from the Franklin County Court of Common Pleas No. 16CV-189
K. Bhatt, for appellant.
& Joseph Co., LPA, and Courtney L. Hanna, for appellees.
Courtney L. Hanna.
1} Plaintiff-appellant, Stanley Rogowski, appeals
from a decision of the Franklin County Court of Common Pleas
entered on December 1, 2016, granting the motion for summary
judgment of defendants-appellees, David Barnes and Manuela
Barnes ("Manuela") (collectively "the
Barnes"), against Rogowski's claim to certain real
property under the doctrines of acquiescence and adverse
possession. Because we find that the trial court did not
abuse its discretion in granting summary judgment, we affirm.
FACTS AND PROCEDURAL BACKGROUND
2} This is a 2016 refiled case which Rogowski
originally filed in 2012 and was dismissed without prejudice
for want of prosecution. All pleadings and decisions in the
record were filed in 2016.
3} Rogowski and the Barnes own adjacent
single-family homes in Dublin, Ohio. Rogowski owns and
occupies the real property located at 2925 West Case Road,
and the Barnes own and occupy the real property located at
2917 Case Road West (or West Case Road) ("the
Barnes' property"). The backyard of each property is
fenced; a chain-link fence was erected between the two
properties in 1980 by the then-owner of the Barnes'
property, approximately two feet into the Barnes'
backyard. The record indicates that Rogowski filed his
original action in 2012, when the Barnes began to relocate
the fence closer to the boundary line between the two
4} Rogowski alleges that he had acquired title to
the section of the Barnes' property located on his side
of the fence under the doctrines of acquiescence and adverse
possession and demands a judgment declaring that the fence
erected in 1980 is now the boundary line between the two
properties. Rogowski states in his complaint that "[t]he
then owner of the property placed the fence there knowing
where the property line was, for aesthetic reasons."
(Jan. 8, 2016 Compl. at ¶ 4.) Rogowski argues that,
since the fence was erected, he had "exclusive
possession and open, notorious, continuous, and adverse use
of the property at issue * * * for a period of over
twenty-one years (thirty-two years), so as to acquire title
by adverse possession." Id. at ¶ 7.
Rogowski contends the Barnes have trespassed onto his
property by moving the fence "into" his property.
Id. at ¶ 22.
5} The Barnes counterclaimed against Rogowski,
seeking quiet title to this property against any claim or
interest of Rogowski.
6} On April 6, the Barnes filed a motion for summary
judgment against Rogowski, arguing his claims fail for
several reasons, including the following:
(1) [Rogowski] signed a SWORN Declaration of
Restrictive Covenant on October 16, 2011, notarized by his
girlfriend, and filed with the Franklin County Recorder,
which specifically admits that [the Barnes] own the property
that [Rogowski] is now claiming he owns; (2) [Rogowski] has
admitted that the fence was placed where it was for aesthetic
reasons only, and, therefore, is not for the purpose of
changing the boundary lines; (3) [Rogowski's] use of the
property was with the permission of [the Barnes] and the
prior owners and was therefore not adverse; (4) [the Barnes]
cannot trespass against their own property; (5) [Rogowski]
has failed to state a claim upon which relief can be granted;
and (6) the fence has already been moved as close as possible
to the boundary line with consideration of the existing
(Emphasis sic.) (Apr. 6, 2016 Defs.' Mot. for Summ. Jgmt.
7} The Barnes submitted in support of their motion
the affidavits of Jeffrey H. Franklin and Judith A. Franklin
("the Franklins"), the previous owners of the
Barnes' property who had erected the fence in 1980. The
Franklins' testimony refuted Rogowski's claims of
acquiescence and adverse possession derived from the location
of the fence. The Franklins testified that they had
maintained the fence and the surrounding property, that the
fence never was treated as the boundary with Rogowski's
property, that they never intended to cede to Rogowski
ownership of their property on Rogowski's side of the
fence, that they never had any discussions with Rogowski
regarding the property line, and that they had had not
agreed, consented, thought, or otherwise acquiesced "in
any way, that the location of the fence was the property line
between the two properties." Id. at 4. The