[Cite as Downtown Ent. Co. v. Mullet,

.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

DOWNTOWN ENTERPRISES CO. : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 17CA016 : WANDA S. MULLET, ET AL. : : : Defendants-Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Case No. 16 CV 076

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: August 10, 2018

APPEARANCES:

For Plaintiff-Appellee: For Defendants-Appellants:

MATTHEW P. MULLEN CHARLES A. KENNEDY JOHN P. MAXWELL 111 S. Buckeye St., Suite 270 158 North Broadway Wooster, OH 44691 New Philadelphia, OH 44663

BLAIR A. BOWER 111 S. Washington St., Suite B Millersburg, OH 44654 Holmes County, Case No. 17CA016 2

Delaney, J.

{¶1} Defendants-Appellants Nicholas A. Mullet, Wanda S. Mullet, and Charlotte

Wagers fka Charlotte Mullet appeal multiple judgments in favor of Plaintiff-Appellee

Downtown Enterprises, Inc. issued by the Holmes County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

Plat Map of the Disputed Parcels

{¶2} The issue in this appeal is the ownership interest of multiple parcels of real

property. In order to provide a clear picture of the facts, we include a plat map of the

properties at issue:

{¶3} The parcels at issue in this case are labeled Tract 1, Tract 2, Tract 3, and

Tract 4. Holmes County, Case No. 17CA016 3

The Original Property Division

{¶4} Henry Centennial Logsdon owned multiple parcels of land in the Village of

Millersburg, Ohio. In 1957, Logsdon transferred approximately 0.195 acres located on the

east side of South Washington Street in the Village of Millersburg, Ohio, to Dean F. Engel

and Mary F. Engel by General Warranty Deed. The deed excepted and reserved the right

of Logsdon to use and occupy the east end of property and a barn located thereon for a

period of five years. In 1961, Logsdon conveyed the reserved portion of the property and

barn to Dean and Mary Engel. This parcel of property is known as “Tract 1” on the map.

{¶5} When the Engels purchased Tract 1, they understood they owned the barn

located on the property. The barn on Tract 1 consists of a traditional flat barn with a loft

and high roof. On the east end of the barn, there is a one-story portion referred to as a

“lean-to.” The main portion of the barn sits entirely within Tract 1. The lean-to portion of

the barn sits on what is labeled on the map as “Tract 2” and “Tract 4.” The boundary lines

of Tracts 1, 2 and 4 dissect the lean-to in a diagonal manner.

{¶6} Logsdon died on June 10, 1970. Logsdon’s Last Will and Testament

devised various parcels of real estate to his family members:

SECTION II – The begining (sic) at the southgeastern (sic) point of the

Bowling Alley Parking lot and extendibg (sic) north along the East line of the

lot to a tile marker, the length of the Bowling Alley, thenxe (sic) east ward

along the southern border of Logsdon Ave, to the N. Fair property, thence

south the distance as the length as the Parking # Parking Lot, thence

westward to place of begining (sic)…This parcel of land of two acres more

or less, I give and bequeath to my son Atlee Wade Logsdon. Holmes County, Case No. 17CA016 4

Section III – the balance of my Real Estate lying south of Wade’s Parcel

with the buildings thereon I bequeath to Nickolas Allen Mullet and to his and

his (sic) mother Charlotte Mullet to share equally and to use and share

eqyally (sic) and to improve as they may see fit.

{¶7} Defendant-Appellant Nicholas A. Mullet is the great-grandson of Logsdon.

Defendant-Appellant Charlotte Wagers fka Charlotte Mullet is the granddaughter of

Logsdon and mother of Nicholas A. Mullet. Defendant-Appellant Wanda S. Mullet is the

wife of Nicholas A. Mullet. The defendants will be hereinafter referred to as “the Mullets.”

{¶8} A Certificate of Transfer of Real Estate was recorded in the Holmes County

Recorder’s Office showing 2.54 acres inherited by Nicholas Mullet and Charlotte Mullet.

In 2009, Charlotte Mullet conveyed her interest in that parcel to Nicholas Mullet. Nicholas

Mullet transferred his interest to Wanda Mullet. The 2.54 acre parcel is located east of

Tract 1 and includes Tract 2 and Tract 4.

{¶9} Charlotte Mullet also inherited a parcel south of Tract 1 in the amount on

0.20 acres. In 1976, Charlotte Mullet sold the 0.20 acre parcel to Nicholas Mullet and

Wanda Mullet. Nicholas Mullet transferred his interest to Wanda Mullet in 2011.

The 1993 Litigation

{¶10} In 1993, the Mullets filed a complaint in the Holmes County Court of

Common Pleas naming the following parties as defendants: the Village of Millersburg, the

Holmes County Ohio Board of Commissioners, the Hardy Township Trustees, Arlie R.

Rodhe, Evelyn L. Rodhe, Dean F. Engle and Mary F. Engle. Nicholas, Wanda, and

Charlotte brought two causes of action. The Mullets brought the declaratory judgment

action against the defendants because the Village of Millersburg, the Holmes County Ohio Holmes County, Case No. 17CA016 5

Board of Commissioners, and the Hardy Township Trustees claimed a road located to

the south of Tract 1 was a public road. The road ran east to west from the east of South

Washington Street in the Village of Millersburg. The location of the disputed road is

identified on the map as “Tract 3.”

{¶11} In the first cause of action, the Mullets alleged the road was not a public

road, but a private road. In their prayer for relief, the Mullets demanded (1) declaratory

judgment that the road was not a public one, (2) a declaration that the Village of

Millersburg, Holmes County, and Hardy Township had no rights in the road whatsoever,

and (3) a declaration that the road was owned by the abutting landowners. In the

complaint, the Mullets identified seven abutting landowners of the disputed road: Nicholas

and Wanda Mullet, Charlotte Mullet, Arlie and Evelyn Rodhe, and Dean and Mary Engel.

{¶12} In their second cause of action, the Mullets stated if the trial court found the

road was a public road, the Mullets petitioned pursuant to R.C. 723.09 that the road be

declared vacated. The Mullets argued the road had been abandoned by the Village of

Millersburg and used exclusively by the plaintiffs as private property in excess of 21 years.

{¶13} Defendants Dean and Mary Engel did not file an answer to the complaint.

Defendants Arlie and Evelyn Rodhe filed an answer to the complaint. Their answer was

not in the record of the present case.

{¶14} On May 9, 1994, the Mullets filed a motion for summary judgment on their

complaint. The trial court issued its judgment entry granting the Mullets’ motion for

summary judgment on October 14, 1994. The judgment entry states in pertinent part: Holmes County, Case No. 17CA016 6

Plaintiffs filed this action seeking declaratory judgment that a certain

road located within the Village of Millersburg, Hardy Township, Holmes

County, Ohio is not a public road.

The issue now before the Court is whether Plaintiff should be granted

a summary judgment on the issue of whether the road is public or private.

For the reasons stated in support of Plaintiffs’ Motion for Summary

Judgment, I find that the governmental Defendants have failed to prove that

they have established a public road across Plaintiffs’ property by either

statutory or common law methods.

***

While a review of the documents submitted by Defendants reveals

references to an alleged public road across Plaintiffs’ land, there is no

evidence of the establishment of the public road.

***

Wherefore, it is hereby ORDERED, ADJUDGED AND DECREED

that Declaratory Judgment is hereby granted in favor of Plaintiffs, Nicholas

A. Mullet, Wanda S. Mullet and Charlotte E. Wagers, and against

Defendants Village of Millersburg, Holmes County Ohio Board of

Commissioners and Hardy Township Board of Trustees, to-wit:

1.) Declaring that the alleged public roadway and/or street over

Plaintiffs’ property is not a public roadway and/or street.

2.) Defendants have no rights in said road whatsoever. Holmes County, Case No. 17CA016 7

3.) Said road is owned by the abutting property owners and has

never been dedicated as a public road.

(Judgment Entry, October 14, 1994).

The 2017 Litigation

{¶15} The Engels owned Tract 1 until October 19, 2001, at which time they

transferred the property to Dennis Schlabach. Schlabach sold Tract 1 to Plaintiff-Appellee

Downtown Enterprises, Co. on December 27, 2001.

{¶16} In January and February 2006, the attorney for the Mullets sent a letter to

Downtown objecting to Downtown’s use of Tract 3.

{¶17} In 2009, the Mullets had a survey of the properties completed. The 2009

survey showed the legally described property line between Tract 1, Tract 2, and Tract 4

diagonally dissected the lean-to portion of the barn.

{¶18} On September 22, 2016, Downtown filed a complaint in the Holmes County

Court of Common Pleas naming Nicholas Mullet and Wanda Mullet as defendants. Count

I and Count II of the complaint set forth claims for adverse possession of Tract 2 and

Tract 4. Count III of the complaint asked the trial court to quiet title in its favor as to Tract

3.

{¶19} On October 7, 2016, Nicholas Mullet and Wanda Mullet filed their answer

and counterclaim, with a jury demand. In their Count I of their counterclaim, the Mullets

brought a claim for quiet title. The Mullets alleged Nicholas and Charlotte were the owners

of all of Tract 3 as a matter of law because Logsdon devised that property to them in his

will. In Count II of their counterclaim, Wanda brought a claim for trespass against Holmes County, Case No. 17CA016 8

Downtown and requested damages, including punitive damages and attorney fees. She

alleged Downtown trespassed on the lands Tract 2 and Tract 4, lands she owned.

{¶20} On January 13, 2017, the Mullets filed a motion for partial summary

judgment on Downtown’s quiet title action for Tract 3. The Mullets argued there was no

genuine issue of material fact that he and Wagers were the owners of all of Tract 3

because Logsdon transferred the property to them in his will. The Mullets contended the

1993 Litigation was not a quiet title action as to Tract 3 and did not vest the Engels with

ownership rights in Tract 3. The issue in the 1993 Litigation was solely on the issue of

whether Tract 3 was a public or private roadway pursuant to statute. The trial court

determined Tract 3 was a private roadway.

{¶21} Downtown filed an amended complaint naming Charlotte as an additional

defendant.

{¶22} On January 17, 2017, Downtown filed a motion for partial summary

judgment requesting judgment in favor of Downtown on Count III of its complaint

requesting quiet title to Tract 3 and judgment in its favor on the counterclaims of the

Mullets. The thrust of Downtown’s argument was based on the 1993 Litigation. It argued

under the doctrine of res judicata, the 1993 Litigation resolved the ownership issue of

Tract 3. In the October 14, 1994 judgment entry, the trial court found Tract 3 was a private

roadway and was owned by the abutting property owners. Downtown alleged Engels and

the Mullets were the abutting property owners of Tract 3; therefore, the Engels owned

one-half of Tract 3 and the Mullets owned one-half of Tract 3. Accordingly, when the

Engels transferred their ownership interests to Downtown, Downtown became the owners

of one-half of Tract 3. Holmes County, Case No. 17CA016 9

{¶23} The parties responded to the motions for partial summary judgment.

{¶24} On March 23, 2017, the Mullets filed a motion for judgment on the

pleadings. They argued Downtown’s claim for quiet title as to Tract 3 was barred by the

statute of limitations because the claim accrued on October 14, 1994, the date the trial

court issued its judgment entry that Tract 3 was a private roadway. Pursuant to R.C.

2305.04, the quiet title action expired after 21 years. Downtown responded to the motion

for judgment on the pleadings, arguing its cause of action did not accrue until it took

possession of the property in 2001.

{¶25} Charlotte filed a separate motion for partial summary judgment on April 14,

2017. She argued there was no genuine issue of material fact that she inherited Tract 3

from Logsdon and was entitled to judgment as a matter of law on Count III of Downtown’s

complaint.

{¶26} On April 14, 2017, the Mullets filed a memorandum on their request for a

jury trial on Counts I and II of Downtown’s complaint. Downtown claimed in Counts I and

II it was entitled to adverse possession of Tract 2 and Tract 4. Downtown responded to

the memorandum that because it was looking for equitable relief, the defendants were

not entitled to a jury trial.

{¶27} In June 2017, the trial court issued its rulings on the multiple pending

motions:

 On June 2, 2017, the trial court ruled on the motions for partial summary

judgment as to the ownership interest of Tract 3. It denied the motion for partial

summary judgment filed by the Mullets and granted the motion for partial

summary judgment filed by Downtown on Count III of its amended complaint Holmes County, Case No. 17CA016 10

and Counts I and II of the Mullets’ counterclaim. The trial court found the

October 14, 1994 judgment entry in the 1993 Litigation was dispositive of the

quiet title action presented by Downtown in Count III of its complaint and

dispositive of the Mullets’ first counterclaim. The trial court interpreted the

October 14, 1994 judgment entry to award the Engels one-half ownership of

Tract 3 as an “abutting property owner.” The trial court found based on the

October 14, 1994 judgment entry there was no genuine issue of material fact

that Downtown owned the northern one-half of Tract 3 and the Mullets’ claim

was barred by res judicata.

 On June 2, 2017, the trial court denied the Mullets’ motion for judgment on the

pleadings that argued Downtown’s claim quiet title was barred by the statute of

limitations.

 On June 2, 2017, the trial court denied Charlotte’s motion for partial summary

judgment.

 On June 21, 2017, the trial court denied the Mullets’ demand for a jury trial. The

trial court found that since Downtown was already in possession of the real

property, the only relief available to Downtown was equitable relief.

{¶28} The matter proceeded to a bench trial on July 20, 2017. The only claims to

be resolved at the bench trial were Counts I and II of Downtown’s first amended complaint;

i.e., whether Downtown adversely possessed Tract 2 and Tract 4. On August 14, 2017,

the trial court issued its findings of fact and conclusions of law holding that Downtown

was entitled to judgment on Counts I and II of its complaint. The trial court quieted the title

to Tract 2 and Tract 4 in favor of Downtown. Holmes County, Case No. 17CA016 11

{¶29} After the trial court’s judgment, Downtown became the record owner of

Tract 2, one-half of Tract 3, and Tract 4.

{¶30} It is from the trial court’s judgment entries the Mullets now appeal.

ASSIGNMENTS OF ERROR

{¶31} The Mullets raise seven Assignments of Errors:

{¶32} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING THE

MULLETS AND WAGERS’ MOTION FOR JUDGMENT ON THE PLEADINGS ON

COUNT III OF THE FIRST AMENDED COMPLAINT FOR THE REASON THE CLAIM

WAS BARRED BY THE STATUTE OF LIMITATIONS, R.C. 2305.04.

{¶33} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING

SUMMARY JUDGMENT TO DOWNTOWN ENTERPRISES ON COUNT III OF THE

FIRST AMENDED COMPLAINT BY HOLDING OWNERSHIP OF ‘TRACT 3’ HAD BEEN

LITIGATED AND DECIDED BY A JUDGMENT ENTRY, DATED OCTOBER 14, 2004

[SIC].

{¶34} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING

THE MULLETS’ MOTION FOR PARTIAL SUMMERY JUDGMENT WITH RESPECT TO

THE OWNERSHIP OF ‘TRACT 3’ FOR THE REASON THAT DOWNTOWN

ENTERPRISES’ CLAIM OF OWNERSHIP WAS BARRED BY THE DOCTRINE OF RES

JUDICATA.

{¶35} “IV. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING

SUMMARY JUDGMENT TO DOWNTOWN ENTERPRISES ON ‘TRACT 3’ AND NOT

GRANTING SUMMARY JUDGMENT TO MULLET BECAUSE MULLET AND WAGERS Holmes County, Case No. 17CA016 12

INHERITED ‘TRACT 3,’ WHICH ABUTTED THE PROPERTY OF DOWNTOWN

ENTERPRISES.

{¶36} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW BY HOLDING

ALL OF ‘TRACT 3’ WAS OWNED BY DOWNTOWN ENTERPRISES BECAUSE WANDA

MULLET OWNED ONE-HALF UNDER THE 1994 JUDGMENT ENTRY.

{¶37} “VI. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING

THE MULLETS A JURY TRIAL ON DOWNTOWN ENTERPRISES’ CLAIM FOR

ADVERSE POSSESSION.

{¶38} “VII. THE TRIAL COURT ERRED AS A MATTER OF LAW GRANTING

SUMMARY JUDGMENT IN FAVOR OF DOWNTOWN ENTERPRISES ON WANDA

MULLET’S COUNTERCLAIM FOR TRESPASS.”

ANALYSIS

I. JUDGMENT ON THE PLEADINGS

{¶39} The Mullets contend in their first Assignment of Error that the trial court

erred when it denied its motion for judgment on the pleadings arguing Count III of

Downtown’s amended complaint alleging it owned one-half of Tract 3 was barred by the

statute of limitations. We disagree.

{¶40} A motion for a judgment on the pleadings, pursuant to Civ. R. 12(C),

presents only questions of law. Peterson v. Teodosio,

, 165–166,

(1973). The determination of a motion under Civ. R. 12(C) is restricted solely

to the allegations in the pleadings and the nonmoving party is entitled to have all material

allegations in the complaint, with all reasonable inferences to be drawn therefrom,

construed in its favor.

Evidence in any form cannot be considered. Conant v. Johnson, Holmes County, Case No. 17CA016 13

,

(1964). In considering such a motion, one must

look only to the face of the complaint. Nelson v. Pleasant,

,

(1991). State by & through Wray v. Karl R. Rohrer Assoc., Inc., 5th Dist.

Tuscarawas No. 2017AP030008,

,

, ¶ 12

{¶41} In its motion, the Mullets argued Downtown’s action to quiet title to Tract 3

was barred by the statute of limitations established in R.C. 2305.04. The statute reads:

An action to recover the title to or possession of real property shall be

brought within twenty-one years after the cause of action accrued, * * *.

R.C. 2305.04. The Mullets allege Downtown’s quiet title action accrued on October 14,

1994, when the trial court ruled Tract 3 was a private roadway owned by the abutting

property owners. The Mullets contend Downtown should have brought its action to quiet

title by October 14, 2015.

{¶42} Downtown responds that its cause of action for quiet title did not accrue until

it had an ownership interest in Tract 1, the abutting property to Tract 3, on December 27,

2001. It argues that pursuant to case law, a cause of action for quiet title does not accrue

and therefore the statute of limitations does not begin to run until a plaintiff takes

possession of the property. Therefore, the statute of limitations for a quiet title action in

this case would not end until December 27, 2022.

{¶43} In Cox v. Kimble, 5th Dist. Guernsey No. 13 CA 32,

, ¶ 60,

we held:

under R.C. § 2305.04, the twenty-one year statute of limitations does not

begin to run until a plaintiff's cause of action accrues. The cause of action

does not accrue until the defendant takes possession of the disputed Holmes County, Case No. 17CA016 14

property. See Webster v. Pittsburgh, Cleveland and Toledo Ry. (1908),

,

, paragraph one of the syllabus.

{¶44} On October 14, 1994, the trial court issued a judgment entry stating Tract 3

was a private roadway owned by the abutting property owners. At the time of that

judgment entry, the Engels were the owners of the abutting property, Tract 1. It was not

until December 27, 2001, that Downtown became the owner of Tract 1 and possibly Tract

3, an issue that could be resolved with a quiet title action. On September 22, 2016,

Downtown filed its original complaint bringing a quiet title action as to Tract 3. Its complaint

was filed within the 21-year statute of limitations period as required by R.C. 2305.04.

{¶45} Construing all reasonable inferences in favor of Downtown, the non-moving

party, we find no error for the trial court to overrule the Mullets’ motion for judgment on

the pleadings based on a statute of limitations argument.

{¶46} The Mullets’ first Assignment of Error is overruled.

II., III., IV., V., and VII. SUMMARY JUDGMENT

{¶47} We consider the Mullets’ second, third, fourth, fifth, and seventh

Assignments of Error together because they concern the trial court’s June 2, 2017

judgment entry denying the motion for partial summary judgment filed by the Mullets and

granting the motion for partial summary judgment filed by Downtown as to the ownership

interest of Tract 3.

{¶48} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which

provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of Holmes County, Case No. 17CA016 15

evidence in the pending case and written stipulations of fact, if any, timely

filed in the action, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law. * *

* A summary judgment shall not be rendered unless it appears from such

evidence or stipulation and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is

adverse to the party against whom the motion for summary judgment is

made, such party being entitled to have the evidence or stipulation

construed most strongly in the party's favor.

{¶49} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element of

the nonmoving party's claim. Dresher v. Burt,

,

(1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest

on the allegations or denials in the pleadings, but must set forth “specific facts” by the

means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler,

,

(1988).

{¶50} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. Vahila v. Hall,

,

(1997), citing Dresher v. Burt,

,

(1996).

{¶51} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and Holmes County, Case No. 17CA016 16

evidence as the trial court. Smiddy v. The Wedding Party, Inc.,

,

(1987).

{¶52} In Count III of Downtown’s amended complaint, Downtown sought a

declaration that it owned a portion of Tract 3; specifically, that it owned 15 feet of the 30

foot wide strip of property between Tract 1 to the north and the Mullets’ property to the

south. In Count I of the Mullets’ counterclaim, Nicholas and Charlotte alleged they were

the owners of all of Tract 3 by virtue of Logsdon’s Last Will and Testament. Both parties

filed motions for partial summary judgment on the issue of who owned Tract 3.

{¶53} In support of its motion, Downtown relied upon the 1993 Litigation. It stated

there was no genuine issue of material fact that the October 14, 1994 judgment entry

granted the Engels, and therefore Downtown, ownership interest in Tract 3. Downtown

further argued, because the October 14, 1994 judgment entry resolved the issue of

ownership, the Mullets’ claim for quiet title was barred by the doctrine of res judicata. In

support of their motion for partial summary judgment, Downtown provided as Civ.R. 56

evidence the complaint and judgment entry in the 1993 Litigation.

{¶54} In their motion for partial summary judgment, the Mullets relied upon the

terms of Logsdon’s Last Will and Testament to argue there was no genuine issue of

material fact that Logsdon bequeathed all of Tract 3 to Nicholas and Charlotte. The

Mullets also disputed Downtown’s interpretation of the October 14, 1994 judgment entry.

The declaratory judgment action was not a quiet title action to determine the ownership

interests of Tract 3. The declaratory judgment action and resulting judgment entry, they

argued, were limited to the issue of whether Tract 3 was a private or public roadway

pursuant to Ohio law. In support of their motion, the Mullets provided as Civ.R. 56 Holmes County, Case No. 17CA016 17

evidence Logsdon’s Last Will and Testament, the certificate of transfers pursuant to the

terms of Logsdon’s will, the warranty deeds transferring the various properties to the

Mullets, and the original complaint filed in the 1993 Litigation.

{¶55} The trial court ruled on June 2, 2017, that the ownership of Tract 3 was

decided in the 1993 Litigation. It found,

14. The Court ruled unequivocally in 93-C-150 that the road is owned by

the abutting property.

15. That ruling is dispositive of the quiet title action presented by Plaintiff’s

count three of its complaint, which seeks a declaration that Plaintiff owns

the northern one-half of the disputed roadway.

16. The Court’s prior ruling in 93-C-150 is also dispositive of the claim

presented in count one of the counterclaim. The claim presented by the

Defendant is barred by res judicata.

(June 2, 2017 Judgment Entry).

{¶56} In their multiple Assignments of Error, the Mullets request this Court to

conduct a de novo review of the motions for partial summary judgment. The issue is

whether the parties established there was no genuine issue of material fact as to the

ownership of Tract 3.

The 1993 Litigation and Ownership of Tract 3

{¶57} The Mullets’ prayer for relief in the 1993 Litigation demanded (1) declaratory

judgment that the road was not a public one, (2) a declaration that the Village of

Millersburg, Holmes County, and Hardy Township had no rights in the road whatsoever,

and (3) a declaration that the road was owned by the abutting landowners. In the Holmes County, Case No. 17CA016 18

complaint, the Mullets identified seven abutting landowners of the disputed road: Nicholas

and Wanda Mullet, Charlotte Mullet, Arlie and Evelyn Rodhe, and Dean and Mary Engel.

{¶58} The trial court ruled that pursuant to Ohio law, Tract 3 was a private

roadway. It held:

Wherefore, it is hereby ORDERED, ADJUDGED AND DECREED

that Declaratory Judgment is hereby granted in favor of Plaintiffs, Nicholas

A. Mullet, Wanda S. Mullet and Charlotte E. Wagers, and against

Defendants Village of Millersburg, Holmes County Ohio Board of

Commissioners and Hardy Township Board of Trustees, to-wit:

1.) Declaring that the alleged public roadway and/or street over

Plaintiffs’ property is not a public roadway and/or street.

2.) Defendants have no rights in said road whatsoever.

3.) Said road is owned by the abutting property owners and has

never been dedicated as a public road.

(Judgment Entry, October 14, 1994).

{¶59} Upon our de novo review of the 1993 Litigation, we find that reasonable

minds could only come to one conclusion that the declaratory judgment action established

the ownership interests as to Tract 3. The trial court in the 1993 Litigation found as a

matter of law that the Mullets were entitled to the relief requested in their complaint. Tract

3 was a private road not owned by any governmental entity, but owned by the abutting

property owners named in the Mullets’ complaint. No party to the complaint appealed the

October 14, 1994 judgment entry to challenge the trial court’s declaration of ownership

as to Tract 3. Holmes County, Case No. 17CA016 19

{¶60} We agree with Downtown that the Mullets’ renewed claim of ownership to

Tract 3 is now barred by the doctrine of res judicata. Res judicata is defined as “[a] valid,

final judgment rendered upon the merits bars all subsequent actions based upon any

claim arising out of the transaction or occurrence that was the subject matter of the

previous action.” Grava v. Parkman Twp.,

, 1995–Ohio–331,

, syllabus. “The doctrine of res judicata involves both claim preclusion

(historically called estoppel by judgment in Ohio) and issue preclusion (traditionally known

as collateral estoppel).”

,

. Claim preclusion “prevents a party

from litigating a cause of action after a prior court has rendered a final judgment on the

merits of that cause as to that party.” Krahn v. Kinney,

,

(1989), citing Norwood v. McDonald,

,

(1943),

paragraph one of the syllabus. Issue preclusion “precludes the relitigation of an issue that

has been ‘actually and necessarily litigated and determined in a prior action.” ’

, quoting Goodson v. McDonough Power Equipment, Inc.,

,

(1983).

{¶61} In the 1993 Litigation, the Mullets requested the trial court determine who

owned Tract 3, the abutting property owners or local governmental entities. The Mullets

never raised the argument that they were the sole owners of Tract 3. The trial court

determined Tract 3 was owned by the abutting property owners named in the Mullets’

complaint. The Mullets did not appeal any aspect of the trial court’s judgment as to

ownership. Reasonable minds could only conclude the Mullets are precluded by the

doctrine of res judicata from now arguing they are the sole owners of Tract 3 when that

issue could have been raised in the 1993 Litigation. Holmes County, Case No. 17CA016 20

{¶62} We find res judicata also bars the Mullets’ claim there is no genuine issue

of material fact that they are the owners of Tract 3 pursuant to Logsdon’s Last Will and

Testament, as raised in their fourth Assignment of Error. In 1970, the Mullets state

Logsdon bequeathed Tract 3 to Nick and Charlotte. The Mullets did not raise the issue

that they owned Tract 3 pursuant to Logsdon’s Last Will and Testament during the 1993

Litigation. The Mullets argued in the 1993 Litigation that the abutting property owners

named in the complaint were the owners of Tract 3.

{¶63} In their third Assignment of Error, the Mullets argue Downtown’s claim it has

an ownership interest in Tract 3 is barred by res judicata. We find this argument to be

without merit because the 1993 Litigation determined the Engels, and therefore

Downtown as successors in interest, had an ownership interest in Tract 3.

{¶64} The Mullets’ second, third, fourth, and fifth Assignments of Error are

overruled.

Count II of the Mullets’ Counterclaim

{¶65} In the trial court’s June 2, 2017 judgment entry, the trial court granted

summary judgment in favor of Downtown on Counts I and II of the Mullets’ counterclaim.

Count I of the counterclaim requested the trial court quiet title as to Tract 3 allegedly

owned by Nicholas and Charlotte. Count II of the counterclaim alleged Downtown

trespassed on the lands Wanda owned, Tract 2 and Tract 4, and requested damages

therefrom.

{¶66} A review of the parties’ motions for partial summary judgment shows the

motions were limited only to Count III of the amended complaint regarding Tract 3 and Holmes County, Case No. 17CA016 21

Count I of the counterclaim regarding Tract 3. Count II of the counterclaim was not raised

by either party.

{¶67} As such, we find the trial court erred in granting summary judgment in favor

of Downtown on Count II of the counterclaim when neither party asked for relief on the

matter. Count II of the counterclaim was still pending before the trial court at the time of

trial. The Mullets’ seventh Assignment of Error is sustained. However, as we will discuss

below, the trial court’s error in granting summary judgment in favor of Downtown on Count

II of the counterclaim is rendered moot because the Mullets did not appeal the August 14,

2017 judgment entry finding Downtown was the owner of Tract 2 and Tract 4 pursuant to

adverse possession.

VI. JURY TRIAL

{¶68} The Mullets claim in their sixth Assignment of Error that the trial court erred

when it denied their request for a jury trial. The Mullets’ argument raises a legal claim,

which we review de novo.

{¶69} In Counts I and II of their amended complaint, Downtown requested the trial

court through adverse possession determine it was in possession of Tract 2 and 4. In

their answer and counterclaim, the Mullets demanded a jury trial. In Count I of the

counterclaim, Nicholas and Charlotte brought a quiet title action on Tract 3. In Count II of

the counterclaim, Wanda alleged trespass on Tract 2 and Tract 4, requesting damages.

{¶70} On April 14, 2017, the Mullets filed a memorandum requesting a jury trial

as to their claims for trespass and Downtown’s claims for adverse possession. Downtown

responded to the memorandum on April 26, 2017, arguing they were only seeking

equitable relief. The trial court denied the request for a jury trial on June 21, 2017. The Holmes County, Case No. 17CA016 22

trial court found that Downtown’s claims for adverse possession sounded in equitable

relief, for which a party was not entitled to a jury trial.

{¶71} Based on the trial court’s granting of summary judgment in favor of

Downtown on Count III of Downtown’s complaint and Count I and Count II of the Mullets’

counterclaim, the matter proceeded to a bench trial on Downtown’s claim of adverse

possession of Tract 2 and Tract 4. We determined above the trial court erroneously

granted summary judgment in favor of Downtown on Count II of the Mullets’ counterclaim.

The bench trial should have proceeded on Downtown’s claim for adverse possession of

Tract 2 and Tract 4 and the Mullets’ counterclaim that Downtown trespassed on Tract 2

and Tract 4.

{¶72} Our ability to address this error and the issue of the Mullets’ jury demand is

limited, however. The Mullets’ appellate posture affects this Court’s review of the lower

court’s judgments.

{¶73} On August 14, 2017, the trial court determined Downtown adversely

possessed Tract 2 and Tract 4. The Mullets did not raise as a separate assignment of

error challenging the trial court’s August 14, 2017 judgment in favor of Downtown on its

claim for adverse possession of Tract 2 and Tract 4. This Court cannot address the

August 14, 2017 judgment entry because the Mullets did not separately assign this

judgment as an error as required by App.R. 16(A)(3). State ex rel. Atty. Gen. v. Vela,

,

, ¶ 56 (5th Dist.). The August 14, 2017 judgment entry

granting judgment in favor of Downtown on its claim for adverse possession for Tract 2

and Tract 4 remains the law of the case. Holmes County, Case No. 17CA016 23

{¶74} It is logical that if Downtown is the owner of Tract 2 and Tract 4 pursuant to

adverse possession, Downtown could not have unlawfully entered upon Tract 2 and Tract

4. The Mullets’ claim for trespass on Tract 2 and Tract 4 is therefore not viable because

it is the law of the case that Downtown possessed Tract 2 and Tract 4.

{¶75} “Mootness is a jurisdictional question because the Court ‘is not empowered

to decide moot questions or abstract propositions.” State v. Feister, 5th Dist. Tuscarawas

No. 2018 AP 01 0005,

, ¶ 28 quoting United States v. Alaska S.S. Co.,

,

,

(1920), quoting California v. San

Pablo & Tulare R. Co.,

,

,

(1893); Accord,

North Carolina v. Rice,

,

,

(1971). Because

mootness is a jurisdictional question, the question of mootness is one that must be

addressed even if the parties do not raise it. North Carolina v. Rice,

,

,

.

{¶76} No actual controversy exists where a case has been rendered moot by an

outside event. “It is not the duty of the court to answer moot questions, and when, pending

proceedings in error in this court, an event occurs without the fault of either party, which

renders it impossible for the court to grant any relief, it will dismiss the petition in error.”

Miner v. Witt,

,

(1910), syllabus; Tschantz v. Ferguson,

,

(1991).

{¶77} The trial court’s granting of summary judgment on Count II of the Mullets’

counterclaim and the denial of Mullets’ request for a jury trial was rendered moot because

the Mullets’ failed to appeal the August 14, 2017 judgment that Downtown adversely

possessed Tract 2 and Tract 4. An opinion whether the trial court erred in denying the Holmes County, Case No. 17CA016 24

Mullets’ request for a jury trial on their claim for trespass would be merely academic. The

Mullets’ sixth Assignment of Error is dismissed.

CONCLUSION

{¶78} Accordingly, we affirm the judgment of the Holmes County Court of

Common Pleas.

By: Delaney, J.,

Hoffman, P.J. and

Baldwin, J., concur.