2021 Ohio 1851
Ohio Ct. App.2021Background
- Hedrick (purchased 1991) and the Szeps are neighboring landowners; a 4' chain-link fence between properties was alleged to encroach onto Hedrick’s lot by ~5.4 feet for ~53.7 feet, per a commissioned survey (Feb. 2018).
- Hedrick sent letters (2011, 2017 via zoning inspector, 2018 via counsel) demanding removal or relocation of the fence; the Szeps did not comply.
- Hedrick sued in August 2019 for trespass and attached the 2018 survey seeking injunctive relief to remove the encroaching fence.
- Mr. Szep moved for summary judgment asserting adverse possession as an affirmative defense; the trial court initially denied the motion, then granted reconsideration and entered summary judgment for Mr. Szep and dismissed the claim against Mrs. Szep with prejudice.
- Hedrick appealed, arguing (1) the court improperly reconsidered, (2) adverse possession was not affirmatively proven because no counterclaim for declaratory relief was filed, (3) the specific disputed boundary was not adjudicated, and (4) Mrs. Szep was improperly dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by reconsidering its denial of summary judgment | Reconsideration was improper and barred by res judicata/collateral estoppel | Trial courts may reconsider interlocutory orders before final judgment | Reconsideration was permissible; no abuse of discretion |
| Whether adverse possession must be pled as a counterclaim/declaratory action | Hedrick: adverse possession was not affirmatively proven because Szep did not file a declaratory counterclaim | Szep: adverse possession may be raised as an affirmative defense; no separate declaratory action required | Adverse possession may be asserted as a defense; no counterclaim required |
| Whether genuine issues of material fact exist on adverse possession elements and disputed boundary | Hedrick: specific parcel subject to adverse possession not proved; county deeds remain controlling | Szep: testimony and undisputed use show open, notorious, continuous, exclusive, adverse possession since at least 1991/2000 | No genuine issue; evidence supports adverse possession and bar under 21-year statute of limitations; summary judgment proper |
| Whether dismissal of Mrs. Szep was improper | Hedrick: Mrs. Szep did not file an answer and her ownership interest wasn’t established | Szep: answer was filed jointly; Hedrick’s trespass claim fails as a matter of law regardless of Mrs. Szep’s ownership | Dismissal proper because plaintiff cannot prevail on the facts; dismissal with prejudice affirmed |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo appellate review of summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (summary judgment standard under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (burden-shifting framework for summary judgment)
- Grace v. Koch, 81 Ohio St.3d 577 (adverse possession elements: clear and convincing proof of exclusive, open, notorious, continuous, adverse use for 21 years)
- Houck v. Bd. of Park Commrs., 116 Ohio St.3d 148 (stringent application of adverse possession doctrine)
- Lyman v. Ferrari, 66 Ohio App.2d 72 (tacking successive periods of adverse use requires privity)
- Zipf v. Dalgarn, 114 Ohio St. 291 (early Ohio authority on tacking and adverse possession)
- Szaraz v. Consolidated R.R. Corp., 10 Ohio App.3d 89 (adverse possession may be shown by general denial)