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150390694
150390694
IN THE COURT OF COMMON PLEAS f
CUYAHOGA COUNTY, OHIO c < k
CHARLES BERNARD, ET AL Case No: CV-21-951490 - O.
Plaintiff
Judge: WILLIAM F. B. VODREY
THOMAS CHRISTOPHERSON, ET AL
Defendant
JOURNAL ENTRY
83 DISP.COURT TRIAL - FINAL
DEFENDANTS' MOTION TO STAY PENDING FINAL APPEALABLE ORDER, FILED 05/08/2023, IS HEREBY DENIED AS
MOOT AS THE COURT IS NOW ISSUING A FINAL APPEALABLE ORDER THAT ADDRESSES THE ISSUES RAISED IN
DEFENDANTS' MOTION.
OPINION AND ORDER OSJ.
COURT COST ASSESSED AS EACH THEIR OWN.
PURSUANT TO CIV.R. 58(B), THE CLERK OF COURTS IS DIRECTED TO SERVE THIS JUDGMENT IN A MANNER
PRESCRIBED BY CIV.R. 5(B). THE CLERK MUST INDICATE ON THE DOCKET THE NAMES AND ADDRESSES OF ALL
PARTIES, THE METHOD OF SERVICE, AND THE COSTS ASSOCIATED .WITM THIS SERVICE.
-83
06/23/2023
Page 1 of 1
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
CHARLES BERNARD, et al.. ) CASE NO. CV-21-951490
)
Plaintiffs, ) JUDGE WILLIAM F.B. VODREY
)
v. ) OPINION AND ORDER
)
THOMAS CHRISTOPHERSON, et al., )
)
Defendants. )
I. FINDINGS OF FACT
This is a case about a dispute between neighbors as to land title, beach access and alleged
trespass. Plaintiffs and defendants all own, or did own at the commencement of this suit,
property on Coming Drive, a residential street in the Village of Bratenahl, Ohio. Coming Drive
runs north-to-south, ending close Lake Erie’s shoreline. There are currently twenty-five property
lots on Coming Drive. (Def. Exs. DD, T).
The Property
At the north end of Coming Drive is a ten-foot-wide strip of land that runs between 281
Coming Drive and 282 Coming Drive (hereinafter “Access Path”) and ends at a submerged 80-
by-40-foot parcel of land at the Lake Erie waterline (“Beach Property”) to be used for park
purposes (collectively the “Beach Parcel”). (Pl. Ex. 45, Expert Survey of Scott Casey). The
Beach Property is now completely submerged under the waters of Lake Erie, and is therefore
currently held in trust for the people of the State of Ohio and administered by the Ohio
Department of Natural Resources, by operation of state law. R.C. 1506.10 (Tr. 670:7; 672: 8-9)
While currently fully submerged, all or part of the Beach Property may one day reemerge from
the lake. (D. Kumler, Tr. 477:1-9; C. Courtney Tr. 628:6-16; M. Waiwood Tr. 676:4-18). The
Standard Land Company initially owned and subdivided the land around Coming Drive in the
early 1900s. (Def. Ex. T). The Standard Land Company never filed the Subdivision Plat for the
Coming Drive Subdivision. (Tr. 655:3). The Company may now be, and very likely is, defunct.
(M. Waiwood, Tr. 679:7-12).
Today, fifteen lots on Coming Drive have current deeds that describe an undivided l/24th
fee simple ownership interest in common to the Beach Parcel. (Def. Ex. T). The fifteen title lots
are 285 Coming Drive, 291 Coming Drive, 298 Coming Drive, 307 Coming Drive, 312 Coming
Drive, 313 Coming Drive, 317 Coming Drive, 320 Coming Drive, 321 Coming Drive, 325
Coming Drive, 328 Coming Drive, 329 Coming Drive, 332 Coming Drive, 333 Coming Drive
and 335 Coming Drive. (Def. Ex. T). The plaintiffs who own and/or reside on the title lots shall
be hereinafter referred to as the “Title Plaintiffs.”1 Defendants’ own expert, Michael Waiwood,
acknowledged that the Title Plaintiffs have an uninterrupted chain of title and fee simple
ownership interest in the Beach Parcel. (M. Waiwood, Tr. 671:6-9; Def. Ex. T at Annex C). The
plaintiffs who own and/or reside on the non-title lots on Coming Drive shall be hereinafter
referred to as the “Non-Title Plaintiffs.”2
Six properties on Coming Drive were originally granted a “right to use” the Access Path
and Beach Property until May 1,1952. (Def. Ex. T). The six properties that were originally
granted only the “right to use” are 282 Coming Drive, 292 Coming Drive, 299 Coming Drive,
308 Coming Drive, 316 Coming Drive, and 324 Coming Drive. Id. Four properties on Coming
1 The Title Plaintiffs are Charles Bernard and David Williams; Helen Brown; Stephen and Naomi Butcher (“the
Butchers”); Elizabeth DuChez and John Turk; Michael and Irene Grill (“the Grills”); Candice Miller; Thomas and
Kathy Murray (“the Murrays”); Larry and Nancy Parella (“the Parellas”); the Ava J. Peterson Revocable Trust dated
March 21, 2001 and Trustee Ava J. Peterson; Robert P. Seay, Sr. and Shirley J. Seay (“the Seays”); Izzet and Teresa
J. Sozeri (“the Sozeris”); and Susan Waychoff and John Wilson (“Waychoff-Wilsons”).
2 The Non-Title Plaintiffs are Branimir and Violet Bosiljevic (“the Bosiljevics”); Brian and Jessica Cantrail (“the
Cantrails”); Adarsh Krishen and Robert Tazuma; the Coming Street Trust and Trustee Amanda Martinsek; the Elaine
J. Minch Trust and Trustee Elaine J. Minch; and Richard Perez and Barbara King.
2
Drive were never granted a l/24th simple fee ownership interest, or a “right to use” interest in
the Beach Parcel. (Def. Ex. T). The four properties that were not granted a 1 /24th interest or
“right to use” are 281 Coming Drive, 295 Coming Drive, 304 Coming Drive, and 336 Coming
Drive. Id.
The Coming Drive properties, regardless of the language in their deeds, all have
Cuyahoga County property tax bills with a legal description describing a 1 /24th ownership
interest in common in a park and a ten-foot access strip. (Pl. Exs. 28,29). Despite the
inconsistencies in the Coming Drive deeds, Coming Drive residents have historically treated the
Access Path and Beach Property as a shared community property for all residents and their
guests to use, enjoy and maintain. (R. Perez, Tr. 525:1-21; B. Bosiljevic, Tr. 108:19-25; A.
Peterson, Tr. 99:19-100:5). This right of access has long been acknowledged by all concerned,
and only recently challenged.
The Parties
Defendants Tom and Lydia Christopherson own 281 Coming Drive, the property to the
east of the Access Path. (T. Christopherson, Tr. 384:11-13). The Christopherson defendants
also own 285 Coming Drive. (T. Christopherson, Tr. 384:20-22). The Christophersons have
resided on 281 Coming Drive from 2007 to the present. (Id. at 17-19).
The Kristin Callow Voos Family Trust owns 282 Coming Drive - the property to the
west of the Access Path - and defendants Drs. Kristin C. Voos and James E. Voos have resided
there from April 2020 to the present. (J. Voos, Tr. 232:12-22).
Title Plaintiffs Charles Bernard and David Williams have owned and resided at 328
Coming Drive from 2018 to the present; (Pl. Ex. 4).
3
Non-Title Plaintiffs Branimir Bosiljevic and Violet Bosiljevic have owned and resided at
316 Coming Drive from 1970 to the present. (Pl. Ex. 16; B. Bosiljevic, Tr. 103:15-104:8).
Title Plaintiff Helen Brown has owned and resided at 317 Coming Drive from 1995 to
the present. (H. Brown, Tr. 157:18-158:6).
Title Plaintiffs Stephen Butcher and Naomi Butcher have owned and resided at 329
Coming Drive from 2018 to the present. (Pl. Ex. 6).
Non-Title Plaintiffs Brian Cantrail and Jessica Cantrail have owned 336 Coming Drive
from November 2015 to the present. (Pl. Ex. 17; B. Cantrall, Tr. 371:11-13). The Cantrails
resided at 336 Coming Drive from November 2015 until the spring of 2018. (B. Cantrail, Tr.
371:11-13).
Plaintiffs Elizabeth DuChez Turk and John Turk formerly resided at 321 Coming Drive.
They sold the property in June 2022. (E. DuChez, Tr. 891:17- 905:7-10). Despite their
departure from Coming Drive, defendants have refused to release them from this litigation. (E.
DuChez, Tr. 909:23-910:5).
Title Plaintiffs Michael Grill and Irene Grill reside at and own 333 Coming Drive.
(Stipulated by parties).
Non-Title Plaintiffs Adarsh Krishen and Robert Tazuma reside at and own 292 Coming
Drive. (Stipulated by parties). When plaintiffs Krishen and Tazuma purchased the property at
292 Coming Drive they expressly acknowledged that they did not have beach access, although
the traditional neighborhood use of the beach path was not disclosed to them prior to closing.
(Stipulated by parties).
4
The Coming Street Trust has owned 324 Coming Drive since 2018. Non-Title Plaintiff
Amanda Martinsek is the trustee of the Trust, and has resided at that address since 2018. (A.
Martinsek, Tr. 332:3-8).
Title Plaintiff Candice Miller resides at and owns 320 Coming Drive and has lived there
since 2019. (C. Miller, Tr. 879:20-22).
The Elaine J. Minch Trust owns 299 Coming Drive. Non-Title Plaintiff Elaine Minch is
the trustee of the Trust, and resides at that address. (Stipulated by parties).
Title Plaintiffs Thomas Murray and Kathy Murray reside at and own 298 Coming Drive.
(Stipulated by parties).
Title Plaintiffs Larry Parella and Nancy Parella reside at and own 335 Coming Drive.
(Stipulated by parties).
Non-Title Plaintiffs Richard Perez and Barbara King reside at and own 295 Coming
Drive. (R. Perez, Tr. 522:25-523:3).
The Ava J. Peterson Revocable Trust dated March 21,2001 owns 325 Coming Drive.
Title Plaintiff Ava J. Peterson is the trustee of the Trust, and resides at 325 Coming Drive. (A.
Peterson, Tr. 49:9-12). She resided at 324 Coming Dr. for nearly twenty years prior to Ms.
Martinsek living there. (A. Peterson, Tr. 89:12-23).
Title Plaintiffs Robert P. Seay, Sr. and Shirley J. Seay reside at and own 332 Coming
Drive. (Stipulated by parties).
Title Plaintiffs Izzet Sozeri and Teresa J. Sozeri reside at and own 312 Coming Drive.
(Stipulated by parties).
Title Plaintiffs John Wilson and Susan Waychoff reside at and own 291 Coming Drive.
(Stipulated by parties).
5
Use and Maintenance of the Beach Property
Residents of Coming Drive have used the Beach Parcel for park purposes since at least
1963, without any difficulty until the summer of 2021. (A. Peterson, Tr. Pg. 53:12-15, 63:19-
64:4). Since at least 1970, residents of Coming Drive have collectively maintained and cared for
the Beach Parcel. (B. Bosiljevic, Tr. 108:19-25; A. Peterson, Tr. 99:19-100:5). Efforts to
maintain the Beach Parcel have included trimming bushes and shrubbery along the Access Path,
clearing debris and trees from the Beach Parcel, building stairs along or near the Access Path for
easier access to the water and building a breakwall on the Beach Property. (A. Peterson, Tr.
116:13-24; B. Bosiljevic, Tr. 108:19-23, 117:19-118:17; S. Casey, Tr. 211:17-22). For years,
realtors told potential Coming Drive property buyers, in good faith and having no reason to think
otherwise, that a Coming Drive property came with shared beach access. (B. Cantrail, Tr. 370:3-
23; A. Martinsek Tr. 336:25-337:6).
Non-Title Plaintiffs’ Use of the Beach Property
Ava Peterson and her son, Beau, resided at 324 Coming Drive from 1995 until 2014. (A.
Peterson, Tr. 57:17-58:5). Ms. Peterson and Beau consistently used the Beach Parcel while
residing at 324 Coming Drive during that time. (A. Peterson, Tr. 58:6-59:17). In 2014, Ms.
Peterson sold the property to Keith Halffinan (A. Martinsek, Tr. 338:7-339:7).
Amanda Martinsek purchased the property at 324 Coming Drive from Halffinan in June
of 2018 and has lived there since. (A. Martinsek, Tr. 338:10-23). Martinsek and her son
consistently used and enjoyed the Beach Parcel while residing there. (A. Martinsek, Tr. 340:3-
341:15). Martinsek believed she had a right in the Beach Parcel after learning about it from
Halffinan, the prior owner. (A. Martinsek, Tr. 338:7-339:7). This belief was bolstered by her
6
understanding of the 1 /24th interest referred to in her property tax statements. (A. Martinsek, Tr.
342:22-344:8; Pls. Ex. 29).
Richard Perez purchased the property at 295 Coming Drive in 1992 and has lived there
ever since. (R. Perez, Tr. 523:6-11). Perez has consistently used the Beach Parcel for the last 31
years. (R. Perez, Tr. 528:1-529:16). Perez has used the Beach Parcel regularly to swim, walk
dogs with his wife, Barbara King, and to watch fireworks and boats on Lake Erie. (R. Perez, Tr.
528:1-529:16). Perez has, in the past, asked non-Coming residents to leave the Beach Parcel,
informing them “it was a private access, and that the path was only for people that lived on the
street.” (R. Perez, Tr. 526:6-20).
Brian and Jessica Cantrall purchased the property at 336 Coming Drive in November
2015, and used the Beach Parcel from 2015 until they moved out and began renting the property
in 2018. (B. Cantrall, Tr. 371:9-21). While the Cantrails resided at 336 Coming, they used the
Beach Parcel to watch the sunset and to swim. (B. Cantrail, Tr. 373:3-11). When the Cantrails
rented out the home, they informed their tenants of their ability to use the Beach Parcel. (B.
Cantrall, Tr. 373:12-14).
Prior to the Cantralls, Georgetta Ray owned the property at 336 Coming Drive from 1992
until she sold to the Cantrails in 2018. (B. Cantrail, Tr. 372:18-373:2). Mr. Cantrail testified
that his tax records showed a l/24th interest in the Beach Parcel. (B. Cantrail, Tr. 374:20-
375:18; Pltfs’ Ex. 29). Mr. Cantrall’s father had also facilitated the sale of 336 Coming Drive to
the prior owner, Georgetta Ray, in 1992. (B. Cantrail, Tr. 372:18-373:2). Georgetta Ray had
consistently used the Beach Parcel for the 26 years she lived at 336 Coming Drive. (H. Brown,
Tr. 173:12-173:17).
7
Branimir and Violet Bosiljevic moved to Coming Drive in 1970; they, and their children,
have consistently used the Beach Parcel for park purposes ever since. Mr. Bosiljevic also
regularly maintained the path, including building stairs for easier access to the water. (B.
Bosiljevic, Tr. 107:24-108:25; 118:5-119:4). Mr. Bosiljevic testified to a portion of a re
appraisal report indicating a 1 /24th interest in the Beach Parcel was associated with the
Bosiljevics’ purchase of their Coming Drive home in 1970. (B. Bosiljevic, Tr. 129:3-131:23).
The Vooses Move to Corning Drive
In the spring of 2020, as they were considering buying a home in the neighborhood, the
Vooses saw people using the Access Path when they visited the property at 282 Coming Drive.
(K. Voos, Tr. 823:6-824:4). Shortly after purchasing 282 Coming Drive, the Vooses observed
more people walking along their property to get to the water. (K. Voos, Tr. 743:9-16). By
October 2020, the Vooses had personally researched the deeds of other Coming Drive residents,
and they became aware that some property owners on Coming Drive had a deeded property right
in the Beach Parcel. (J. Voos, Tr. 255:21-256:19,262:17-24; K. Voos, Tr. 750:13-25).
When the Vooses learned this, the sellers offered to buy back 282 Coming Drive from
them. (J. Voos, 257:19-22). The Vooses declined the offer, and instead collected over $40,000
from Howard Hanna realtors and Signature Title for failing to advise them, before closing on the
property, about the Access Path and their neighbors’ rights to it. (Pl. Exs. 51 & 54)
On June 19, 2020, Dr. James Voos wrote an email to the Bratenahl Village Building
Department stating, among other things, “Upon further inquiry with Cuyahoga County, we were
provided with the attached document stating all granted access to the path and water ceased May
1, 1952.” (Pl. Ex. 61). He included a portion of his own deed, which had an expiring right, in
8
the attachment. (J. Voos, Tr. 279:16-280:15). In his communication with the Building
Department, Dr. Voos failed to mention the deeds - which his wife reviewed and shared with
him - which had an unexpired, unconditional ownership interest. (See Pl. Ex. 61).
Around October of 2020, the Vooses erected a cedar privacy fence on the west side of the
Beach Parcel that encroaches onto the Access Path. (Pl. Ex. 45; J. Voos, Tr. 262:17-24; S.
Casey, Tr. 214:18-20). The Vooses planted bushes in the Access Path to discourage individuals
from using the Beach Parcel. (C. Miller, Tr. 852:7-23; K. Voos, Tr. 791:13-792:2; C. Courtney
Tr. 631:8-23; E. DuChez; Tr. 894:5-895:20). The Vooses’ bushes made it difficult for Plaintiffs
to utilize the Access Path. (H. Brown, Tr. 184:12-186:5; A. Peterson, Tr. 72:3-9; E. DuChez, Tr.
894:5-895:4). Defendants’ own surveyor confirmed that two bushes had clearly been planted to
the east of the Vooses’ property line, where the Access Path lies. (C. Courtney, Tr. 631:8-23; see
also E. DuChez, Tr. 894:11-897:20).
The Signature Title Letter
The Vooses engaged Mark Rodio as their attorney to investigate the Beach Parcel and
recover damages from Howard Hanna. (J. Voos, Tr. 257:14-18). At the Vooses’ request, Rodio
asked Signature Title to draft a letter explaining that Plaintiffs’ rights in the Beach Parcel had
expired in 1952. (Pl. Ex. 47; M. Caja, Tr. 427:5-8). Rodio made several edits to the Signature
Title Letter. (Pl. Exs. 56, 58; M. Caja, Tr. 429:20-25). Rodio directed that the letter be sent to
Bratenahl government officials. (M. Caja, Tr. 437:11-25).
The Signature Title letter, dated September 22, 2022, contained a statement that all of the
Coming Drive property interests in the Beach Parcel had expired in 1952. (Pl. Ex. 47; M. Caja,
429:20-25; 430:23-434:7; 437:11-14). The Vooses placed several copies of the letter in a
9
brochure box at the end of the Access Path. (K. Voos, Tr. 759:17-24; 816:23-817:2). It was the
Vooses’ hope that the letter would dissuade people from using the Beach Parcel. (K. Voos, Tr.
759:25-760:7). The Vooses knew that several Plaintiffs had a deeded property right to the Beach
Parcel when they placed the brochure box with the Signature Title letter at the end of the Access
Path. (K. Voos, Tr. 759:2-24; 750:23-25).
Defendants Discourage Their Neighbors from Using the Access Path
In June 2021, Tom Christopherson (“Christopherson”) hand-wrote and erected a no
trespassing sign adjacent to the Access Path; the sign claimed none of the plaintiffs, despite their
deeds, had a right to access the Beach Parcel. (Pl. Ex. 43; T. Christopherson, Tr. 392:12-
393:13). Christopherson knew that the sign was incorrect when he posted it, and that at least
some of the residents on Coming Drive had a property interest in the Beach Parcel. He testified
that he personally read and reviewed every deed on the street. (T. Christopherson, Tr. 393:21-
394:8; 395:3-13).
The Voos and Christopherson defendants continued to discourage their neighbors from
using the Access Path. (See E. DuChez 896:22-897:25; C. Miller, 852:7-23; K. Voos, 759:25-
760:7, 791:13-792:2; T. Christopherson 393:5-19; C. Courtney 631:8-23). Dr. Kristin Voos also
rejected a proposal, from some of the future plaintiffs, for a locked gate that everyone on the
street could access, because of her concerns about privacy. (C. Miller 856:17-858-19; A.
Martinsek, 349:13-351-14).
Defendants Block the Access Path
In June 2021, Christopherson erected a fence across the Access Path that completely
10
barred plaintiffs from accessing the Beach Parcel. (T. Christopherson, Tr. 397:10-399:12; J.
Voos, Tr. 263:14-16). The fence does not open or close. (T. Christopherson, Tr. 401:16-18).
The Village of Bratenahl approved Christopherson’s permit for the fence. (Pl. Ex. 40; T.
Christopherson, Tr. 401:19-21). Several plaintiffs appealed the Village’s decision to approve the
fence permit; that appeal is still pending. (C. Miller, Tr. 879:7-13).
Plaintiffs have been unable to lawfully access the Beach Parcel since the fence was
erected. (A. Peterson, Tr. 753-5; S. Casey, Tr. 213:7-18). On July 17, 2021, Candice Miller
emailed a letter on behalf of all plaintiffs to defendants’ attorney, John Monroe, in an effort to
mediate and avoid litigation. (Def. Ex. K; C. Miller, Tr. 864:2-8).
Plaintiffs Initiate This Litigation
On August 12,2021, plaintiffs filed this lawsuit. Shortly after initiating the lawsuit,
plaintiff Candice Miller, at the request of her neighbors, created a website with the URL of
“ComingTogether.com” to keep neighbors and other interested individuals apprised of the
lawsuit and to demonstrate unity. (Def. Ex. N; C. Miller, Tr. 873:12-23). The website contains a
copy of plaintiffs’ initial Complaint, pictures of the beach and statements about neighbors’ and
former neighbors’ memories of using the Beach Parcel. (Def. Ex. N).
Some of the plaintiffs created and distributed yard signs in an effort to raise awareness,
demand action from their local government and demonstrate their unity. (C. Miller, Tr. 870:12-
23). Five different signs were created: “Release our Beach,” “Good Neighbors Would Not Block
Our Beach,” “Taxes without Access,” “We Fight for Deeded Rights” and “Release Their Beach
- We Support our Neighbors on Coming Dr. - comingtogether.com.” (Def. Ex. EE).
11
Current Condition of the Beach Parcel
The Beach Parcel is now valued at $250,000, based on the legal description in the Title
Plaintiffs’ deeds. (Pl. Ex. 46). Defendants did not present any competing valuation for the
Beach Parcel. (See generally. Def. Case in Chief, Tr. 566-810).
The fence Christopherson installed still completely blocks the Access Path. (T.
Christopherson, Tr. 403:12-15). The fence has also prevented any person from maintaining and
caring for the Beach Parcel. As a result, the Beach Parcel has become overgrown and
treacherous for those trying to walk through it. (H. Brown, Tr. 178:7-13; S. Casey, Tr. 208:13-
20).
Defendants’ Counterclaims
Defendants filed counterclaims against plaintiffs for trespass, defamation, false-light
invasion of privacy, intentional infliction of emotional distress, unjust enrichment, waste and
declaratory judgment.
Other than once asking plaintiff Branimir Bosiljevic to leave his property, Christopherson
provided no specific evidence of trespass on 281 Coming Dr. In that instance, Bosiljevic
complied with his request and never returned. (T. Christopherson, Tr. 703:12-23; B. Bosiljevic,
Tr. 112:25-114:22). Christopherson testified that he is not looking to recover damages from
plaintiffs. (T. Christopherson, Tr. 720:19-721:5; 734:7-15).
The Vooses do not claim any right to the Access Path. (J. Voos, 140:18-20). As
evidence of trespass, the Voos defendants provided only blurry photographs; from those, they
purported to identify Bob Tazuma, Candice Miller, Naomi Butcher, Naomi’s children, Elizabeth
DuChez, John Turk and the Waychoff-Wilsons/ (K. Voos, Tr. 778:13-791:3). The photographs
12
do not clearly show the boundaries of either 282 Coming Drive or the Access Path. (Def. Ex. B).
Dr. Kristin Voos admitted that the Bratenahl Police Department never cited anyone for
trespassing, despite her numerous calls for police intervention. (K. Voos, Tr. 838:3-13; Pl. Ex.
63). The plaintiffs attempted to obtain a survey in order to delineate property lines, but were
unable to do so because of the fence. (C. Miller, Tr. 889:17-890:1).
Plaintiff Miller organized neighborhood meetings to address defendants’ concerns,
created signs and a website so neighbors felt heard, and wrote a letter asking neighbors not to
engage in self-help. (C. Miller, 873:13-19; 853:7-25; 887:3-16). The Christophersons did not
identify any allegedly defamatory statements by any plaintiffs. (See generally T.
Christopherson, Tr. 384-421, 696-738). Dr. Kristin Voos identified numerous statements that
she considered to be defamatory. (K. Voos, Tr. 831:9-835:22). Dr. James Voos testified that he
and his wife are “public figures” by virtue of his employment with the Cleveland Browns; he is a
team doctor. (J. Voos Tr. 312:17-23). Both Drs. Voos and Christopherson testified that they
have not sought any medical or mental health treatment for their alleged emotional distress. (See
J. Voos, Tr. 327:4-18; K. Voos, Tr. 804:18-805:6; T. Christopherson, Tr. 720:19-23).
Christopherson, specifically, testified that his emotional stress was “nothing I can’t deal with,”
and that he generally is “pretty callous.” (T. Christopherson, Tr. 720:19-721:5). Although the
Vooses offered testimony that their children and another unidentified minor suffered emotional
distress as a result of the controversy, those individuals are not parties to this lawsuit.
Defendants also seek a declaration from the court that: (a) the Beach Property is
completely submerged and thus held in trust by the Ohio Department of Natural Resources, (b)
the Non-Title Plaintiffs do not have the right to use the Voos or Christopherson property, and (c)
the Non-Title Plaintiffs never had an interest in the Beach Parcel.
13
The Court Amends the Pleadings to Conform to the Evidence
At the end of trial, pursuant to Civ.R. 15(B), plaintiffs orally moved the court to amend
the pleadings to conform to the evidence and to add Non-Title Plaintiffs’ claims for adverse
possession and prescriptive easement. The court granted plaintiffs’ motion. (Tr. 941:7-14).
After trial, the court considered and denied a defense motion to reconsider its order. Both of
defendants’ highly capable attorneys inquired of numerous witnesses about adverse possession
and prescriptive easements throughout the trial. (See generally Tr. 28:3-15; 44:21-45:1; 92:15;
360:15-18). For example, defendants’ counsel asked several plaintiffs whether or not they ever
spent the night on the Beach Parcel. (Tr. 92:15; 148:2-4; 360:15-18; 377:18-20). Defendants’
counsel also addressed the issues of adverse possession and prescriptive easement in their
opening statements. (Def. Opening Statement, Tr. 28:3-15; 44:21-45:1). As the court noted in
its May 5, 2023 decision, plaintiffs’ motion was reasonable and appropriate, defendants were not
substantially prejudiced thereby and they could not, under the circumstances, have been
surprised by it.
IL CONCLUSIONS OF LAW
On January 27, 2023, the court issued an Order granting summary judgment in favor of
the Title Plaintiffs, finding that they own the Access Path and the unsubmerged portions of the
Beach Property. The court ruled that the Christopherson fence and the Voos privacy fence
encroached on that property. The court also granted summary judgment in favor of plaintiffs on
defendants’ counterclaim for slander of title.
14
Following the court’s ruling on the parties’ cross-motions for summary judgment, the
following issues remained pending and were the subject of the bench trial: (a) Title-Plaintiffs’
waste claim against the Christophersons; (b) Title-Plaintiffs’ slander of title claim against the
Christophersons and Vooses; (c) Title-Plaintiffs’ tortious interference with property rights claim
against the Vooses; (d) the Non-Title Plaintiffs’ rights to the Beach Parcel and (e) defendants’
counterclaims for trespass, defamation, false-light invasion of privacy, intentional infliction of
emotional distress, unjust enrichment, waste and declaratory judgment.
For the reasons set forth below, the court hereby finds the Title-Plaintiffs failed to prove
their claims for waste, slander of title and tortious interference with property rights; the Non
Title Plaintiffs, except for plaintiffs Krishen, Tazuma and Minch, have acquired an ownership
interest in the Beach Parcel through adverse possession; defendants failed to prove their
counterclaims for trespass, defamation, false-light invasion of privacy, intentional infliction of
unjust enrichment and waste; and defendants proved their claim for declaratory judgment in part.
Title Plaintiffs’ Claim for Waste
It is clear that Title Plaintiffs have a fee simple ownership in the unsubmerged portions of
the Beach Property. (Jan. 27, 2023 Docket Entry). The Christopherson defendants also have a
fee simple interest in the Beach Parcel in common with the Title Plaintiffs. (Pl. Ex. 1; January
27, 2023 Judgment Entry; Def. Ex. T at Annex C). No claim of action for waste can stand
against the Vooses, since they have no interest in the Beach Parcel. R.C. 5307.21. The Non
Title Plaintiffs do not have standing to claim an action for waste, since they were not coparceners
in the Beach Parcel. R.C. 5307.21.
15
Ohio law provides, “[o]ne tenant in common, or coparcener, may recover from another
tenant in common, or coparcener his share of rents and profits received by such tenant in
common or coparcener from the estate, according to the justice and equity of the case.” R.C.
5307.21. “One coparcener may maintain an action of waste against another coparcener.” Id.
A joint owner of property who takes exclusive possession thereof “is liable to account to
his cotenants for their share of the reasonable rental value of such occupancy, possession and
use.” Cohen v. Cohen, 157 Ohio St. 503, 503, 106 N.E.2d 77 (1952); see also Modic v. Modic,
Sth Dist. Cuyahoga No. 63657, 91 Ohio App.3d 775, 779, 633 N.E.2d 1151 (Nov. 8,1993).
There were, however, no rents or profits generated from the Access Strip or the Beach Property
(Tr. 495:14). Therefore, there is nothing to be equitably shared pursuant to R.C. 5307.21.
The court previously ruled that the Christopherson fence and the Voos privacy fence
encroached on the Title Plaintiffs’ property. Accordingly, the court hereby orders that the
Christopherson defendants remove, at their own expense, the fence within 30 days of the filing
date of this Opinion and Order, regardless of the outcome of the pending appeal of the Village of
Bratenahl’s permit.
The court is aware that the Voos defendants’ privacy fence was erected as a result of
litigation with their realtors. Accordingly, the court hereby orders that the Voos privacy fence be
removed and, if they so wish, re-erected within their own property lines, as soon as practicable,
but no later than 60 days from the filing date of this Opinion and Order.
Title Plaintiffs’ Claim for Slander of Title
A party may prove slander of title by showing that: “(1) there was a publication of a
slanderous statement disparaging claimant’s title; (2) the statement was false; (3) the statement
16
was made with malice or made with reckless disregard of its falsity; and (4) the statement caused
actual or special damages.” Phelps v. Cmty. Garden Ass ’n, Inc., 2021-Ohio-3675, at 43 (Sth
Dist). A party may “recover as special damages in a slander of title action attorney fees
necessary to counteract a disparaging publication.” Cuspide Properties, Ltd. v. Earl Mechanical
Servs., 2015-0hio-5019,1J 40, 53 N.E.3d 818 (6th Dist.).
Slander of title cases typically involve documents filed against a piece of property by
parties who claim an interest in the property. Green v. Lemarr, 139 Ohio App.3d 414, 744
N.E.2d 212,431 (2nd Dist. 2000). Typical parties to such cases found in Ohio caselaw include
mortgage holders, parties who have judgment liens and parties who may have signed contracts to
purchase or lease property. Id., e.g., Childers v. Commerce Mortgage Investments, 9th Dist.
Summit No. 13795, 63 Ohio App.3d 389, 579 N.E.2d 219 (June 28, 1989) (finding a mortgage
company liable for slander of title after it purchased, recorded and refused to cancel a mortgage
despite knowing the lender never disbursed the funds to the plaintiffs, which prevented them
from selling the property); Wendover Rd. Property Owners Assn. v. Kornicks, Sth Dist.
Cuyahoga No. 49570, 28 Ohio App.3d 101, 502 N.E.2d 226 (Oct. 15, 1985) (affirming the
dismissal of a landowner’s third-party claim for slander of title as untimely against a property
owners' association that filed affidavits with the County Recorder under R.C. 5301.252, causing
$15,000 of the purchase price of the sale one of the claimant’s property to be held in escrow). A
slander of title claim then arises because the filed document prevents or hinders the titled owner
from completing a proposed sale. Green at 431.
Here, the court finds the documents, claiming that the Title Plaintiffs’ rights to the Access
Path and Beach Property had expired or were non-existent, were not slanderous. Dr. James
Voos’s email to the Village of Bratenahl, Christopherson’s yard sign and the Signature Title
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letter are not overt acts analogous to the recording of documents typically seen in Ohio slander of
title cases; thus, defendants did not publish a slanderous statement requisite to maintain a slander
of title claim. Furthermore, the documents in this case did not prevent or hinder any Title-
Plaintiff from completing a proposed sale of his or her property.
Accordingly, the court finds that Title Plaintiffs have failed to prove their slander of title
claim.
Title Plaintiffs’ Claim for Tortious Interference with Property Rights
Title Plaintiffs allege the Voos defendants intentionally planted shrubbery and placed
debris in an effort to block and interfere with use of the Access Path. They further argue that Dr.
Kristin Voos called the police on neighbors utilizing the Access Path and Beach Property.
Defendants argue that Ohio law does not recognize claims for tortious interference with property
rights. This court agrees. Plaintiffs did not provide, and the court could not find, controlling
Ohio caselaw recognizing a claim for tortious interference with property rights.
Accordingly, Title Plaintiffs’ claim for tortious interference with property rights is hereby
denied.
Non-Title Plaintiffs’ Claim for Adverse Possession and Prescriptive Easement
“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, 692 N.E.2d 1009 (1998), syllabus. The
Supreme Court of Ohio has held that "it is the visible and adverse possession with an intent to
possess that constitutes [the occupancy's] adverse character," Id. at 581 citing Humphries v.
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Huffman, 33 Ohio St. 395,402 (1878). "The occupancy must be such as to give notice to the real
owner of the extent of the adverse claim.” Id. citing Humphries at 404. To make possession
adverse, "there must have been an intention on the part of the person in possession to claim title,
so manifested by his declarations or his acts, that a failure of the owner to prosecute within the
time limited, raises a presumption of an extinguishment or a surrender of his claim." Id. citing
Lane v. Kennedy, 13 Ohio St. 42, 47 (1861).
To acquire a prescriptive easement, a party must prove the elements of adverse
possession, minus the element of exclusivity. Vaughn v. Johnston, 12th Dist. Brown No.
CA2004-06-009, 2005-Ohio-942, 11. The general rule is that "exclusive possession can be
shown by acts that would ordinarily be exercised by an owner in appropriating land to the
owner's own use and to the exclusion of others.” Koprivec v. Rails-To-Trails, 153 Ohio St.3d
137, 146 (2018) quoting Powell on Real Property, Section 91.06. To satisfy the exclusivity
requirement, “the claimant’s possession need not be absolutely exclusive; it need only be a type
of possession that would characterize an owner’s use.” Id. at 147.
It is well-established in Ohio law that, in seeking to establish the necessary period for a
prescriptive easement or adverse possession, a party may add or "tack" his or her own term of
adverse use to any period of adverse use by a prior succeeding owner in privity with the current
owner. Zipfv. Dalgarn, 114 Ohio St. 291, 4 Ohio Law Abs. 182, 151 N.E. 174 (1926). In order
to tack, a party must establish that "(a) the party and her predecessor are in privity; (b) the
property was sequentially and continuously used; (c) the property was used in the same or
similar manner; and (d) the use was open, notorious, and adverse to the title holder's interest.”
Williams v. Phillips, Sth Dist. Licking No. 98CA00072,1999 Ohio App. LEXIS 2693,1999 WL
19
436813 (June 3, 1999), quoting McNeely v. Langan, 22 Ohio St. 32 (1871). Privity is defined as
"the mutual or successive relationship to the same rights of property.” Id.
Defendants argue that the Non-title Plaintiffs have failed to establish, by clear and
convincing evidence, that their use of the Access Path and the Beach Property was adverse or
exclusive. Defendants point to the testimony of plaintiff Branimir Bosiljevic, who testified that
he had an agreement with the prior owner of the Christopherson lots, Dale Gnadt, to utilize the
Access Path to enter upon the Christopherson lot to go fishing. (B. Bosiljevic, Tr. 112:1-10).
Mr. Bosiljevic further testified that the property caretakers of the predecessors in interest of the
Voos property, the Eaton Corporation, graded a path from the end of Coming Drive to the head
of the Access Path to the benefit of all the Coming Drive residents, and never objected to the
residents’ use of the path. (B. Bosiljevic, Tr. 137:3-24).
The court finds defendants’ arguments unpersuasive as to all Non-Title Plaintiffs except
Adarsh Krishen, Robert Tazuma and Elaine Minch, whose rights the court will address
separately below. The Vooses are not, and the Eaton Corporation’s caretakers were not, owners
of the Beach Parcel. While the remaining Non-Title Plaintiffs’ use of the Access Path and Beach
Property was not exclusive or adverse to Title Plaintiffs or the Christophersons’ predecessor in
interest, as discussed above, the Standard Land Company conveyed only 15/24ths interests in the
Beach Parcel. Defendants’ expert witness, Michael Waiwood, testified that the remaining
9/24ths interests would be owned by the Standard Land Company, its shareholders or the
shareholders’ heirs. (M. Waiwood, Tr. 678:18-25). He further testified that it would now be
difficult, but perhaps not impossible, to ascertain the actual owner(s) of the remaining 9/24ths
interests. (M. Waiwood, Tr. 679:13-680:2).
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Here, the court finds that the remaining Non-Title Plaintiffs’ use of the Access Path and
Beach Property was exclusive and adverse to the other 9/24ths interests holder(s). These Non
Title Plaintiffs performed acts that would be ordinarily exercised by an owner in appropriating
land to the owner's own use and to the exclusion of others. Their actions were visible and
exercised with the intention to possess, if only for limited recreational purposes. The remaining
Non-Title Plaintiffs maintained and improved the Access Path. They also excluded non-Coming
Drive residents from using the property. Their actions were, understandably enough, conducted
without the permission, and inconsistent with the rights, of the other, unknown 9/24ths interest
holder(s).
The court further finds that the Non-Title Plaintiffs’ use, excluding plaintiffs Krishen,
Tazuma and Minch, has been open, notorious and continuous. None of the remaining Non-Title
Plaintiffs concealed their use of the path and lakefront. In fact, the residents of Coming Drive’s
use and enjoyment of the Access Path and Beach Property was well-known throughout the
Bratenahl community. The remaining Non-Title Plaintiffs did not ask for, nor were they granted,
permission to use the Access Path or Beach Property, or perform maintenance or make
improvements, by the remaining 9/24ths interest holder(s). These Non-Title Plaintiffs, and their
predecessors in interest with whom they are in privity, have openly, notoriously, continuously,
adversely and exclusively used the Beach Parcel and its historically-used footpaths for
considerably more than the requisite 21-year period under Ohio law.
Regarding plaintiffs Krishen, Tazuma and Minch, the court finds that they have not
proven their claims for adverse possession or prescriptive easement by clear and convincing
evidence. As detailed above, the parties stipulated that plaintiffs Krishen and Tazuma expressly
acknowledged they did not have beach access when they purchased the property at 292 Coming
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Drive. Although the traditional use of the Access Path and Beach property was not disclosed to
them prior to closing, neither testified at trial regarding their use, if any, of the Access Path or
Beach Property. While the Voos defendants claim that plaintiff Tazuma trespassed on their
property, presumably through his use of the Beach Parcel, as the court discusses in further detail
below, Tazuma is not identifiable with any certainty in defendants’ photographic evidence.
Thus, the court finds the Voos defendants’ allegation of trespass does not constitute clear and
convincing evidence of plaintiff Tazuma’s adverse use of the Beach Parcel. No evidence at all
of plaintiff Minch’s use of the Beach Parcel was presented at trial.
Accordingly, the court finds that the Non-Title Plaintiffs, excepting plaintiffs Krishen,
Tazuma and Minch, have shown by clear and convincing evidence that they have acquired an
ownership interest in the Beach Parcel through adverse possession. The court finds that Non
Title Plaintiffs Branimir and Violet Bosiljevic, Brian and Jessica Cantrall, the Coming Street
Trust and Trustee Amanda Martinsek, and Richard Perez and Barbara King own an undivided
1 /24th interest in the Beach Parcel, as shown by plaintiffs’ Expert Survey Report (see Pl. Ex. 45,
Expert Survey of Scott Casey). The court further finds that these Non-Title Plaintiffs own the
historically-used footpaths, the areas where the stairs are located and the lakefront, as identified
in defendants’ Expert Survey Report. (See Def. Ex. R).
Nothing in this Opinion and Order grants Non-Title Plaintiffs or Title Plaintiffs an
ownership interest, right to use or right to enter upon any of the defendants’ other property. To
be clear, the ownership interest hereby determined and granted by the court extends only to the
Access Path, the historically-used footpaths and the Beach Property to the extent it reemerges
from the waters of Lake Erie in the future. While no one representing the Standard Land
Company, its shareholders or its shareholders’ heirs has as yet come forward to assert their rights
22
in the Beach Parcel, this Opinion and Order does not address any remaining rights those
individual(s) may have.
As the court has found that the aforementioned Non-Title Plaintiffs have acquired an
ownership interest in the Beach Parcel, the court finds their claim for prescriptive easement
moot.
Defendants’ Counterclaim for Trespass
To prove liability for civil trespass, a claimant must show the following elements: “(1)
an unauthorized intentional act and (2) entry upon land in the possession of another.” Woods v.
Sharkin, 2022-Ohio-1949,194, 192 N.E.2d 1174 (Sth Dist.).
The court finds that plaintiff Branimir Bosiljevic did not commit an “unauthorized
intentional act” of trespass when he entered the Christophersons’ property to fish. Bosiljevic had
a reasonable belief that his agreement with the prior owner of the Christopherson lot to enter
onto the property to fish was still in place. Moreover, once Christopherson asked Bosiljevic to
leave the property, he properly complied and never entered the property to fish again.
Likewise, the court finds that plaintiffs Charles Bernard, David Williams, Violet
Bosiljevic, Helen Brown, Stephen Butcher, Jessica Cantrall, Michael Grill, Irene Grill, Adarsh
Krishen, Amanda Martinsek, Elaine Minch, Thomas Murray, Larry Parella, Nancy Parella,
Barbara King, Ava Peterson, Robert Seay, Shirley Seay, Izzet Sozeri and Teresa Sozeri did not
commit any “unauthorized intentional act” of entry upon either the Voos or Christopherson
properties. While the Voos defendants offered security camera and cellphone photographs of
individuals allegedly on their property, the court does not find, by a preponderance of evidence,
that those individuals can be identified with any certainty. Additionally, in most if not all of the
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photographs, the Voos property line is not readily identifiable, and the photographs do not prove
an intentional unauthorized entry. If anything is clear in this case, it is that prior to this litigation,
all parties could not be certain of their respective rights to the Beach Parcel and its boundaries.
Accordingly, the court finds defendants have failed to show by a preponderance of the
evidence that any specific plaintiff intentionally trespassed onto defendants’ properties.
Defendants’ Counterclaim for Defamation
To prove defamation, a party must provide clear and convincing evidence of “a false
statement, [...] the false statement was defamatory [...] the false, defamatory statement was
published, the plaintiff was injured[,] and the defendant acted with the required degree of fault.”
Sygula v. Regency Hosp, of Cleveland East, 2016-Ohio-2843, 16, 64 N.E.3d 458 (Sth Dist.). A
public figure may not recover damages for defamation unless the evidence shows that the
defamatory statement was made with actual malice. Lansky v. Rizzo, 2007-0hio-2500, 19 (Sth
Dist. Cuyahoga No. 88356).
Allegations in pleadings that bear at least some relation to the judicial proceeding are
protected by an absolute privilege against liability for defamation under Ohio law. Horenstein,
Nicholson & Blumenthal, L.P.A. v. Hilgeman, 2021-Ohio-3049, 111, 178 N.E.2d 71 (2d Dist.)
quoting Surace v. Wuliger, 25 Ohio St.3d 229, 495 N.E.2d 939 (1986) (“[A] claim alleging that a
defamatory statement was made in a written pleading does not state a cause of action where the
allegedly defamatory statement bears some reasonable relation to the judicial proceeding in
which it appears.”). Plaintiffs’ allegations in their operative complaint, and earlier iterations
thereof, were reasonably related to their claims about defendants’ interference with their property
rights. Therefore, they are absolutely privileged and cannot form a basis for a defamation claim.
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The court hereby finds that the yard signs which are, in part, the subject of defendants’
counterclaim for defamation are not defamatory. The signs do not identify any of the defendants
by name, nor do they contain any false statements. Likewise, the court finds that none of the
statements on the ComingTogether.com website (see Def. Ex. N) are defamatory because they,
too, are not false statements. Instead, the yard signs and information contained on the website
are either true statements, statements of opinion or statements of plaintiffs’ reasonable and good
faith beliefs about their property rights.
Dr. James Voos testified at trial that he and his wife are public figures by virtue of his
employment with the Cleveland Browns. The court need not find that this is so, because it is far
from convinced that any of the allegedly defamatory statements were made with actual malice
with respect to either of the Vooses. Instead, the court finds that the intention of the signs and
website was to show community t
Preview
150390694 150390694 IN THE COURT OF COMMON PLEAS f CUYAHOGA COUNTY, OHIO c < k CHARLES BERNARD, ET AL Case No: CV-21-951490 - O. Plaintiff Judge: WILLIAM F. B. VODREY THOMAS CHRISTOPHERSON, ET AL Defendant JOURNAL ENTRY 83 DISP.COURT TRIAL - FINAL DEFENDANTS' MOTION TO STAY PENDING FINAL APPEALABLE ORDER, FILED 05/08/2023, IS HEREBY DENIED AS MOOT AS THE COURT IS NOW ISSUING A FINAL APPEALABLE ORDER THAT ADDRESSES THE ISSUES RAISED IN DEFENDANTS' MOTION. OPINION AND ORDER OSJ. COURT COST ASSESSED AS EACH THEIR OWN. PURSUANT TO CIV.R. 58(B), THE CLERK OF COURTS IS DIRECTED TO SERVE THIS JUDGMENT IN A MANNER PRESCRIBED BY CIV.R. 5(B). THE CLERK MUST INDICATE ON THE DOCKET THE NAMES AND ADDRESSES OF ALL PARTIES, THE METHOD OF SERVICE, AND THE COSTS ASSOCIATED .WITM THIS SERVICE. -83 06/23/2023 Page 1 of 1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CHARLES BERNARD, et al.. ) CASE NO. CV-21-951490 ) Plaintiffs, ) JUDGE WILLIAM F.B. VODREY ) v. ) OPINION AND ORDER ) THOMAS CHRISTOPHERSON, et al., ) ) Defendants. ) I. FINDINGS OF FACT This is a case about a dispute between neighbors as to land title, beach access and alleged trespass. Plaintiffs and defendants all own, or did own at the commencement of this suit, property on Coming Drive, a residential street in the Village of Bratenahl, Ohio. Coming Drive runs north-to-south, ending close Lake Erie’s shoreline. There are currently twenty-five property lots on Coming Drive. (Def. Exs. DD, T). The Property At the north end of Coming Drive is a ten-foot-wide strip of land that runs between 281 Coming Drive and 282 Coming Drive (hereinafter “Access Path”) and ends at a submerged 80- by-40-foot parcel of land at the Lake Erie waterline (“Beach Property”) to be used for park purposes (collectively the “Beach Parcel”). (Pl. Ex. 45, Expert Survey of Scott Casey). The Beach Property is now completely submerged under the waters of Lake Erie, and is therefore currently held in trust for the people of the State of Ohio and administered by the Ohio Department of Natural Resources, by operation of state law. R.C. 1506.10 (Tr. 670:7; 672: 8-9) While currently fully submerged, all or part of the Beach Property may one day reemerge from the lake. (D. Kumler, Tr. 477:1-9; C. Courtney Tr. 628:6-16; M. Waiwood Tr. 676:4-18). The Standard Land Company initially owned and subdivided the land around Coming Drive in the early 1900s. (Def. Ex. T). The Standard Land Company never filed the Subdivision Plat for the Coming Drive Subdivision. (Tr. 655:3). The Company may now be, and very likely is, defunct. (M. Waiwood, Tr. 679:7-12). Today, fifteen lots on Coming Drive have current deeds that describe an undivided l/24th fee simple ownership interest in common to the Beach Parcel. (Def. Ex. T). The fifteen title lots are 285 Coming Drive, 291 Coming Drive, 298 Coming Drive, 307 Coming Drive, 312 Coming Drive, 313 Coming Drive, 317 Coming Drive, 320 Coming Drive, 321 Coming Drive, 325 Coming Drive, 328 Coming Drive, 329 Coming Drive, 332 Coming Drive, 333 Coming Drive and 335 Coming Drive. (Def. Ex. T). The plaintiffs who own and/or reside on the title lots shall be hereinafter referred to as the “Title Plaintiffs.”1 Defendants’ own expert, Michael Waiwood, acknowledged that the Title Plaintiffs have an uninterrupted chain of title and fee simple ownership interest in the Beach Parcel. (M. Waiwood, Tr. 671:6-9; Def. Ex. T at Annex C). The plaintiffs who own and/or reside on the non-title lots on Coming Drive shall be hereinafter referred to as the “Non-Title Plaintiffs.”2 Six properties on Coming Drive were originally granted a “right to use” the Access Path and Beach Property until May 1,1952. (Def. Ex. T). The six properties that were originally granted only the “right to use” are 282 Coming Drive, 292 Coming Drive, 299 Coming Drive, 308 Coming Drive, 316 Coming Drive, and 324 Coming Drive. Id. Four properties on Coming 1 The Title Plaintiffs are Charles Bernard and David Williams; Helen Brown; Stephen and Naomi Butcher (“the Butchers”); Elizabeth DuChez and John Turk; Michael and Irene Grill (“the Grills”); Candice Miller; Thomas and Kathy Murray (“the Murrays”); Larry and Nancy Parella (“the Parellas”); the Ava J. Peterson Revocable Trust dated March 21, 2001 and Trustee Ava J. Peterson; Robert P. Seay, Sr. and Shirley J. Seay (“the Seays”); Izzet and Teresa J. Sozeri (“the Sozeris”); and Susan Waychoff and John Wilson (“Waychoff-Wilsons”). 2 The Non-Title Plaintiffs are Branimir and Violet Bosiljevic (“the Bosiljevics”); Brian and Jessica Cantrail (“the Cantrails”); Adarsh Krishen and Robert Tazuma; the Coming Street Trust and Trustee Amanda Martinsek; the Elaine J. Minch Trust and Trustee Elaine J. Minch; and Richard Perez and Barbara King. 2 Drive were never granted a l/24th simple fee ownership interest, or a “right to use” interest in the Beach Parcel. (Def. Ex. T). The four properties that were not granted a 1 /24th interest or “right to use” are 281 Coming Drive, 295 Coming Drive, 304 Coming Drive, and 336 Coming Drive. Id. The Coming Drive properties, regardless of the language in their deeds, all have Cuyahoga County property tax bills with a legal description describing a 1 /24th ownership interest in common in a park and a ten-foot access strip. (Pl. Exs. 28,29). Despite the inconsistencies in the Coming Drive deeds, Coming Drive residents have historically treated the Access Path and Beach Property as a shared community property for all residents and their guests to use, enjoy and maintain. (R. Perez, Tr. 525:1-21; B. Bosiljevic, Tr. 108:19-25; A. Peterson, Tr. 99:19-100:5). This right of access has long been acknowledged by all concerned, and only recently challenged. The Parties Defendants Tom and Lydia Christopherson own 281 Coming Drive, the property to the east of the Access Path. (T. Christopherson, Tr. 384:11-13). The Christopherson defendants also own 285 Coming Drive. (T. Christopherson, Tr. 384:20-22). The Christophersons have resided on 281 Coming Drive from 2007 to the present. (Id. at 17-19). The Kristin Callow Voos Family Trust owns 282 Coming Drive - the property to the west of the Access Path - and defendants Drs. Kristin C. Voos and James E. Voos have resided there from April 2020 to the present. (J. Voos, Tr. 232:12-22). Title Plaintiffs Charles Bernard and David Williams have owned and resided at 328 Coming Drive from 2018 to the present; (Pl. Ex. 4). 3 Non-Title Plaintiffs Branimir Bosiljevic and Violet Bosiljevic have owned and resided at 316 Coming Drive from 1970 to the present. (Pl. Ex. 16; B. Bosiljevic, Tr. 103:15-104:8). Title Plaintiff Helen Brown has owned and resided at 317 Coming Drive from 1995 to the present. (H. Brown, Tr. 157:18-158:6). Title Plaintiffs Stephen Butcher and Naomi Butcher have owned and resided at 329 Coming Drive from 2018 to the present. (Pl. Ex. 6). Non-Title Plaintiffs Brian Cantrail and Jessica Cantrail have owned 336 Coming Drive from November 2015 to the present. (Pl. Ex. 17; B. Cantrall, Tr. 371:11-13). The Cantrails resided at 336 Coming Drive from November 2015 until the spring of 2018. (B. Cantrail, Tr. 371:11-13). Plaintiffs Elizabeth DuChez Turk and John Turk formerly resided at 321 Coming Drive. They sold the property in June 2022. (E. DuChez, Tr. 891:17- 905:7-10). Despite their departure from Coming Drive, defendants have refused to release them from this litigation. (E. DuChez, Tr. 909:23-910:5). Title Plaintiffs Michael Grill and Irene Grill reside at and own 333 Coming Drive. (Stipulated by parties). Non-Title Plaintiffs Adarsh Krishen and Robert Tazuma reside at and own 292 Coming Drive. (Stipulated by parties). When plaintiffs Krishen and Tazuma purchased the property at 292 Coming Drive they expressly acknowledged that they did not have beach access, although the traditional neighborhood use of the beach path was not disclosed to them prior to closing. (Stipulated by parties). 4 The Coming Street Trust has owned 324 Coming Drive since 2018. Non-Title Plaintiff Amanda Martinsek is the trustee of the Trust, and has resided at that address since 2018. (A. Martinsek, Tr. 332:3-8). Title Plaintiff Candice Miller resides at and owns 320 Coming Drive and has lived there since 2019. (C. Miller, Tr. 879:20-22). The Elaine J. Minch Trust owns 299 Coming Drive. Non-Title Plaintiff Elaine Minch is the trustee of the Trust, and resides at that address. (Stipulated by parties). Title Plaintiffs Thomas Murray and Kathy Murray reside at and own 298 Coming Drive. (Stipulated by parties). Title Plaintiffs Larry Parella and Nancy Parella reside at and own 335 Coming Drive. (Stipulated by parties). Non-Title Plaintiffs Richard Perez and Barbara King reside at and own 295 Coming Drive. (R. Perez, Tr. 522:25-523:3). The Ava J. Peterson Revocable Trust dated March 21,2001 owns 325 Coming Drive. Title Plaintiff Ava J. Peterson is the trustee of the Trust, and resides at 325 Coming Drive. (A. Peterson, Tr. 49:9-12). She resided at 324 Coming Dr. for nearly twenty years prior to Ms. Martinsek living there. (A. Peterson, Tr. 89:12-23). Title Plaintiffs Robert P. Seay, Sr. and Shirley J. Seay reside at and own 332 Coming Drive. (Stipulated by parties). Title Plaintiffs Izzet Sozeri and Teresa J. Sozeri reside at and own 312 Coming Drive. (Stipulated by parties). Title Plaintiffs John Wilson and Susan Waychoff reside at and own 291 Coming Drive. (Stipulated by parties). 5 Use and Maintenance of the Beach Property Residents of Coming Drive have used the Beach Parcel for park purposes since at least 1963, without any difficulty until the summer of 2021. (A. Peterson, Tr. Pg. 53:12-15, 63:19- 64:4). Since at least 1970, residents of Coming Drive have collectively maintained and cared for the Beach Parcel. (B. Bosiljevic, Tr. 108:19-25; A. Peterson, Tr. 99:19-100:5). Efforts to maintain the Beach Parcel have included trimming bushes and shrubbery along the Access Path, clearing debris and trees from the Beach Parcel, building stairs along or near the Access Path for easier access to the water and building a breakwall on the Beach Property. (A. Peterson, Tr. 116:13-24; B. Bosiljevic, Tr. 108:19-23, 117:19-118:17; S. Casey, Tr. 211:17-22). For years, realtors told potential Coming Drive property buyers, in good faith and having no reason to think otherwise, that a Coming Drive property came with shared beach access. (B. Cantrail, Tr. 370:3- 23; A. Martinsek Tr. 336:25-337:6). Non-Title Plaintiffs’ Use of the Beach Property Ava Peterson and her son, Beau, resided at 324 Coming Drive from 1995 until 2014. (A. Peterson, Tr. 57:17-58:5). Ms. Peterson and Beau consistently used the Beach Parcel while residing at 324 Coming Drive during that time. (A. Peterson, Tr. 58:6-59:17). In 2014, Ms. Peterson sold the property to Keith Halffinan (A. Martinsek, Tr. 338:7-339:7). Amanda Martinsek purchased the property at 324 Coming Drive from Halffinan in June of 2018 and has lived there since. (A. Martinsek, Tr. 338:10-23). Martinsek and her son consistently used and enjoyed the Beach Parcel while residing there. (A. Martinsek, Tr. 340:3- 341:15). Martinsek believed she had a right in the Beach Parcel after learning about it from Halffinan, the prior owner. (A. Martinsek, Tr. 338:7-339:7). This belief was bolstered by her 6 understanding of the 1 /24th interest referred to in her property tax statements. (A. Martinsek, Tr. 342:22-344:8; Pls. Ex. 29). Richard Perez purchased the property at 295 Coming Drive in 1992 and has lived there ever since. (R. Perez, Tr. 523:6-11). Perez has consistently used the Beach Parcel for the last 31 years. (R. Perez, Tr. 528:1-529:16). Perez has used the Beach Parcel regularly to swim, walk dogs with his wife, Barbara King, and to watch fireworks and boats on Lake Erie. (R. Perez, Tr. 528:1-529:16). Perez has, in the past, asked non-Coming residents to leave the Beach Parcel, informing them “it was a private access, and that the path was only for people that lived on the street.” (R. Perez, Tr. 526:6-20). Brian and Jessica Cantrall purchased the property at 336 Coming Drive in November 2015, and used the Beach Parcel from 2015 until they moved out and began renting the property in 2018. (B. Cantrall, Tr. 371:9-21). While the Cantrails resided at 336 Coming, they used the Beach Parcel to watch the sunset and to swim. (B. Cantrail, Tr. 373:3-11). When the Cantrails rented out the home, they informed their tenants of their ability to use the Beach Parcel. (B. Cantrall, Tr. 373:12-14). Prior to the Cantralls, Georgetta Ray owned the property at 336 Coming Drive from 1992 until she sold to the Cantrails in 2018. (B. Cantrail, Tr. 372:18-373:2). Mr. Cantrail testified that his tax records showed a l/24th interest in the Beach Parcel. (B. Cantrail, Tr. 374:20- 375:18; Pltfs’ Ex. 29). Mr. Cantrall’s father had also facilitated the sale of 336 Coming Drive to the prior owner, Georgetta Ray, in 1992. (B. Cantrail, Tr. 372:18-373:2). Georgetta Ray had consistently used the Beach Parcel for the 26 years she lived at 336 Coming Drive. (H. Brown, Tr. 173:12-173:17). 7 Branimir and Violet Bosiljevic moved to Coming Drive in 1970; they, and their children, have consistently used the Beach Parcel for park purposes ever since. Mr. Bosiljevic also regularly maintained the path, including building stairs for easier access to the water. (B. Bosiljevic, Tr. 107:24-108:25; 118:5-119:4). Mr. Bosiljevic testified to a portion of a re appraisal report indicating a 1 /24th interest in the Beach Parcel was associated with the Bosiljevics’ purchase of their Coming Drive home in 1970. (B. Bosiljevic, Tr. 129:3-131:23). The Vooses Move to Corning Drive In the spring of 2020, as they were considering buying a home in the neighborhood, the Vooses saw people using the Access Path when they visited the property at 282 Coming Drive. (K. Voos, Tr. 823:6-824:4). Shortly after purchasing 282 Coming Drive, the Vooses observed more people walking along their property to get to the water. (K. Voos, Tr. 743:9-16). By October 2020, the Vooses had personally researched the deeds of other Coming Drive residents, and they became aware that some property owners on Coming Drive had a deeded property right in the Beach Parcel. (J. Voos, Tr. 255:21-256:19,262:17-24; K. Voos, Tr. 750:13-25). When the Vooses learned this, the sellers offered to buy back 282 Coming Drive from them. (J. Voos, 257:19-22). The Vooses declined the offer, and instead collected over $40,000 from Howard Hanna realtors and Signature Title for failing to advise them, before closing on the property, about the Access Path and their neighbors’ rights to it. (Pl. Exs. 51 & 54) On June 19, 2020, Dr. James Voos wrote an email to the Bratenahl Village Building Department stating, among other things, “Upon further inquiry with Cuyahoga County, we were provided with the attached document stating all granted access to the path and water ceased May 1, 1952.” (Pl. Ex. 61). He included a portion of his own deed, which had an expiring right, in 8 the attachment. (J. Voos, Tr. 279:16-280:15). In his communication with the Building Department, Dr. Voos failed to mention the deeds - which his wife reviewed and shared with him - which had an unexpired, unconditional ownership interest. (See Pl. Ex. 61). Around October of 2020, the Vooses erected a cedar privacy fence on the west side of the Beach Parcel that encroaches onto the Access Path. (Pl. Ex. 45; J. Voos, Tr. 262:17-24; S. Casey, Tr. 214:18-20). The Vooses planted bushes in the Access Path to discourage individuals from using the Beach Parcel. (C. Miller, Tr. 852:7-23; K. Voos, Tr. 791:13-792:2; C. Courtney Tr. 631:8-23; E. DuChez; Tr. 894:5-895:20). The Vooses’ bushes made it difficult for Plaintiffs to utilize the Access Path. (H. Brown, Tr. 184:12-186:5; A. Peterson, Tr. 72:3-9; E. DuChez, Tr. 894:5-895:4). Defendants’ own surveyor confirmed that two bushes had clearly been planted to the east of the Vooses’ property line, where the Access Path lies. (C. Courtney, Tr. 631:8-23; see also E. DuChez, Tr. 894:11-897:20). The Signature Title Letter The Vooses engaged Mark Rodio as their attorney to investigate the Beach Parcel and recover damages from Howard Hanna. (J. Voos, Tr. 257:14-18). At the Vooses’ request, Rodio asked Signature Title to draft a letter explaining that Plaintiffs’ rights in the Beach Parcel had expired in 1952. (Pl. Ex. 47; M. Caja, Tr. 427:5-8). Rodio made several edits to the Signature Title Letter. (Pl. Exs. 56, 58; M. Caja, Tr. 429:20-25). Rodio directed that the letter be sent to Bratenahl government officials. (M. Caja, Tr. 437:11-25). The Signature Title letter, dated September 22, 2022, contained a statement that all of the Coming Drive property interests in the Beach Parcel had expired in 1952. (Pl. Ex. 47; M. Caja, 429:20-25; 430:23-434:7; 437:11-14). The Vooses placed several copies of the letter in a 9 brochure box at the end of the Access Path. (K. Voos, Tr. 759:17-24; 816:23-817:2). It was the Vooses’ hope that the letter would dissuade people from using the Beach Parcel. (K. Voos, Tr. 759:25-760:7). The Vooses knew that several Plaintiffs had a deeded property right to the Beach Parcel when they placed the brochure box with the Signature Title letter at the end of the Access Path. (K. Voos, Tr. 759:2-24; 750:23-25). Defendants Discourage Their Neighbors from Using the Access Path In June 2021, Tom Christopherson (“Christopherson”) hand-wrote and erected a no trespassing sign adjacent to the Access Path; the sign claimed none of the plaintiffs, despite their deeds, had a right to access the Beach Parcel. (Pl. Ex. 43; T. Christopherson, Tr. 392:12- 393:13). Christopherson knew that the sign was incorrect when he posted it, and that at least some of the residents on Coming Drive had a property interest in the Beach Parcel. He testified that he personally read and reviewed every deed on the street. (T. Christopherson, Tr. 393:21- 394:8; 395:3-13). The Voos and Christopherson defendants continued to discourage their neighbors from using the Access Path. (See E. DuChez 896:22-897:25; C. Miller, 852:7-23; K. Voos, 759:25- 760:7, 791:13-792:2; T. Christopherson 393:5-19; C. Courtney 631:8-23). Dr. Kristin Voos also rejected a proposal, from some of the future plaintiffs, for a locked gate that everyone on the street could access, because of her concerns about privacy. (C. Miller 856:17-858-19; A. Martinsek, 349:13-351-14). Defendants Block the Access Path In June 2021, Christopherson erected a fence across the Access Path that completely 10 barred plaintiffs from accessing the Beach Parcel. (T. Christopherson, Tr. 397:10-399:12; J. Voos, Tr. 263:14-16). The fence does not open or close. (T. Christopherson, Tr. 401:16-18). The Village of Bratenahl approved Christopherson’s permit for the fence. (Pl. Ex. 40; T. Christopherson, Tr. 401:19-21). Several plaintiffs appealed the Village’s decision to approve the fence permit; that appeal is still pending. (C. Miller, Tr. 879:7-13). Plaintiffs have been unable to lawfully access the Beach Parcel since the fence was erected. (A. Peterson, Tr. 753-5; S. Casey, Tr. 213:7-18). On July 17, 2021, Candice Miller emailed a letter on behalf of all plaintiffs to defendants’ attorney, John Monroe, in an effort to mediate and avoid litigation. (Def. Ex. K; C. Miller, Tr. 864:2-8). Plaintiffs Initiate This Litigation On August 12,2021, plaintiffs filed this lawsuit. Shortly after initiating the lawsuit, plaintiff Candice Miller, at the request of her neighbors, created a website with the URL of “ComingTogether.com” to keep neighbors and other interested individuals apprised of the lawsuit and to demonstrate unity. (Def. Ex. N; C. Miller, Tr. 873:12-23). The website contains a copy of plaintiffs’ initial Complaint, pictures of the beach and statements about neighbors’ and former neighbors’ memories of using the Beach Parcel. (Def. Ex. N). Some of the plaintiffs created and distributed yard signs in an effort to raise awareness, demand action from their local government and demonstrate their unity. (C. Miller, Tr. 870:12- 23). Five different signs were created: “Release our Beach,” “Good Neighbors Would Not Block Our Beach,” “Taxes without Access,” “We Fight for Deeded Rights” and “Release Their Beach - We Support our Neighbors on Coming Dr. - comingtogether.com.” (Def. Ex. EE). 11 Current Condition of the Beach Parcel The Beach Parcel is now valued at $250,000, based on the legal description in the Title Plaintiffs’ deeds. (Pl. Ex. 46). Defendants did not present any competing valuation for the Beach Parcel. (See generally. Def. Case in Chief, Tr. 566-810). The fence Christopherson installed still completely blocks the Access Path. (T. Christopherson, Tr. 403:12-15). The fence has also prevented any person from maintaining and caring for the Beach Parcel. As a result, the Beach Parcel has become overgrown and treacherous for those trying to walk through it. (H. Brown, Tr. 178:7-13; S. Casey, Tr. 208:13- 20). Defendants’ Counterclaims Defendants filed counterclaims against plaintiffs for trespass, defamation, false-light invasion of privacy, intentional infliction of emotional distress, unjust enrichment, waste and declaratory judgment. Other than once asking plaintiff Branimir Bosiljevic to leave his property, Christopherson provided no specific evidence of trespass on 281 Coming Dr. In that instance, Bosiljevic complied with his request and never returned. (T. Christopherson, Tr. 703:12-23; B. Bosiljevic, Tr. 112:25-114:22). Christopherson testified that he is not looking to recover damages from plaintiffs. (T. Christopherson, Tr. 720:19-721:5; 734:7-15). The Vooses do not claim any right to the Access Path. (J. Voos, 140:18-20). As evidence of trespass, the Voos defendants provided only blurry photographs; from those, they purported to identify Bob Tazuma, Candice Miller, Naomi Butcher, Naomi’s children, Elizabeth DuChez, John Turk and the Waychoff-Wilsons/ (K. Voos, Tr. 778:13-791:3). The photographs 12 do not clearly show the boundaries of either 282 Coming Drive or the Access Path. (Def. Ex. B). Dr. Kristin Voos admitted that the Bratenahl Police Department never cited anyone for trespassing, despite her numerous calls for police intervention. (K. Voos, Tr. 838:3-13; Pl. Ex. 63). The plaintiffs attempted to obtain a survey in order to delineate property lines, but were unable to do so because of the fence. (C. Miller, Tr. 889:17-890:1). Plaintiff Miller organized neighborhood meetings to address defendants’ concerns, created signs and a website so neighbors felt heard, and wrote a letter asking neighbors not to engage in self-help. (C. Miller, 873:13-19; 853:7-25; 887:3-16). The Christophersons did not identify any allegedly defamatory statements by any plaintiffs. (See generally T. Christopherson, Tr. 384-421, 696-738). Dr. Kristin Voos identified numerous statements that she considered to be defamatory. (K. Voos, Tr. 831:9-835:22). Dr. James Voos testified that he and his wife are “public figures” by virtue of his employment with the Cleveland Browns; he is a team doctor. (J. Voos Tr. 312:17-23). Both Drs. Voos and Christopherson testified that they have not sought any medical or mental health treatment for their alleged emotional distress. (See J. Voos, Tr. 327:4-18; K. Voos, Tr. 804:18-805:6; T. Christopherson, Tr. 720:19-23). Christopherson, specifically, testified that his emotional stress was “nothing I can’t deal with,” and that he generally is “pretty callous.” (T. Christopherson, Tr. 720:19-721:5). Although the Vooses offered testimony that their children and another unidentified minor suffered emotional distress as a result of the controversy, those individuals are not parties to this lawsuit. Defendants also seek a declaration from the court that: (a) the Beach Property is completely submerged and thus held in trust by the Ohio Department of Natural Resources, (b) the Non-Title Plaintiffs do not have the right to use the Voos or Christopherson property, and (c) the Non-Title Plaintiffs never had an interest in the Beach Parcel. 13 The Court Amends the Pleadings to Conform to the Evidence At the end of trial, pursuant to Civ.R. 15(B), plaintiffs orally moved the court to amend the pleadings to conform to the evidence and to add Non-Title Plaintiffs’ claims for adverse possession and prescriptive easement. The court granted plaintiffs’ motion. (Tr. 941:7-14). After trial, the court considered and denied a defense motion to reconsider its order. Both of defendants’ highly capable attorneys inquired of numerous witnesses about adverse possession and prescriptive easements throughout the trial. (See generally Tr. 28:3-15; 44:21-45:1; 92:15; 360:15-18). For example, defendants’ counsel asked several plaintiffs whether or not they ever spent the night on the Beach Parcel. (Tr. 92:15; 148:2-4; 360:15-18; 377:18-20). Defendants’ counsel also addressed the issues of adverse possession and prescriptive easement in their opening statements. (Def. Opening Statement, Tr. 28:3-15; 44:21-45:1). As the court noted in its May 5, 2023 decision, plaintiffs’ motion was reasonable and appropriate, defendants were not substantially prejudiced thereby and they could not, under the circumstances, have been surprised by it. IL CONCLUSIONS OF LAW On January 27, 2023, the court issued an Order granting summary judgment in favor of the Title Plaintiffs, finding that they own the Access Path and the unsubmerged portions of the Beach Property. The court ruled that the Christopherson fence and the Voos privacy fence encroached on that property. The court also granted summary judgment in favor of plaintiffs on defendants’ counterclaim for slander of title. 14 Following the court’s ruling on the parties’ cross-motions for summary judgment, the following issues remained pending and were the subject of the bench trial: (a) Title-Plaintiffs’ waste claim against the Christophersons; (b) Title-Plaintiffs’ slander of title claim against the Christophersons and Vooses; (c) Title-Plaintiffs’ tortious interference with property rights claim against the Vooses; (d) the Non-Title Plaintiffs’ rights to the Beach Parcel and (e) defendants’ counterclaims for trespass, defamation, false-light invasion of privacy, intentional infliction of emotional distress, unjust enrichment, waste and declaratory judgment. For the reasons set forth below, the court hereby finds the Title-Plaintiffs failed to prove their claims for waste, slander of title and tortious interference with property rights; the Non Title Plaintiffs, except for plaintiffs Krishen, Tazuma and Minch, have acquired an ownership interest in the Beach Parcel through adverse possession; defendants failed to prove their counterclaims for trespass, defamation, false-light invasion of privacy, intentional infliction of unjust enrichment and waste; and defendants proved their claim for declaratory judgment in part. Title Plaintiffs’ Claim for Waste It is clear that Title Plaintiffs have a fee simple ownership in the unsubmerged portions of the Beach Property. (Jan. 27, 2023 Docket Entry). The Christopherson defendants also have a fee simple interest in the Beach Parcel in common with the Title Plaintiffs. (Pl. Ex. 1; January 27, 2023 Judgment Entry; Def. Ex. T at Annex C). No claim of action for waste can stand against the Vooses, since they have no interest in the Beach Parcel. R.C. 5307.21. The Non Title Plaintiffs do not have standing to claim an action for waste, since they were not coparceners in the Beach Parcel. R.C. 5307.21. 15 Ohio law provides, “[o]ne tenant in common, or coparcener, may recover from another tenant in common, or coparcener his share of rents and profits received by such tenant in common or coparcener from the estate, according to the justice and equity of the case.” R.C. 5307.21. “One coparcener may maintain an action of waste against another coparcener.” Id. A joint owner of property who takes exclusive possession thereof “is liable to account to his cotenants for their share of the reasonable rental value of such occupancy, possession and use.” Cohen v. Cohen, 157 Ohio St. 503, 503, 106 N.E.2d 77 (1952); see also Modic v. Modic, Sth Dist. Cuyahoga No. 63657, 91 Ohio App.3d 775, 779, 633 N.E.2d 1151 (Nov. 8,1993). There were, however, no rents or profits generated from the Access Strip or the Beach Property (Tr. 495:14). Therefore, there is nothing to be equitably shared pursuant to R.C. 5307.21. The court previously ruled that the Christopherson fence and the Voos privacy fence encroached on the Title Plaintiffs’ property. Accordingly, the court hereby orders that the Christopherson defendants remove, at their own expense, the fence within 30 days of the filing date of this Opinion and Order, regardless of the outcome of the pending appeal of the Village of Bratenahl’s permit. The court is aware that the Voos defendants’ privacy fence was erected as a result of litigation with their realtors. Accordingly, the court hereby orders that the Voos privacy fence be removed and, if they so wish, re-erected within their own property lines, as soon as practicable, but no later than 60 days from the filing date of this Opinion and Order. Title Plaintiffs’ Claim for Slander of Title A party may prove slander of title by showing that: “(1) there was a publication of a slanderous statement disparaging claimant’s title; (2) the statement was false; (3) the statement 16 was made with malice or made with reckless disregard of its falsity; and (4) the statement caused actual or special damages.” Phelps v. Cmty. Garden Ass ’n, Inc., 2021-Ohio-3675, at 43 (Sth Dist). A party may “recover as special damages in a slander of title action attorney fees necessary to counteract a disparaging publication.” Cuspide Properties, Ltd. v. Earl Mechanical Servs., 2015-0hio-5019,1J 40, 53 N.E.3d 818 (6th Dist.). Slander of title cases typically involve documents filed against a piece of property by parties who claim an interest in the property. Green v. Lemarr, 139 Ohio App.3d 414, 744 N.E.2d 212,431 (2nd Dist. 2000). Typical parties to such cases found in Ohio caselaw include mortgage holders, parties who have judgment liens and parties who may have signed contracts to purchase or lease property. Id., e.g., Childers v. Commerce Mortgage Investments, 9th Dist. Summit No. 13795, 63 Ohio App.3d 389, 579 N.E.2d 219 (June 28, 1989) (finding a mortgage company liable for slander of title after it purchased, recorded and refused to cancel a mortgage despite knowing the lender never disbursed the funds to the plaintiffs, which prevented them from selling the property); Wendover Rd. Property Owners Assn. v. Kornicks, Sth Dist. Cuyahoga No. 49570, 28 Ohio App.3d 101, 502 N.E.2d 226 (Oct. 15, 1985) (affirming the dismissal of a landowner’s third-party claim for slander of title as untimely against a property owners' association that filed affidavits with the County Recorder under R.C. 5301.252, causing $15,000 of the purchase price of the sale one of the claimant’s property to be held in escrow). A slander of title claim then arises because the filed document prevents or hinders the titled owner from completing a proposed sale. Green at 431. Here, the court finds the documents, claiming that the Title Plaintiffs’ rights to the Access Path and Beach Property had expired or were non-existent, were not slanderous. Dr. James Voos’s email to the Village of Bratenahl, Christopherson’s yard sign and the Signature Title 17 letter are not overt acts analogous to the recording of documents typically seen in Ohio slander of title cases; thus, defendants did not publish a slanderous statement requisite to maintain a slander of title claim. Furthermore, the documents in this case did not prevent or hinder any Title- Plaintiff from completing a proposed sale of his or her property. Accordingly, the court finds that Title Plaintiffs have failed to prove their slander of title claim. Title Plaintiffs’ Claim for Tortious Interference with Property Rights Title Plaintiffs allege the Voos defendants intentionally planted shrubbery and placed debris in an effort to block and interfere with use of the Access Path. They further argue that Dr. Kristin Voos called the police on neighbors utilizing the Access Path and Beach Property. Defendants argue that Ohio law does not recognize claims for tortious interference with property rights. This court agrees. Plaintiffs did not provide, and the court could not find, controlling Ohio caselaw recognizing a claim for tortious interference with property rights. Accordingly, Title Plaintiffs’ claim for tortious interference with property rights is hereby denied. Non-Title Plaintiffs’ Claim for Adverse Possession and Prescriptive Easement “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, 692 N.E.2d 1009 (1998), syllabus. The Supreme Court of Ohio has held that "it is the visible and adverse possession with an intent to possess that constitutes [the occupancy's] adverse character," Id. at 581 citing Humphries v. 18 Huffman, 33 Ohio St. 395,402 (1878). "The occupancy must be such as to give notice to the real owner of the extent of the adverse claim.” Id. citing Humphries at 404. To make possession adverse, "there must have been an intention on the part of the person in possession to claim title, so manifested by his declarations or his acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment or a surrender of his claim." Id. citing Lane v. Kennedy, 13 Ohio St. 42, 47 (1861). To acquire a prescriptive easement, a party must prove the elements of adverse possession, minus the element of exclusivity. Vaughn v. Johnston, 12th Dist. Brown No. CA2004-06-009, 2005-Ohio-942, 11. The general rule is that "exclusive possession can be shown by acts that would ordinarily be exercised by an owner in appropriating land to the owner's own use and to the exclusion of others.” Koprivec v. Rails-To-Trails, 153 Ohio St.3d 137, 146 (2018) quoting Powell on Real Property, Section 91.06. To satisfy the exclusivity requirement, “the claimant’s possession need not be absolutely exclusive; it need only be a type of possession that would characterize an owner’s use.” Id. at 147. It is well-established in Ohio law that, in seeking to establish the necessary period for a prescriptive easement or adverse possession, a party may add or "tack" his or her own term of adverse use to any period of adverse use by a prior succeeding owner in privity with the current owner. Zipfv. Dalgarn, 114 Ohio St. 291, 4 Ohio Law Abs. 182, 151 N.E. 174 (1926). In order to tack, a party must establish that "(a) the party and her predecessor are in privity; (b) the property was sequentially and continuously used; (c) the property was used in the same or similar manner; and (d) the use was open, notorious, and adverse to the title holder's interest.” Williams v. Phillips, Sth Dist. Licking No. 98CA00072,1999 Ohio App. LEXIS 2693,1999 WL 19 436813 (June 3, 1999), quoting McNeely v. Langan, 22 Ohio St. 32 (1871). Privity is defined as "the mutual or successive relationship to the same rights of property.” Id. Defendants argue that the Non-title Plaintiffs have failed to establish, by clear and convincing evidence, that their use of the Access Path and the Beach Property was adverse or exclusive. Defendants point to the testimony of plaintiff Branimir Bosiljevic, who testified that he had an agreement with the prior owner of the Christopherson lots, Dale Gnadt, to utilize the Access Path to enter upon the Christopherson lot to go fishing. (B. Bosiljevic, Tr. 112:1-10). Mr. Bosiljevic further testified that the property caretakers of the predecessors in interest of the Voos property, the Eaton Corporation, graded a path from the end of Coming Drive to the head of the Access Path to the benefit of all the Coming Drive residents, and never objected to the residents’ use of the path. (B. Bosiljevic, Tr. 137:3-24). The court finds defendants’ arguments unpersuasive as to all Non-Title Plaintiffs except Adarsh Krishen, Robert Tazuma and Elaine Minch, whose rights the court will address separately below. The Vooses are not, and the Eaton Corporation’s caretakers were not, owners of the Beach Parcel. While the remaining Non-Title Plaintiffs’ use of the Access Path and Beach Property was not exclusive or adverse to Title Plaintiffs or the Christophersons’ predecessor in interest, as discussed above, the Standard Land Company conveyed only 15/24ths interests in the Beach Parcel. Defendants’ expert witness, Michael Waiwood, testified that the remaining 9/24ths interests would be owned by the Standard Land Company, its shareholders or the shareholders’ heirs. (M. Waiwood, Tr. 678:18-25). He further testified that it would now be difficult, but perhaps not impossible, to ascertain the actual owner(s) of the remaining 9/24ths interests. (M. Waiwood, Tr. 679:13-680:2). 20 Here, the court finds that the remaining Non-Title Plaintiffs’ use of the Access Path and Beach Property was exclusive and adverse to the other 9/24ths interests holder(s). These Non Title Plaintiffs performed acts that would be ordinarily exercised by an owner in appropriating land to the owner's own use and to the exclusion of others. Their actions were visible and exercised with the intention to possess, if only for limited recreational purposes. The remaining Non-Title Plaintiffs maintained and improved the Access Path. They also excluded non-Coming Drive residents from using the property. Their actions were, understandably enough, conducted without the permission, and inconsistent with the rights, of the other, unknown 9/24ths interest holder(s). The court further finds that the Non-Title Plaintiffs’ use, excluding plaintiffs Krishen, Tazuma and Minch, has been open, notorious and continuous. None of the remaining Non-Title Plaintiffs concealed their use of the path and lakefront. In fact, the residents of Coming Drive’s use and enjoyment of the Access Path and Beach Property was well-known throughout the Bratenahl community. The remaining Non-Title Plaintiffs did not ask for, nor were they granted, permission to use the Access Path or Beach Property, or perform maintenance or make improvements, by the remaining 9/24ths interest holder(s). These Non-Title Plaintiffs, and their predecessors in interest with whom they are in privity, have openly, notoriously, continuously, adversely and exclusively used the Beach Parcel and its historically-used footpaths for considerably more than the requisite 21-year period under Ohio law. Regarding plaintiffs Krishen, Tazuma and Minch, the court finds that they have not proven their claims for adverse possession or prescriptive easement by clear and convincing evidence. As detailed above, the parties stipulated that plaintiffs Krishen and Tazuma expressly acknowledged they did not have beach access when they purchased the property at 292 Coming 21 Drive. Although the traditional use of the Access Path and Beach property was not disclosed to them prior to closing, neither testified at trial regarding their use, if any, of the Access Path or Beach Property. While the Voos defendants claim that plaintiff Tazuma trespassed on their property, presumably through his use of the Beach Parcel, as the court discusses in further detail below, Tazuma is not identifiable with any certainty in defendants’ photographic evidence. Thus, the court finds the Voos defendants’ allegation of trespass does not constitute clear and convincing evidence of plaintiff Tazuma’s adverse use of the Beach Parcel. No evidence at all of plaintiff Minch’s use of the Beach Parcel was presented at trial. Accordingly, the court finds that the Non-Title Plaintiffs, excepting plaintiffs Krishen, Tazuma and Minch, have shown by clear and convincing evidence that they have acquired an ownership interest in the Beach Parcel through adverse possession. The court finds that Non Title Plaintiffs Branimir and Violet Bosiljevic, Brian and Jessica Cantrall, the Coming Street Trust and Trustee Amanda Martinsek, and Richard Perez and Barbara King own an undivided 1 /24th interest in the Beach Parcel, as shown by plaintiffs’ Expert Survey Report (see Pl. Ex. 45, Expert Survey of Scott Casey). The court further finds that these Non-Title Plaintiffs own the historically-used footpaths, the areas where the stairs are located and the lakefront, as identified in defendants’ Expert Survey Report. (See Def. Ex. R). Nothing in this Opinion and Order grants Non-Title Plaintiffs or Title Plaintiffs an ownership interest, right to use or right to enter upon any of the defendants’ other property. To be clear, the ownership interest hereby determined and granted by the court extends only to the Access Path, the historically-used footpaths and the Beach Property to the extent it reemerges from the waters of Lake Erie in the future. While no one representing the Standard Land Company, its shareholders or its shareholders’ heirs has as yet come forward to assert their rights 22 in the Beach Parcel, this Opinion and Order does not address any remaining rights those individual(s) may have. As the court has found that the aforementioned Non-Title Plaintiffs have acquired an ownership interest in the Beach Parcel, the court finds their claim for prescriptive easement moot. Defendants’ Counterclaim for Trespass To prove liability for civil trespass, a claimant must show the following elements: “(1) an unauthorized intentional act and (2) entry upon land in the possession of another.” Woods v. Sharkin, 2022-Ohio-1949,194, 192 N.E.2d 1174 (Sth Dist.). The court finds that plaintiff Branimir Bosiljevic did not commit an “unauthorized intentional act” of trespass when he entered the Christophersons’ property to fish. Bosiljevic had a reasonable belief that his agreement with the prior owner of the Christopherson lot to enter onto the property to fish was still in place. Moreover, once Christopherson asked Bosiljevic to leave the property, he properly complied and never entered the property to fish again. Likewise, the court finds that plaintiffs Charles Bernard, David Williams, Violet Bosiljevic, Helen Brown, Stephen Butcher, Jessica Cantrall, Michael Grill, Irene Grill, Adarsh Krishen, Amanda Martinsek, Elaine Minch, Thomas Murray, Larry Parella, Nancy Parella, Barbara King, Ava Peterson, Robert Seay, Shirley Seay, Izzet Sozeri and Teresa Sozeri did not commit any “unauthorized intentional act” of entry upon either the Voos or Christopherson properties. While the Voos defendants offered security camera and cellphone photographs of individuals allegedly on their property, the court does not find, by a preponderance of evidence, that those individuals can be identified with any certainty. Additionally, in most if not all of the 23 photographs, the Voos property line is not readily identifiable, and the photographs do not prove an intentional unauthorized entry. If anything is clear in this case, it is that prior to this litigation, all parties could not be certain of their respective rights to the Beach Parcel and its boundaries. Accordingly, the court finds defendants have failed to show by a preponderance of the evidence that any specific plaintiff intentionally trespassed onto defendants’ properties. Defendants’ Counterclaim for Defamation To prove defamation, a party must provide clear and convincing evidence of “a false statement, [...] the false statement was defamatory [...] the false, defamatory statement was published, the plaintiff was injured[,] and the defendant acted with the required degree of fault.” Sygula v. Regency Hosp, of Cleveland East, 2016-Ohio-2843, 16, 64 N.E.3d 458 (Sth Dist.). A public figure may not recover damages for defamation unless the evidence shows that the defamatory statement was made with actual malice. Lansky v. Rizzo, 2007-0hio-2500, 19 (Sth Dist. Cuyahoga No. 88356). Allegations in pleadings that bear at least some relation to the judicial proceeding are protected by an absolute privilege against liability for defamation under Ohio law. Horenstein, Nicholson & Blumenthal, L.P.A. v. Hilgeman, 2021-Ohio-3049, 111, 178 N.E.2d 71 (2d Dist.) quoting Surace v. Wuliger, 25 Ohio St.3d 229, 495 N.E.2d 939 (1986) (“[A] claim alleging that a defamatory statement was made in a written pleading does not state a cause of action where the allegedly defamatory statement bears some reasonable relation to the judicial proceeding in which it appears.”). Plaintiffs’ allegations in their operative complaint, and earlier iterations thereof, were reasonably related to their claims about defendants’ interference with their property rights. Therefore, they are absolutely privileged and cannot form a basis for a defamation claim. 24 The court hereby finds that the yard signs which are, in part, the subject of defendants’ counterclaim for defamation are not defamatory. The signs do not identify any of the defendants by name, nor do they contain any false statements. Likewise, the court finds that none of the statements on the ComingTogether.com website (see Def. Ex. N) are defamatory because they, too, are not false statements. Instead, the yard signs and information contained on the website are either true statements, statements of opinion or statements of plaintiffs’ reasonable and good faith beliefs about their property rights. Dr. James Voos testified at trial that he and his wife are public figures by virtue of his employment with the Cleveland Browns. The court need not find that this is so, because it is far from convinced that any of the allegedly defamatory statements were made with actual malice with respect to either of the Vooses. Instead, the court finds that the intention of the signs and website was to show community t