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FWS Properties, LLC v. Brigham

December 5, 2008

FWS PROPERTIES, LLC APPELLEE
v.
LOIS BRIGHAM, ET AL. APPELLANTS



Trial Court No. 2007-CV-0262.

The opinion of the court was delivered by: Pietrykowski, P.J.

DECISION AND JUDGMENT

{¶1} Defendants-appellants, Lois Brigham, Fred Brigham and Michelle Brigham, have appealed the Wood County Court of Common Pleas' March 13, 2008 judgment entry granting summary judgment in favor of plaintiff-appellee, FWS Properties, LLC ("FWS"), ordering that title to the real property at issue be quieted in favor of FWS, and reforming the 2005 warranty deed. The court also denied appellants' cross-motion for summary judgment. Because we find that issues of material fact remain, we reverse the trial court's judgment, in part.

{¶2} The facts of this case begin in 1904, when Fred Conklin was deeded 53 acres of land in Perrysburg, Wood County, Ohio. The property was described as:

{¶3} "The west half of the north west quarter less the south thirty (30) acres thereof of section nineteen (19) town four (4) in the United States Reserve of twelve miles square in Wood County, Ohio the premises hereby intended to be conveyed being fifty-three acres more or less."

{¶4} In 1914, Conklin deeded the southernmost 10 acres of the property leaving approximately 43 acres. In 1949, Conklin died testate and his estate was probated in 1950. By will, Conklin devised to Jack Brigham and Shirley Brigham an 80-acre parcel and the parcel at issue was described in the certificate of transfer as:

{¶5} "The northwest quarter of the northwest quarter of Section 19, Town 4, U.S. Reserve in Perrysburg Township, Wood County, Ohio, containing 40 acres more or less."

{¶6} It is undisputed that the description should have read: "The west half of the northwest quarter * * *." The error resulted in the transfer of 40, rather than approximately 43 acres.

{¶7} In 1981, the property, again with the scrivener's error, was transferred to BancOhio National Bank, as trustee for the Fastnacht children. In 1990, BancOhio transferred the deed to Robert, Julia, and Tricia Fastnacht. Thereafter, in 2005, the property was transferred, by general warranty deed, by the Fastnachts and their spouses to FWS Properties, LLC. FWS is a limited liability company that was established in 2005; its principal organizer is Robert Fastnacht.

{¶8} A 2006 survey of the parcel revealed the 1950 scrivener's error. According to the survey, the discrepancy consisted of a gap 48.83 feet wide and 1,343.91 feet long, (approximately 1.45 acres) at the south end of the property (referred to as the "disputed parcel".)

{¶9} Following the discovery and unsuccessful negotiations, on April 4, 2007, FWS commenced the instant quiet title action. FWS requested that the trial court quiet title to the disputed parcel in its favor and reform the 2005 deed to conform to the legal description of the 1904 deed. FWS further argued that it was entitled to the disputed parcel by adverse possession.

{¶10} On April 19, 2007, appellants filed their answer and counterclaim. The counterclaim alleged that the action was frivolous pursuant to R.C. 2323.51.

{¶11} On January 28, 2008, FWS filed its motion for summary judgment. FWS argued that because the parties were not aware of the 1950 scrivener's error, a mutual mistake of fact occurred. In support of its motion, FWS attached the affidavit of Robert E. Johnson, a licensed title agent, who examined the property and its transfers and stated that: "[I]t is clear from the record that this is a scrivener's error, that a split was never drawn by the County Auditor and there is nothing in the record to indicate that there was ever any intention to withhold from the 1950 transfer the approximately 3 acres which was inadvertently left out."

{ΒΆ12} Thereafter, appellants filed their memorandum in opposition and cross-motion for summary judgment. Appellants asserted that the disputed parcel is adjacent to an 80-acre farm that was also transferred by the Estate of Fred Conklin in 1950. Appellants further argued that the disputed parcel, due to its proximity to a popular retail and residential area, is worth over $100,000. In support of their memorandum in opposition, appellants attached the affidavit of appellant, Lois Brigham, who stated that she still has a monetary interest in the adjacent 80-acre parcel and that "the 45 foot strip of land at the rear of the parcel * * * was not, nor was it intended to be, conveyed to BancOhio * * *. In fact, I was a grantor on that ...


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