedings acquires

       jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the

       whole issue and to settle the rights of the parties. * * * In general, the

       jurisdictional-priority rule applies when the causes of action are the same in

       both cases, and if the first case does not involve the same cause of action or

       the same parties as the second case, the first case will not prevent the second.

       State, ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio

       St.3d 372, 376, 2008-Ohio-6253, 899 N.E.2d 961, at ¶ 16.

       {¶ 15} In the instant case, it is clear that application of the JPR divested the trial

court of subject matter jurisdiction and precluded the trial court from adjudicating any

claims regarding APU’s purported abandonment of any interest in, and/or use of the subject

property. Significantly, the Bennetts conceded that they are members of the plaintiff class

in the Trumbull County action which was initiated approximately ten years before the

Bennetts filed their complaint in Darke County. In its brief, APU notes that the Trumbull

County Court of Common Pleas (TCC) has already made findings which conflict with the

findings of the trial court’s July 6, 2012, “Judgment Entry and Decision.” We note that the
                                                                                            7

TCC and the trial court are both “state courts of concurrent jurisdiction.” For example, the

TCC held that whether APU abandoned its easement on the subject property is a question of

fact to be decided by the jury in the Trumbull County class action. Paula D. Maas v. Penn

Central Corporation, et al., Case No. 99CV723 (November 9, 2011). This finding by the

TCC directly conflicts with the trial court’s findings in the July 6, 2012, judgment entry and

confirms that any issues regarding APU’s purported abandonment of the easement of the

subject property must be adjudicated in the Trumbull County class action pursuant to the

JPR.

       {¶ 16} Moreover, the trial court’s rationale behind its finding that the JPR was not

applicable to the instant case is wholly unpersuasive. Specifically, the trial court “was

concerned about the lack of adjudication in the decade since the case was filed in Trumbull

County and the lack of decision of an issue of increasing importance.” While the trial

court’s interest in judicial efficiency is admirable, this is clearly an instance where

application of the JPR is entirely necessary.     Additionally, we note that the Bennetts

dropped their abandonment claim against APU from their amended complaint. Therefore,

the issue surrounding APU’s alleged abandonment of easement was not even properly before

the trial court. Thus, it was error for the court to render any judgment with respect to a

matter that was no longer at issue in the case. Accordingly, the trial court erred when it

made findings regarding APU’s abandonment of the subject property.

       {¶ 17} Finally, we note that the trial court found that the Bennetts acquired title to

the subject property through adverse possession. It is undisputed that APU did not contest

the Bennetts’ adverse possession claim when the matter was tried before the court. APU
                                                                                               8

asserts that this is because it asserted no interest in the property. To acquire title by adverse

possession, a party must prove, by clear and convincing evidence, exclusive possession, and

open, notorious, continuous, and adverse use for a period of twenty-one years. Grace v.

Koch, 81 Ohio St.3d 577, 928 N.E.2d 742 (1998).

       {¶ 18} On appeal, APU does not dispute the trial court’s finding that the Bennetts’

properly acquired title to the subject property through adverse possession. APU merely

points out that the Bennetts’ claims for adverse possession and abandonment are separate

and distinct from one another. Abandonment focuses on the acts and omissions of the

dominant estate holder and requires that the owner of the servient estate prove both non-use

and an affirmative intent to abandon the easement. Snyder v. Monroe Twp. Trustees, 110

Ohio App.3d 443, 457, 674 N.E.2d 741 (2d Dist.1996). Thus, whether the subject property

was abandoned is a question of fact depending on the actions of APU. Conversely, adverse

possession focuses on the acts of the one claiming prescriptive ownership, in this case, the

Bennetts themselves. Accordingly, a determination of whether a party acquired a property

through adverse possession is distinct from an adjudication that another party abandoned the

subject property.

       {¶ 19} Upon review, we conclude that the trial court erred when it rendered

judgment with respect to APU’s alleged abandonment of the subject property. The issue of

abandonment was not properly before the trial court because the Bennetts eliminated the

claim as it related to APU from their amended complaint. Moreover, application of the JPR

divested the trial court of subject matter jurisdiction and precluded the trial court from

adjudicating any claims regarding APU’s purported abandonment of, interest in, and/or use
                                                                                            9

of the subject property.

       {¶ 20} APU’s first and second assignments of error are sustained.

       {¶ 21} Both of APU’s assignments of error having been sustained, the judgment of

the trial court is reversed with respect to its determination regarding APU’s purported

abandonment of, interest in, and/or use of the subject property, and this matter is remanded

for proceedings consistent with this opinion. In all other respects, the judgment of the trial

court is affirmed.

                                         ..........

FAIN, P.J. and WELBAUM, J., concur.

Copies mailed to:

John F. Marchal
Jason D. Groppe
Western Ohio Trax
Hon. Jonathan P. Hein
