Cottrill v. Quarry Enters., 2022 CA 00011

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWise, J.
Citation2022 Ohio 3396
PartiesLINDA COTTRILL, Plaintiff-Appellant v. QUARRY ENTERPRISES, LLC Defendant-Appellee
Docket Number2022 CA 00011
Decision Date27 September 2022

2022-Ohio-3396

LINDA COTTRILL, Plaintiff-Appellant
v.

QUARRY ENTERPRISES, LLC Defendant-Appellee

No. 2022 CA 00011

Court of Appeals of Ohio, Fifth District, Stark

September 27, 2022


CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2021 CV 00721

For Plaintiff-Appellant

WARNER MENDENHALL

MENDENHALL LAW GROUP

For Defendant-Appellee

ROBERT J. TSCHOLL

JENNIFER L. ARNOLD

Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Judges:

OPINION

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Wise, J.

{¶1} Plaintiff-Appellant, Linda Cottrill, appeals from the December 27, 2021, Judgment Entry by the Stark County Court of Common Pleas. Defendant-Appellee is Quarry Enterprises, LLC. The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant has resided at 3576 Erie Avenue SW, Massillon, Ohio 44464 since 1941 ("Appellant's property").

{¶3} Appellee owns a 4.77-acre tract of land adjoining Appellant's property. The portion of land abutting Appellant's property is the "disputed property."

{¶4} On May 24, 2021, Appellant filed a Complaint asking for a declaratory judgment of adverse possession and quiet title to disputed property.

{¶5} In the Complaint, Appellant alleged she received title to Appellant's property in 1971 from her mother. The disputed property has had no activity on it since Appellant took possession of Appellant's property. The disputed property has been cared for, maintained, and used exclusively by Appellant and her predecessors in title since 1946. This use has included mowing, clearing trees, horseback riding, burying family pets, parking equipment, and more. This use has been continuous for over twenty-one years prior to filing the Complaint.

{¶6} On June 21, 2021, Appellant filed an Answer.

{¶7} On August 25, 2021, Appellee filed a Motion for Summary Judgment. In the Motion, Appellee presented evidence of an oil and gas lease dated January 7, 1958. This lease granted The East Ohio Gas Company, in part, an oil and gas lease for the disputed

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property. The East Ohio Gas Company properly recorded the lease with the Stark County Recorder's Office.

{¶8} On September 22, 2021, Appellant filed a Response to Appellee's Motion for Summary Judgment.

{¶9} On December 27, 2021, the trial court granted Appellee's Motion for Summary Judgment.

ASSIGNMENTS OF ERROR

{¶10} Appellant filed a timely notice of appeal and herein raise the following three Assignments of Error:

{¶11} "I. THE TRIAL COURT ERRED IN RULING THE 1958 GAS AND OIL LEASE DESTROYED PLAINTIFF'S CLAIM OF EXCLUSIVE USE OF THE COTTRILL SECTION.

{¶12} "II. THE TRIAL COURT ERRED IN FINDING THERE WAS NO SEVERANCE OF THE MINERAL AND SURFACE ESTATES OF THE COTTRILL SECTION.

{¶13} "III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE SINCE APPELLEE FAILED TO DEMONSTRATE THAT IT USED THE COTTRILL SECTION."

Standard of Review

{¶14} With regard to summary judgment, this Court applies a de novo standard of review and reviews the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any deference to the trial court's decision. Brown v. Scioto Cty. Bd. Of Commrs.,

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87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56 a trial court may grant summary judgment if it determines: (1) no genuine issues of material fact remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977).

{¶15} The record on summary judgment must be viewed in the light most favorable to the party opposing the motion. Williams v. First United Church of Christ, 37 Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).

{¶16} The moving party bears the initial responsibility of informing the trial court of the basis for the motion and identifying those portions of the record before...

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