[Cite as Olive Oil, L.L.C. v. Cleveland Elec. Illum. Co., 2021-Ohio-2309.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
OLIVE OIL, L.L.C., :
Plaintiff-Appellant/Cross- : Appellee, : No. 109553 v. : CLEVELAND ELECTRIC ILLUMINATING CO., ET AL., :
: Defendants-Appellees/ Cross-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED RELEASED AND JOURNALIZED: July 8, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-912282
Appearances:
Law Office of Matthew S. Romano, L.L.C., and Matthew S. Romano, for appellant.
Calfee, Halter & Griswold, L.L.P., Lindsey E. Sacher, Anthony Stringer, and Thomas I. Michals for appellee/cross-appellant, The Cleveland Electric Illuminating Co. Weston Hurd L.L.P., and Cornelius J. O’Sullivan, for appellees, Independence Construction L.L.C., Independence Excavating, Inc., and Front Street Group L.L.C.
EILEEN A. GALLAGHER, J.:
Plaintiff-appellant/cross-appellee, Olive Oil, L.L.C., appeals from
judgments rendered against it by the Cuyahoga County Court of Common Pleas.
After the 2017 replacement of power lines over a portion of Olive Oil’s property,
Olive Oil brought various claims against the Cleveland Electric Illuminating
Company (“CEI”), Independence Excavating, Inc. (“IE”), Independence
Construction, L.L.C. (“IC”) and Front Street Group, L.L.C. For the reasons that
follow, we affirm in part, reverse in part and remand.
I. Background
Since 2016, Olive Oil has owned the property located at 130 Front
Street in Berea, Ohio. The property includes storefronts and residential housing. It
also includes a parking lot along the east side of the property. Olive Oil is the
landlord and collects rents from the tenants. Mike Gantous is the sole owner of Olive
Oil. One tenant is Mike’s Bar & Grill, a restaurant that Gantous owns by way of
another company, J.A.M.S., L.L.C. Olive Oil is the only plaintiff in this action,
neither Gantous nor J.A.M.S. are a party to this case.
The parking lot is bordered on the east by West Street and on the
south by School Street. Since at least 1987, and until 2017, CEI ran power lines over the southeast corner of the parking lot, between a pole on West Street and a pole on
the south side of School Street (“old wires”).
In 2017, because of a development project involving the other
defendants, CEI moved the pole from the south side of School Street to the public
right-of-way on the north side of the street. Moving the pole across the street caused
the wires strung between it and the pole on West Street (“new wires”) to occupy a
larger portion of space over Olive Oil’s parking lot. There was expert testimony
presented at trial that the path of the new wires was within 20 feet of the path of the
old wires. Gantous did not consent to having the new wires span over his property
and litigation ensued.
The case proceeded to a jury trial. Olive Oil and all of the defendants
presented their cases. However, the court disposed of all claims through directed
verdicts prior to charging the jury.
Relevant to this appeal, the trial court granted directed verdicts on
Olive Oil’s trespass and civil conspiracy claims as well as its statutory claim pursuant
to R.C. 2307.60 and 2307.61. The trial court also dismissed Olive Oil’s declaratory
judgment claim pursuant to Civ.R. 41(B) for failure to prosecute. This appeal
follows.
Assignments of Error
Olive Oil asserts six assignments of error for review:
1. The Trial Court’s Denial of Plaintiff-Appellant Olive Oil LLC’s (“Olive Oil”) Motion for Partial Summary Judgment is Reversible Error. 2. The Trial Court’s Civ. R. 41(B)(1) Dismissal of Olive Oil’s Declaratory Judgment Claim is Reversible Error.
3. The Trial Court’s Refusal to Permit Olive Oil’s Owner to Testify on the Diminution in Property Value is Reversible Error.
4. The Trial Court’s Directed Verdict Dismissing Olive Oil’s Trespass Claim is Reversible Error.
5. The Trial Court’s Directed Verdict Dismissing Olive Oil’s Claim for Violations of R.C. 2307.60 and 2307.61(A)(1) is Reversible Error.
6. The Trial Court’s Directed Verdict Dismissing Olive Oil’s Civil Conspiracy Claim is Reversible Error.
CEI has cross-appealed and asserted five of its own assignments of
error for review:
1. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s Trespass Claim Because CEI Presented Undisputed Evidence That It Had a Right Relocate the New Wires Over the Property.
2. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s “Civil Theft” Claim and Request for Liquidated Damages Pursuant to R.C. 2307.60 and 2307.61.
3. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s Civil Conspiracy Claim.
4. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s Declaratory Judgment Claim.
5. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s Requests for Punitive Damages and Attorney’s Fees.
We address the assignments of error in an order and manner that aids
our analysis. II. Analysis
A. Directed Verdict for Trespass Claim In its fourth assignment of error, Olive Oil argues that granting a
directed verdict on its trespass claim was reversible error. In this assignment of
error, Olive Oil confines its argument to CEI.
A trial court should grant a motion for directed verdict when “after
construing the evidence most strongly in favor of the party against whom the motion
is directed, finds that upon any determinative issue reasonable minds could come to
but one conclusion upon the evidence submitted and that conclusion is adverse to
such party.” Civ.R. 50(A)(4); Krofta v. Stallard, 8th Dist. Cuyahoga No. 85369,
2005-Ohio-3720, ¶ 10. A motion for directed verdict does not test witness credibility
or the weight of the evidence. Krofta at ¶ 10. The motion instead tests “the legal
sufficiency of the evidence to allow the case to proceed to the jury, and it constitutes
a question of law, not one of fact.” Id. A trial court properly grants a motion for
directed verdict where the party opposing the motion fails to adduce any evidence
of at least one essential element of the claim. Id. at ¶ 11. We review de novo whether
the trial court properly entered a directed verdict. Id. at ¶ 9.
“Trespass is an unlawful entry upon the property of another.” Chance
v. BP Chems., Inc., 77 Ohio St.3d 17, 24, 670 N.E.2d 985 (1996), citing Keesecker v.
G.M. McKelvey Co., 141 Ohio St. 162, 166, 47 N.E.2d 211, 214 (1943). “Thus, the
elements of trespass are ‘(1) an unauthorized intentional act, and (2) entry upon land
in the possession of another.’” Thomas v. Murry, 8th Dist. Cuyahoga No. 109287, 2021-Ohio-206, ¶ 69, quoting Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d
704, 716, 622 N.E.2d 1153 (4th Dist.1993). The plaintiff bears the burden of proving
all elements of a trespass claim. Chance at 23.
“[A] showing of trespass entitles a plaintiff to at least nominal
damages.” Misseldine v. Corporate Investigative Servs., 8th Dist. Cuyahoga No.
81771, 2003-Ohio-2740, ¶ 31, citing Lamberjack v. Gyde, 6th Dist. Ottawa No. 92-
OT-034, 1993 Ohio App. LEXIS 5528 (Nov. 13, 1993); see also Lacey v. Laird, 166
Ohio St. 12, 12, 139 N.E.2d 25 (1956), paragraph two of the syllabus (“‘Nominal
damages’ are those recoverable a legal right is to be vindicated against an invasion
thereof which has produced no actual loss of any kind, or where, from the nature of
the case, some injury has been done, the extent of which the evidence fails to show.”).
In order for a plaintiff to be entitled to actual damages, “‘the plaintiff must prove
that the that the trespass proximately caused that for which compensation is sought
and the amount of those damages.’” Id., quoting Lamberjack at 19-20; see also
Krofta at ¶12 (“A trespasser is only liable if his trespass proximately caused the
damages.”).
Here, the trial court granted a directed verdict on Olive Oil’s trespass
claim, explaining that its reason for doing so was that Olive Oil failed to prove
damages:
[T]he plaintiff’s complaint is one of tort. And tort, you must show damages, that is an element of the tort. If you don’t show damages, then unfortunately you cannot prevail. So as to trespass, permanent and temporary, defendants’ Rule 50 motion is hereby granted.
It was error for the trial court to dismiss the trespass claim on the
basis that Olive Oil failed to establish damages. While we agree that Olive Oil failed
to establish that it was actually damaged by the new wires, trespass is established
where a defendant enters onto another’s property without authorization. See
Chance, 77 Ohio St.3d at 24, 670 N.E.2d 985; see also Misseldine at ¶ 26 (trespass
can be established by the invasion of the airspace above another’s property). Here,
there was evidence presented that CEI trespassed on Olive Oil’s property without
Olive Oil’s permission.
Nevertheless, there was also evidence presented that CEI acquired a
prescriptive easement for the old wires running over Olive Oil’s property. “A party
claiming a prescriptive easement has the burden of proving a use of the property
that is: (1) open; (2) notorious; (3) adverse to the neighbor’s property rights; (4)
continuous; and (5) at least 21 years in duration.” Harris v. Dayton Power & Light
Co., 2016-Ohio-517, 56 N.E.3d 399, ¶ 18 (2d Dist.); see also J. F. Gioia, Inc. v.
Cardinal Am. Corp., 23 Ohio App.3d 33, 37, 491 N.E.2d 325 (8th Dist.1985) (“The
party claiming a prescriptive easement has the burden of proving each of those
elements.”). Moreover, there was evidence presented that that the new wires,
although not tracing the precise path of the old, nevertheless fell within that
prescriptive easement. However, there was no determination whether a prescriptive
easement existed for the old wires and there was no determination of the dimensions
of any such easement. See Kattelman vs. Young Men’s Christian Assn., 1st Dist.
Hamilton No. C-810947, 1982 Ohio App. LEXIS 13005, 3 (Oct. 27, 1982), citing
Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898 (1897) (“[T]he dimensions of an
easement acquired by prescription are determined by actual use during the
prescriptive period.”). Further, there was no determination whether the path of the
new wires impermissibly exceeded the scope of any existing easement. See
Kattelman at 5, citing Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870 (1977)
(“[The] use cannot be so substantially altered or enlarged that the nature, character
and burden thereof create a new and different servitude.”).
We, therefore, sustain the assignment of error and remand for
determinations of whether CEI acquired a prescriptive easement, whether the new
wires impermissibly exceed the scope of any such easement and thereby constitute
a trespass on Olive Oil’s property and if so, the measure of damages that result from
the trespass.
B. Directed Verdict for Civil Conspiracy Claim In its sixth assignment of error, Olive Oil argues that the trial court
erred by granting a directed verdict on its civil conspiracy claim.
“Civil conspiracy is ‘a malicious combination of two or more persons
to injure another in person or property, in a way not competent for one alone,
resulting in actual damages.’” Maddox Defense, Inc. v. GeoData Sys. Mgmt., 2019- Ohio-1778, 135 N.E.3d 1212, ¶ 47 (8th Dist.), quoting LeFort v. Century 21-Maitland
Realty Co., 32 Ohio St.3d 121, 126, 512 N.E.2d 640 (1987). “An action for civil
conspiracy cannot be maintained unless an underlying unlawful act is committed.”
Williams v. United States Bank Shaker Square, 8th Dist. Cuyahoga No. 89760,
2008-Ohio-1414, ¶ 16, citing Gosden v. Louis, 116 Ohio App.3d 195, 219, 687 N.E.2d
481 (9th Dist.1996).
Olive Oil asserts that the trial court concluded that it proved that there
was a “malicious combination” involving “two or more persons,” but that it failed to
prove damages. A review of the record reflects that the trial court made no such
affirmative findings; however, Olive Oil is correct to the extent the court granted a
directed verdict on the conspiracy claim after finding no evidence of damages.
Olive Oil claims that “[t]here was overwhelming evidence presented
at trial and in the record that Independence Construction and CEI conspired to
commit harm to Olive Oil,” but fails to actually identify any such evidence. This does
not satisfy Olive Oil’s obligation under App.R. 16(A)(7). An appellate court is not
obliged to construct or develop arguments in support of an assignment of error
where the appellant has otherwise failed to do so. V.C. v. O.C., 8th Dist. Cuyahoga
No. 109988, 2021-Ohio-1491, ¶ 89; see also State v. Collins, 8th Dist. Cuyahoga No.
89668, 2008-Ohio-2363, ¶ 91, quoting State v. Franklin, 9th Dist. Summit No.
22771, 2006-Ohio-4569, ¶ 19 (“‘[I]t is not the duty of this Court to develop an
argument in support of an assignment of error if one exists.’”); App.R. 12(A)(2). “If
an argument exists that can support this assigned error, it is not this court’s duty to root it out.” V.C. at ¶ 89, quoting Strauss v. Strauss, 8th Dist. Cuyahoga No. 95377,
2011-Ohio-3831, ¶ 72.
More specifically, we observe that Olive Oil makes no argument as to
how the trial court erred by finding no evidence of actual damages. Specifically,
Olive Oil fails to identify any evidence in the record establishing actual damages.1
Accordingly, regardless of whether Olive Oil has a viable trespass
claim and is therefore entitled to nominal damages, its failure to prove actual
damages is fatal to its civil conspiracy. See Gosden, 116 Ohio App.3d at 220, 687
N.E.2d 481, citing Minarik v. Nagy, 8 Ohio App.2d 194, 195-96, 193 N.E.2d 280
(8th Dist.1963) (“The element of ‘resulting in actual damages’ means that, if a
plaintiff suffers no actual damages from the underlying unlawful act, there can be
no successful civil conspiracy action.”); see also Ogle v. Hocking Cty., 4th Dist.
Hocking No. 14CA3, 2014-Ohio-5422, ¶ 39 (“[T]here must be actual damages
attributable to the conspiracy in addition to those damages caused by the underlying
tort in order for the plaintiff to recover from the conspiracy.”).
Accordingly, we overrule Olive Oil’s sixth assignment of error.
1 We note that Gantous testified that the monetary damage he suffered as the result of the new wires was “[h]ow much I paid for the whole property and all the improvements I put in there.” Although Olive Oil does not cite this as evidence of actual damages, and we agree that it is not, we nevertheless mention it here because that statement is more fully addressed in a subsequent assignment of error. C. Directed Verdict for R.C. 2307.60 and 2307.61 Claim In its fifth assignment of error, Olive Oil argues that the trial court
erred by granting a directed verdict on its R.C. 2307.60 and 2307.61(A)(1) claim.
Olive Oil confines this argument to CEI.
The trial court granted a directed verdict as to Olive Oil’s R.C. 2307.60
and 2307.61 claims based on a finding that there were no damages.
R.C. 2307.60 provides a mechanism for civil recovery following
criminal acts for “[a]nyone injured in person or property by a criminal act.” R.C.
2307.60(A). R.C. 2307.61 is applicable where a property owner brings a civil action
pursuant to R.C. 2307.60(A) to recover from a person who willfully damages the
owner’s property or who commits a theft offense, as defined in section 2913.01 that
involves the owner’s property. R.C. 2307.61(A).
Here, Olive Oil failed to identify any evidence in the record in support
of its R.C. 2307.60 and 2307.61 claims. Olive Oil failed to offer any basis by which
we can conclude that CEI committed a criminal act that injured Olive Oil in person
or property as required by R.C. 2307.60. Similarly, Olive Oil failed to offer any basis
by which we can conclude that CEI willfully damaged its property or committed a
theft offense as required by R.C. 2307.61. Aside from citation to these statutes, as
well as the criminal theft and trespass statutes, Olive Oil has offered no authority
demonstrating it is entitled to judgment on this claim or that that the trial court
erred by granting a directed verdict as to this claim. Instead, Olive Oil offers the unsupported conclusion that “CEI’s
conduct was both a criminal trespass * * * and a criminal theft * * *.” Merely
concluding that conduct was criminal does not make it so. More to the point, it does
not satisfy Olive Oil’s obligation under App.R. 16(A)(7). As stated in the previous
assignment of error, this court will not construct or develop arguments for a party
that has failed to do so itself. See V.C. at 89.
We overrule this assignment of error.
D. Civ.R. 41(B)(1) Dismissal of Declaratory Judgment Claim In its second assignment of error, Olive Oil argues that the trial court’s
dismissal of its declaratory judgment claim pursuant to Civ.R. 41(B) is reversible
error.
Civ.R. 41(B) governs dismissals for failure to prosecute. Civ.R.
41(B)(1) provides:
Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.
“The power to dismiss for lack of prosecution is within the sound
discretion of the trial court.” Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 1199
(1982). As a general matter, a trial court abuses its discretion where its decision is
arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983). Where a case is dismissed with prejudice,
however, appellate courts apply a heightened abuse-of-discretion standard of
review. See, e.g., Jones v. Hartranft, 78 Ohio St.3d 368, 372, 678 N.E.2d 530 (1997) (“[A]lthough reviewing courts espouse an ordinary “abuse of discretion” standard of
review for dismissals with prejudice, that standard is actually heightened when
reviewing decisions that forever deny a plaintiff a review of a claim’s merits.”);
Simmons v. Narine, 2014-Ohio-2771, 15 N.E.3d 1206, ¶ 7 (8th Dist.), quoting Ocran
v. Richlak, 8th Dist. Cuyahoga No. 99856, 2013-Ohio-4603, ¶ 12 (“Because it is such
a harsh sanction, ‘forever deny[ing] a plaintiff a review of a claim’s merits,’ we review
a trial court’s decision to dismiss a case with prejudice pursuant to Civ.R. 41(B)(1)
under a ‘heightened’ abuse-of-discretion standard.”).
Here, the trial court dismissed Olive Oil’s declaratory judgment claim
for lack of prosecution on the fourth and final day of trial and only after Olive Oil
had rested its case. The court’s stated reason for doing so was that, according to
Olive Oil’s counsel, Gantous “was upset over recent rulings [directed verdicts
granted against Olive Oil], was sick, was tired and would not return to court.”
Irrespective of the fact that Olive Oil’s counsel was present for the entirety of the
trial and regardless of the fact that Gantous was present for Olive Oil’s case-in-chief
including his own direct and cross-examinations, the court dismissed the
declaratory judgment claim for lack of prosecution.
Under the facts of this case, we find that the trial court erred by
dismissing Olive Oil’s declaratory judgment claim. However, the error was harmless
to the extent that the claim, itself, was outside the scope of the Declaratory Judgment
Act. “‘A declaratory judgment action is a creature of statute’” as set forth
under Revised Code Sections 2721.01 through 2721.15. Tabbaa v. Lexpro, L.L.C.,
8th Dist. Cuyahoga Nos. 109690 and 109691, 2020-Ohio-5514, ¶ 5, quoting
Galloway v. Horkulic, 7th Dist. Jefferson No. 02 JE 52, 2003-Ohio-5145, ¶ 21.
“To be proper, a declaratory-judgment action must, among other
things, be within the scope of the Declaratory Judgment Act.” State ex rel. Ford v.
Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396, ¶ 76, citing Freedom
Rd. Found. v. Ohio Dept. of Liquor Control, 80 Ohio St.3d 202, 204, 685 N.E.2d
522 (1997); see also Tabbaa at ¶ 5 (“A complaint seeking declaratory relief under
R.C. Chapter 2721 must be dismissed where it does not meet any of those
requirements.”).
In relevant part, R.C. 2721.03 provides:
[A]ny person interested under a deed, will, written contract, or other writing constituting a contract or any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.
Here, Olive Oil sought a declaratory judgment “to quiet title to
Plaintiff’s Property in light of the purported prescriptive easement that CEI claims
to hold on Plaintiff’s Property” and to “declare Plaintiff’s full rights over Plaintiff’s
entire Property and eject CEI from the Property.” As such, and for example, Olive Oil makes no claim that it is an
interested party under “a deed, will, written contract, or other writing constituting a
contract” pursuant to R.C. 2721.03. To the contrary, and to the extent that Olive Oil
refers to the extent that a prescriptive easement exists, it underscores the lack of any
written contract for the court to construe. Moreover, pursuant to R.C. 2721.03, Olive
Oil made no claim that it was “affected by a constitutional provision, statute, rule
* * *, municipal ordinance, township resolution, contract, or franchise” and it did
not seek determination of “any question of construction or validity arising under the
instrument, constitutional provision, statute, rule, ordinance, resolution, contract,
or franchise and obtain a declaration of rights, status, or other legal relations under
it.”
Accordingly, the court’s error in dismissing Olive Oil’s declaratory
judgment claim pursuant to Civ.R. 52(B) was harmless. We overrule the assignment
of error.
E. Gantous’ Diminution in Value Testimony In its third assignment of error, Olive Oil argues that the trial court
erred by granting a motion in limine that prevented its owner from testifying as to
diminution in property value caused by the shifted location of the wires.
Prior to trial, the court granted a motion in limine regarding the
extent to which Gantous could testify about the property value. The court stated:
Regarding the cost to restore the plaintiff’s property, I find the plaintiff could testify to that. The diminished value to that property, this is a little bit different because as a lay person, you really can’t — I mean I can’t look at my property and say oh, this happens, that’s the diminished value of this.
* * * [T]he plaintiff will not be able to talk about what he believes the diminished value is.
The trial court’s order reflects that Gantous was not to testify
“regarding his opinion on the diminished value of the property.”
We review a trial court’s decision to admit or exclude evidence for
abuse of discretion. Wray v. Hiironen, 8th Dist. Cuyahoga No. 107558, 2019-Ohio-
4669, ¶ 15. “The term ‘abuse of discretion’ connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.” Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140, citing Steiner
v. Custer, 137 Ohio St. 448, 31 N.E.2d 855 (1940).
“Owner-opinion testimony is an estimate of the property’s value and
is admissible ‘although the owner’s knowledge on the subject is not such as would
qualify him to testify if he were not the owner.’” Cuyahoga Cty. Bd. of Commrs. v.
McNamara, 8th Dist. Cuyahoga No. 95833, 2011-Ohio-3066, ¶ 27, quoting Smith v.
Padgett, 32 Ohio St.3d 344, 348, 513 N.E.2d 737 (1987). This “‘owner-opinion’ rule
follows from the premise that an owner of real or personal property is ‘generally
quite familiar with their property and its value’” and is thus “‘permitted to testify on
value by virtue of their ownership alone.’” Id. at ¶26, quoting Tokles & Son v.
Midwestern Indemn. Co., 65 Ohio St.3d 621, 605 N.E.2d 936 (1992).
Moreover, courts have found that the owner-opinion rule extends to
permit an owner to testify as to diminution in the property’s value. See, e.g., id. at ¶ 2, 16, 31 (owner permitted to testify that removal of ten mature trees decreased
property value by $40,000); see, e.g., Gray v. Petronelli, 11th Dist. Trumbull No.
2016-T-0030, 2017-Ohio-2601, ¶ 42 (homeowner permitted to testify as to
property’s diminished value following faulty I-beam placement); see, e.g., Jones v.
Dayton Power & Light Co., 2d Dist. Greene No. 94-CA-49, 1994 Ohio App. LEXIS
5608, 2-3 (Dec. 14, 1994) (owner testified that power company cutting down
approximately 90 trees diminished property value by $11,000).
Accordingly, the extent to which the trial court prohibited Gantous
from testifying as to any diminution in property value was error. Nevertheless, in
this case we find such error to be harmless because dictates of the motion in limine
notwithstanding, at trial Gantous did testify about diminution in value:
Q. Mike, how did you get damaged by having these wires go across your parking lot?
A. They stole my property.
Q. What would you like done about it, having these wires over your property?
A. Get them off my property or pay the taxes for having them. They literally stole my property.
Q. When you say [“]stole,[”] what monetary damage is caused?
[CEI Counsel]: Objection.
The Court: Overruled.
A. I don’t know, I’m not an expert on that. How much I paid for the whole property and all the improvements I put in there.
The trial court subsequently attempted to clarify Gantous’ position: The Court: So he’s saying he’s been damaged for the entire amount?
[Olive Oil Counsel]: That’s correct. I believe he’s allowed to do that under the law. He’s allowed to testify as to the amount of damage to him as the property owner. That’s what he was doing.
According to Gantous then, the presence of CEI’s wires running over
Olive Oil’s property diminished the value of the property by $615,000, the amount
of money he paid for it, i.e., $450,000, plus the amount of money he spent on
improvements, i.e., $165,000. See McNamara, 2011-Ohio-3066, at ¶ 27, quoting
Smith, 32 Ohio St.3d at 348 (“‘[T]he weight accorded to such testimony is, of course,
a matter to be determined by the trier of fact.’”).
F. Motions for Summary Judgment and Partial Summary Judgment In Olive Oil’s first assignment of error it argues that the trial court
erred by denying its motion for partial summary judgment. Similarly, in CEI’s five
assignments of error, it argues that the trial court erred by denying its motion for
summary judgment.
In Olive Oil’s motion, it argued it was entitled to summary judgment
on its trespass claim because CEI could not prove it had a prescriptive easement. In
CEI’s motion, it argued it was entitled to summary judgment as to all of Olive Oil’s
claims. The trial court denied both motions, finding “genuine issues of material fact
exist and that no party is entitled to judgment as a matter of law.”
“According to the Supreme Court of Ohio, ‘the denial of a motion for
summary judgment is not a point of consideration in an appeal from a final judgment entered following a trial on the merits.’” 7471 Tyler Blvd., L.L.C., v. Titan
Asphalt & Paving, Inc., 2020-Ohio-5304, 162 N.E.3d 851, ¶ 177 (11th Dist.), quoting
Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 156, 642 N.E.2d 615 (1994).
“Any error by a trial court in denying a motion for summary judgment is rendered
moot or harmless if a subsequent trial on the same issues raised in the motion
demonstrates that there were genuine issues of material fact supporting a judgment
in favor of the party against whom the motion was made.” Whittington at syllabus;
see also McNulty v. Pls Acquisition Corp., 8th Dist. Cuyahoga Nos. 79025, 79125
and 79195, 2002-Ohio-7220, ¶ 95 (“Even if summary judgment should have been
granted, defendants failed to show any prejudice. Where a litigant still gets his day
in court, the Ohio Supreme Court has held that the principle of harmless error
applies to the improper denial of a motion for summary judgment.”).
Here, there was a trial on the merits. Both Olive Oil and CEI
presented evidence to the jury. We acknowledge that the trial court did ultimately
dispose of each count before the jury could render a verdict. However, regarding
both Olive Oil’s and CEI’s challenges to the denials of summary judgment as it
pertains to the trespass claim, we have already determined that a directed verdict
was inappropriately granted. Olive Oil’s and CEI’s challenges and arguments
regarding summary judgment do not disturb our conclusion.
Finally, as to CEI’s remaining assignments of error, pertaining to the
trial court’s denial of its motion for summary judgment regarding Olive Oil’s claims
for civil conspiracy, declaratory judgment, punitive damages and attorney fees and statutory claims pursuant to R.C. 2307.60 and 2307.61, we note that the trial court
decided these claims in CEI’s favor. Moreover, to the extent that Olive Oil has
challenged these issues on appeal, we have affirmed the trial court judgment in favor
of CEI.
Accordingly, we overrule Olive Oil’s first assignment of error and
CEI’s five assignments of error.
Judgment affirmed in part, reversed in part and remanded.
It is ordered that appellant/cross-appellee recover from appellee/cross-
appellant CEI costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
________________________ EILEEN A. GALLAGHER, JUDGE
ANITA LASTER MAYS, P.J., CONCURS; LISA B. FORBES, J., CONCURRING IN JUDGMENT ONLY IN PART, DISSENTING IN PART LISA B. FORBES, J., CONCURRING IN JUDGMENT ONLY IN PART, AND DISSENTING IN PART:
I concur in judgment only on all aspects of the majority opinion
except the disposition, in part, of assignment of error two. I would sustain Olive
Oil’s second assignment of error to the extent that claim seven of the complaint
brought a quiet title action.