Powell v. Vanlandingham , 2011 Ohio 3208 ( 2011 )

[Cite as Powell v. Vanlandingham, 2011-Ohio-3208.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
JOAN M. POWELL, :
Plaintiff-Appellant, : Case No. 10CA24
vs. :
STANLY1 P. VANLANDINGHAM, et al., : DECISION AND JUDGMENT ENTRY
Defendants-Appellees. :
_________________________________________________________________
APPEARANCES:
APPELLANT PRO SE: Joan M. Powell, 618 Third Street, Marietta, Ohio 45750
COUNSEL FOR APPELLEES: Daniel A. Fouss, 311 Fourth Street, Marietta, Ohio 45750
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 6-24-11
ABELE, J.
{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment that
declared the legal description of a disputed boundary line between the properties of Joan M.
Powell, plaintiff below and appellant herein, and Stanly P. and Ruth A. Vanlandingham,
defendants below and appellees herein.
{¶ 2} Appellant raises the following assignments of error for review:
1
The record contains inconsistent spellings of Mr. Vanlandingham’s first name: Stanly and Stanley. We have used
the spelling as it appears on the trial court’s final judgment entry.
WASHINGTON, 10CA24 2
FIRST ASSIGNMENT OF ERROR:
“THE JUDGE ERRED IN HIS DECISION DUE TO
INCORRECT INFORMATION GIVEN HIM IN DEFENDANT’S
BRIEF AND FINDING OF FACTS.”
SECOND ASSIGNMENT OF ERROR:
“THE JUDGE MADE THE WRONG DECISION DUE TO
FABRICATIONS IN THE TESTIMONY OF THE
DEFENDANT.”
THIRD ASSIGNMENT OF ERROR:
“THE COURT ERRED IN RULING FOR THE DEFENDANTS
WHEN THE WEIGHT OF THE EVIDENCE, DEEDS FOR
BOTH PROPERTIES, AND TESTIMONY BY THE SURVEYOR
PROVED THE PROPERTY IN QUESTION LEGALLY
BELONGS TO THE PLAINTIFF.”
I. BACKGROUND
{¶ 3} The present case involves a boundary line dispute between two neighbors who
have lived next door to each other since 1974. Appellees assert that in 1974, when they moved
into their home, appellant and her now-deceased husband desired to erect a sixteen-foot privacy
fence along the side of their patio next to appellees’ home. Appellees claim that before
appellant and her husband constructed the fence, appellant’s husband showed appellees where
the boundary line rests, from a stone marker on the Third Street end of the property to a steel rod
(sometimes referred to in the record and this opinion as an “iron pipe”) in the ground near the
alley. Appellees state that appellant and her husband then erected the fence along this boundary
line, which was the same as the boundary line set forth in a 1966 survey conducted by Franklin
Blair (the Blair survey). Appellees assert that from 1974 onward, despite appellant's claimed
lack of knowledge, the parties acted in accordance with the 1974 boundary line until the summer
WASHINGTON, 10CA24 3
of 2007, when appellant expressed displeasure with appellees’ placement of a fence.
{¶ 4} In August 2007, appellant hired James M. Mulryan to survey her property.
According to Mulryan’s survey, appellees’ fence line encroaches on appellant’s property by .9
feet at one end and by .5 feet at another end. Appellant requested appellees to remove the
encroachments. When attempts to settle the matter proved unsuccessful, appellant instituted the
present lawsuit and requested the trial court to order appellees to remove the encroachments.
{¶ 5} In their answer, appellees raised several affirmative defenses, including the
defenses of estoppel, waiver, and acquiescence. Appellees further asserted what appears, in
substance, to be a counterclaim. Appellees claimed that appellant acquiesced to the location of
the boundary line, as described in 1974, and further “request[ed] an order of [the trial] Court
establishing the boundary line between [the parties’] properties to be the boundary line agreed to
in 1974, [and] a finding that [appellees] are not encroaching on [appellant’s] property * * *.”
II. TRIAL
{¶ 6} On June 24, 2010, the court held a trial. The parties, not surprisingly, presented
conflicting evidence. Appellant testified that appellees discussed with her the location of the
boundary line before building their fence. She stated that she told them that she did not agree
with their ascertainment of the boundary line. Appellant testified that after appellees built the
fence, she hired Mulryan to perform a survey and that Mulryan’s survey shows that appellees’
fence encroaches on her property.
{¶ 7} Appellant’s surveyor, James M. Mulryan, stated that he reviewed appellant’s deed
to ascertain the location of her property. He explained that her deed called for a total of 40 feet
WASHINGTON, 10CA24 4
of frontage on Third Street that extended in an easterly direction, at right angles, 180 feet to the
alley, creating a rectangular-shaped parcel. Mulryan stated that he set pins where he believed
the corners of appellant’s property were located. Mulryan testified that if he were to use the iron
pipe Mr. Vanlandingham referred to and run it to the stone on the front end of the property, then
the boundary line would not conform to the deed. Mulryan testified that appellees’ fence
encroaches on appellant’s property by .9 feet at the back corner of the fence and by .5 feet at the
front corner of the fence. He explained that if Blair’s survey were correct, then (1) appellant’s
property is only 38.5 feet wide, when the deed calls for a 40-foot wide parcel, and (2) appellees’
property is 26.5 feet wide, when the deed calls for a 25-foot wide parcel.
{¶ 8} Mr. Vanlandingham testified that in 1974, shortly after he and his wife moved
into the property, appellant and her now-deceased husband advised appellees that they were
considering installing a fence and that they had a survey performed. According to Mr.
Vanlandingham, appellant and her husband informed appellees that “the property line runs from
the pipe to the stone.” He explained that a stone sits on the Third Street end of the property and
that the boundary line runs from this stone along a pipe that appellant and her husband dug up.
Mr. Vanlandingham testified that since this 1974 conversation, the parties have acted as if the
boundary line ran from the stone then along the pipe, as Mr. Powell had explained. He further
observed that the Powells had a fence built along this line in 1974 and that it remained in place
until 2006.
{¶ 9} Mr. Vanlandingham also stated that in 1998, he requested Blair to survey the
Vanlandingham property and that this 1998 survey confirmed that the boundary line was as Mr.
Vanlandingham had described and as Mr. Powell had indicated in 1974.
WASHINGTON, 10CA24 5
{¶ 10} Mr. Vanlandingham testified that before appellees installed their fence, they
discussed with appellant the location of the boundary line. He explained that before they erected
the fence, he used the Blair survey to locate the boundary line and that appellant agreed as to his
location of the boundary line. Mr. Vanlandingham stated that before construction began, he ran
a string from the stone in the front to the pipe in the alley to indicate the boundary line. He
further explained that after marking the boundary line, he measured one inch off the string and
then “another two inches or so to allow for the boards on the outside of the fence and ran another
string three of four inches inside the property line string,” so that the installers would set the
posts in a manner such that (1) the fence would not encroach on appellant’s property, and (2) the
fence would be an inch or so inside his property. Mr. Vanlandingham stated that appellant did
not object to the location of his string and that she did not object once the fence posts, which
were installed approximately one week before the fence panels, were put in the ground.
{¶ 11} Mr. Vanlandingham testified that appellant’s dispute as to the boundary line
location did not arise until a few months after the fence had been completed, when appellant
noticed water from appellees’ down spout pooling on her property. Mr. Vanlandingham stated
that appellant advised that she believed that the fence installers made a mistake. According to
Mr. Vanlandingham, appellant informed him that she believed the fence on the front end of the
property encroached onto her property. Mr. Vanlandingham stated that he then re-measured and
ran the string again to ascertain whether the fence installers had indeed incorrectly installed part
of the fence on appellant’s property.
{¶ 12} Mr. Vanlandingham stated that appellant hired Mulryan, who determined that the
boundary line was not from the stone to the pipe.
WASHINGTON, 10CA24 6
{¶ 13} Mr. Vanlandingham requested the court to find that the boundary line runs from
the iron pipe to the stone, as Mr. Powell had explained in 1974. Mr. Vanlandingham asserted:
“that’s the property line the Powells told us it was and we agreed with them, and Mr. Blair
surveyed it and confirmed that and we’ve operated–we placed the fence with the understanding
that that was the property line, and it’s up until Mulryan * * * did the survey and placed pins
someplace else; that’s always been the property line.”
{¶ 14} Moreover, appellees’ surveyor, Charles Hughes, testified that he surveyed the
boundary line between the iron pipe in the alley to the stone fronting Third Street and ascertained
that appellees’ fence did not encroach upon appellant’s property.
{¶ 15} On rebuttal, appellant denied that any 1974 conversation occurred with appellees
regarding the boundary line. She further disputed Mr. Vanlandingham’s contention that she did
not object to his location of the boundary line before he installed the fence. She testified that the
day before the fence was installed, Mr. Vanlandingham asked her where the boundary line sits.
She told him that she thought it was where Blair had marked it when she and her husband had
their patio screen installed in 1974. According to appellant, Mr. Vanlandingham stated that he
thought Blair was wrong and that he then placed the line where he thought it should be.
III. TRIAL COURT’S DECISION
{¶ 16} On July 21, 2010, the trial court found that: (1) in 1974, appellant and her
now-deceased husband agreed with appellees to a common boundary line based upon the Blair
survey; (2) in 1974, appellant and her husband built a fence along the now disputed line; (3) the
parties have built fences in reliance upon the 1974 boundary line agreement, and they would not
have done so had the 1974 conversation not occurred; (4) the boundary line the parties discussed
WASHINGTON, 10CA24 7
in 1974 runs from the stone to the pipe, and the parties have so used their respective properties
since 1974; and (5) the parties had not disputed the location of the property line until water began
to encroach on appellant’s property. The court thus adopted the appellees proposed legal
description as set forth in the Hughes survey. This appeal followed.
IV. PROCEDURAL MATTERS
{¶ 17} Before we address the merits of appellant’s assignments of error, we first address
some procedural issues.
A. FINAL APPEALABLE ORDER
{¶ 18} Appellate courts have jurisdiction to review the final orders of inferior courts
within their districts. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. If an order
is not final and appealable, then an appellate court has no jurisdiction to review the matter and it
must be dismissed. See General Acc. Ins. Co. v. Ins. Co. of N. America (1989), 44 Ohio St. 3d
17, 20, 540 N.E.2d 266. In the event that the parties involved in the appeal do not raise this
jurisdictional issue, an appellate court is required to raise it sua sponte. See Chef Italiano Corp.
v. Kent State Univ. (1989), 44 Ohio St. 3d 86, 541 N.E.2d 64, syllabus; Whitaker-Merrell v.
Geupel Co. (1972), 29 Ohio St. 2d 184, 186, 280 N.E.2d 922.
{¶ 19} “An order is a final order that may be reviewed, affirmed, modified, or reversed,
with or without retrial, when it is * * * [a]n order that affects a substantial right in an action that
in effect determines the action and prevents a judgment” or “[a]n order that affects a substantial
right made in a special proceeding[.]” R.C. 2505.02(B)(1) & (2). “A final order * * * is one
disposing of the whole case or some separate and distinct branch thereof.” Lantsberry v. Tilley
WASHINGTON, 10CA24 8
Lamp Co. (1971), 27 Ohio St. 2d 303, 306, 272 N.E.2d 127.
{¶ 20} When a court issues a judgment that disposes of some claims but leaves other
claims pending, the order is final and appealable only if the judgment complies with Civ.R.
54(B). That rule states:
When more than one claim for relief is presented in an action whether as a
claim, counterclaim, cross-claim, or third-party claim, and whether arising out of
the same or separate transactions, or when multiple parties are involved, the court
may enter final judgment as to one or more but fewer than all of the claims or
parties only upon an express determination that there is no just reason for delay.
In the absence of a determination that there is no just reason for delay, any order
or other form of decision, however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties, shall not
terminate the action as to any of the claims or parties, and the order or other form
of decision is subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the parties.
{¶ 21} Civ.R. 54(B) allows a trial court to enter final judgment as to one or more, but
fewer than all, claims in a multi-claim action only upon an express determination of “no just
reason for delay.” Without this language, a reviewing court ordinarily does not have jurisdiction
and the appeal must be dismissed. Prod. Credit Assn. v. Hedges (1993), 87 Ohio App. 3d 207,
210, 621 N.E.2d 1360, fn. 2; Kouns v. Pemberton (1992), 84 Ohio App. 3d 499, 501, 617 N.E.2d
701.
{¶ 22} A trial court’s failure to use Civ.R. 54(B) language in a multi-claim action will not
prevent a final appealable order when the court’s judgment otherwise renders the remaining
claim or claims moot. The Ohio Supreme Court has recognized that even when a trial court
does not expressly adjudicate all of the claims in a multi-claim action, “if the effect of the
judgment as to some of the claims is to render moot the remaining claims * * * then compliance
with Civ.R. 54(B) is not required to make the judgment final and appealable.” General Acc. Ins.
WASHINGTON, 10CA24 9
Co. at 21; see, also, Mtge. Electronic Registrations Sys. v. Mullins, 161 Ohio App. 3d 12,
2005-Ohio-2303, 829 N.E.2d 326, at ¶18. See, generally, Havel v. Villa St. Joseph, Cuyahoga
App. No. 94677, 2010-Ohio-5251 (recognizing that a final appealable order exists even when a
trial court does not render an explicit judgment on an issue, so long as its judgment implicitly
addresses that issue).
{¶ 23} In the case sub judice, we observe that the trial court did not enter a judgment that
explicitly addressed appellant’s encroachment claim. Instead, the court entered judgment on
appellees’ counterclaim that they actually designated as an affirmative defense.2 The trial
court’s judgment declaring the boundary line is an implicit judgment against appellant regarding
her encroachment claim and in favor of appellees regarding their counterclaim. That is, the
court describes the boundary line in such a manner that appellees’ fence is within their property
and does not encroach onto appellant’s property. Thus, the trial court’s judgment declaring the
legal description of the boundary line renders appellant’s encroachment claim moot.
Consequently, we do not believe the court’s failure to enter judgment regarding the
2
“The difference between a defense and a counterclaim is that ‘the latter is affirmative in nature, and asserts a
separate cause of action, while the former serves to preclude recovery by asserting facts that defeat the plaintiff’s right to
recovery.’ Riley v. Montgomery (June 30, 1983), Warren App. No. 88. An affirmative defense generally refers to that which is
offered to defeat an action by ‘”denying, justifying, or confessing and avoiding the plaintiff’s cause of action. It goes to the
plaintiff’s right and generally would not be considered an independent claim existing against the plaintiff.”’” BAC Home
Loans Servicing, L.P. v. Hall, Warren App. No. CA2009-10-135, 2010-Ohio-3472, at ¶18, quoting Riley, quoting Secrest v.
Standard Oil Co. (1963), 118 Ohio App. 270, 271, 194 N.E.2d 68.
In the case at bar, at least part of appellees’ “affirmative defenses” assert a separate cause of action. For instance,
appellees request the trial court to enter a judgment declaring the existence of the boundary line. Thus, we believe that
appellees designated as an affirmative defenses is actually a counterclaim. This is not fatal, however. Civ.R. 8(C) permits a
trial court to treat a counterclaim mistakenly asserted as an affirmative defense as a counterclaim (or vice versa). The rule
states: “When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if
justice so requires, shall treat the pleading as if there had been a proper designation.” Moreover, Civ.R. 8(F) requires courts to
WASHINGTON, 10CA24 10
encroachment claim leaves us without a final appealable order and deprives us of jurisdiction.
B. PRO SE LITIGANT
{¶ 24} We further observe that appellant, a pro se litigant, does not separately argue her
three assignments of error. See App.R. 16(A)(7). See, also, Keffer v. Cent. Mut. Ins. Co.,
Vinton App. No. 06CA652, 2007-Ohio-3984, at ¶8, fn. 2 (“While appellate courts may jointly
consider two or more assignments of error, the parties do not have the same option in presenting
their arguments.”). As we often recognize, however, we ordinarily afford considerable leniency
to pro se litigants and do not necessarily hold them to the same standards as attorneys. See, e.g.,
State v. Ritchie, Pickaway App. No. 10CA20, 2011-Ohio-164, at ¶5; Robb v. Smallwood, 165
Ohio App. 3d 385, 2005-Ohio-5863, 846 N.E.2d 878, at ¶5; Whittington v. Kudlapur, Hocking
App. No. 01CA1, 2001-Ohio-2525. Although we will not “conjure up questions never squarely
asked or construct full-blown claims from convoluted reasoning,” State ex rel. Karmasu v. Tate
(1992), 83 Ohio App. 3d 199, 206, 614 N.E.2d 827, we will consider a pro se litigant’s appellant
brief so long as it “contains at least some cognizable assignment of error.” Robb v. Smallwood
at ¶5; see, also, Coleman v. Davis, Jackson App. No. 10CA5, 2011-Ohio-506, at ¶14
(considering pro se litigant’s brief when it contains “some semblance of compliance” with
appellate rules of practice and procedure). In the case sub judice, we believe that appellant’s
brief contains at least some cognizable assignment of error that we may consider on its merits.
V. COGNIZABLE ASSIGNMENTS OF ERROR
{¶ 25} Appellant presents three assignments of error and each, in essence, challenges the
construe “[a]ll pleadings * * * [so} as to do substantial justice.”
WASHINGTON, 10CA24 11
weight of the evidence. Appellant contends that the trial court relied upon incorrect information
and fabricated testimony when ruling for appellees and that the court improperly afforded more
credibility to the Hughes survey than the Mulryan survey. Her basic premise is that the trial
court erred in its credibility assessments, and she spends much of her argument rehashing her
version of the events that transpired between the parties. She further contends that: (1) appellees
failed to establish that they acquired any part of her property by adverse possession; (2) the
parties’ mutual mistake voids any agreement they may have reached regarding the boundary line;
and (3) appellees failed to prove that appellant acquiesced to the boundary line or that she is
estopped from asserting title to the disputed property. For ease of discussion, we will address
appellant’s arguments in a different order than presented in her brief.
A. STANDARD OF REVIEW
{¶ 26} Generally, we will not reverse a judgment as against the manifest weight of the
evidence as long as some competent and credible evidence supports it. See, e.g., Shemo v.
Mayfield Hts. (2000), 88 Ohio St. 3d 7, 10, 722 N.E.2d 1018; C.E. Morris Co. v. Foley
Construction Co. (1978), 54 Ohio St. 2d 279, 376 N.E.2d 578, syllabus. This standard of review
is highly deferential and even “some” evidence is sufficient to support a court’s judgment and to
prevent a reversal. See Barkley v. Barkley (1997), 119 Ohio App. 3d 155, 159, 694 N.E.2d 989;
Willman v. Cole, Adams App. No. 01 CA725, 2002-Ohio-3596, at ¶24.
{¶ 27} Moreover, “an appellate court should not substitute its judgment for that of the
trial court when there exists * * * competent and credible evidence supporting the findings of
fact and conclusion of law.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80, 461
N.E.2d 1273. Issues relating to the credibility of witnesses and the weight to be given the
WASHINGTON, 10CA24 12
evidence are primarily for the trier of fact. As the court explained in Seasons Coal Co.:
“The underlying rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.”
Id. Thus, a trial court may believe all, part, or none of the testimony of any witness who appears
before it. Rogers v. Hill (1998), 124 Ohio App. 3d 468, 470, 706 N.E.2d 438.
{¶ 28} Although we ordinarily afford great deference to a trial court’s factual findings,
we do not afford any deference to a trial court’s application of the law. Instead, we
independently review whether the trial court properly applied the law. See Lovett v. Carlisle,
179 Ohio App. 3d 182, 2008-Ohio-5852, 901 N.E.2d 255, at ¶16; Pottmeyer v. Douglas,
Washington App. No. 10CA7, 2010-Ohio-5293, at ¶21.
{¶ 29} Thus, in the case sub judice, to the extent appellant’s assignments of error
challenge factual findings, we apply a manifest-weight-of-the-evidence standard of review. To
the extent appellant challenges the trial court’s application of the law, we apply a de novo
standard of review.
B. ACQUIESCENCE
{¶ 30} In the case at bar, the trial court essentially applied the doctrine of acquiescence
when ruling in appellees’ favor. In Burkitt v. Shepherd, Pike App. No. 05CA754,
2006-Ohio-3673, at ¶15, we explained this doctrine as follows:
“ * * * * The doctrine of acquiescence is applied in instances when adjoining land
owners occupy their respective properties up to a certain line and mutually
recognize and treat that line as if it is the boundary that separates their properties.
WASHINGTON, 10CA24 13
See Robinson v. Armstrong, Guernsey App. No. 03CA12, 2004-Ohio-1463, at
¶35; McConachie v. Meeks (Sep. 21, 1999), Richland App. No. 98CA90; Turpen
v. O’Dell (Oct. 14, 1998), Washington App. No. 97CA2300. Acquiescence rests
on the practical reality that oftentimes, the true boundary line location is uncertain
and neighbors may themselves establish boundaries. Richardson v. Winegardner
(Nov. 2, 1999), Allen App. No. 1-99-56. To apply this doctrine: (1) adjoining
landowners must treat a specific line as the boundary; and (2) the line must be so
treated for a period of years, usually the period required for adverse possession.
Robinson, supra at ¶35; Matheson v. Morog (Feb. 2, 2001), Erie App. No.
E-00-17; McGregor v. Hanson (Jun. 16, 2000), Geauga App. No. 99-G-2228.”
{¶ 31} In the case sub judice, after according due weight to the trial court’s factual
findings, we believe that some evidence shows the existence of the two requirements necessary
to apply the doctrine of acquiescence. Mr. Vanlandingham stated that between 1974 and 2007,
the parties treated the boundary line as existing from the iron pipe to the stone, not as the
boundary line described in the Mulryan survey. He stated that in 1974, Mr. Powell showed him
the boundary line and that the Powells then had a fence built along this line that remained in
existence until 2006. According to Mr. Vanlandingham’s testimony, the parties have thus
treated the boundary line as existing from the iron pipe to the stone for a period over twenty-one
years. While appellant may dispute Mr. Vanlandingham’s testimony, the trial court obviously
opted to believe it, and his testimony constitutes evidence to support the court’s judgment.
Consequently, the trial court did not err by applying the doctrine of acquiescence, and its findings
in this regard are not against the manifest weight of the evidence.
WASHINGTON, 10CA24 14
C. ESTOPPEL
{¶ 32} Appellant further argues that the trial court erroneously relied upon the doctrine of
estoppel when ruling for appellees. We, however, do not believe the trial court based its ruling
on estoppel. “‘[E]stoppel requires that the record owners realize the true boundary of their
property, but allow the adjoining landowner to rely upon declarations or conduct regarding a
boundary line which does not conform to the description in her title.’” Burkitt, supra, at fn.4,
quoting Matheson v. Morog (Feb. 2, 2001), Erie App. No. E-00-17.
{¶ 33} The facts that the trial court chose to believe show that the parties, including
appellant, operated under the belief that the boundary line extended from the iron pipe to the
stone. Some evidence exists that neither appellees nor appellant “realize[d] the true boundary
line of their property.” Thus, by definition, the doctrine of estoppel cannot apply.
D. ADVERSE POSSESSION
{¶ 34} Appellant additionally asserts that the trial court wrongly entered judgment in
appellees’ favor because appellees failed to prove that they acquired title over the disputed
section of land by adverse possession. As we have already discussed, the trial court’s judgment
is based upon the doctrine of acquiescence, not upon the doctrine of adverse possession.3
E. MUTUAL MISTAKE
{¶ 35} Appellant next contends that the trial court erred by failing to apply the doctrine of
3
The doctrine of acquiescence exists separate and apart from the doctrine of adverse possession. See Turpen,
supra, citing Rutledge v. The Presbyterian Church of Johnstown (1914) 3 Ohio App. 177, and Ballard v. Tibboles (Nov. 8, 1991),
Ottawa App. No. 91-OT-013 (holding that even in the absence of evidence of adverse possession, a trial court may find that a
party’s acquiescence in the use of a certain boundary line renders that line the legally recognizable boundary line between the
parties).
WASHINGTON, 10CA24 15
mutual mistake. She contends that because the parties were mutually mistaken as to the true
boundary line, she is entitled to now assert her rights to the property represented by the true
boundary line. In support of this assertion, she refers to Hills v. Ludwig (1889), 46 Ohio St.
373, 380, 24 N.E. 596, in which the court stated: “[W]here adjoining proprietors, in attempting to
find the true line between them, by mistake fix upon an incorrect one, they may repudiate the
spurious line at any time before the statute of limitation has run.” Appellant then asserts that the
“statute of limitations” referred to is the twenty-one year period applicable to claims of adverse
possession. Even by appellant’s interpretation, however, the trial court did not err by failing to
apply some version of the doctrine of mutual mistake because, as the trial court found, the parties
treated the boundary line as extending from the iron pipe to the stone from at least 1974 through
2007.
F. CREDIBILITY ARGUMENTS
{¶ 36} We recognize that appellant vehemently disagrees with the trial court’s findings of
fact. We will not, however, second-guess the trial court’s credibility assessments. It is beyond
well-established that appellate courts must generally refrain from second-guessing trial court
decisions regarding credibility. Here, under a manifest-weight-of-the- evidence standard,
appellees’ testimony and evidence constitutes some competent and credible evidence to support
the trial court’s judgment. Again, it is not our role to “second guess” the trial court when it
chooses between two competing, but rational, versions of the facts. As we explained in Bugg v.
Fancher, Highland App. No. 06CA12, 2007-Ohio-2019, at ¶9:
“In applying the ‘some competent credible evidence’ standard, we should not
reverse a judgment merely because the record contains evidence that could
reasonably support a different conclusion. It is the trier of fact’s role to
WASHINGTON, 10CA24 16
determine what evidence is the most credible and convincing. The fact finder is
charged with the duty of choosing between two competing versions of events,
both of which are plausible and have some factual support. Our role is simply to
insure the decision is based upon reason and fact. We do not second guess a
decision that has some basis in these two factors, even if we might see matters
differently. Rather, we must defer to the trier of fact in that situation.
{¶ 37} In the case at bar, the trial court obviously chose to believe appellees’ testimony
regarding their and the Powells’ treatment of the boundary line. We are ill-suited to review a
cold written record and state that the trial court should have rather believed appellant’s testimony
and disbelieved appellees.
VI. CONCLUSION
{¶ 38} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
assignments of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellees recover of appellants the
costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington
County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
WASHINGTON, 10CA24 17
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.