[Cite as Bennett v. Peters , 2013-Ohio-1467.]

IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO T. ROBERT BENNETT, et al. : Plaintiffs-Appellees : C.A. CASE NO. 2012 CA 5

v. : T.C. NO. 11CV689 ROBERT A. PETERS, et al. : (Civil appeal from Common Pleas Court) Defendants-Appellees : and : AMERICAN PREMIER UNDERWRITERS, : INC. : Defendant-Appellant :

. . . . . . . . . . O P I N I O N Rendered on the 12th day of April , 2013.

. . . . . . . . . . JOHN F. MARCHAL, Atty. Reg. No. 0005408, 116 W. Fourth Street, Greenville, Ohio 45331 Attorney for Plaintiffs-Appellees JASON D. GROPPE, Atty. Reg. No. 0080639, 1700 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202 Attorney for Defendant-Appellant WESTERN OHIO TRAX, 531 S. Main Street, Ansonia, Ohio 45303 Defendant-Appellee. . . . . . . . . . DONOVAN, J. {¶ 1} Defendant-appellant Amer ican Premier Underwriters, Inc. (hereinafter “APU”), appeals a decision and judgment en try of the Darke County Court of Common Pleas, General Division, quieting title in a 1.5 acre strip of real property to plaintiff-appellees T. Robert and Sara Bennett (h ereinafter “the Bennetts”). The trial court’s decision was issued on July 6, 2012. APU filed a timely noti ce of appeal with this Court on August 3,
2012. {¶ 2} On November 8, 2011, the Bennetts file d a complaint against APU, Western Ohio Trax (hereinafter “WOT”), and Robert and Sherie Peters (hereinafter “the Peters”), seeking to quiet title in a 1.5 acre strip of prope rty previously used as a rail corridor which adjoined the Bennetts’ property. 1 In their complaint, the Bennetts argued that they had acquired title to the property through adverse possession. A lternatively, the Bennetts asserted that APU had “abandoned it use” of th e subject property, and title had, therefore, reverted to the Bennetts.

1 The record establishes that the Peters, landowners adjacent to the Bennetts in relation to the 1.5 acre strip of land, purportedly acquired their interest in the subject property by limited warranty deed from WOT in 2011. Prior to that, WOT acquired its interest from APU by quitclaim deed in 1992. APU allegedly acquired its interest in the subject property through a deed executed by Thomas C. Brawley to Richmond & Covington R.R. Co. We note that the record also reflects that unlike APU, neither WOT nor the Peters filed a notice of appeal from the decision of the trial court issued on July 6, 2012. Accordingly, neither the Peters nor WOT are parties to the instant appeal.[Cite as Bennett v. Peters , 2013-Ohio-1467.] {¶ 3} In response, APU filed a motion to di smiss the complaint, arguing that the Bennetts are currently class members in an ear lier filed action pending in Trumbull County, Ohio, captioned Paula D. Maas v. Penn Central Corporation, et al. , Case No. 99CV723 (hereinafter “the Trumbull action”). One of the central issues to be litigated in the class action related to whether AP U abandoned its interests in the subject property, which arguably includes the viability of APU’s subsu rface reservations and occupations in said property. APU asserted that the Bennetts’ complaint should be dismissed because their claims related to the same property interests that were already being adjudicated in the earlier-filed Trumbull County class action. 2 Accordingly, APU argued that the jurisdictional priority rule (JPR) applied and acted to divest the trial court in the instant litigation of subject matter jurisdiction. {¶ 4} In their memorandum in opposition to APU’s motion to dismiss, the Bennetts argued that their claim for adverse possession was unaffected by the JPR, and should, therefore, not be dismissed. The Bennetts, however, conceded that the JPR did , in fact, divest the trial court of jurisdiction over their ab andonment claim because it was already being litigated in the Trumbull Count y class action. Correspondingly, the Bennetts also conceded that they were members of the Trumbull County class action, and therefore, bound by the judgment of the tr ial court in Trumbull County.

2 The Trumbull County case was certified as a class action on August 7, 2003. {¶ 5} Despite the Bennetts’ concession regarding the applicability of the JPR to their abandonment claim, on January 18, 2012, th e trial court overrule d APU’s motion to dismiss in its entirety. Specifically, the trial c ourt found that “it is apparent that the claims4 asserted and the relief requested in the Tr umbull County case differs [sic] from the claim asserted and the relief requested [in the in stant case]. *** As such, the [JPR] *** does not divest this Court of jurisdiction over the claims raised in the complaint.” {¶ 6} Following the ruling of the trial court, the Bennetts filed an amended complaint on April 5, 2012, in which they droppe d their abandonment claim against APU. Thus, the only remaining claim to be litigated against APU in the Bennetts’ complaint was the claim for adverse possession of the subject property. On June 14, 2012, a trial was held before the court regarding the Bennetts’ claims against all of the defendants. As a result of the Bennetts’ amended complaint, the only claim pending against APU was the claim for adverse possession. With respect to the rema ining defendants, WOT and the Peters, the Bennetts maintained claims for adverse po ssession, abandonment of easement, and slander of title. {¶ 7} On July 6, 2012, the trial court issu ed a “Judgment Entry and Decision” quieting title in the subject property to the Bennetts. In its decision finding that the Bennetts lawfully acquired the property by a dverse possession, the tria l court also made findings regarding APU’s purported abandonment of , interest in, and/or use of the subject property. On July 20, 2012, APU filed a “Moti on to Alter or Amend Judgment” pursuant to Ohio Civ. R. 59(A). In its motion, APU argu ed that the trial court erred by ruling on matters not properly before it and that the JPR precluded the trial court from ruling on such matters. The trial court subsequently overru led APU’s motion to amend the judgment and stated as follows: The Court previously found that the [J PR] was not applicable herein. The5 Court refused to concede that Trumbull County possessed exclusive jurisdiction of the issues herein. The Court was concerned about the lack of adjudication in the decade since the case was filed in Trumbull County and the lack of decision of an i ssue of increasing importance. {¶ 8} Defendant-appellant APU appeals from the “Judgment Entry and Decision” issued by the trial court on July 6, 2012. {¶ 9} Because they are interrelated, APU’s first and second assignments of error will be discussed together as follows: {¶ 10} “THE TRIAL COURT ERRED IN RENDERING FINDINGS RELATED TO APU’S PURPORTED ABANDONMENT OF THE SUBJECT RAIL CORRIDOR AND THE VALIDITY OF APU’S PROPERTY INTERESTS THEREI N BECAUSE THE JURISDICTIONAL PRIORITY RULE DIVESTED THE TRIAL COURT OF SUBJECT MATTER JURISDICTION TO MAKE SUCH FINDINGS.” {¶ 11} “THE TRIAL COURT ERRED IN RENDERING FINDINGS RELATED TO APU’S PROPERTY INTERESTS IN THE SUBJECT RAIL CORRIDOR BECAUSE THAT ISSUE WAS NOT BEFORE THE COURT FOR ADJUDICATION.” {¶ 12} In its first assignment, APU contends that the trial court erred when it rendered findings regarding its alleged abandonment of the subj ect property. Specifically, APU argues that application of the JPR divested the trial court of subject matter jurisdiction to make any findings regardin g APU’s purported abandonment of, interest in, and/or use of the subject property. {¶ 13} Initially, we note that the Bennetts point out that they eliminated the claim6 for abandonment against APU fro m their amended complaint. The Bennetts concede that the JPR divested the trial court of subject matter jurisdiction ove r the abandonment claim against APU because the same claim was al ready being litigated in the Trumbull County class action. {¶ 14} The jurisdictional priority rule provides that: [a]s between [state] courts of conc urrent jurisdiction, the tribunal whose power is first invoked by the institu tion of prior proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties. * * * In general, the jurisdictional-priority rule applies when the causes of action are the same in both cases, and if the first case does not involve the same cause of action or the same parties as the second case, th e first case will not prevent the second. State, ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs ., 120 Ohio St.3d 372, 376, 2008-Ohio-6253, 899 N.E.2d 961, at ¶ 16. {¶ 15} In the instant case, it is clear that application of the JPR divested the trial court of subject matter jurisdiction and precluded the trial court from adjudicating any claims regarding APU’s purported abandonment of any interest i n, and/or use of the subject property. Significantly, the Bennetts conceded that they are members of the plaintiff class in the Trumbull County action which was initia ted approximately te n years before the Bennetts filed their complaint in Darke County. In its brief, APU notes that the Trumbull County Court of Common Pleas (TCC) has alr eady made findings whic h conflict with the findings of the trial court’s July 6, 2012, “Judgme nt Entry and Decision.” We note that the7 TCC and the trial court are both “s tate courts of conc urrent jurisdiction.” For example, the TCC held that whether APU abandoned its easem ent on the subject property is a question of fact to be decided by the jury in the Trumbull County class action. Paula D. Maas v. Penn Central Corporation, et al. , Case No. 99CV723 (November 9, 2011). This finding by the TCC directly conflicts with the trial court’s findings in the July 6, 2012, judgment entry and confirms that any issues regarding APU’s purported abandonment of the easement of the subject property must be adj udicated in the Trumbull County class action pursuant to the
JPR. {¶ 16} Moreover, the trial court’s rationale behind its finding that the JPR was not applicable to the instant case is wholly unpe rsuasive. Specifically, the trial court “was concerned about the lack of adjudication in the decade since the case was filed in Trumbull County and the lack of decisi on of an issue of increasing importance.” While the trial court’s interest in judicial efficiency is admirable, this is clearly an instance where application of the JPR is entirely necessary. Additionally, we note that the Bennetts dropped their abandonment claim against APU fro m their amended complaint. Therefore, the issue surrounding APU’s alleged abandonment of easement was not even properly before the trial court. Thus, it was error for the court to render any judgment with respect to a matter that was no longer at issue in the case. Accordingly, the trial court erred when it made findings regarding APU’s aba ndonment of the subject property. {¶ 17} Finally, we note that the trial court found that the Bennetts acquired title to the subject property through adverse po ssession. It is undisputed that APU did not contest the Bennetts’ adverse possession claim when the matter was tried before the court. APU8 asserts that this is because it a sserted no interest in the propert y. To acquire title by adverse possession, a party must prove, by clear and convincing evidence, exclusive possession, and open, notorious, continuous, and adverse use for a period of twenty-one years. Grace v. Koch , 81 Ohio St.3d 577, 928 N.E.2d 742 (1998). {¶ 18} On appeal, APU does not dispute the tr ial court’s finding that the Bennetts’ properly acquired title to the subject propert y through adverse possession. APU merely points out that the Bennetts’ claims for a dverse possession and aba ndonment are separate and distinct from one another. Abandonmen t focuses on the acts and omissions of the dominant estate holder and requires that the ow ner of the servient es tate prove both non-use and an affirmative intent to abandon the easement. Snyder v. Monroe Twp. Trustees , 110 Ohio App.3d 443, 457, 674 N.E.2d 741 (2d Dist.1996). Thus, whether the subject property was abandoned is a question of f act depending on the actions of APU. Conversely, adverse possession focuses on the acts of the one claiming prescriptive ownership, in this case, the Bennetts themselves. Accordingly, a determin ation of whether a party acquired a property through adverse possession is distinct from an adjudication that anot her party abandoned the subject property. {¶ 19} Upon review, we conclude that th e trial court erre d when it rendered judgment with respect to APU’ s alleged abandonment of the subj ect property. The issue of abandonment was not properly before the tria l court because the Bennetts eliminated the claim as it related to APU from their amended complaint. Moreover, application of the JPR divested the trial court of subject matter jurisdiction and precluded the trial court from adjudicating any claims regarding APU’s purpor ted abandonment of, inte rest in, and/or use9 of the subject property. {¶ 20} APU’s first and second assign ments of error are sustained. {¶ 21} Both of APU’s assignments of error ha ving been sustained, the judgment of the trial court is reversed with respect to its determination regarding APU’s purported abandonment of, interest in, and/or use of the subject property, and th is matter is remanded for proceedings consistent with this opinion. In all other respects, the judgment of the trial court is affirmed.

. . . . . . . . . . FAIN, P.J. and WELBAUM, J., concur. Copies mailed to: John F. Marchal Jason D. Groppe Western Ohio Trax Hon. Jonathan P. Hein