Green v. Lemarr
| Decision Date | 06 October 2000 |
| Docket Number | No. 2000-CA-6.,2000-CA-6. |
| Citation | 744 NE 2d 212 |
| Parties | GREEN et al., Appellants and Cross-Appellees, v. LEMARR et al., Appellees and Cross-Appellants. |
| Court | Ohio Court of Appeals |
Andrew C. Storar and Michael W. Sandner, for appellants.
Noel K. McKeown and Stephen Haller, for appellees.
This case involves a bitter dispute between adjoining property owners over about one-tenth of an acre of land. The dispute has been played out through repeated calls to the police to report "missing property stakes," general acrimony in the trial court, and opposing motions for a restraining order to prevent the other party from entering the disputed property.
Originally, John and Anna Bocklet owned approximately 13.94 acres of land in Greene County, Ohio. On August 13, 1955, a registered surveyor, Ben Pierce, conducted a survey, and a 1.20-acre parcel was subdivided from the main parcel. The small parcel was then conveyed to Robert and Betty Beason on September 6, 1955. At the time, Greene County did not require surveys to be filed, and Pierce
did not file a survey. However, the deed indicated that it was based on Pierce's survey of August 13, 1955.
Subsequently, on April 5, 1957, the Beasons conveyed their parcel to Chester and Miriam Barton. In turn, the Bartons conveyed their land to Wesley and Edith Green on April 6, 1959. After owning the land for more than twenty years, Mr. Green conveyed it to his son, Louis, and Louis's wife, Joyce, on December 18, 1979. Louis and Joyce Green were the plaintiffs below, and still owned the property at the time they filed their lawsuit in June 1996.
The main 12.74-acre parcel was kept by the Bocklets for some time but was then sold. A subsequent owner, Richard Bull, conveyed this parcel to the defendants, Mike and Janet Lemarr, on September 21, 1991. At some point after the Lemarrs bought the property, a dispute arose about the ownership of the land abutting a creek or channel. Mr. Green maintained that the property line was on the east side of the creek, which would mean that he owned the creek and the adjoining land. In contrast, Mr. Lemarr claimed that the property line was on the west side of the creek, and that the disputed land belonged to him.
Mr. Green was a licensed surveyor. On May 3, 1996, Mr. Green filed an affidavit with the Greene County Recorder, indicating that the deed conveying the 1.20-acre parcel was erroneous and did not conform to the intent of Pierce's original survey of August 13, 1955. In the affidavit, Green pointed out various discrepancies between the deed and survey, including the fact that the survey placed the property line on the east side of a stone-walled channel, while the deed placed the same courses and distances on the west side of the ditch. Subsequently, Green commissioned surveyor Randy Norfleet to perform a resurvey. Norfleet attempted to retrace Pierce's original survey notes and concluded that the property line was on the east side of the creek. After Norfleet's survey was filed in the Greene County Surveyors' Records, the Greens transferred their property, with a revised description, to trustees. The trustees then transferred the land back to the Greens, and this action to quiet title followed.
The Lemarrs answered the complaint and also filed a counterclaim for slander of title. In the counterclaim, they alleged that Mr. Green had removed survey monuments along the true boundary and had wrongfully filed documents to gain title to O.153 acres of disputed land. They also raised the issue of adverse possession.
On October 8, 1996, the matter was referred to a magistrate, who subsequently issued three decisions. The first, on October 13, 1997, granted summary judgment to the defendants. The second, on February 19, 1998, corrected some errors in the first decision, awarded the defendants judgment on their counterclaim, and overruled the plaintiffs' motion for summary judgment. Finally, the third decision awarded defendants $602.50 in attorney fees. Eventually, on
December 10, 1999, the trial court adopted the magistrate's decisions, after overruling the objections of both sides. This appeal then followed.
Appellants (the Greens) raise the following five assignments of error:
On the cross-appeal, appellees (the Lemarrs), assert the following two assignments of error:
After considering the record and the assignments of error, we find that genuine issues of material fact precluded summary judgment. Accordingly, this matter will be reversed and remanded to the trial court for further proceedings. An explanation of our decision follows.
In the first two assignments of error, appellants point out various factual and legal deficiencies in the decisions of the magistrate and trial court. In particular, appellants focus on the failure of the magistrate and trial court to consider relevant evidence from surveyors and to correctly apply the law of boundaries. Although the assignments of error do not specifically mention the existence of genuine issues of material fact, we interpret appellants' argument to be that such issues of fact exist. Furthermore, appellants raised the fact that the case was not appropriate for summary judgment when they filed objections to the magistrate's report.
Our review of summary judgment decisions is de novo, i.e., we apply the standards used by the trial court. Long v. Tokai Bank of California (1996), 114 Ohio App.3d 116, 119, 682 N.E.2d 1052, 1054-1055. Under well-established standards, "summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor." Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201, 204.
Before specifically applying summary judgment standards to this case, we should note that the procedural history of this case is troubling. Shortly after the Lemarrs' answer was filed, the trial court referred the matter to a magistrate and set various deadlines. In an entry, which was filed on October 8, 1996, the court scheduled a pretrial for December 18, 1996. Additionally, the court set discovery and motion deadlines for thirty days prior to the pretrial, meaning that the parties had only about six weeks to conduct discovery. A January 22, 1997 hearing date (presumably a trial date) was also set.
In pretrial statements filed in December 1996, both sides disclosed the identity of witnesses and reserved the right to add witnesses as needed. Subsequently, on December 12 1996, the Greens asked for leave to file a motion for summary judgment. On December 18, 1996, the court filed an entry giving both sides until December 31, 1996, to submit motions for summary judgment. Before the deadline passed, the Greens asked for more time and were given until January 22, 1997, to file their motion. The motion was timely filed, and the court set a deadline of February 11, 1997, for responses. To support their motion, the Greens relied on the filed deposition of surveyor, Randy Norfleet, and affidavits from Louis Green and his siblings about the correct location of the property line.
After the motion deadline had passed, the Lemarrs asked for permission to file for summary judgment. As a result, the court gave the Lemarrs until March 4,
1997, to file both a motion and a response to the Greens' motion for summary judgment. When the Lemarrs filed their motion and response, they relied on the deposition of surveyor, Douglas Sutton, who had been asked to survey the property line in 1990. They also filed an affidavit from an original grantee...
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