Alt v. Bauer , 2019 Ohio 2731 ( 2019 )

[Cite as Alt v. Bauer, 2019-Ohio-2731.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JANICE ALT, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellant : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
ROGER L. BAUER, ET AL., : Case No. 18CA123
:
Defendants - Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2015CV1531
JUDGMENT: Afffirmed in part, Reversed and
Remanded in part
DATE OF JUDGMENT: July 2, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
J. JEFFREY HECK ANDREW J. BURTON
The Heck Law Offices, Ltd. Renwick, Welsh & Burton LLC
One Marion Avenue, Suite 104 9 N. Mullberry Street
Mansfield, Ohio 44903 Mansfield, Ohio 44902
Richland County, Case No. 18CA123 2
Baldwin, J.
Plaintiff-appellant Janice Alt appeals from the October 25, 2017 Order of the
Richland County Court of Common Pleas granting summary judgment in favor of
defendants-appellees.
STATEMENT OF THE FACTS AND CASE
{¶1} Appellant is the owner of real properly located at 2953 Plymouth-Springmill
Road in Shelby, Ohio. Appellees are neighbors. Appellant and appellees have lived on
adjoining parcels for approximately twenty-two (22) years.
{¶2} According to appellant, on or about July 16, 2013, appellee Roger Bauer
and another family member entered onto her property without her permission while
carrying a can of spray paint, a piece of rebar, a metal detector and a sledge hammer.
Appellant, in her affidavit, alleged that she told them repeatedly to get off of her property
and that the property was hers, but appellee Roger Bauer claimed that it was his property
and proceeded to pound the rebar into the ground and spray paint a large “X” with orange
paint on the grass.
{¶3} On or about May 19, 2014, appellee Roger Bauer submitted an Application
for Zoning Certificate to Craig Stover as the Jackson Township Zoning Inspector, for the
construction of a six foot high fence at appellees' property. The application indicated that
the fence was to consist of four sections as follows: 24 feet, 24 feet, 80 feet and 120 feet
for a total of 248 feet. No sketch or plan of the proposed fence was attached to the
application which was approved on May 21, 2014 by Stover. Several weeks later, the plan
and sketch of the fence were delivered to the township. The fence was completed in June
of 2014. It was 275 feet.
Richland County, Case No. 18CA123 3
{¶4} The Richland County Regional Planning Commission Staff, in September
of 2014, recommended revocation of the fence permit on the basis that it had been
improperly filed and approved, among other reasons.
{¶5} In December of 2015, appellant filed a complaint against appellees, alleging
nuisance and trespass. Appellant, in her complaint, sought injunctive relief and money
damages. Appellant, in her complaint, alleged in support of her nuisance claim that the
person who appellees submitted their application to for a fence permit was not the lawful
Zoning Inspector of Jackson Township at the time and that appellees “knew or should
have known” this; that the application was incomplete and improper and that appellees
knew this, and that the fence was completed in a manner inconsistent with the application.
Appellant further alleged in her complaint, in relevant part, as follows, at paragraphs 15-
16:
{¶6} “Further, since the erection of the fencing, defendants have failed and
refused to maintain the grass, noxious weeds and other plant materials along their fencing
and between that fencing and plaintiff's property line. This grass, noxious weeds and other
plant material are unsightly and have grown to the point that they violate provisions of the
Ohio Revised Code and also constitutes a nuisance.
{¶7} Further, defendants have cemented in place a six foot (6′) high permanent
post in the ground only 3 inches from the plaintiff's southern property line. Such post is
not any portion of any fencing and violates known an (sic) existing Jackson Township
setback regulations and requirements.”
{¶8} In support of her trespass action, appellant alleged that, before the fence
was constructed, appellees and their agents had entered onto her property without her
Richland County, Case No. 18CA123 4
permission and remained thereon, refusing to leave despite being informed that they were
improperly on her real property.
{¶9} On February 22, 2016, appellees filed an answer and counterclaims for
trespass, nuisance and an injunction. In their counterclaims, they alleged that appellant
and/or her agent trespassed on their property and removed their survey stakes, that
appellant's chain link fence encroached on their property and that the portion of such
fence not encroaching on their property was not in compliance with applicable zoning
regulations, and that appellant's wooden fence was constructed in violation of applicable
zoning regulations, and was either too close to appellees' property or encroaching on it
and that appellant knew or should have known that construction and maintenance of the
fences was in violation of the zoning regulations. Appellees sought both injunctive relief
and damages.
{¶10} On March 7, 2016, appellees filed a Third Party Complaint against Richard
Gorsuch, appellant's fiancé at all times complained of in the complaint and counterclaim,
alleging trespass. On March 22, 2016, appellant filed a reply to the counterclaim and
Gorsuch filed an answer to the Third Party Complaint.
{¶11} Thereafter, on August 14, 2017, appellees filed a Motion for Summary
Judgment and a Notice of Dismissal of their counterclaim for nuisance pursuant to Civ.R.
41(A). Appellant and Gorsuch filed a memorandum in opposition to the Motion for
Summary Judgment on September 18, 2017 and appellees filed a reply on October 2,
2017.
{¶12} Pursuant to an Order filed on October 25, 2017, the trial court granted
appellees' Motion for Summary Judgment and dismissed the case with prejudice.
Richland County, Case No. 18CA123 5
Appellant and Third Party Defendant Richard Gorsuch, on November 1, 2017, filed a
Motion for Findings of Fact and Conclusions of Law. Via an Order filed on November 3,
2017, the trial court overruled the motion.
{¶13} Appellant filed a Notice of Appeal on November 22, 2017, appealing from
the trial court's October 25, 2017 Order. On February 23, 2018, the trial court filed an
Amended Order overruling Appellant's Motion or Findings of Fact and Conclusions of
Law. On the same date, the trial court filed an Amended Order granting the Motion for
Summary Judgment to add language stating that “There is no just cause for delay.”
{¶14} Pursuant to an Opinion filed on October 19, 2018 in Janice Alt v. Roger L.
Bauer, 5th Dist. Richland No. 17CA97, 2018 -Ohio- 4264, this Court dismissed the appeal
for want of jurisdiction, finding that the order appealed from was not a final, appealable
order.
{¶15} Appellees and Third-Party Plaintiffs, on November 21, 2018, filed a Notice
of Dismissal pursuant to Civ.R. 41(A) of their remaining counterclaims and Third-Party
Complaint.
{¶16} Appellant then appealed from the trial court’s October 25, 2017 Order
granting appellees’’ Motion for Summary Judgment, raising the following assignment of
error on appeal:
{¶17} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO APPELLEES.”
I
{¶18} Appellant, in her sole assignment of error, argues that the trial court erred
in granting summary judgment in favor of appellees.
Richland County, Case No. 18CA123 6
{¶19} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said Civ.R. 56 was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St. 3d 447, 448, 1996-Ohio-211, 663 N.E.2d 639:
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any material
fact remains to be litigated, (2) the moving party is entitled to judgment as
a matter of law, and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most strongly
in favor of the nonmoving party, that conclusion is adverse to the party
against whom the motion for summary judgment is made. State ex rel.
Parsons v. Fleming (1994), 68 Ohio St. 3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 O.O.3d
466, 472, 364 N.E.2d 267, 274.
{¶20} As an appellate court reviewing summary judgment motions, we must stand
in the shoes of the trial court and review summary judgments on the same standard and
evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St. 3d 35, 506
N.E.2d 212 (1987).
{¶21} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.
15CA56, 2015-Ohio-4444, ¶ 13:
It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex
Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L.Ed.2d
265(1986). The standard for granting summary judgment is delineated in
Richland County, Case No. 18CA123 7
Dresher v. Burt (1996), 75 Ohio St. 3d 280 at 293: “* * * a party seeking
summary judgment, on the ground that the nonmoving party cannot prove
its case, bears the initial burden of informing the trial court of the basis for
the motion, and identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact on the essential element(s) of
the nonmoving party's claims. The moving party cannot discharge its initial
burden under Civ.R. 56 simply by making a conclusory assertion the
nonmoving party has no evidence to prove its case. Rather, the moving
party must be able to specifically point to some evidence of the type listed
in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has
no evidence to support the nonmoving party's claims. If the moving party
fails to satisfy its initial burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its initial burden, the
nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to
set forth specific facts showing there is a genuine issue for trial and, if the
nonmovant does not so respond, summary judgment, if appropriate, shall
be entered against the nonmoving party.” The record on summary judgment
must be viewed in the light most favorable to the opposing party. Williams
v. First United Church of Christ (1974), 37 Ohio St. 2d 150.
{¶22} Appellees, in the case sub judice, sought summary judgment on appellant’s
nuisance and trespass claims.
{¶23} The Tenth District Court of Appeals recently summarized the tort of
“nuisance” in Hamilton v. Hibbs L.L.C., 10th Dist. No. 11AP–1107, 2012–Ohio–4074:
Richland County, Case No. 18CA123 8
A “nuisance” is a wrongful invasion of a legal right ord [sic] interest.
Banford v. Aldrich Chem. Co. Inc., 126 Ohio St. 3d 210, 932 N.E.2d 313,
2010–Ohio–2470, ¶ 17. A plaintiff asserting a suit for nuisance may recover
for a public nuisance, i.e., an unreasonable interference with a right
common to the general public. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio
St.3d 416, 768 N.E.2d 1136, 2002–Ohio–2480, ¶ 8; Hurier v. Ohio Dept. of
Transp., 10th Dist. No. 01AP1362, 2002–Ohio–4499, ¶ 9. Alternatively,
such a plaintiff may recover for a private nuisance, i.e., the wrongful
invasion of the use and enjoyment of property. Beretta U.S.A. Corp. at ¶ 8;
Arkes v. Gregg, 10th Dist. No. 05AP–202, 2005–Ohio–6369, ¶ 43; see also
Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App. 3d 704, 714, 622 N.E.2d
1153 (4th Dist.1993) (when a particular nuisance qualifies as both a public
and private nuisance, a plaintiff “may recover either on the basis of the
particular harm to her resulting from the public nuisance or on the basis of
private nuisance”). * * *
A nuisance may be further categorized as either an absolute or
qualified nuisance. The distinction between absolute and qualified nuisance
depends on the conduct of the defendant. Angerman v. Burick, 9th Dist. No.
02CA0028, 2003–Ohio-1469, ¶ 10; Hurier at ¶ 10. “An absolute nuisance is
based on either intentional conduct or an abnormally dangerous condition
that cannot be maintained without injury to property, no matter what care is
taken.” State ex rel. R.T.G., Inc. v. State, 98 Ohio St. 3d 1, 780 N.E.2d 998,
2002–Ohio–6716, ¶ 59. On the other hand, a qualified nuisance is the
Richland County, Case No. 18CA123 9
“negligent maintenance of a condition that creates an unreasonable risk of
harm, ultimately resulting in injury.” Id. * * *
An action for damages due to a qualified nuisance is premised on a
defendant's negligence in allowing a dangerous or bothersome condition to
exist. Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio St. 3d 274, 275,
595 N.E.2d 855 (1992). Therefore, a plaintiff must aver and prove
negligence in order to prevail. Id. at 276, 595 N.E.2d 855. To succeed on a
claim for negligence, a plaintiff must establish that the defendant breached
an applicable duty of care and that the breach proximately caused the
plaintiff injury. Safeco Ins. Co. of Am. v. White, 122 Ohio St. 3d 562, 913
N.E.2d 426, 2009–Ohio–3718, ¶ 36. The standard of care is that care a
reasonable person would exercise in preventing or correcting the
dangerous or bothersome condition. Rothfuss v. Hamilton Masonic Temple
Co., 34 Ohio St. 2d 176, 180, 297 N.E.2d 105 (1973); Kramer v. Angel's
Path, LLC, 174 Ohio App. 3d 359, 882 N.E.2d 46, 2007–Ohio–7099, ¶ 23
(6th Dist.).
Hamilton, at ¶ 15–17, 297 N.E.2d 105.
{¶24} Appellant specifically maintains that appellee Roger Bauer clearly
and intentionally failed to comply with the Jackson Township Zoning Regulations
before constructing the fence and that, as a result of his intentional conduct, he
created an absolute nuisance. Appellant contends that the application did not contain
the required plot plan and sketch of the structure to be built and that the fence, as
constructed, exceeded the dimensions of the fence contained on appellee’s original
Richland County, Case No. 18CA123 10
Application which had been approved by Craig Stover. Appellant also asserts that
Craig Stover was no longer acting as the Zoning Inspector for Jackson Township and
had no authority to approve appellee’s Application. In short, appellant contends that
the zoning permit obtained by appellees to build the fence was invalid and that the
fence, therefore, constituted a nuisance per se.
{¶25} R.C. 519.17 states as follows:
No person shall locate, erect, construct, reconstruct, enlarge, or
structurally alter any building or structure within the territory included in a
zoning resolution without obtaining a zoning certificate, if required under
section 519.16 of the Revised Code, and no such zoning certificate shall be
issued unless the plans for the proposed building or structure fully comply
with the zoning regulations then in effect.
{¶26} Section 1200 of the Jackson Township Zoning Regulations, which is
captioned Public Nuisance” states as follows:
Buildings erected, moved, razed, or converted, or any use of land or
premises carried on in violation of any provision of this Resolution are
declared to be a nuisance per se. Any building or land use activities
considered possible violations of the provision of this Resolution, which are
observed by any Township Official, shall be reported to the Zoning
Inspector.
{¶27} We concur with appellee that:
As is very clear from reading the rest of Section 1200 and the rest of
Article XII, the Zoning Inspector alone is authorized by the Resolution to
Richland County, Case No. 18CA123 11
investigate and enforce any zoning violations. The use of the phrase
“nuisance per se” has no relevance to the law regarding nuisance claims
between adjoining property owners and is a phrase used within the context
of the Zoning Resolution because possible violations must first be
investigated by the Zoning Inspector. Section 1200.1 directs the Zoning
Inspector to inspect each alleged violation and to enforce the Zoning
Resolution if the violation exists. This section certainly cannot be relied
upon as authority of one landowner to sue another for nuisance per se. The
Township Zoning Inspector alone is responsible for enforcing Section 1200
and has never found a zoning violation in this matter.
{¶28} We note that Section 1200 is captioned. “Public Nuisance” and that such
section has no relevance with respect to a private nuisance as is alleged here. Moreover,
appellant does not allege that the fence encroaches on her land in any way or interferes
with her enjoyment of her property as is required for a private nuisance.
{¶29} Based on the foregoing, we find that the trial court did not err in granting
summary judgment in favor of appellee on appellant’s nuisance claim.
{¶30} Appellant also alleges that the trial court erred in granting summary
judgment in favor of appellee on her trespass claim. To prevail on a claim of civil trespass,
appellant must establish that appellee “engaged in (1) an unauthorized intentional act and
(2) entry upon land in the possession of another.” Henderson v. Glancy, 9th Dist. Wayne
No. 10CA0017, 2011–Ohio–1152, ¶ 6, quoting DiPasquale v. Costas, 186 Ohio App. 3d
121, 2010–Ohio–832, 926 N.E.2d 682 ¶ 102.
Richland County, Case No. 18CA123 12
{¶31} Appellant, in her complaint, alleged that “shortly before beginning the
erection of the [fence]… defendants and their agents entered into and upon the real
property of plaintiff without right, without permission and remain (sic) thereon despite
being notified that they were improperly on plaintiff’s real property. Defendants’’ actions
and that of their agents in this regard constitute a trespass.” Appellant, in the affidavit
attached to her memorandum in opposition to the Motion for Summary Judgment, further
alleged, in relevant part, as follows:
{¶32} “Prior to all of this, on or about July 16, 2013, defendant Roger Bauer and
another family member (his brother-in-law) entered upon my property without permission.
They carried a can of spray paint, a piece of rebar, a metal detector and a sledge hammer.
I told defendant Roger Bauer and his brother-in-law repeatedly to get off my property and
that the property was mines (sic). Bauer responded by yelling at me “no, it’s not. It’s my
property!” Defendant Roger Bauer then proceeded to pound the rebar into the ground on
my property and spray paint a large “X” with orange paint on the grass. See photographs
attached hereto as “Exhibits P and Q.” Defendant Bauer claims that he had a survey
completed at that time but I have confirmed that, in fact, no such survey was completed
until April 2014.”
{¶33} We find that there is a genuine issue of material fact as to whether not
appelless’ actions constituted a trespass and that the trial court erred in granting summary
judgment on appellant’s trespass claim.
{¶34} Appellant’s sole assignment of error is, therefore, overruled in part and
sustained in part.
Richland County, Case No. 18CA123 13
{¶35} Accordingly, the judgment of the Richland County Court of Common Pleas
is affirmed in part and reversed in part. This matter is remanded to the trial court for further
proceedings consistent with this Opinion.
By: Baldwin, J.
Hoffman, P.J. and
Wise, Earle, J. concur.