[Cite as Carson v. Duff, 2016-Ohio-5093.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            FAYETTE COUNTY




MICHAEL R. CARSON, TRUSTEE, et al.,               :

        Plaintiffs/Third-Party Defendants/        :      CASE NO. CA2015-06-013
        Appellants,
                                                  :           OPINION
    - vs -                                                     7/25/2016
                                                  :
ROSCOE DUFF, DECEASED, et al.,
                                                  :
        Defendants,
                                                  :
    - vs -
                                                  :
MICHAEL R. CARSON, et al.,
                                                  :
        Defendants/Third-Party Plaintiffs/
        Appellees.                                :



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                             Case No. 13CVH00471



Kiger & Kiger, David V. Kiger, 132 South Main Street, Washington C.H., Ohio 43160, for
plaintiffs-appellants and third party defendants

Daniel W. Drake, P.O. Box 171, Bloomingburg, Ohio 43106, for defendants-appellees and
third party plaintiffs



        RINGLAND, J.

        {¶ 1} Plaintiffs-appellants appeal the decision of the Fayette County Court of

Common Pleas granting summary judgment in favor of defendants-appellees in a dispute
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over real property.1 For the reasons detailed below, we reverse the decision of the trial court

and remand for further proceedings.

         {¶ 2} This case involves a disputed 102 acre tract of farmland located in Fayette

County. The property was conveyed several times over the years, eventually to the Duff

Farm Company, which conveyed the land to appellants.

         {¶ 3} Prior to the sale of the property, a title search was conducted, which disclosed

appellees' fractional interest in the property. Appellants claim the "cloud" in title, appellees'

fractional interest, was the result of a mistake in the transfer of a deed in the chain of title and

filed a quiet title action.

         {¶ 4} The following facts are relevant to this appeal. Since 1966, Dwight Duff and his

successors in interest have continuously farmed the 102 acre tract. The trial court stated in

its judgment entry "[t]he tract of land has been enrolled in various federal crop programs and

the county real estate taxes have been kept current. This tract has never been subdivided

since its creation in 1966. There is no evidence in the record of any act inconsistent with

complete ownership of the entire interest in the tract."

         {¶ 5} The trial court also noted that appellees had no knowledge of their respective

interests in this tract of land until the quiet title action was filed. Appellees claim to the

property is through inheritance by reference to the chain of title.

         {¶ 6} Following discovery, appellants moved for summary judgment claiming, in part,

that Dwight Duff and his successors had successfully acquired the fee title of the property

through adverse possession, which was then conveyed to them. Appellees filed a motion in

opposition and also moved for summary judgment on the basis that, as record title owners


1. Appellants' complaint lists a number of parties and entities that do not need to be specified by this court in our
resolution of this appeal. For purposes of clarity, we will use the term "appellants" to refer to plaintiffs-appellants,
Michael and Mary Ann Carson, as trustees for their respective revocable trusts. We will use the term "appellees"
to refer to defendants-appellees, Jacqueline Loudner, Ronald Pope, and James E. Duff, who claim an interest in
the disputed property through inheritance.
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and tenants in common, they were entitled to judgment as a matter of law. The trial court

ruled in favor of appellees, finding that appellants failed to establish the "higher standard" of

review for cotenants in an adverse possession claim. As the title record holders, the trial

court granted judgment in favor of appellees, therefore finding their fractional interest in the

disputed property to be valid. Appellants now appeal the decision of the trial court, raising

several assignments of error for review.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO ALLOW

PLAINTIFFS TO PRESENT EVIDENCE AS TO THEIR RIGHT TO CLAIM TITLE TO THE

102.032 ACRES IN QUESTION UNDER THE LAWS OF ADVERSE POSSESSION BY THE

COURT INVOKING THE PAROLE EVIDENCE RULE AND FINDING THAT SUCH

EVIDENCE WAS NOT PERMISSIBLE UNDER THE STATUTE OF FRAUDS.

       {¶ 9} Assignment of Error No. 2:

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

PLAINTIFFS HAD FAILED TO MEET THE STANDARD OF PROOF, I.E., UNEQUIVOCAL

ACTS AND ACTUAL NOTICE OF ADVERSE POSSESSION BETWEEN CO-TENANTS

WHEN PLAINTIFFS SEVERED THE TRACTS IN QUESTION AND OPENLY DISSEIZED

DEFENDANTS FROM THE OCCUPANCY OF THE ACREAGE IN QUESTION.

       {¶ 11} Assignment of Error No. 3:

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

OPEN, CONTINUOUS AND HOSTILE POSSESSION AND OCCUPYING THE REAL

PROPERTY IN QUESTION AND THE EXCLUSIVE, CONTINUOUS FARMING THEREOF

TO THE EXCLUSION OF THE DEFENDANTS DID NOT CONSTITUTE OVERT, DEFINITE

AND CONTINUOUS ASSERTION OF UNEQUIVOCAL CHARACTER, INDICATING

ASSERTION OF OWNERSHIP OF THE PREMISES TO THE EXCLUSION OF THE CO-
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TENANTS' RIGHTS.

       {¶ 13} Assignment of Error No. 4:

       {¶ 14} THE TRIAL COURT ERRED BY REPEATEDLY DRAWING INFERENCES IN

FAVOR OF THE DEFENDANTS AND EXCLUDING EVIDENCE IN FAVOR OF THE

PLAINTIFFS.

       {¶ 15} Appellants' four assignments of error essentially argue the same proposition of

law. Specifically, appellants claim the trial court erred by awarding summary judgment to

appellees by utilizing a heightened standard of review and by not considering whether certain

evidence created a genuine issue of material fact. We agree.

       {¶ 16} This court reviews summary judgment decisions de novo, which means we

review the trial court's judgment independently and without deference to the trial court's

determinations, using the same standard in our review that the trial court should have

employed. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008,

2014-Ohio-5493, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)

there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as

a matter of law, and (3) the evidence submitted can only lead reasonable minds to a

conclusion which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82

Ohio St.3d 367, 369-70 (1998).

       {¶ 17} "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." Grace v. Koch, 81 Ohio St.3d 577, 579 (1998). Because a successful

adverse possession action divests a legal titleholder from his or her ownership interest, the

doctrine is disfavored. Id. at 580; Barrett v. Wilmington, 12th Dist. Clinton No. CA2015-02-

006, 2016-Ohio-2776, ¶ 11.       Failure to prove any one of the elements by clear and

convincing evidence results in failure to acquire title by adverse possession. Hacker v.
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House, 12th Dist. Butler No. CA2014-11-230, 2015-Ohio-4741, ¶ 20.

       {¶ 18} The Ohio Supreme Court has stated, "[a] tenant in common cannot assert title

by adverse possession against his co-tenant unless he shows a definite and continuous

assertion of adverse right by overt acts of unequivocal character clearly indicating an

assertion of ownership of the premises to the exclusion of the right of the co-tenant." Gill v.

Fletcher, 74 Ohio St. 295, 305-306 (1906). The court enunciated an extremely high standard

to establish adverse possession against a cotenant because possession by one cotenant is

presumed to be possession by all. Grace at 579, fn. 1 (1998), citing Ferenbaugh v.

Ferenbaugh, 104 Ohio St. 556, 559 (1922).

       {¶ 19} In its entry granting summary judgment, the trial court found that in order to

establish title by adverse possession against a cotenant, "[t]his court must apply the higher

standard established by Ohio Supreme Court precedent - more than 'clear and convincing.'"

In applying the facts of the case, the trial court found that appellants had not performed an

"overt act," by clear and convincing evidence, asserting their ownership of the property to the

exclusion of appellees.

       {¶ 20} By relying on the "clear and convincing" evidence standard, as opposed to the

Civ.R. 56 standard of review for summary judgment, we find the trial court's decision must be

reversed. While it is true that the Ohio Supreme Court's precedent in Grace states that the

elements of adverse possession must be proven with "clear and convincing" evidence, those

cases merely establish "the burden of proof to be satisfied at the trial on the merits, not the

summary judgment exercise." Franklin v. Massillon Homes II, L.L.C., 184 Ohio App. 3d 455,

2009-Ohio-5487, ¶ 33 (5th Dist.); King v. Hazen, 11th Dist. Ashtabula No. 2005-A-0031,

2006-Ohio-4823, ¶ 59.

       {¶ 21} In the present case, when the trial court stated in its judgment entry that

appellants had not established their claim for adverse possession because they had not
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satisfied the "higher standard * * * more than 'clear and convincing'" adopted by the Ohio

Supreme Court, it was improperly weighing the evidence in reviewing a summary judgment

motion. Several other Ohio appellate courts have reached similar results. Franklin at ¶ 34;

King at ¶ 59. Civ.R. 56 merely requires that the trial court determine whether there are any

genuine issues of material fact to be tried, not whether one party or the other will satisfy its

burden of proof when the case eventually comes to trial. Franklin at ¶ 35.

       {¶ 22} To be clear, the requirements for establishing an adverse possession claim are

high, especially when the claim is presented against a cotenant. Koch, 81 Ohio St.3d at 579,

fn. 1. However, considering the complicated facts of this case, we find that resolution of

these issues should not be through summary judgment.

       {¶ 23} In remanding this matter, we note that each case of adverse possession turns

upon its own particular set of facts. Hacker, 2015-Ohio-4741 at ¶ 23. Appellants have

presented evidence that Dwight Duff and his successors have continuously farmed,

occupied, maintained, and expanded valuable resources on the property since 1966. There

is evidence that the disputed property, which was part of a larger family farm, was divided

amongst the family and then farmed harmoniously over the next 50 years without any

indication of competing ownership rights to the property. In fact, as noted by the trial court,

"[t]here is no evidence in the record of any act inconsistent with complete ownership of the

entire interest in the tract." Appellants allege that the "cloud" in title may be a result of a

mutual mistake in the transfer of official deed records. Or, more simply, appellants allege

that the family and all persons holding a fractional interest in that tract of land recognized

Dwight Duff and his successors' sole ownership of the property. As noted by several courts,

"[t]he doctrine of adverse possession protects one who has honestly entered and held

possession in the belief that the land was his own, as well as one who knowingly

appropriates the land of others for the purpose of acquiring title." See Evanich v. Bridge, 9th
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                                                                        Fayette CA2015-06-013

Dist. Lorain No. 05CA008824, 2007-Ohio-1349, ¶ 14.

       {¶ 24} Although appellants must still satisfy a high burden of proof to prove adverse

possession, we are unwilling to say that judgment should be granted as a matter of law in this

case. Accordingly, we find appellants' second and third assignments of error are well-taken

and sustained.

       {¶ 25} In remanding this matter to the trial court, we pause to generally address

appellants' first and fourth assignments of error, which are not presently ripe for review. In

their first assignment of error, appellants allege the trial court erred by "holding that the

depositions of Lois Duff Rhoad and her son and their affidavits, which were crucial to the

plaintiffs claim, were inadmissible and could not be considered as evidence to support their

claim as such violated the parole evidence rule and the statute of frauds." In their fourth

assignment of error, appellants allege the trial court "excluded" or "ignored" relevant

testimony.

       {¶ 26} The facts surrounding the issues contained in appellants' first and fourth

assignments of error are not clearly presented for this court to make an appropriate ruling at

this time. Although we note that the trial court stated in its judgment entry that certain

evidence was excluded by the statute of frauds, the specific testimony and related evidence

is not clearly delineated in the record. Appellants' brief alleges that the trial court disregarded

affidavits and deposition testimony as it relates to the transfer of deeds and intended plans

for the division of the family farm. For example, appellants argue the trial court erred by

failing to consider evidence that the family patriarch held a meeting to discuss the future of

the farm and his proposed plan for the division of the property.

       {¶ 27} While we agree the statute of frauds may prevent the enforcement of a

contract for land that is not contained in a writing, we note that evidence that is inadmissible

for one purpose may be admissible for another purpose. Barnett v. Sexten, 10th Dist.
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Franklin No. 05AP-871, 2006-Ohio-2271, ¶ 14, citing State ex rel. Brown v. Dayton Malleable

Inc., 1 Ohio St.3d 151, 156 (1982).

       {¶ 28} In the present case, the record does not firmly establish the testimony that will

be presented at trial. Nor does the trial court's judgment entry state the specific evidence that

it excluded from its consideration on the issue of adverse possession. To the extent that

appellants are attempting to enforce a contract not contained in a writing, and in violation of

the statute of frauds, we agree that such evidence is generally inadmissible. However, as

this case is being remanded, we can find no clear indication that the trial court has barred

any specific testimony or evidence. Accordingly, we find the issues presented in appellants'

first and fourth assignments of error are matters to be considered by the trial court and are

not properly before this court.

       {¶ 29} Judgment reversed and remanded.


       PIPER, P.J., and HENDRICKSON, J., concur.




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