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John Ormandy, Jr., et al. v. Russell J. Dudzinski

September 30, 2011

JOHN ORMANDY, JR., ET AL. APPELLANTS
v.
RUSSELL J. DUDZINSKI, ET AL. APPELLEES



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 07CV151538

The opinion of the court was delivered by: Carr, Judge.

Cite as

Ormandy v. Dudzinski,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Appellants, John and Zelma Ormandy, appeal the judgment of the Lorain County Court of Common Pleas, which granted summary judgment in favor of appellees, Russell and Vicki Dudzinski. This Court affirms.

I.

{¶2} On June 28, 2007, the Ormandys filed a complaint against the Dudzinskis seeking: (1) to quiet title to certain land under the theory of adverse possession, (2) a finding that the Dudzinskis were estopped from asserting any right, title, or claim to the property at issue and an order directing the Dudzinskis to enter into an agreement pursuant to R.C. 5301.21 to establish a boundary line between the Ormandys' and Dudzinskis' adjoining properties under the doctrine of acquiescence, and (3) damages for trespass. The Dudzinskis answered, denying the allegations in the complaint and asserting as a defense that the Ormandys were estopped from asserting any claim to the disputed property.

{¶3} The Dudzinskis filed a motion for summary judgment on all the claims on the Ormandys' complaint. The Ormandys filed a motion for summary judgment in regard to their claim based on the doctrine of acquiescence. The parties filed their respective briefs in opposition to their opponents' motion for summary judgment. On August 18, 2009, the trial court issued a journal entry purporting to rule on the competing motions for summary judgment. The trial court, however, merely entered summary judgment in favor of the Dudzinskis on the Ormandys' claim alleging adverse possession. The Ormandys filed a motion for reconsideration, requesting that the trial court rule on all of their claims. The Ormandys then filed a notice of appeal from the August 18, 2009 judgment.

{¶4} This Court dismissed the Ormandys' first appeal for lack of a final, appealable order because the August 18, 2009 journal entry failed to dispose of all the claims and lacked the appropriate notice pursuant to Civ.R. 54(B). While the first appeal was pending, the trial court ruled on the Ormandys' motion for reconsideration and issued a journal entry on October 20, 2009, purporting to dispose of all pending claims. The Ormandys filed a second notice of appeal. This Court dismissed the second appeal for lack of a final, appealable order because the trial court lacked jurisdiction to issue its judgment going to the merits of the case while the first appeal was pending.

{¶5} On August 31, 2010, the trial court issued a journal entry in which it incorporated by reference its August 18, 2009 decision. The trial court entered judgment in favor of the Dudzinskis and dismissed the Ormandys' complaint with prejudice.*fn1 The Ormandys filed a timely appeal, raising four assignments of error for review. This Court consolidates some assignments of error to facilitate review.

II.

ASSIGNMENT OF ERROR I

"THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEES DUDZINSKI ON THE ADVERSE POSSESSION CLAIM FOR THE REASON THAT THE TRIAL COURT FAILED TO CONSIDER ALL OF THE EVIDENCE PROPERLY BEFORE IT ON THAT CLAIM."

{¶6} The Ormandys argue that the trial court erred by granting summary judgment in favor of the Dudzinskis on the Ormandys' claim for adverse possession. This Court disagrees.

{¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12.

{¶8} Pursuant to Civ.R. 56(C), summary judgment is proper if:

"(1) No genuine issue as to any material fact remains 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 ...


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