Greene v. Partridge

• Decision Date: 14 December 2016
• Docket Number: No. 16CA13.,16CA13.
• Parties: Cheryl GREENE, Plaintiff–Appellee, v. Thomas PARTRIDGE, et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

78 N.E.3d 197

2016 Ohio 8475

Cheryl GREENE, Plaintiff–Appellee,

v.Thomas PARTRIDGE, et al., Defendants–Appellants.

No. 16CA13.

Court of Appeals of Ohio, Fourth District, Highland County.

Dec. 14, 2016.

Kathryn Hapner, Hillsboro, OH, for appellant.

Susan L. Davis, Hillsboro, OH, for appellee.

ABELE, J.

{¶ 1} This is an appeal from a Highland County Common Pleas Court summary judgment in favor of Cheryl Greene, plaintiff below and appellee herein. Thomas Partridge, defendant¹ below and appellant herein, assigns the following error for review:

"THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE AS GENUINE ISSUES OF MATERIAL FACT EXIST REGARDING THE OWNERSHIP OF THE SUBJECT REAL ESTATE."

{¶ 2} The present appeal involves an action to quiet title. On July 8, 2015, appellee filed a complaint against appellant (and others) and alleged that she has acquired title to a parcel of land located between her and appellant's property (the disputed land) by adverse possession.

{¶ 3} Appellant answered and filed a counterclaim. Appellant claimed that he owns the disputed land by virtue of an October 7, 1999 warranty deed. Appellant further alleged that he permitted appellee's husband to use the disputed piece of land for hunting and that he knew appellee used the land to grow corn. Appellant asserted that he was entitled to rent for appellee's use of the land.

{¶ 4} On March 2, 2016, appellee requested summary judgment and argued that no genuine issues of material fact remained regarding her adverse possession claim. In support of her motion, appellee attached five deeds to document the chain of title to her parcel of land that sits adjacent to the disputed piece of land. The earliest deed, dated April 30, 1985, granted the property to Town and Country, Inc. A December 11, 1985 quit claim deed corrected the name to Town and Country Discount, Inc. The deed indicates that Brady Greene (appellee's deceased husband) was the president of "Town and Country, Inc." A July 31, 1996 general warranty deed conveyed title from Town and Country Discount, Inc., to G.C. Equipment, Inc. This deed also indicates that Brady was the president of Town and Country. A June 1, 2000 general warranty deed conveyed the land from G.C. Equipment, Inc. to Brady Greene and appellee. This deed indicates that Brady was the president of G.C. Equipment, Inc. A November 21, 2006 deed conveyed the property from Brady Greene to appellee.

{¶ 5} Appellee also attached three affidavits to her motion: (1) her own; (2) her deceased husband's child's, Brad Greene; and (3) neighboring property owner's, Charles Dawson. In her affidavit, appellee stated that the disputed land has been fenced in for more than 21 years and considered part of the real property that she and her predecessors in title owned. She averred that the disputed land never was treated as a separate tract of land. She additionally stated that appellant never complained about the fence that surrounded the disputed piece of land and that neither she nor her husband had any arrangements with appellant concerning the use or possession of the disputed land.

{¶ 6} In his affidavit, Brad Greene stated that he lived with his father and appellee on the land adjacent to the disputed parcel of land during the 1990s. He alleged that "as long as [he could] remember, the subject real property * * * was fenced as part of [appellee]'s property." Brad additionally averred that "the subject real property was and always has been considered by the community in general as owned by [appellee] and their predecessors since the time [appellee and her husband] purchased their real property in the 1980s."

{¶ 7} In his affidavit, Charles Dawson explained that he lived near appellee's property since the 1980s, when appellee and her husband purchased the land. Dawson stated that the disputed piece of land "has always been fenced as part of" appellee's property and was fenced when appellee and her husband first obtained the land. Dawson additionally stated that appellee's husband "cleaned areas with bull dozers on the subject property and built a road near the subject real property."

{¶ 8} In response, appellant alleged that he holds the warranty deed to the disputed land. He also objected to the affidavits that appellee submitted with her summary judgment motion. Appellant asserted that the affiants lacked personal knowledge whether appellant had possession of his own property and that the affiants did not personally know how the community viewed the disputed property. Appellant also pointed out that he alleged in his counterclaim that appellant gave appellee's husband permission to use the land. Appellant thus argued that appellee's and her predecessors' use was not adverse. Appellant did not, however, submit any evidence to support his claims.

{¶ 9} On April 12, 2016, the trial court granted appellee summary judgment. The court noted that appellant did not submit any evidentiary material to support the assertions that he raised in his opposition memorandum. The court thus stated that "due to the lack of any contradictory evidence presented by [appellant], the Court is required to assume that the facts set forth in [appellee]'s affidavits and exhibits are true and that there are no genuine material issues of fact to be tried."

{¶ 10} After reviewing the evidence that appellee submitted, the trial court determined that no genuine issues of material fact remained for resolution at trial concerning appellee's adverse possession claim. The court thus entered summary judgment in appellee's favor, quieted title of the disputed land to appellee, and dismissed appellant's counterclaim. This appeal followed.

{¶ 11} In his sole assignment of error, appellant asserts that the trial court improperly granted appellee summary judgment. In particular, he alleges that the trial court wrongly determined that no genuine issues of material fact remain regarding whether appellee obtained title to the disputed land by adverse possession. More specifically, appellant claims that appellee failed to show the absence of genuine issues of material fact regarding (1) whether appellee and her predecessors in interest possessed the disputed land in excess of 21 years, and (2) whether appellee's and her predecessors' use of the disputedland was open, notorious, continuous, exclusive, and adverse.

{¶ 12} With respect to his assertion that appellee failed to show the absence of a genuine issue of material fact regarding the 21–year requirement, appellant claims that appellee did not present proper Civ.R. 56 evidence to demonstrate the absence of material fact regarding possession. Specifically, appellant challenges two deeds (Exhibits D and E) attached to appellee's summary judgment motion. He argues that they are not proper evidence to consider because the deeds do not contain a date, the signature of the grantors, or a notary confirmation. Appellant further contends that the deeds are not proper evidence because they do not contain any facts or information to show that appellee and her husband used the premises as an agent of the corporation that previously owned the lands. Appellant asserts that without these two deeds, appellee cannot prove possession for more than 21 years. Appellant additionally argues that the evidence fails to show the absence of a material fact regarding whether appellee's and her predecessors' use was open, notorious, continuous, exclusive, and adverse. Appellant alleges that appellee did not present any evidence to show that she, her husband, or her predecessors hunted or farmed upon the land. Appellant further disputes the trial court's finding that appellee's husband built a road on the premises, but instead built a road near, not on, the premises.

ASUMMARY JUDGMENT

{¶ 13} Generally, appellate courts conduct a de novo review of trial court summary judgment decisions. E.g., Snyder v. Ohio Dept. of Nat. Resources, 140 Ohio St.3d 322, 2014-Ohio-3942, 18 N.E.3d 416, ¶ 2 ; Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6 ; Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court's decision. E.g., Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993) ; Morehead v. Conley, 75 Ohio App.3d 409, 411–12, 599 N.E.2d 786 (4th Dist.1991). To determine whether a trial court properly granted a summary judgment motion, an appellate court must review the Civ.R. 56 summary judgment standard, as well as the applicable law. Snyder at ¶ 2. Civ.R. 56(C) provides in relevant part:

* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. * * * *

{¶ 14} Thus, pursuant to Civ.R. 56, a trial court may not grant summary judgment unless the evidence demonstrates that: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) after viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party...