[Cite as Canton Asphalt Co. v. Fosnaught, 2011-Ohio-1329.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CANTON ASPHALT COMPANY 

 Plaintiff-Appellant/Cross-Appellee 

-vsDANIEL J. FOSNAUGHT 

 Def.-Appellee/Cross-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case Nos. 2010 CA 00201 and 

 2010 CA 00202 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 2009 CV 00644 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: March 21, 2011 

APPEARANCES: 

For Plaintiff-Appellant/Cross-Appellee For Defendant-Appellee/Cross-Appellant 

JOHN J. RAMBACHER LEE E. PLAKAS 

STEPHEN P. GRIFFIN AMANDA M. PAAR 

WINKHART & RAMBACHER TZANGAS, PLAKAS, MANNOS & RAIES 

825 South Main Street 220 Market Avenue South, 8th Floor 

North Canton, Ohio 44720 Canton, Ohio 44702 
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202 2

Wise, J. 

{¶1} Appellant Canton Asphalt Company and Cross-Appellant Daniel J. 

Fosnaught appeals from the June 2, 2010, Judgment Entries entered in the Stark 

County Court of Common Pleas determining the rights of the parties as they pertain to a 

driveway. 

STATEMENT OF THE FACTS AND CASE 

{¶2} The facts relevant to this appeal are as follows: 

{¶3} On February 17, 2009, Appellant Canton Asphalt Company filed a 

Complaint against Appellee Daniel J. Fosnaught asserting claims of trespass, quiet title, 

enforcement of an April 5, 2007, Agreement, and quiet title/adverse possession. 

{¶4} On April 10, 2009, Appellee Fosnaught filed an Answer and CounterClaim. Appellee’s counterclaim asserted claims of adverse possession, easement by 

prescription, easement by implication/necessity, quiet title and declaratory judgment. 

{¶5} On February 1, 2010, this matter proceeded to trial before a Magistrate. 

{¶6} On May 11, 2010, the Magistrate issued a Magistrate’s Decision wherein 

the Magistrate found that Appellee Fosnaught did not have an easement by prescription 

over the driveway; that Appellant Canton Asphalt’s claims to quiet title were without 

merit and that the 2007 Agreement between the parties was enforceable and that such 

terms control. 

{¶7} On May 24, 2010, Appellant filed a Motion to Recover Legal Fees/Cost 

from Appellee. 

{¶8} On May 25, 2010, Appellee filed Objections to the Magistrate’s Decision. 

{¶9} On June 3, 2010, Appellant filed Objections to the Magistrate’s Decision. 
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202 3

{¶10} By Judgment Entry filed July 2, 2010, the trial court denied Canton 

Asphalt’s motion for legal fees and court costs. 

{¶11} By separate Judgment Entry filed July 2, 2010, the trial court denied 

Fosnaught’s objections and found Canton Asphalt’s Objections to be untimely. 

{¶12} On July 14, 2010, Appellant filed a Motion for Reconsideration. The trial 

court has not ruled on this motion. 

{¶13} It is from the trial court’s July 2, 2010, decision that Appellant and 

Appellee now appeal, raising the following assignments of error for review: 

ASSIGNMENTS OF ERROR

APPEAL

{¶14} “I. THE TRIAL COURT ERRED IN DETERMINING WITHIN THE TRIAL 

COURT’S JUNE 2, 2010 JUDGMENT ENTRY THAT APPELLANT’S OBJECTIONS TO 

THE MAGISTRATE’S DECISION WERE NOT TIMELY FILED UNDER CIVIL RULE 

53(D)(3)(b)(i) AND IN NOT REVIEWING AND ACTING/RULING UPON APPELLANT’S 

OBJECTIONS AS REQUIRED UNDER CIVIL RULE 53(D)(4)(d). 

{¶15} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION 

FOR RECOVERY OF LEGAL FEES/COURT COSTS WITHIN THE TRIAL COURT’S 

JUNE 2, 2010 JUDGMENT ENTRY WHERE BY WRITTEN AGREEMENT (WHICH 

AGREEMENT THE TRIAL COURT RULED TO BE ENFORCEABLE) APPELLANT 

AND APPELLEE CONTRACTED THAT THE PREVAILING PARTY SHALL RECOVER 

LEGAL FEES AND COSTS FROM THE NON-PREVAILING PARTY AS TO CERTAIN 

CLAIMS (AS SPECIFIED THEREIN) UPON WHICH SUCH CLAIMS APPELLANT 

PREVAILED. 
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202 4

{¶16} “III. THE TRIAL COURT ERRED IN RULING THAT APPELLANT’S QUIET 

TITLE/ADVERSE POSSESSION CLAIM AGAINST APPELLEE CONSTITUTED A 

COLLATERAL ATTACK UPON A JUDGMENT AND IN NOT OTHERWISE 

ADJUDICATING SUCH CLAIM ON THE SUBSTANTIVE MERITS THEREOF.” 

CROSS-APPEAL 

{¶17} “I. THE TRIAL COURT ERRED IN FAILING TO FIND THAT 

FOSNAUGHT HAS A PRESCRIPTIVE EASEMENT OVER THE DRIVEWAY. 

{¶18} “II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT 

FOSNAUGHT HAS AN EASEMENT BY NECESSITY OVER THE DRIVEWAY. 

{¶19} “III. THE TRIAL COURT ERRED IN FINDING THE AGREEMENT 

BETWEEN CANTON ASPHALT AND FOSNAUGHT ENFORCEABLE WHEN IT IS 

VOIDABLE BASED UPON MUTUAL MISTAKE OF FACT.” 

I.

{¶20} In Appellant’s first assignment of error, Appellant contends that the trial 

court erred in finding that Appellant’s Objections to the Magistrate’s Decision were not 

timely filed. We agree. 

{¶21} Civil Rule governs the role of magistrates. It provides in pertinent part: 

{¶22} “(D) Proceedings in Matters Referred to Magistrates. 

{¶23} *** 

{¶24} “(3) Magistrate's decision; objections to magistrate's decision. 

{¶25} *** 

{¶26} “(b) Objections to magistrate's decision. 
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202 5

{¶27} “(i) Time for filing. A party may file written objections to a magistrate's 

decision within fourteen days of the filing of the decision, whether or not the court has 

adopted the decision during that fourteen-day period as permitted by Civ.R. 

53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections 

not later than ten days after the first objections are filed. If a party makes a timely 

request for findings of fact and conclusions of law, the time for filing objections begins to 

run when the magistrate files a decision that includes findings of fact and conclusions of 

law.” 

{¶28} In the case sub judice, Appellee timely filed his Objections on May 25, 

2010, fourteen days after the May 11, 2010, Magistrate’s Decision. Pursuant to the 

above rule, Appellant therefore had ten days from the date of the filing of Appellee’s 

Objections to file his Objections. The ten day period would run on June 4, 2010. As 

Appellant filed his Objections on June 3, 2010, we find that such Objections were timely 

filed. As such, we find that the trial court erred in failing to consider the Objections, 

finding that Appellant’s Objections were not timely filed. 

{¶29} Accordingly, we therefore remand this matter back to the trial court to 

review Appellant’s Objections and to rule upon same as provided in Civ.R. 53(D)(4)(d). 

{¶30} Appellant's first assignment of error is sustained. 

{¶31} Based on our disposition of Appellant’s first Assignment of Error and our 

remand to the trial court with instructions to consider and rule upon Appellant’s 

 
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202 6

objections to the Magistrate’s Decision, we find that both Appellant and CrossAppellant’s remaining assignments are not ripe for review at this time. 

{¶32} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Stark County, Ohio, is reversed and remanded for further proceedings consistent with 

the law and this opinion. 

By: Wise, J. 

Gwin, P. J., and 

Farmer, J., concur. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES 

JWW/d 0310 
Stark County, Case Nos. 2010 CA 00201 and 2010 CA 00202 7

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CANTON ASPHALT COMPANY : 

 : 

 Plaintiff-Appellant/Cross-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

DANIEL J. FOSNAUGHT : 

 : 

 Defendant-Appellee/Cross-Appellant : Case Nos. 2010 CA 00201 and : 

 2010 CA 00202 

 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Stark County, Ohio, is reversed and 

remanded for further proceedings consistent with this opinion. 

 Costs to be split equally between Appellant and Appellee. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES