[Cite as Hoskinson v. Lambert, 2011-Ohio-4616.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

JOYCE E. HOSKINSON                                   JUDGES:
                                                     Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                          Hon. Sheila G. Farmer, J.
                                                     Hon. Julie A. Edwards, J.
-vs-
                                                     Case No. 11-CA-18
DARRELL G. LAMBERT, ET AL.

        Defendants-Appellees                         OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Licking County Common
                                                  Pleas Court, Case No. 2005 CV 00056


JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           September 12, 2011


APPEARANCES:


For Plaintiff-Appellant                           For Defendants-Appellees


CHARLES E. TAYLOR                                 CONNIE J. KLEMA
P.O. Box 1730                                     PO. Box 991
Buckeye Lake, Ohio 43008                          Pataskala, Ohio 43062

                                                  BRIAN C. REED
                                                  Reese, Pyle, Drake & Meyer, PLL
                                                  36 North Second St.
                                                  P.O. Box 919
                                                  Newark, Ohio 43058-0919
Licking County, Case No. 11-CA-18                                                     2

Hoffman, P.J.


      {¶1}   Plaintiff-appellant Joyce E. Hoskinson appeals the January 20, 2011

Judgment Entry of the Licking County Court of Common Pleas entering judgment in

favor of Defendants-appellees Darrell G. Lambert and Valerie Lambert.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   This case began as an action to quiet title to a parcel of land

approximately .028 acres in size in the Village of Buckeye Lake, Licking County, Ohio

(hereinafter “Village”). The Village, Darrell and Valerie Lambert, and other owners of

adjacent land were defendants, but only the Lamberts participated in the bench trial

before a magistrate. The magistrate issued findings of fact and conclusions of law.

      {¶3}   The magistrate found that prior to 1988, five persons owned parcels of

land comprising the Village. Before the Village acquired the subject property, the

individual property owners were responsible for providing public services for the home

owners residing on their land, including maintaining private streets and providing

seasonal services such as snow removal.

      {¶4}   In 1988, the Village began acquiring land from four of the five owners,

including the property at issue, the “Rosebraugh Addition”. The property was originally

platted on October 15, 1988, and was dedicated for public use to the Village on

February 8, 1990 by Alice L. Rosebraugh. Some of the streets depicted on the plat

maps were specifically dedicated to the Village, including North Bank Road and Cottage

Street. Certain other streets remained private. The magistrate found North Bank Road

begins just west of State Route 360 and travels east until it ends and adjoins Cottage
Licking County, Case No. 11-CA-18                                                      3


Street, which turns due north and ends at State Route 79. The property at issue lies to

the east of the intersection of North Bank Road and Cottage Street.

      {¶5}   On the recorded plat, this property appears as a narrow band of land

roughly rectangular in shape, bordered on the north, east, and south by residential lots,

and on the west by the junction of North Bank Road and Cottage Street. To the west the

property is the same width as the intersection, and there is no dividing line between the

property and North Bank Road. Appellees the Lamberts own the property immediately

south of the disputed property, and Appellant Joyce Hoskinson owns the lot adjacent to

the Lamberts and east of the property in question. On the plat, the Lamberts' land abuts

the disputed strip of land only on the south side, while Appellant's property abuts the

east end and is wider than the strip. Appellant argues the disputed property is a

continuation of North Bank Road.

      {¶6}   The Buckeye Lake Village Council passed Resolution 90-09 on April 2,

1990. The Resolution stated: “Section 6: with [sic] 60 days of the date herein, being

Monday, April 2, 1990, the streets must be in a condition making them passable for

vehicular traffic. Ohio Power Pole # 38 must be removed from the right-of-way, all

speeds bumps must be removed, and a split-rail fence on the Foust property be

removed back to his property line which is presently approximately 4 feet into the right-

of-way, and all streets must be paved to a width of 14 feet with chip and seal. Council

shall be the final judge for determining whether or not the streets are to be accepted,

however, the plat is accepted as of this date subject to the contingencies above stated.”

The resolution was subsequently recorded and noted on the plat.
Licking County, Case No. 11-CA-18                                                          4


       {¶7}   The magistrate found it was unclear when the contingencies were met, but

the Village had been maintaining both streets since 1990. At the time the above

resolution was passed, the lot now belonging to the Lamberts was owned by the

Rosebraugh heirs. On November 22, 1999, the Rosebraugh heirs executed a quit-claim

deed transferring the disputed .028 acre of land to the Lamberts' predecessor in title.

       {¶8}   The magistrate found since 1990, the property has been a grassy area

with bushes and a wooden fence. The magistrate found the property was never

considered part of either North Bank Road or Cottage Street, and the Village had never

maintained or improved the property.

       {¶9}   The magistrate found a common-law dedication can be proven by showing

(1) the existence of an intention on the part of the owner to make a dedication, (2) an

actual offer on the part of the owner, and (3) acceptance of the offer by or on behalf of

the public. The magistrate found the Rosebraugh heirs intended to dedicate North Bank

Road and Cottage Street to the Village and offered the property to the Village. The

magistrate found the Village accepted and maintained the improved area of North Bank

Road and Cottage Street, but had not accepted the area in dispute because it did not

meet the contingencies set out in the ordinance. The magistrate concluded the title to

the property never legally vested with the Village and the Rosebraugh heirs retained

their interest in the property until they transferred it by quit claim deed, and the property

passed through a succession of owners to the Lamberts.

       {¶10} Appellant objected to the magistrate's decision, and the court overruled

the objections, finding, after making an independent review of the contested matters,
Licking County, Case No. 11-CA-18                                                       5


the magistrate properly determined the factual issues and properly applied the

appropriate law.

       {¶11} On appeal in Hoskinson v. Lambert (2009), 182 Ohio App.3d 527, this

Court reversed the decision of the trial court and remanded for further proceedings,

holding:

       {¶12} “In the case at bar, it is clear that the disputed property is not a separate

lot, nor is it part of any of the numbered parcels. There is no western property line

marking where North Bank Road ends and the property begins. The record

demonstrates no intent by the grantors to retain title to this parcel of land. The

magistrate correctly found that this evidences an intention to dedicate the entire area,

including the property at issue, as a public street. The magistrate was incorrect in

finding the property reverted to the Rosenbraugh heirs. Pursuant to R.C. 711.07, the

Village owns and holds the property in trust for public use.”

       {¶13} On remand, the trial court referred the matter to a magistrate.          Via

Magistrate’s Order of August 3, 2009, the magistrate stated,

       {¶14} “Because the parties had conflicting interpretations of the recent appellate

decision(s) in this matter, counsel agreed to submit proposed entries in compliance with

said decisions(s). Further, counsel for the plaintiff indicated that he would be filing a

motion requesting leave to amend the complaint in light of the decision.”

       {¶15} Appellant moved the court for leave to file a supplemental complaint. Via

Judgment Entry of January 18, 2011, the trial court denied Appellant’s motion for leave

to file a supplemental complaint.
Licking County, Case No. 11-CA-18                                                      6


      {¶16} Further, via Judgment Entry of January 20, 2011, the trial court entered

judgment holding the Village had a fee interest in the .028 acres, and had sole authority

to determine whether to continue its ownership without improvement, improve the acres

for street purposes and accept the same, sell the acres, or vacate the same, either on

its own or upon the petition of a property owner.

      {¶17} Appellant now appeals, assigning as error:

      {¶18} “I. WHEN AFTER HAVING MADE A REFERENCE TO A MAGISTRATE

WHO HAD CONDUCTED NO EVIDENTIAL HEARING AND MADE NO FINDINGS OF

FACT AND CONCLUSIONS OF LAW THE TRIAL JUDGE VIOLATED DUE PROCESS

BY FILING ENTRIES DENYING THE PREVAILING PARTY IN THE COURT OF

APPEALS FROM FILING A SUPPLEMENTAL COMPLAINT AND GRANTING

JUDGMENT TO THE DEFENDANT.

      {¶19} “II. REFUSAL TO GRANT LEAVE TO THE PLAINTIFF TO FILE A

SUPPLEMENTAL COMPLAINT UNDER OHIO CIV.R. 15(E) WAS ARBITRARY AND

CAPRICIOUS, CONTRARY TO LAW AND AN ABUSE OF DISCRETION.

      {¶20} “III. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE ‘BAD

FAITH’ AND WRONGFUL RECORDING OF A DEED WITHOUT WARRANTY AND

BUILDING A FENCE ON SUCH PROPERTY AND OBSTRUCTING THE RIGHT OF

WAY OF AN ABUTTING OWNER CONSTITUTED A SLANDER OF TITLE FOR

WHICH THE VICTIMIZED PARTY IS ENTITLED TO PUNITIVE DAMAGES AND

ATTORNEY FEES FOR REMOVING THE CLOUD ON TITLE UNTIL THE CLOUD IS

REMOVED.
Licking County, Case No. 11-CA-18                                                           7


       {¶21} “IV. DEFENDANTS-APPELLEES’ EX PARTE COLLABORATION WITH

THE TRIAL COURT TO HARASS THE PLAINTIFF AND MAKE THE PLAINTIFF-

APPELLANT FILE MULTIPLE APPEALS SO AS TO KEEP THE RIGHT OF WAY

BLOCKED BY NOT COMPLYING WITH RULE 54(B) IS ACTIONABLE.”

                                             I, II, & III.

       {¶22} Appellant’s first, second and third assignments of error raise common and

interrelated issues; therefore, we shall address the arguments together.

       {¶23} Appellant sought leave to file a supplemental complaint pursuant to Civil

Rule 15(E) which reads,

       {¶24} “(E) Supplemental pleadings

       {¶25} “Upon motion of a party the court may, upon reasonable notice and upon

such terms as are just, permit him to serve a supplemental pleading setting forth

transactions or occurrences or events which have happened since the date of the

pleading sought to be supplemented. Permission may be granted even though the

original pleading is defective in its statement of a claim for relief or defense. If the court

deems it advisable that the adverse party plead to the supplemental pleading, it shall so

order, specifying the time therefor.”

       {¶26} Appellant’s supplemental complaint sought to add new claims for

compensatory and punitive damages for wrongful exclusion of her right of access.

However, Appellant’s motion to file a supplemental complaint does not set forth

additional facts, events or transactions which have occurred since the filing of the case

and which were not in existence at that time. Accordingly, we find the trial court did not
Licking County, Case No. 11-CA-18                                                          8


abuse its discretion in denying Appellant’s motion for leave to file a supplemental

complaint to allow the additional claims which were not plead in the original complaint.

       {¶27} Neither Appellant’s original or supplemental complaint made claims for

slander of title or bad faith. However, Appellant assigns as error the trial court’s error in

failing to find punitive damages and attorney fees for said misconduct. Appellant cannot

assign as error an issue not raised before the trial court, nor addressed by this Court in

the previous appeal.

       {¶28} The first, second and third assignments of error are overruled.

                                                IV.

       {¶29} Appellant’s fourth assignment of error alleges ex parte communication

between Appellees and the trial court to harass Appellant and encourage multiple

appeals.

       {¶30} Upon review, we find the record does not affirmatively demonstrate ex

parte communication between the trial court and Appellee or Appellee’s counsel. This

Court is unaware of any disciplinary action initiated by Appellant with regard to such

matters.

       {¶31} Appellant’s fourth assignment of error is overruled.
Licking County, Case No. 11-CA-18                                           9


      {¶32} The January 20, 2011 Judgment Entry of the Licking County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur                     ___________________________________
                                       HON. WILLIAM B. HOFFMAN


                                       ___________________________________
                                       HON. SHEILA G. FARMER


                                       ___________________________________
                                       HON. JULIE A. EDWARDS
Licking County, Case No. 11-CA-18                                            10


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


JOYCE E. HOSKINSON                     :
                                       :
       Plaintiff-Appellant             :
                                       :
-vs-                                   :         JUDGMENT ENTRY
                                       :
DARRELL G. LAMBERT, ET AL.             :
                                       :
       Defendant-Appellees             :         Case No. 11-CA-18


       For the reasons stated in our accompanying Opinion, the January 20, 2011

Judgment Entry of the Licking County Court of Common Pleas is affirmed. Costs to

Appellant.




                                       ___________________________________
                                       HON. WILLIAM B. HOFFMAN


                                       ___________________________________
                                       HON. SHEILA G. FARMER


                                       ___________________________________
                                       HON. JULIE A. EDWARDS
