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Spurlock v. Pemberton

Court of Appeals of Ohio, Fourth District

September 10, 2013

GARY SPURLOCK and GLADYS SPURLOCK, Plaintiffs-Appellants/ Cross-Appellees,
v.
JOHN PEMBERTON and JACKIE PEMBERTON, Defendants-Appellees/Cross-Appellants.

CIVIL APPEAL FROM COMMON PLEAS COURT.

COUNSEL FOR APPELLANTS/CROSS-APPELLEES: Craig A. Allen.

COUNSEL FOR APPELLEES/CROSS-APPELLANTS: LLP, Richard F. Bentley, Wolfe & Bentley.

DECISION AND JUDGMENT ENTRY

Peter B. Abele, Judge.

(¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment in favor of John and Jackie Pemberton (Pembertons) defendants below and appellees/cross-appellant's herein, on their counter-claim against Gary and Gladys Spurlock, (Spurlocks) plaintiffs below and appellant's herein. The Spurlocks assign the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF CROSS-APPELLANT, APPELLEE'S OWNERSHIP OF PROPERTY BASED UPON AN UNRECORDED LAND CONTRACT" SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN DECIDING THE CROSS-APPELLANT, APPELLEE HAD SECURED RIGHTS TO THE LAND BY ADVERSE POSSESSION."
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN DECIDING IT SHOULD QUIET TITLE IN THE CROSS-APPELLANT, APPELLEES [.]"

(¶ 2} The Pembertons raise the following cross-assignment of error for review[1]:

"THE TRIAL COURT ERRED IN OVERRULING THE MAGISTRATE'S DECISION AS TO THE ADOPTION OF THE SURVEY BY DEFENDANTS' SURVEYOR; THEREFORE, NOT GRANTING DEFENDANTS' CLAIM FOR QUIET TITLE BY DEED WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

(¶ 3} The parties are contiguous property owners. The Pembertons took possession of their land in 1984 or 1985 under a "written agreement" that was frequently referred to as a land contract.[2] This contract was not recorded and, when the property was finally conveyed by deed in 1994, the unrecorded contract was discarded.

(¶ 4} The Spurlocks acquired their land two years later, in 1996. The dispute involves a piece of property of undetermined size[3] that lies north of Township Road 253. The Pembertons claim that this land belongs to them, that they have used the land consistently since the 1980s and that it was used by the Joseph family, their predecessors-in-title. The Spurlocks, however, claim the property as a part of the land conveyed to them in 1996. They commenced the instant action on July 26, 2010 and alleged that the Pembertons had trespassed on their property ...


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