Court of Appeals of Ohio, Eleventh District, Portage
ROBERT J. GOLUBSKI, Plaintiff-Appellee,
UNITED STATES PLASTIC EQUIPMENT, LLC, et al., Defendant-Appellant.
Appeal from the Portage County Court of Common Pleas, Case
No. 2013 CV 00365.
P. Lorenz and Oliver T. Koo, (For Plaintiff-Appellee).
J. Flynn, Flynn, Keith & Flynn, (For
CYNTHIA WESTCOTT RICE, P.J.
Appellant, United States Plastic Equipment, LLC, et al.,
appeal from the judgment of the Portage County Court of
Common Pleas, finalizing the legal description of certain
real property to which appellee, Robert J. Golubski, was
granted title by operation of the doctrine of acquiescence.
In Golubski v. United States Plastic Equipment, LLC,
11th Dist. Portage No. 2015-P-0001, 2015-Ohio-4239
("Golubski I "), this court affirmed the
trial court's determination as to appellee's
acquiescence claim, but reversed and remanded the matter for
the trial court to conduct the underlying proceedings and to
finalize the legal description of the property in question.
At issue is whether the trial court erred in concluding the
final width of the property was 13'11". We affirm
After a trial on appellee's complaint, seeking title to a
portion of real property by operation of adverse possession
and the doctrine of acquiescence, the magistrate issued a
decision granting appellee title on both bases. The
magistrate concluded the width of the property was set by a
boundary line "running east and west through the middle
of the [former] lilac bush." Appellant filed detailed
objections to the decision, to which appellee responded.
After considering the pleadings, the trial court adopted the
magistrate's decision in its entirety. On appeal, this
court determined the trial court erred in adopting the
magistrate's decision as it related to appellee's
adverse possession claim. Golubski I, at
¶19-22. This court, however, affirmed the trial
court's adoption of the decision on appellee's
acquiescence claim. Id. at ¶28-35. This court
ultimately reversed and remanded the matter for the trial
court to set forth a formal and enforceable legal description
of the subject property, particularly as it pertained to the
width (north and south) of the subject property. Id.
On remand, the trial court ordered the parties to brief the
issue and provide a proposed survey and legal description of
the land. Appellee provided a proposed survey and legal
description which set the boundary 13'11" from
appellee's home. Appellant did not provide a survey, but
argued the boundary line should be 12' from the survey
line. Appellant's position was premised upon
appellee's statement, in his complaint, that the strip of
land was "12' wide." Appellee responded, noting
each witness testified the lilac bush was approximately
15' from his home. After reviewing the evidence, the
trial court determined the lilac bush was 15' from the
side of the house and 13'11" from the survey
boundary line. The court accordingly set forth a clear legal
description of the property reflecting this determination.
Appellant appeals and assigns the following as error:
"The trial court committed prejudicial error by
establishing the new boundary line 13 feet, 11 inches from
the current survey line."
Under this assignment of error, appellant contends the trial
court erred when it granted appellee more land than he
demanded in his complaint. He maintains appellant could have,
but failed to formally move the court to amend his complaint,
pursuant to Civ.R. 15, prior to trial. Because he failed to
so move the court, the trial court was constrained to grant
only that amount of property set forth in his complaint,
i.e., a 12' strip. In support, appellant cites Hacker
v. House, 12th Dist. Butler No. CA2014-11-230,
In Hacker, the plaintiffs brought an action against
their neighbors, alleging they should be given title to a
certain portion of property via adverse possession and
prescriptive easement. At trial, the plaintiffs moved to
amend their complaint to include an additional claim
regarding a noncontiguous portion of property not set forth
in their original complaint. The defendants immediately
objected. The trial court denied the motion and permitted the
plaintiffs to move forward only on the disputed property
originally plead in their complaint. On appeal, the Twelfth
District affirmed the trial court's denial. The court
recognized that Civ.R. 15(B) permits the court to freely
allow the amendment of pleadings; if, however, the opposing
party objects, the court may disallow such an amendment,
particularly where such an amendment would cause the opposing
party undue prejudice. Hacker, supra, ¶37-40.
The court ultimately observed that "the [plaintiffs]
could have easily moved to amend their complaint prior to
trial rather than wait until after the trial had already
begun to make such a request." Id. at ¶40.
This case is distinguishable from Hacker. Civ.R.
15(B) allows for the amendment of pleadings to conform to the
evidence presented at trial. It provides that "[w]hen
issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings."
Civ.R. 15(B) also provides, however, that if the evidence is
objected to at trial, on the ground that it is not within the
issues alleged in the pleadings, "the court may allow
the pleadings to be amended and shall do so freely when the
presentation of the merits of the action will be subserved
thereby and the objecting party fails to satisfy the court
that the admission of such evidence would prejudice him in
maintaining his action or defense on the merits."
Furthermore, the staff notes to Civ.R. 15(B) indicate that
where, as here, the opposing party does not object
to the introduction of the new evidence, the trial court need
not amend the pleading; instead, the evidence will be
considered by the trial court and treated as if it had been
raised in the pleading.
At trial, Louis Giffels, a licensed professional surveyor,
testified that he visited the property in question and
observed "disturbed earth" where the lilac bush was
formerly located. He testified that the region in question
was between 12' and 15' from the side of
appellee's house. Moreover, Lynn B. Corbett, a former
resident of the property currently owned by appellant,
testified the lilac bush was about 15' away from the edge
of appellee's home. Appellee testified that the prior
owner of appellant's property advised him the property
line went down the center of the lilac bush. Appellee further
testified he was "very surprised" to learn the
property line was not 15' from the edge of his home. At
no point did appellant object to the foregoing testimony.
Under the circumstances, appellee was not required to amend
his complaint and the trial court was entitled to treat the
evidence as if it had been raised in the
Additionally, on remand, appellee submitted a survey, which
set the boundary at 13.92' from the edge of the house.
Although appellant objected to the survey, asserting appellee
was bound by his original complaint, which alleged the
boundary was 12', the original complaint also provided
that "description of the land will be more fully
described at trial." Implicitly, the complaint indicated
appellee would advance evidence to supplement its description
in the complaint. Appellee did so at trial and appellant
failed to object. Because the trial court was authorized to
consider the testimony that the boundary was between 12'
and 15' from the house, and the survey set forth a
boundary line (which ran through the center of the bush)
within those estimations, we conclude it did not err when it
set the boundary at 13'11" from the edge of the
Appellant's assignment ...