COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59602 WILLIAM R. FINLEY, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION ROBERTO FLOR, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 140981 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: KENNETH W. FINLEY, ESQ. JON R. BURNEY, ESQ. 15008 Lorain Ave., Suite 6 106 Ohio Savings Building Cleveland, Ohio 44111 22255 Center Ridge Road Rocky River, Ohio 44116 - 1 - DYKE, J.: Plaintiffs-Appellants William R. Finley and Esther J. Finley filed a complaint for injunctive relief against Defendant- Appellees Roberto Flor and Yolanda Flor. The basis of the complaint was the an encroachment existed upon plaintiffs' property in the form of an addition attached to the rear of defendants' garage. The defendants filed their answer and counterclaim to quiet title to the property occupied by the addition to their garage. A trial was held and the trial court ruled in favor of defendants on their counterclaim to quiet title and dismissed plaintiffs' complaint for injunctive relief but awarded plaintiffs judgment in the amount of $300 for defendants non- compliance with a prior discovery order of the court. The trial court in its findings of fact found that defendant Yolanda Flor had purchased her property, which is adjacent to plaintiffs' property, in July, 1962. Title was transferred to her brother, Edmund Elias, in February 1968, who then transferred it to defendant Robert Flor in March, 1979. Title was then transferred in April, 1985 to defendants Robert and Yolanda Flor jointly, remainder to the survivor of them. An addition to the defendants' garage was built in 1962. Plaintiff Finley bought adjoining property at a 1986 Sheriff's sale and because of the lot's irregular shape had a survey completed in 1986. The survey's results showed that at the end of the plaintiffs' lot an - 2 - addition to a garage, built by defendants, was found to encroach on the plaintiffs' lot. In its conclusions of law, the court held that the placing of the garage addition, a permanent structure, amounted to an open and notorious possession. Further, the court held that there was uninterrupted and continuous possession for more than 21 years even though possession was not continuous in defendants because the occupations of successive owners between whom privity exists may be tacked on to each other. The court found the possession of the successive owners to be exclusive. The court concluded that through the operation of R.C. 2305.04/1\, and the law of adverse possession, the land upon which the garage addition was built in 1962 had become the property of defendants. The plaintiffs have appealed the trial court's ruling and assign several errors for our review./2\ We have consolidated appellants' assigned errors as they challenge the trial court's /1\ R.C. 2305.04 provides: Recovery of real estate. 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, but if a person entitled to bring the action is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person, after the expiration of twenty-one years from the time the cause of action accrues, may bring the action within ten years after the disability is removed. /2\ See Appendix. - 3 - ruling on the basis that it was against the manifest weight of the evidence presented. I Plaintiffs challenge the trial court's finding that evidence existed which showed that the elements of adverse possession had been satisfied. Adverse possession is a mode of acquiring title to property and its ultimate effect results in the ripening of hostile possession, under certain circumstances, into title by lapse of time. Adverse possession is based upon the running of the statute of limitations applicable to the recovery of property which Ohio statute provides that an action shall be brought within 21 years after the cause accrued. See R.C. 2305.04, supra. Adverse possession is the assertion of the right to property to the exclusion of the holder of paper title. In order to prevail on a claim for adverse possession in Ohio, the claimant must establish that his possession of the land was open, notorious, exclusive, adverse, hostile and continuous for more than 21 years. Such possession can be established by the erection of a permanent structure on another's real estate since the erection of such structure asserts a claim of right and dominion over the property which is open, notorious, exclusive, adverse and hostile, unless it is shown that the erection of the structure was under a contract, agreement or license. Board of - 4 - Education v. Nichol (1942), 70 Ohio App. 467; Sowa v. Schaeffer (1931), 38 Ohio App. 522; Meyer v. Pockros (1924), 18 Ohio App. 506. The standard of review under manifest weight was set forth in C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, as follows: Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight. (Emphasis added.) See, also, Frankenmuth Mut. Ins. Co. v. Selz (1983), 6 Ohio St. 3d 169, 172. Further, in Seasons Coal Co. v. City of Cleveland (1984), 10 Ohio St. 3d 77, the Supreme Court of Ohio reaffirmed the deference which must be given to the trier of fact, resulting in the presumption that the trier of fact is correct. Id. at 80. The reason for such a presumption was set forth in Seasons Coal as follows: 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. Reviewing the record in light of the aforementioned standard, we cannot conclude that the trial court's judgment was not supported by some competent, credible evidence. Yolanda Flor testified in this case that her family constructed a permanent addition to their garage in 1962. Her - 5 - testimony established that she and her husband in 1962 had asserted a claim of right or dominion over the plaintiff's property by the open and notorious construction of the permanent structure. Plaintiffs' claim that this constituted insufficient and "meager" evidence in the absence of some sort of documentary evidence establishing the date of the erection of the structure is without merit. Defendant Yolanda Flor's testimony constitutes evidence which the trial court could accept or reject. The court, after hearing the testimony apparently deemed it reliable and in our opinion that testimony constitutes competent, credible evidence of the date the garage was erected. We agree with appellant, that the trial court erred in allowing Yolanda's son Raymond to testify as his name had not been submitted to plaintiffs seven days prior to trial in accordance with Loc. R. 21.1. However, this error is not fatal in the present case as defendant Yolanda Flor's testimony was sufficient, competent evidence to establish the erection of the garage addition in 1962 and to establish that she owned the property since 1962 until conveying it to her brother in 1968 after which title was returned to her husband in 1978 and that in 1985 a deed was filed to place the ownership of the property in the name of Yolanda and Roberto Flor jointly with right of survivorship. Further, plaintiffs' own exhibits G, L-2, L-3, and L-6 clearly establish successive ownership existed between - 6 - Yolanda, her brother, her husband and lastly her husband and herself for the period in which the garage addition was built and is presently in existence. Yolanda's testimony and plaintiffs' exhibits constitute adequate evidence under our appellate standard of review that defendants' possession of plaintiff's property upon which the garage was built was open, notorious, exclusive and adverse to the record owners. Plaintiffs maintain that defendants Flors' possession was not for a continuous period of 21 years since title transferred during that time. "It is not essential that possession for the full 21 years be continuous in one person. The doctrine of tacking the possession of successive owners has been definitely adopted in Ohio; that is, where the adverse possession of successive owners, between who privity exists, equals or exceeds the statutory period of 21 years, the occupations may be united or tacked to each other to make up the time of adverse holding sufficient to ripen into title. Privity between the successive owners is necessary to a tacking of possession." 2 Ohio Jurisprudence 3d (1980), 525, Adverse Possession, Section 26. Further, all that is generally necessary for privity between successive occupants of property is that one receive his possession from the other by some act of such other or by operation of law." Id. at 526, Section 27. We find that defendants claim of right to the property was continuous because defendant Flor owned the property in 1962. When the addition was - 7 - built the claim of right could be tacked to the successive ownership and claim of right by defendant Yolanda Flor's brother, Edmund Elias, and then to defendant Roberto Flor and then to defendants Roberto and Yolanda. Defendant Flor and Elias were in privity by reason of their successive ownership of the property and the continued assertion throughout of the claim of right to the property by the erection and maintenance of the addition. Such successive possessions were properly tacked together by the court and the court properly concluded that there existed an adverse possession by defendants for the requisite statutory period of 21 years. Again, we note that plaintiffs' exhibits provided evidence of the successive ownership of the property by Yolanda, her brother, her husband and finally her husband and herself. Plaintiffs obtaining title to the property in 1986 and thereafter obtaining a survey did not contest plaintiffs' claim of right until after the parcel of property had been subject to adverse and hostile possession for a period of 21 years. The testimony given by Yolanda Flor and the exhibits present constitute competent, credible evidence to support the trial court's ruling. Testimony given by a witness carries no lesser weight than that afforded documentary evidence. It is a sufficient direct basis for a decision if competent and credible. The trial court's determination will not be disturbed. - 8 - II Lastly, appellant argues the trial court erred in allowing the matter to proceed to trial since defendants, prior to trial, violated a number of court orders. The decision of whether to sanction a party rests with the discretion of the trial court. We note that the trial court awarded $300 to plaintiffs for defendants' noncompliance. Under the facts of this case we find no abuse of discretion. Judgment affirmed. - 9 - It is ordered that appellees recover of appellants their 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MATIA, P.J., AND PATTON, J., CONCUR JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. - 10 - A P P E N D I X FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY MAKING INCORRECT FINDINGS OF FACT INDICATING APPELLEE YOLANDA FLOR PURCHASED THE PROPERTY AT 5998 BRECKSVILLE ROAD IN JULY OF 1962, AND INDICATING AN ADDITION TO THE GARAGE AT 5998 BRECKSVILLE ROAD WAS CONSTRUCTED BY APPELLEES IN 1962. SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR IN ALLOWING APPELLEES TO CONDUCT A PRESENTATION OF THEIR CASE, INCLUDING ALLOWING TESTIMONY TO BE TAKEN FROM A WITNESS WHOSE NAME WAS NOT PROVIDED TO APPELLANTS, ALTHOUGH APPELLEES FAILED TO COMPLY WITH ANY ORDERS OF THE COURT UP TO THE DATE OF TRIAL. THIRD ASSIGNMENT OF ERROR: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO APPLY ALL OF THE NECESSARY ELEMENTS OF ADVERSE POSSESSION AND APPLICABLE CASE LAW, IN CONCLUDING THAT APPELLEES' TIME OF POSSESSION EQUALLED TWENTY-ONE YEARS. FOURTH ASSIGNMENT OF ERROR: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY INCORRECTLY APPLYING THE CONCEPT OF TACKING TO CONCLUDE APPELLEES' POSSESSION EQUALLED TWENTY-ONE YEARS. FIFTH ASSIGNMENT OF ERROR: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO PROPERLY CONSIDER ALL OF THE ELEMENTS REQUIRED FOR A CLAIM OF ADVERSE POSSESSION, IMPROPERLY APPLYING O.R.C. SECTION 2305.04 AND THE SUBSTANTIVE AND CASE LAW CONCERNING ADVERSE POSSESSION AND CONCLUDING THE AFFECTED SECTION OF APPELLANTS' LAND HAS BECOME THE PROPERTY OF APPELLEES. - 11 - SIXTH ASSIGNMENT OF ERROR: THE JUDGMENT RENDERED BY THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. .