Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Andes v. Winland

Court of Appeals of Ohio, Seventh District, Belmont

March 3, 2017

PHILIP J. ANDES PLAINTIFF-APPELLANT
v.
MICHAEL WINLAND, et al. DEFENDANTS-APPELLEES

         Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 14 CV 0140

          APPEARANCES: For Plaintiff-Appellant Attorney John Estadt Attorney Kyle Bickford 46457 National Road West St. Clairsville, Ohio 43950

          For Defendant-Appellee, Michael Winland Attorney Adam Myser 320 Howard Street Bridgeport, Ohio 43912

          For Defendant-Appellee, Heather Williams Attorney Russell Gerney 11 East Beau Street Washington, Pennsylvania 15301

          JUDGES: Hon. Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol Ann Robb

          OPINION

          DEGENARO, J.

         {¶1} Plaintiff-Appellant, Philip J. Andes, appeals two trial court judgments: the first in favor of Defendants-Appellees, Michael Winland and Heather Williams, following a jury trial on Andes' adverse possession claim; and the second, overruling Andes' motion notwithstanding the verdict. On appeal, Andes asserts there is insufficient evidence supporting the jury's verdict, or alternatively, that the verdict is against the manifest weight of the evidence. He also argues that Williams' counsel misrepresented the evidence during his closing argument. As Andes' assignments of error are meritless, the judgment of the trial court is affirmed.

         Facts and Procedural History

         {¶2} In March 2014, Appellees acquired title to a parcel of land ("the Winland-William parcel") adjacent to one owned by Andes. Upon taking ownership, Appellees discovered Andes had been storing some of his personal property on their newly-acquired land. By letter dated March 24, 2014, Appellees' counsel demanded that Andes remove all of his items of personal property from Appellees' real estate.

         {¶3} Andes refused to comply; instead, he filed a verified complaint against Appellees, claiming that he and his predecessors-in-title had acquired the western portion of the Winland-Williams parcel by virtue of adverse possession. He sought an order quieting title to that portion to him, along with injunctive relief during the pendency of the action.

         {¶4} Winland and Williams answered. The parties entered into a consent order in which, among other things, they agreed to a general description of the disputed area and stipulated that Andes would bear the survey costs. After a survey was competed, the parties agreed that the disputed area measured 0.836 acres, and that Appellees were the record title owners of that area. Cross-motions for summary judgment were overruled by the trial court.

         {¶5} The matter proceeded to a jury trial on August 21, 2015, where the following evidence was adduced. Deed records demonstrating the chain of title to both parcels were admitted into evidence. Winland and Williams purchased their parcel in 2014. The Andes parcel was owned by Andes, his relatives, or his business entities beginning in 1981.

         {¶6} Andes presented two witnesses in support of his claim: his mother, Betty Andes, and himself. Betty testified that she and her late husband, Phillip F. Andes, via a business entity they owned known as Andes Insurance Agency, purchased the Andes parcel from Max and Nancy Potetz in 1981. Betty described the disputed area as "grass leading up to the edge [with] a few trees planted * * * [on the] edge line, " which afforded a nice view of the Ohio River. She said that she and her husband kept the grass cut and any bushes trimmed in a neat manner and that they stored tractors and other miscellaneous equipment and tools on the disputed area. She said that they treated the disputed area as their own and visited it "probably once or twice a week, sometimes a little more[, ]" but only in the spring, summer and fall; it was hard to access in the winter. At one point, there was a picnic table on the disputed area, but she did not know what happened to it. Betty testified that she had visited the disputed area about two weeks earlier, when she went to see Andes at his nearby home.

         {¶7} Betty initially testified that Della Shaver, one of Winland's predecessors-in-title, saw that the Andes family would store things on the disputed area, but said nothing. However, she later stated that she believed she had permission from Shaver to be on the disputed area. Betty claimed that the disputed area looked substantially the same in 2001 as it did in 1981 when she and her husband purchased the adjacent Andes parcel. However, when presented with aerial photographs of the disputed area from 2001, she conceded she could see no equipment being stored in that area.

         {¶8} Appellant Andes testified he was involved with the Andes parcel beginning when his parents purchased it in 1981. He stated he believed he or his predecessor's adversely possessed the disputed area from 1981-2004.

         {¶9} However, Andes went on to testify that his mother, Betty only visited the disputed area "on occasion;" that it was more often visited by himself and his father. He also opined that Betty was "confused" about some of the timeframes because she was 88 years old. Later, he specified that she was mistaken when she said she had been on the disputed area two weeks prior.

         {¶10} Andes said that when his parents purchased the property in 1981, the disputed area contained a picnic area that was "essentially manicured from mowing" by the prior owner, Mr. Potetz, and contained a "lot of big trees" and picnic table overlooking the river. Andes said his parents continued to maintain the disputed area in the same manner. In the early 1980s, they stored a small bulldozer and Massey Ferguson tractor on the disputed area. In 1989, they stored on the disputed area a Ford 5000 tractor and a brush hog, "which is still up there." In addition, at that time, there was a post hole digger and a back drag farm implement on the disputed area. Andes said there was no attempt to conceal these items; they were open and obvious.

         {¶11} Andes did not learn that the disputed area was not a part of the Andes parcel until 2004 when a survey was done relating to the creation of a nearby subdivision. However, he said they continued to maintain and use the disputed area in the same manner they had since 1981.

         {¶12} Appellees' first witness, Dustin Reed, is a drafting technician from the Belmont County Engineering Department. He was qualified as an expert in aerial maps by the trial court. Dustin testified about county aerial maps from 2001, 2006 and 2011; these were aerial photographs showing the Andes parcel, and the Williams-Winland parcel, including the disputed area. Reed testified that the 2011 aerial map showed "junk" in the disputed area. The 2006 aerial map showed a vehicle and blocks or bricks in the disputed area. In the 2001 aerial map, there are leaves on the trees and Reed said he could not see any equipment or vehicles; the only feature he could make out on that map was something that appeared to be a road, path or stream. In his opinion, there was not nearly the amount of features on the disputed area in 2001, compared to 2011. Reed explained that "features" are items aside from trees; items that are out of the ordinary, including buildings, equipment and vehicles.

          {¶13} Finally, Winland testified that he and Williams acquired their parcel in 2014; during a survey they discovered "junk" on the disputed area including pipes, bricks, miscellaneous building materials, French drains and rotten lumber. They sent Andes a letter asking him to remove the items and Andes responded by filing suit against them.

         {¶14} Winland said that as a teenager in 2003 and 2004 he went on the disputed area to cut firewood. He said he had permission to do so from the owner at the time. He witnessed others use the disputed area during that time, also. For example, people would hunt on that land, and he and his friends would go four-wheeling there. He described the disputed area at that time as mostly wooded, and littered with tree tops with branches. Winland explained that these tree tops were there because: "the previous land-owner, A&D Woodland, timbered the property in the mid '90s. When they timber it, you cut the tree, you take the best part of the tree and you leave the top. There was treetops all over the place, which is where my main source of firewood came from, was off the tree tops from that area." Winland later clarified that A&D Woodland was a business entity owned by the Raber family and that Andy Raber had the disputed area logged.

         {¶15} Winland denied there was grass that could be easily cut on the disputed area; he said it consisted of weeds amongst the cut tree tops. In addition, Winland testified that he placed a shed on the disputed area in 2008.

         {¶16} After the completion of Appellees' case, there was a jury view of the disputed area. The parties made cross-motions for directed verdict, which were overruled by the trial court.

         {¶17} After considering all of the evidence, the jury reached a unanimous verdict in favor of Appellees, finding that Andes failed to prove by clear and convincing evidence that he and his predecessors-in-title have been in actual, open, notorious, continuous, hostile, and exclusive possession of disputed area for at least 21 years. The trial court entered judgment on the verdict. Andes thereafter filed a motion for JNOV, which the trial court overruled.

          Sufficien ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.