Brand v. Ogle , 2020 Ohio 3219 ( 2020 )

[Cite as Brand v. Ogle, 2020-Ohio-3219.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
Allen P. Brand, : Case No. 19CA8
Plaintiff-Appellant, :
v. : DECISION AND
JUDGMENT ENTRY
Ralph E. Ogle, :
Defendant-Appellee. : RELEASED 6/04/2020
______________________________________________________________________
APPEARANCES:
Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for appellant.
______________________________________________________________________
Hess, J.
{¶1} Allen Brand appeals from a judgment of the Hocking County Municipal
Court dismissing his complaint against Ralph Ogle for trespass and conversion of a tree
trunk. Brand contends that the trial court’s decision was contrary to law. For the
reasons that follow we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
I. FACTS
{¶2} In August 2018, Brand filed a small claims complaint against Ogle,
essentially asserting claims for trespass and conversion. Specifically, Brand alleged that
Ogle had engaged in “[t]imber theft, where subject trespassed onto my property and
admits cutting and taking the trunk of a high value 32” red oak tree growing entirely on
my property but suffering storm damage and lying across two other property lines.”
Brand sought $5,359 in damages plus interest and costs.
Hocking App. No. 19CA8 2
{¶3} A magistrate conducted a trial at which Brand testified that he owns a 120-
acre property in Hocking County. Brand claimed that in May 2018, he learned that a 32-
inch diameter healthy red oak tree that had been growing on his property had suffered
storm damage, fallen, and partly landed on the properties of Dennis Kallimanis and
Norma Kessler. Brand saw remnants of the fallen tree but the trunk was missing. He
introduced into evidence an incident report from the Hocking County Sheriff’s Office
stating that Ogle told an officer that sometime around September or November of 2017,
“he cut the tree out of Mrs. Kessler[’]s [f]ence, and fixed the fence so that her live stock
could not get out, and that he cut the stump of the tree off at the fence.” Brand
submitted photographic evidence which he claimed showed the tree trunk had actually
been cut off on his property. Brand testified that Ogle did not have his permission to
take the tree trunk and submitted statements from Kallimanis and Kessler stating that
they did not give permission either. Brand also submitted a Timber Trespass Natural
Resource Damage Assessment, Appraisal, Evaluation and Costs Estimation Report
from Ohio Foresters, LLC, that appraised the tree at $1,209 (assuming Brand was
entitled to treble damages pursuant to R.C. 901.51) and gave estimates for two options
for property reforestation/restoration ranging from $515 to $4,150.
{¶4} Ogle testified that he lives with Kallimanis’s sister on property she owns
near Brand’s property. Ogle testified that the tree “[m]ashed” down a fence, allowing
Kessler’s cows to escape and come near Ogle’s residence. According to Ogle, after the
tree had laid on the ground for several months, it was cut at the fence line, and he
“stuck [the fence] back up,” hauled away part of the tree, and sold it for “around $600.”
Ogle testified that he did not enter Brand’s property and argued that without a survey,
Hocking App. No. 19CA8 3
Brand could not prove the tree was from his property. Ogle was not aware that anyone
contacted Brand about the fallen tree and admitted that he did not have an agreement
with anyone to take the tree. Ogle submitted a statement from Kallimanis explaining he
told Ogle not to take the tree because he thought Brand would cause trouble,
suggesting the location of Brand’s property line was uncertain without a survey, and
detailing harassment by Brand.
{¶5} The magistrate found that the tree had been growing on Brand’s property
until it blew over due to storm damage and partly landed on the Kallimanis and Kessler
properties. The magistrate concluded that R.C. 901.51 did not apply because the tree
had been blown down, not cut down. The magistrate rejected Brand’s trespass claim
finding “no act of trespass occurred” because Brand never saw Ogle on his property
and Ogle testified that “he was never on the Brand land, and that he removed the part of
the tree at the fence line.” The magistrate found that Brand’s damages report did not
apply because it “was based on intentional trespass and natural resource damage.”
The magistrate also stated:
The law in Ohio is clear, if the owner of the tree on his property does not
have notice of the tree’s dangerous condition, as in the case at bar, then
that landowner does not have any liability to adjoining landowners for
damages. And therefore, it is the adjoining landowner that is responsible
for the damage caused and for the clean up of any tree on their own
property. Rababy v. Metter, 30 N.E.3d 1018 (2015). See also,
Nationwide Insurance v. Jordan, 64 Ohio Misc 2d 30 (1994).
* * * In the case at bar, it was the adjoining property owners’ responsibility
to remove the tree at their own expense. Mr. Ogle did both property
owners a favor by removing part of the tree on the respective properties
and temporarily fixing the Kessler fence so that the animals could not get
out.
Hocking App. No. 19CA8 4
[R. 42] The magistrate noted that Ogle “did not testify as to how much money he had
invested in removing the large tree,” but “[i]t may have been well over” the $600 he
received for it. The magistrate recommended that the trial court dismiss the case
because Brand “failed to provide any reliable evidence to establish that he is entitled to
any measure of damages under Ohio law.”
{¶6} Brand filed objections to the magistrate’s decision. The trial court
overruled the objections and issued a judgment entry adopting the magistrate’s
decision. Brand moved for a new trial, transfer to the general division of the court, leave
to amend his complaint, and reconsideration. The court dismissed his motion. Brand
appealed the trial court’s judgments, and we dismissed for lack of a final, appealable
order because when the trial court adopted the magistrate’s decision, it failed to enter
judgment through a separate and distinct entry, so the parties could not determine their
rights and obligations without reviewing the magistrate’s report. Subsequently, the trial
court issued a judgment entry adopting the magistrate’s decision, granting judgment in
favor of Ogle, and dismissing the case with costs to Brand. This appeal followed.
II. ASSIGNMENT OF ERROR
{¶7} Brand assigns the following error for our review: “The trial court’s decision
to dismiss Mr. Brand’s small claims complaint was contrary to law.”
III. LAW AND ANALYSIS
{¶8} Brand contends that the decision to dismiss his complaint was contrary to
law because “the trial court failed to cite and apply the correct legal standard” to the
facts of this case. Although Brand states that he “disputes the trial court’s finding that
Hocking App. No. 19CA8 5
Mr. Ogle did not trespass on the Brand property,” he did not present a specific argument
against the dismissal of his trespass claim. Instead, he focuses on the dismissal of his
conversion claim, asserting that the trial court’s reliance on premises liability caselaw is
misplaced because it “does not address the issue of ownership of the tree.” Brand
maintains that he is the “true owner” of the tree because he is the person “on whose
property the tree was rooted.” Brand asserts that he did not abandon the tree, which he
did not know had fallen “until after it was stolen.” Brand asserts that “[t]o the extent that
an adjoining landowner would have had the privilege to remove Mr. Brand’s fallen tree,”
the privilege does not apply to Ogle because he is not an adjoining landowner and did
not have permission from the adjoining landowners to remove the tree.
{¶9} The issue whether the trial court applied the correct legal standard is a
question of law we review de novo. In re Name Change of Rowe, 4th Dist. Scioto No.
18CA3837, 2019-Ohio-4666, ¶ 16.
{¶10} “Conversion is ‘the wrongful exercise of dominion over property to the
exclusion of the rights of the owner, or withholding it from his possession under a claim
inconsistent with his rights.’ ” Allan Nott Ents., Inc. v. Nicholas Starr Auto, L.L.C., 110
Ohio St.3d 112, 2006-Ohio-3819, 851 N.E.2d 479, ¶ 36, quoting Joyce v. Gen. Motors
Corp., 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990). “To prevail on a conversion claim,
a plaintiff must show: (1) ownership or right to possession of the property at the time of
the conversion; (2) defendant’s conversion by a wrongful act or disposition of the
plaintiff’s property right, and (3) damages.” Bender v. Logan, 2016-Ohio-5317, 76
N.E.3d 336, ¶ 74 (4th Dist.).
Hocking App. No. 19CA8 6
{¶11} When Ogle took the tree trunk, Brand owned the tree even though he did
not have actual possession of the entire tree. The trial court found that the tree was
growing on Brand’s land before it fell. While the tree was growing on Brand’s land,
Brand owned it as part of his real property. See Hirth v. Graham, 50 Ohio St. 57, 64-65,
33 N.E. 90 (1893) (explaining that “growing timber is regarded as an integral part of the
land upon which it stands; it is not subject to levy and sale upon execution as chattel
property; it descends with the land to the heir, and passes to the vendor with the soil”
and that “the legal character * * * of growing timber, is that of realty”). Once the tree
was severed from the land, it became personal property. See id. at 65.
{¶12} The trial court misapplied premises liability law to Brand’s conversion
claim. It is true that if a tree falls, the tree owner is not liable to neighboring landowners
in a negligence action if the tree owner lacked “actual or constructive notice of a patent
danger that the tree would fall,” because without such notice, the owner does not owe a
duty of care to his neighbors. Wertz v. Cooper, 4th Dist. Scioto No. 06CA3077, 2006-
Ohio-6844, ¶ 12. However, the fact that any negligence action against Brand by his
neighbors would likely have failed due to a lack of notice of the tree’s dangerous
condition did not somehow result in a transfer in ownership of the part of the tree that
landed on their properties
{¶13} The trial court did not find, nor does the evidence show, that Brand
abandoned the fallen tree. Abandoned property is “ ‘property over which the owner has
relinquished all right, title, claim, and possession with the intention of not reclaiming it or
resuming its ownership, possession or enjoyment.’ ” Pancake v. Pancake, 4th Dist.
Lawrence No. 11CA15, 2012-Ohio-1511, ¶ 10, quoting Doughman v. Long, 42 Ohio
Hocking App. No. 19CA8 7
App.3d 17, 21, 536 N.E.2d 394 (12th Dist.1987). “ ‘Abandonment requires affirmative
proof of the intent to abandon coupled with acts or omissions implementing the intent.’ ”
Id., quoting Davis v. Suggs, 10 Ohio App.3d 50, 52, 460 N.E.2d 665 (12th Dist.1983).
The record contains no evidence that Brand intended to abandon the fallen tree. Brand
testified that he did not know the tree had fallen until after Ogle had taken the trunk, and
nothing in the record contradicts that testimony.
{¶14} Ogle wrongfully disposed of the tree trunk. Ogle did not have Brand’s
permission to take it. Any privilege Kallimanis and Kessler had to remove the portion of
the tree that encroached on their property is immaterial because even if Ogle did
Kallimanis and Kessler “a favor” by removing the tree trunk, Ogle did not have their
permission to take it. See generally Rababy v. Metter, 2015-Ohio-1449, 30 N.E.3d
1018, ¶ 14 (8th Dist.), quoting ALH Properties, P.L.L. v. ProCare Auto. Serv. Solutions,
L.L.C., 9th Dist. Summit No. 20911, 2002-Ohio-4246, ¶ 18 (“ ‘A privilege existed at
common law, such that a landowner could cut off, sever, destroy, mutilate, or otherwise
eliminate branches of an adjoining landowner’s tree that encroached on his land’ ”). [R.
42; Tr. 20]
{¶15} Brand suffered damages because he was deprived of the value of his tree.
“The general rule for the measure of damages in a conversion action is the value of the
property at the time of conversion.” Wright v. Miller, 4th Dist. Highland No. 752, 1991
WL 37926, *4 (Mar. 11, 1991). “Ordinarily, the method of ascertaining the value of
converted goods is done by determining the market value of those goods.” Id.Although the trial court rejected Brand’s damages report, Ogle admitted that he sold the
Hocking App. No. 19CA8 8
tree for $600. Even if Ogle could have sought a credit for expenses incurred to remove
the tree, there is no evidence as to what those expenses were.
{¶16} Brand established all of the elements of a conversion claim and is entitled
to a judgment in his favor on that claim. Accordingly, we sustain the sole assignment of
error, reverse the portion of the trial court’s judgment dismissing the conversion claim,
and remand for further proceedings consistent with this opinion. We affirm the trial
court’s judgment in all other respects.
JUDGMENT AFFIRMED IN PART
AND REVERSED IN PART.
CAUSE REMANDED.
Hocking App. No. 19CA8 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART and REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking
County Municipal Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.