Pahoundis Family Group, Ltd. v. Schonauer

2019 Ohio 5303

• Court: Ohio Court of Appeals
• Decided: December 20, 2019
• Docket: 2019 CA 002
• Status: Published

Opinion

[Cite as Pahoundis Family Group, Ltd. v. Schonauer, 2019-Ohio-5303.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

PAHOUNDIS FAMILY GROUP, LTD. : JUDGES: : Hon. John W. Wise, P.J. Plaintiff-Appellant : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JERRY SCHONAUER, ET AL. : Case No. 2019 CA 002 : Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 17 CV 009

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 20, 2019

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

MARIO GAITANOS THOMAS J. MULVEY PETER GAITANOS 30 Northwoods Boulevard 437 Market Avenue North Suite 300 Canton, OH 44702 Columbus, OH 43235

CRAIG G. PELINI PAUL B. RICARD 8040 Cleveland Avenue, NW Suite 400 North Canton, OH 44720 Holmes County, Case No. 2019 CA 002 2

Wise, Earle, J.

{¶ 1} Plaintiff-Appellant, Pahoundis Family Group, Ltd., appeals the January 23,

2019 journal entry and the February 4, 2019 judgment entry on verdict form and

interrogatories of the Court of Common Pleas of Holmes County, Ohio, accepting a jury's

verdict and entering judgment for Defendants-Appellees, Jerry Schonauer and Sweet

Breeze Farms & Excavating, LLC.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant is a real estate group that owns real property in Holmes and

Coshocton counties. The properties are leased to farmers who use the land for

agricultural purposes.

{¶ 3} On February 21, 2017, appellant filed a complaint against adjacent property

owner Jerry Schonauer and John Does alleging trespass, conversion, a violation of R.C.

901.51, and negligence in reference to one of its properties located in Holmes County.

Appellant claimed the defendants trespassed on its property and intentionally and/or

recklessly and/or negligently removed trees, a cement wall, and a fence, and placed a

pole barn on part of its property. On July 24, 2017, appellant filed a first amended

complaint to include Sweet Breeze Farms as a party defendant and dropped its claim

regarding the pole barn.

{¶ 4} The parties were referred to mediation, but mediation was unsuccessful. A

jury trial commenced on December 12, 2018. The jury found in favor of appellees on all

claims. The trial court journalized the decision via a journal entry filed January 23, 2019,

and a judgment entry on verdict form and interrogatories filed February 4, 2019. Holmes County, Case No. 2019 CA 002 3

{¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 6} "THE TRIAL COURT ERRED IN NOT GRANTING A DIRECTED VERDICT

IN FAVOR OF APPELLANT AS IT ESTABLISHED A PRIMA FACIE CASE OF

TRESPASS TO LAND AND APPELLEES FAILED TO PRODUCE EVIDENCE

REBUTTING THE TRESPASS TO LAND."

II

{¶ 7} "THE TRIAL COURT ERRED IN NOT ISSUING A JUDGMENT

NOTWITHSTANDING THE VERDICT AS THE JURY'S VERDICT WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."

{¶ 8} In its first assignment of error, appellant claims the trial court erred in not

granting it a directed verdict as it established a trespass to land. We disagree.

{¶ 9} First, we note appellant never made a motion for a directed verdict and did

not bring any arguments to the trial court's attention in that regard. While this court has

held that a trial court may "grant a directed verdict sua sponte," it is certainly not required

to do so. Parrot v. Spring Industries, Inc., 5th Dist. Tuscarawas No. 90AP050039, 1991

WL 64871, *5 (Apr. 24, 1991), citing Gibbons v. Price, 33 Ohio App.3d 4, 514 N.E.2d 127

(8th Dist.1986), paragraph two of the syllabus. A trial court does not err as a matter of

course in failing to grant a motion that was never made.

{¶ 10} Civ.R. 50(A) governs motion for a directed verdict and states a trial court

shall grant the motion if, "after construing the evidence most strongly in favor of the party Holmes County, Case No. 2019 CA 002 4

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." Our standard of review of the trial court's decision presents a

question of law and therefore our review is de novo. Shadle v. Morris, 5th Dist. Stark No.

2012CA00073, 2013-Ohio-906. In this case, there is no trial court decision to review. We

are reviewing the absence of a decision.

{¶ 11} As more fully discussed in Assignment of Error II, a review of the evidence

submitted establishes reasonable minds could differ on the issue of whether there was

an actual trespass. Each side presented evidence that they owned the property in

question that contained the trees removed by appellees. A directed verdict sua sponte

would not have been proper.

{¶ 12} Upon review, we find the trial court did not err in failing to sua sponte grant

a directed verdict to appellant on its trespass claim.

{¶ 13} Assignment of Error I is denied.

{¶ 14} In its second assignment of error, appellant claims the trial court erred in

not issuing a judgment notwithstanding the verdict ("JNOV") as the jury's verdict was

against the manifest weight of the evidence. We disagree.

{¶ 15} First, as in the motion for a directed verdict, appellant never filed a motion

for JNOV. In Pariseau v. Wedge Products, Inc., 36 Ohio St.3d 124, 127, 522 N.E.2d 511

(1988), the Supreme Court of Ohio discussed the standard of review on a motion for

JNOV as follows: Holmes County, Case No. 2019 CA 002 5

"The test to be applied by a trial court in ruling on a motion for

judgment notwithstanding the verdict is the same test to be applied on a

motion for a directed verdict. The evidence adduced at trial and the facts

established by admissions in the pleadings and in the record must be

construed most strongly in favor of the party against whom the motion is

made, and, where there is substantial evidence to support his side of the

case, upon which reasonable minds may reach different conclusions, the

motion must be denied. Neither the weight of the evidence nor the

credibility of the witnesses is for the court's determination in ruling upon

either of the above motions." Posin v. A.B.C. Motor Court Hotel (1976), 46

Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338. (Additional

citations omitted.)

{¶ 16} Appellate review of a ruling on a motion for JNOV is de novo. Midwest

Energy Consultants, L.L.C. v. Utility Pipeline, Ltd., 5th Dist. Stark No. 2006CA00048,

2006-Ohio-6232.

{¶ 17} Under a directed verdict standard, we found reasonable minds could differ

on the issue of whether there was an actual trespass. Because our analysis is the same

under a JNOV standard, we find the granting of a JNOV would have been improper.

{¶ 18} Appellant argues the trial court should have issued a JNOV because the

jury lost its way and the verdict was against the manifest weight of the evidence. A

challenge to the weight of the evidence is not via a JNOV which goes to sufficiency, but

a motion for new trial pursuant to Civ.R. 59(A)(6). Appellant never filed a motion for new Holmes County, Case No. 2019 CA 002 6

trial; however, "a motion for a new trial [is not] a prerequisite for appellate review of the

weight of the evidence" as long as " 'such evidence to be considered appears as a part

of the record filed in the appellate court.' " Eastley v. Volkman, 132 Ohio St.3d 328, 2012-

Ohio-2179, 972 N.E.2d 517, ¶ 28, quoting in part R.C. 2321.01. The record in this case

contains the trial transcript and exhibits for our review.

{¶ 19} On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly

lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). Accord State v. Thompkins, 78 Ohio St.3d

380, 1997-Ohio-52, 678 N.E.2d 541; Eastley, supra. Our role is to determine whether

there is relevant, competent and credible evidence upon which the fact finder could base

its judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (Feb.

10, 1982).

{¶ 20} Appellant alleged in part a civil trespass. A civil trespass " 'occurs when a

person, without authority or privilege, physically invades or unlawfully enters the private

premises of another whereby damages directly ensue.' " Apel v. Katz, 83 Ohio St.3d 11,

19, 697 N.E.2d 600 (1998), quoting Linley v. DeMoss, 83 Ohio App.3d 594, 598, 615

N.E.2d 631, 633 (10th Dist.1992). Naturally, "[t]o prevail on a claim of trespass, the

claimant must prove he had possession of the subject premises at the time of the Holmes County, Case No. 2019 CA 002 7

trespass." Northfield Park Associates v. Northeast Ohio Harness, 36 Ohio App.3d 14, 18

(8th Dist.1987).

{¶ 21} Appellant presented six witnesses. Charles Pahoundis testified to living on

the family farm back in the 1970s. T. at 52. Appellant leases out the land to another

farmer. T. at 54-55. In early 2015, Mr. Pahoundis went to the property and discovered a

whole row of trees missing and laying in the adjacent field, property owned by Mr.

Schonauer. T. at 55-56. Only one lone cherry tree remained near a bridge. T. at 65. Mr.

Pahoundis testified not only were the trees removed, but the bank of a stream was

disturbed and "rip rap" cement to hold up the bank was removed. T. at 56. An old broken

fence had also been removed. T. at 57-58. Mr. Pahoundis claimed these items were on

appellant's property and no one gave Mr. Schonauer permission to enter on the land and

remove the items. T. at 58-59. After the discovery, Mr. Pahoundis caused a survey to

be done by Donald C. Baker. T. at 59; Plaintiff's Exhibit 5. Mr. Pahoundis took

photographs during this 2015 survey and testified to his interpretation of the pictures. T.

at 60-62; Plaintiff's Exhibit 6. Another survey was conducted three years later in 2018 to

verify the 2015 survey. T. at 62-63; Plaintiff's Exhibit 8. During the 2018 survey, an

arborist was present, William Hahn. T. at 64. Again, Mr. Pahoundis took photographs

and testified to his interpretation of the pictures. T. at 64-71; Plaintiff's Exhibits 9 and 11.

During the 2018 survey, Mr. Pahoundis did not see any orange flags or any indications of

the 2015 survey. T. at 71.

{¶ 22} The next witness was Jerry Schonauer on cross-examination. He lived on

his property for over thirty years. T. at 86. Mr. Schonauer had two surveys done, one in

1997 and one in 2017. T. at 87; Plaintiff's Exhibit 7. The 1997 survey was done so Mr. Holmes County, Case No. 2019 CA 002 8

Schonauer could build a fence between the two properties. T. at 91-92. This survey

included stakes with red flags on them and a pin in the ground, as well as a cornerstone.

T. at 92. Mr. Schonauer built the fence based on the survey report. Id. At some point,

Mr. Schonauer contacted Jim Martin from Sweet Breeze Farms & Excavating to remove

the trees. T. at 93. Mr. Schonauer wanted the trees removed because the trees sucked

up water which he wanted for his crops, birds would roost in the trees, and the trees would

scrap against his vehicle when he drove down the driveway. Id. Mr. Schonauer trimmed

the trees and maintained them. T. at 94. Mr. Schonauer admitted he never received

permission from appellant to remove the trees, alter the bank, or remove the fence. T. at

102-103. He testified he never asked Sweet Breeze Farms to remove any of the rip rap.

T. at 105-106. The invoice from Sweet Breeze Farms does not indicate any work done

to remove the rip rap. T. at 105; Plaintiff's Exhibit 4.

{¶ 23} Charles's brother, Louis Pahoundis, testified. He also lived on the family

farm in the 1970s. T. at 113. He testified to having counted twenty-eight trees at one

time before they were removed. T. at 115. He had counted the trees because his hobby

was making maple syrup. Id. The trees were basically in a straight line. T. at 118. He

stated the trees were on appellant's property. T. at 118-119. He never gave Mr.

Schonauer permission to enter the land and remove the items. T. at 119-120.

{¶ 24} Aaron Gerber conducted the 2015 survey. T. at 141; Plaintiff's Exhibit 5.

He testified to the cornerstone being placed when the properties were first laid out; it's a

permanent fixture. T. at 141-142. There was a pin located in the road that was found

with a metal detector and then dug up. T. at 142. He placed a dozen stakes with pink

ribbons. Id. Prior to conducting the survey, Mr. Gerber reviewed records related to the Holmes County, Case No. 2019 CA 002 9

subject property at the Recorder's Office and the Tax Map Department, as well as the

online records of the Auditor's Office. T. at 145. Mr. Gerber also conducted the 2017 and

2018 surveys. T. at 146. The cornerstone, pin, and stakes were in their same relative

locations for all three surveys. T. at 146-147. In the 2018 survey, he placed about 15

stakes. T. at 153. In his professional opinion, he opined the lone remaining tree was on

appellant's property. T. at 154-155. On cross-examination, Mr. Gerber acknowledged in

all of the three surveys he conducted, he never located the cut down trees as to where

they were in relation to the remaining lone tree. T. at 162. He "never located any trees

in relation to the property line." Id. He was never hired to determine the location of the

removed trees in relation to the property line and he did not have an opinion on their

location. Id.

{¶ 25} The next witness was James Martin on cross-examination. Mr. Martin is

the owner of Sweet Breeze Farms. T. at 166. He removed the trees Mr. Schonauer

asked him to remove. T. at 175, 186. There were a couple sizable trees and a bunch of

scrub brush. T. at 179, 187-188. He believed the work he performed was on Mr.

Schonauer's property, but based on a photograph he reviewed, "[n]ot by the looks of the

survey marker on that end of the bridge." T. at 176; Plaintiff's Exhibit 6. Mr. Martin did

not cause a survey to be done. T. at 173. Mr. Schonauer told him to stay off of appellant's

property and he did, except on two occasions when he backed his excavator over the

property line. T. at 177. Mr. Martin did not remove any rip rap, "that stuff was long gone."

T. at 182. Holmes County, Case No. 2019 CA 002 10

{¶ 26} Charles's brother, John Pahoundis testified. He also lived on the family

farm in the 1970s. T. at 193. His testimony basically mirrored the testimony of his two

brothers.

{¶ 27} William Hahn, a professional arborist, was hired by appellant in late 2017 to

appraise the value of the removed trees. T. at 235. He was unable to measure any

stumps as they had been removed, so he "measured the roadway and got a distance"

and worked off of pictures to determine the size of the tree heads and found trees in the

area that had similar head sizes. T. at 236. He then measured the trunks of those trees

and ascertained that some of the removed trees were in excess of twenty-three inches in

diameter "by the size of the heads and extrapolating two (2) other trees in the vicinity."

Id. He determined at least twenty-eight trees had been removed. T. at 240. He stated

based on his inspection, the removed trees did not look like they had been on Mr.

Schonauer's property. T. at 248. He observed regrowth occurring where the trees had

been removed and black locust trees seeding in the area. T. at 249. The black locust

trees "appear when soil is disturbed if there are those trees in the area" and they were

located on appellant's property. Id. There was no question in his mind that the trees had

been removed from appellant's property. T. at 250, 254. He based his opinion on the

"property line and the existing relationship to the existing cherry tree that was in line with

that group of trees." T. at 255. On cross-examination, Mr. Hahn acknowledged that he

did not speak with Mr. Schonauer about the removed trees before forming his opinions

and "it could have been" helpful in his evaluation. T. at 263. He admitted he could not

be sure from the aerial photographs where the trunks were located. T. at 269. From the

aerial photograph, there was the potential for twenty-eight trees either two or three feet in Holmes County, Case No. 2019 CA 002 11

diameter to have been in the removed tree line, but he could not corroborate that. T. at

269-270.

{¶ 28} Appellees presented two witnesses. Mary Uhl, Mr. Schonauer's wife,

testified she has lived on the property for approximately the past twenty-seven years. T.

at 291. Over the years, Ms. Uhl passed the tree line several times a day, and disagreed

with the claim that it contained twenty-eight trees ranging from two to three feet in

diameter. T. at 294. She testified to a hickory tree, three maple trees, some saplings,

and shrubs. T. at 293-294. She and her husband maintained the trees. T. at 294. She

believed the trees were on their property. T. at 296.

{¶ 29} Mr. Schonauer testified to having lived on his property for over thirty years.

T. at 309. In 1997, Mr. Schonauer caused a survey of his property to be done and based

on this survey and the placement of the stakes, believed the trees were on his property.

T. at 310, 319. He removed some trees from the tree line at that time, as the tree line

had extended out to the road. T. at 310-311. The trees that remained that he

subsequently removed shaded his crops, took water from the crops, damaged passing

vehicles, and roosted birds that would damage his hay bales. T. at 311. He maintained

and trimmed the trees. Id. He did not ask anyone's permission to remove the trees

because from the 1997 survey, he believed the trees belonged to him. T. at 311-312. He

hired Sweet Breeze Farms to shore up the bank of the stream, and never asked Mr.

Martin to pull out any rip rap. T. at 312-313. Mr. Schonauer would have never removed

the trees if he believed them to be on appellant's property. T. at 314.

{¶ 30} The jury was presented with testimony and exhibits and determined

appellant did not prove by a preponderance of the evidence that the trees and the fence Holmes County, Case No. 2019 CA 002 12

were on its property and that appellees damaged the bank. Judgment Entry on Verdict

Form and Interrogatories filed February 4, 2019. As mentioned by plaintiff's counsel

during closing argument, credibility is paramount in this case, it is "going to determine this

case of the witnesses." T. at 336.

{¶ 31} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180

(1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶ 32} Each side offered opposing opinions on the tree line relative to the property

line, and there was no clear testimony as to the trees' location following their removal.

The jury could have determined that appellant's evidence did not outweigh or overbalance

appellees' evidence or the evidence presented was equally balanced therefore appellant

did not meets its burden of proof. T. at 328.

{¶ 33} Upon review, we cannot say the jury lost its way. We do not find a manifest

miscarriage of justice.

{¶ 34} Assignment of Error II is denied.

{¶ 35} The judgment of the Court of Common Pleas of Holmes County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Baldwin, J. concur.

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