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Rogowski v. Barnes

Court of Appeals of Ohio, Tenth District

April 24, 2018

Stanley Rogowski, Plaintiff-Appellant,
v.
David Barnes, et al., Defendants-Appellees.

          APPEAL from the Franklin County Court of Common Pleas No. 16CV-189

         On brief:

          Sanjay K. Bhatt, for appellant.

         Argued:

          Sanjay K. Bhatt.

         On brief:

          Joseph & Joseph Co., LPA, and Courtney L. Hanna, for appellees.

         Argued:

          Courtney L. Hanna.

          DECISION

          BRUNNER, J.

         {¶ 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.

         I. 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 properties.

         {¶ 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.[1]

         {¶ 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 telephone easement.

(Emphasis sic.) (Apr. 6, 2016 Defs.' Mot. for Summ. Jgmt. at 2.)

         {¶ 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 ...


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