[Cite as Burchett v. Mowery, 2012-Ohio-2489.]

 IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 SCIOTO COUNTY 

LILLIE M. BURCHETT, fka, : 

LILLIE M. PHILLIPS, 

Plaintiff-Appellee, : Case No. 11CA3419 

vs. : 

PAUL MOWERY, et al., : DECISION AND JUDGMENT ENTRY 

 

 

Defendants-Appellants. : 

_________________________________________________________________ 

 APPEARANCES: 

COUNSEL FOR APPELLANTS: Steven M. Willard, Bannon, Howland & Dever Co., 

L.P.A., 602 Chillicothe Street, Ste. 325 P.O. Box 

1384, Portsmouth, Ohio 45662 

COUNSEL FOR APPELLEE: Stephen C. Rodeheffer, Rodeheffer & Miller, Ltd., 

630 Sixth Street, Portsmouth, Ohio 45662 

CIVIL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED: 5-14-12 

ABELE, P.J. 

{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment, after a 

bench trial, in favor of Lillie M. Burchett, fka Lillie M. Phillips, plaintiff below and appellee 

herein, on her adverse possession claim against Paul and Rose Mowery, defendants below and 

appellants herein. 

{¶ 2} Appellants assign the following error for review: 

“THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN 

FAVOR OF PLAINTIFF/APPELLEE. THE DECISION OF THE 
SCIOTO, 11CA3419 2

TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE.” 

{¶ 3} The parties are contiguous landowners. In dispute is the ownership of two strips 

of land denoted at trial as “A” and “B.” Appellee and her first husband acquired property at 

1116 Sunset Road in 1987 and considered the two disputed strips as theirs.1 Appellants leased 

their property in 1992, purchased it in 2003, and several years later, after a survey confirmed that 

the disputed property belonged to them, posted “no trespassing” signs on the land. Appellants 

also installed spot lights and security cameras. 

{¶ 4} On August 28, 2009, appellee filed the instant action and claimed that she 

acquired title to the disputed land through adverse possession. She also set out claims for 

nuisance and trespass based upon appellants’ use of the spotlights. Appellee requested a 

declaratory judgment that she is the owner of the disputed land and $25,000 in compensatory 

damages on her other claims.2

 Appellees denied the allegations and asserted various affirmative 

defenses. 

{¶ 5} At trial, Cheryl Merson testified that she owned appellee’s property from 1975 

until 1987 (when she sold it to appellee) and always considered the disputed land to be her 

property. In fact, Merson testified that her son’s swing set was located on the disputed property. 

 

{¶ 6} Appellee testified that she always considered the disputed property to belong to 

 1 Appellee testified that she acquired full ownership of the land when she and her first husband divorced. 

2 Appellee filed an amended complaint and alleged an additional count of invasion of privacy that resulted from the 

security cameras appellants installed that, allegedly, had been trained on appellee's backyard. 
SCIOTO, 11CA3419 3

her and that her first husband mowed the grass that grew on the land. Her second husband, 

Jeremy Burchett, testified that he moved into the house in 1991 and also mowed the grass on the 

disputed land. He also testified that on the land he stored wood, held social events and 

constructed a pool. 

{¶ 7} Appellants did not testify in their own defense, although Appellant Paul Mowery 

was called as if on cross-examination during appellee’s case-in-chief. Mowery testified that he 

acquired the land in 1992 and that, although he always considered the disputed property to be his, 

he did not post “no trespassing” signs or try to exclude anyone from using the land until after his 

own survey. 

{¶ 8} The trial court found in favor of the appellee on her adverse possession claim. In 

so ruling, the court concluded that appellee had proven “by a preponderance of the evidence” that 

she had “maintained open, notorious, adverse, hostile, and continuous possession of the land for 

21 years.” The court also found “no just reason for delay.” This appeal followed. 

 I 

{¶ 9} Before we turn to the merits of appellant’s assignment of error, we first address a 

jurisdictional issue. Ohio courts of appeals have appellate jurisdiction over final orders. See 

Section 3(B)(2), Article IV, Ohio Constitution. If multiple claims are involved in an action, 

Civ.R. 54(B) also factors into the determination of finality. In re Berman (1990), 69 Ohio App.3d 

324, 328, 590 N.E.2d 809; Evans v. Rockhill Local School Dist. Bd. of Edn., Lawrence App. No. 

04CA39, 2005-Ohio-5318, at ¶11; Gallucci v. Freshour (Jun. 22, 2000), Hocking App. No. 
SCIOTO, 11CA3419 4

99CA22. Civ.R. 54(B) states, inter alia, that a trial court may 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.” 

{¶ 10} We recognize that some confusion may exist over what constitutes a “claim” for 

purposes of Civ.R. 54(B) and we have dismissed, for lack jurisdiction, many appeals when a 

judgment contained an express finding of “no just reason for delay” but only disposed of a 

portion of a claim. Those cases typically set forth claims or counterclaims with various counts 

or theories of recovery. However, because the claims all arose from one common set of facts, 

we have held that they were all a single claim. See e.g. Evans, supra, at ¶¶19-20; Clark v. 

Butler, Ross App. No. 10CA3191, 2011-Ohio-4943, at ¶¶10-11; Bell v. Turner, Highland App. 

No. 05CA10, 2006-Ohio-704, at ¶19. As we noted in Evans, supra at ¶19, a “claim” for 

purposes of Civ.R. 54(B) is as follows: 

“The Ohio Supreme Court gave a more precise definition in 1981 stating that a 

claim for relief, for purposes of [Civ.R. 54(B) ], was synonymous with a ‘cause of 

action.’ A ‘cause of action’ is that set of facts which establish or give rise to a 

‘right of action,’ the existence of which affords a party the right to judicial relief. 

‘Cause of action’ is to be distinguished from the ‘action’ itself, which is a judicial 

proceeding brought in a court of law to vindicate the cause of action. These 

distinctions are critically important because an action (whether in the form of a 

complaint, cross-complaint or counter-complaint) may contain numerous ‘counts,’ 

‘theories,’ or ‘demands' for relief but still encompass only a single ‘cause of 

action’ or ‘claim for relief.’ For instance, where a person suffers personal injury 
SCIOTO, 11CA3419 5

and property damage as the result of a wrongful act, there is only a single ‘cause 

of action’ even though the complaint asserts counts in battery and trespass. 

Summary judgment rendered on one of those counts, while the other count 

remains pending, would not be final and appealable even with a finding of ‘no just 

reason for delay.’” (Citations omitted.) 

{¶ 11} We cite these cases because the case sub judice is an example of a single “claim” 

for purposes of Civ.R. 54(B). Here, the judgment appealed disposes of one claim – appellee’s 

claim for adverse possession set out in “Branch One” of her amended complaint. Her remaining 

claims, set out in branches two, three and four, all arise from a set of facts separate and distinct 

from her adverse possession claim. Because nothing remains to be determined with respect to 

the adverse possession claim, the trial court could properly certify that claim for review upon a 

finding of “no just reason for delay.” This is a correct use of the provisions of Civ.R. 54(B). 

Consequently, we now turn our attention to the merits of appellant’s argument. 

 II 

{¶ 12} Appellants contend that the trial court erroneously determined that appellee 

acquired the disputed land through adverse possession. We agree, albeit on a more limited 

extent than argued in the brief. 

{¶ 13} According to a “T.G. Smith & Associates Survey” introduced as plaintiff’s exhibit 

nineteen, strip “A” lies north of appellants’ property, and strip “B” appears to lie due north of 

appellee’s home. While the testimony adduced at trial is somewhat confusing as to the 

particular strip of land that each witness referred to during examination, most of the testimony 

appears to apply to “strip A” and little evidence involves “strip B.” Again, we point out that the 
SCIOTO, 11CA3419 6

testimony is confusing concerning the particular strip of land referenced during the examination 

of each witness. 

{¶ 14} Fortunately, at this juncture we need not attempt to fully decipher the testimony 

adduced at trial. In its March 10, 2011 judgment, the trial court found that appellee had 

“prevailed on her claim of adverse possession” by a “preponderance of the evidence[.]” 

(Emphasis added.) However, the burden of proof required to establish an adverse possession 

claim is clear and convincing evidence. Evanich v. Bridge, 119 Ohio St.3d 260, 893 N.E.2d 

481, 2008-Ohio-3820 at ¶13; Grace v. Koch (1998), 81 Ohio St.3d 577, 692 N.E.2d 1009, at the 

syllabus. 

{¶ 15} Appellees concede the error, but argue that we should nevertheless affirm the 

judgment because they maintain that under any burden of proof they would have prevailed. 

However, as we note above the trial testimony is not entirely clear to us whether the witnesses 

refer to strip “A” or strip “B” of the disputed land. Second, even if the evidence is clear, we are 

not in a position to assess the evidence adduced at trial. The trial court, as the trier of fact, is in 

the best position to observe witness demeanor, gestures and voice inflections and to use those 

observations to assess weight and witness credibility. See Seasons Coal Co. v. City of 

Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273; Myers v. Garson (1993), 66 Ohio 

St.3d 610, 615, 614 N.E.2d 742. The trial court, sitting as trier of fact, is free to 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; In re Adoption of M.C., Jackson App. Nos. 11CA5 & 11CA6, 

2011-Ohio-6527, at ¶19. Moreover, “clear and convincing” evidence is more than a mere 

preponderance of the evidence. See e.g. In re J.F., Trumbull App. No. 2011–T–0078, 
SCIOTO, 11CA3419 7

2011-Ohio-6695, at ¶52; In re A.H., Cuyahoga App. Nos. 96826 & 96827, 2011-Ohio-6446, at 

¶38; Pottmeyer v. Douglas, Washington App. No. 10CA7, 2010-Ohio-5293, at ¶23. Because the 

clear and convincing evidence standard requires a higher burden of proof than the mere 

preponderance standard, it is conceivable that the trial court may have found the witnesses 

sufficiently believable to establish appellee’s case by a preponderance, but not necessarily by 

clear and convincing evidence. Again, because the members of this court did not hear and 

observe witness testimony, the interests of justice are best served by remanding this case to the 

trial court to consider in light of the correct burden of proof.3

{¶ 16} Accordingly, we hereby sustain appellant’s assignment of error to this limited 

extent, reverse the trial court's judgment and remand the case for further proceedings consistent 

with this opinion. 

JUDGMENT REVERSED AND CASE 

 REMANDED FOR FURTHER 

 PROCEEDINGS CONSISTENT WITH 

THIS OPINION.4

 

Harsha, J., Concurring: 

 3

 Of course, if the trial court subsequently concludes that clear and convincing evidence supports its ruling, it may 

enter the same judgment on remand. 

4 In its ruling, and in their briefs on any future appeal, we encourage the trial court and the parties to specify to which 

of the disputed strips of land they refer. Civ.R. 52 is available to the parties and the trial court to increase specificity with 

respect to a future appeal. 
SCIOTO, 11CA3419 8

 I concur in judgment and opinion except for the analysis of the final appealable order issue. 

I believe the reasoning in Board of Edcn. v. Lesko, 1990 WL 3640, is correct, i.e. I do not 

subscribe to the common nucleus of facts approach in determining what defines a “claim” in the 

final appealable order context. One set of facts can give rise to several distinct claims in my 

view. 

 For instance, Lesko involved a dispute over a leaking roof. The plaintiff sued the contractor 

for both breach of warranty (a contract cause of action) and negligence (a tort action). Even 

though both claims were based upon the same common set of facts, the court concluded each was 

“a separate and distinct branch of the case”. Therefore, Civ. R. 54(B) language created a final 

appealable order in granting summary judgment on only one of the claims. Id. See also, Civ. 

54(B)’s amended language that authorizes a court to enter final judgment on fewer than all 

claims in the action “whether arising out of the same or separate transactions(.)”, as noted in 

Painter and Pollis, Ohio Appellate Practice (2011-2012 ed.), Sec. 2.8. 

 JUDGMENT ENTRY

It is ordered that the judgment be reversed and the case remanded for further proceedings 

consistent with this opinion. Appellants and appellee shall equally divide 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 Scioto County 
SCIOTO, 11CA3419 9

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. 

McFarland, J.: Concurs in Judgment & Opinion 

Harsha, J.: Concurs with Concurring Opinion 

For the Court 

BY: 

 Peter B. Abele 

 Presiding 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.