[Cite as Paulsen v. Dennis , 2010-Ohio-4579.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
CHARLES S. PAULSEN, : : Plaintiff-Appellant, : Case No. 09CA25 : vs. : Released: September 20, 2010 : SHELLEY DENNIS, : DECISION AND JUDGMENT : ENTRY Defendant-Appellee. : _____________________________________________________________ APPEARANCES:
Charles Paulsen, Logan, Ohio, Plaintiff-Appellant, pro se.
Larry D. Wines, Mollica, Gall, Sloan & Sillery Co., L.P.A., Athens, Ohio, for Defendant-Appellee. _____________________________________________________________
McFarland, P.J.:
{¶1} Charles S. Paulsen, Plaintiff-Appellant, appeals the decision
of the Hocking County Court of Common Pleas granting summary judgment
in favor of Defendant-Appellee, Shelley Dennis.1 Paulson claims there was
error below in that 1) the trial court improperly struck the affidavit of his
expert witness; and 2) the trial court's decision violated a city zoning
ordinance. After a full review of the proceedings below, we overrule both
assignments of error and affirm the trial court’s decision.
1 Paulsen mistakenly refers to himself as the appellee and to Dennis as the appellant in his brief. Hocking App. No. 09CA25 2
I. Facts
{¶2} Paulsen and Dennis are neighbors whose properties are
separated by an alley. In 2005, Dennis constructed a drainage bed along the
side of her house that borders the alley. She was given verbal permission to
do so by the Logan City Service Director. In April 2008, Paulsen filed a
nuisance complaint against Dennis, alleging that the drainage bed
diminished the value of his property.
{¶3} Dennis subsequently moved for summary judgment. Attached
to Paulson's memo contra was the “affidavit” of Robert Cecil. Cecil stated
in that document that the drainage bed had substantially devalued Paulsen’s
property. Dennis moved to strike Cecil’s statement, arguing that the
document did not constitute an affidavit because it did meet the requirements
of Civ.R. 56(E). The trial court agreed, struck Cecil's statement from
Paulsen's memo contra, and granted summary judgment in favor of Dennis.
Paulson challenges that decision in the current appeal.
II. Assignments of Error
First Assignment of Error
STRIKING OF THE AFFIDAVIT BY ROBERT CECIL. Second Assignment of Error
DISMISSAL OF CASE CONTRARY TO LOGAN CITY CODE. Hocking App. No. 09CA25 3
III. First Assignment of Error
{¶4} In his first assignment of error, Paulsen argues that the trial
court erred in striking Robert Cecil's statement from Paulsen's memo contra.
The appropriate appellate standard of review is abuse of discretion. See,
e.g., Madison Cty. Bd. of Commrs. v. Bell, 12th Dist. No. CA2005-09-036,
2007-Ohio-1373, at ¶86; Ohio Farm Bur. Fedn. v. Amos, 5th Dist. No. 05
COA 031, 2006-Ohio-1512, at ¶41. Abuse of discretion is more than an
error of judgment. Rather, it indicates that a ruling was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219, 450 N.E.2d 1140. Furthermore, when applying the abuse of
discretion standard, we may not substitute our judgment for that of the trial
court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301.
{¶5} Affidavits are among the evidentiary materials that may be
used to substantiate or contest a motion for summary judgment. But to
qualify as an affidavit, certain requirements must be met. “Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated in the affidavit.”
Civ.R. 56(E). Additionally, R.C. 2319.02 states that “[a]n affidavit is a
written declaration under oath * * *.” Hocking App. No. 09CA25 4
{¶6} Paulsen asserts that Cecil's statement, attached to Paulson's
memo contra, qualifies as in affidavit and, thus, the trial court erred in
striking it. The contents of Cecil’s statement are presented below:
{¶7} “To Whom It May Concern;
{¶8} I have been active in the Real Estate industry for over 30
years. It is my opinion that the encroachment of the Flower [sic] bed next
door, into the alley, between the two properties will hinders [sic] the value of
Mr. Paulsen's property about $10,000.00-$15,000.00.
{¶9} Any future buyer that may have a larger vehicle or a boat,
camper, trailer would have trouble getting them into the alley. Thereby
reducing the buyer pool. This encroachment also reduces Mr. Paulsen's
access for the same reasons mentioned above.”
{¶10} Following the text related above is Cecil's signature, a notary
stamp, the date, and the signature of the notary.
{¶11} We agree with the trial court that this statement does not
constitute an affidavit. As both the trial court and Dennis note, though the
document contains a notary seal and stamp, and the signatures of Cecil and
the notary, nowhere does the document state that Cecil made the statements
under oath or that he made the statements to the best of his knowledge,
information and belief. The document also fails to state that the notary Hocking App. No. 09CA25 5
witnessed Cecil's signature. In very similar circumstances, the Supreme
Court of Ohio has found that such a document is not an affidavit. Moss v.
Bush, 104 Ohio St.3d 1443, 819 N.E.2d 1125, 2004-Ohio-7119 (Table, No.
2004-2088). See, also, Occhionero v. Cox, 8th Dist. No. 92334, 2009-Ohio-
3891, at ¶7.
{¶12} Because Cecil's statement does not qualify as an affidavit, the
trial court did not abuse its discretion in striking it from Paulsen's memo
contra. Accordingly, we overrule Paulsen's first assignment of error.
IV. Second Assignment of Error
{¶13} Paulson's second assignment of error is that the trial court's
decision to grant summary judgment in favor of Dennis was contrary to
Logan City Code. But as will be shown below, Paulson lacks standing to
assert this assignment of error.
{¶14} R.C. 713.13 governs when a person may bring suit for a
violation of a zoning ordinance:
{¶15} “No person shall erect, construct, alter, repair, or maintain any
building or structure or use any land in violation of any zoning ordinance or
regulation enacted pursuant to sections 713.06 to 713.12, inclusive, of the
Revised Code, or Section 3 of Article XVIII, Ohio Constitution. In the
event of any such violation, or imminent threat thereof, the municipal Hocking App. No. 09CA25 6
corporation, or the owner of any contiguous or neighboring property who
would be especially damaged by such violation, in addition to any other
remedies provided by law, may institute a suit for injunction to prevent or
terminate such violation.”
{¶16} Under R.C. 713.13, the party seeking relief bears the burden
of showing that he or she would be “especially damaged.” Conkle v. S. Ohio
Med. Ctr., 4th Dist. No. 04CA2973, 2005-Ohio-3965, at ¶13. Though
evidence of diminished property value is enough to establish special damage
in the context of R.C.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Paulsen v. Dennis , 2010-Ohio-4579.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
CHARLES S. PAULSEN, : : Plaintiff-Appellant, : Case No. 09CA25 : vs. : Released: September 20, 2010 : SHELLEY DENNIS, : DECISION AND JUDGMENT : ENTRY Defendant-Appellee. : _____________________________________________________________ APPEARANCES:
Charles Paulsen, Logan, Ohio, Plaintiff-Appellant, pro se.
Larry D. Wines, Mollica, Gall, Sloan & Sillery Co., L.P.A., Athens, Ohio, for Defendant-Appellee. _____________________________________________________________
McFarland, P.J.:
{¶1} Charles S. Paulsen, Plaintiff-Appellant, appeals the decision
of the Hocking County Court of Common Pleas granting summary judgment
in favor of Defendant-Appellee, Shelley Dennis.1 Paulson claims there was
error below in that 1) the trial court improperly struck the affidavit of his
expert witness; and 2) the trial court's decision violated a city zoning
ordinance. After a full review of the proceedings below, we overrule both
assignments of error and affirm the trial court’s decision.
1 Paulsen mistakenly refers to himself as the appellee and to Dennis as the appellant in his brief. Hocking App. No. 09CA25 2
I. Facts
{¶2} Paulsen and Dennis are neighbors whose properties are
separated by an alley. In 2005, Dennis constructed a drainage bed along the
side of her house that borders the alley. She was given verbal permission to
do so by the Logan City Service Director. In April 2008, Paulsen filed a
nuisance complaint against Dennis, alleging that the drainage bed
diminished the value of his property.
{¶3} Dennis subsequently moved for summary judgment. Attached
to Paulson's memo contra was the “affidavit” of Robert Cecil. Cecil stated
in that document that the drainage bed had substantially devalued Paulsen’s
property. Dennis moved to strike Cecil’s statement, arguing that the
document did not constitute an affidavit because it did meet the requirements
of Civ.R. 56(E). The trial court agreed, struck Cecil's statement from
Paulsen's memo contra, and granted summary judgment in favor of Dennis.
Paulson challenges that decision in the current appeal.
II. Assignments of Error
First Assignment of Error
STRIKING OF THE AFFIDAVIT BY ROBERT CECIL. Second Assignment of Error
DISMISSAL OF CASE CONTRARY TO LOGAN CITY CODE. Hocking App. No. 09CA25 3
III. First Assignment of Error
{¶4} In his first assignment of error, Paulsen argues that the trial
court erred in striking Robert Cecil's statement from Paulsen's memo contra.
The appropriate appellate standard of review is abuse of discretion. See,
e.g., Madison Cty. Bd. of Commrs. v. Bell, 12th Dist. No. CA2005-09-036,
2007-Ohio-1373, at ¶86; Ohio Farm Bur. Fedn. v. Amos, 5th Dist. No. 05
COA 031, 2006-Ohio-1512, at ¶41. Abuse of discretion is more than an
error of judgment. Rather, it indicates that a ruling was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219, 450 N.E.2d 1140. Furthermore, when applying the abuse of
discretion standard, we may not substitute our judgment for that of the trial
court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301.
{¶5} Affidavits are among the evidentiary materials that may be
used to substantiate or contest a motion for summary judgment. But to
qualify as an affidavit, certain requirements must be met. “Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated in the affidavit.”
Civ.R. 56(E). Additionally, R.C. 2319.02 states that “[a]n affidavit is a
written declaration under oath * * *.” Hocking App. No. 09CA25 4
{¶6} Paulsen asserts that Cecil's statement, attached to Paulson's
memo contra, qualifies as in affidavit and, thus, the trial court erred in
striking it. The contents of Cecil’s statement are presented below:
{¶7} “To Whom It May Concern;
{¶8} I have been active in the Real Estate industry for over 30
years. It is my opinion that the encroachment of the Flower [sic] bed next
door, into the alley, between the two properties will hinders [sic] the value of
Mr. Paulsen's property about $10,000.00-$15,000.00.
{¶9} Any future buyer that may have a larger vehicle or a boat,
camper, trailer would have trouble getting them into the alley. Thereby
reducing the buyer pool. This encroachment also reduces Mr. Paulsen's
access for the same reasons mentioned above.”
{¶10} Following the text related above is Cecil's signature, a notary
stamp, the date, and the signature of the notary.
{¶11} We agree with the trial court that this statement does not
constitute an affidavit. As both the trial court and Dennis note, though the
document contains a notary seal and stamp, and the signatures of Cecil and
the notary, nowhere does the document state that Cecil made the statements
under oath or that he made the statements to the best of his knowledge,
information and belief. The document also fails to state that the notary Hocking App. No. 09CA25 5
witnessed Cecil's signature. In very similar circumstances, the Supreme
Court of Ohio has found that such a document is not an affidavit. Moss v.
Bush, 104 Ohio St.3d 1443, 819 N.E.2d 1125, 2004-Ohio-7119 (Table, No.
2004-2088). See, also, Occhionero v. Cox, 8th Dist. No. 92334, 2009-Ohio-
3891, at ¶7.
{¶12} Because Cecil's statement does not qualify as an affidavit, the
trial court did not abuse its discretion in striking it from Paulsen's memo
contra. Accordingly, we overrule Paulsen's first assignment of error.
IV. Second Assignment of Error
{¶13} Paulson's second assignment of error is that the trial court's
decision to grant summary judgment in favor of Dennis was contrary to
Logan City Code. But as will be shown below, Paulson lacks standing to
assert this assignment of error.
{¶14} R.C. 713.13 governs when a person may bring suit for a
violation of a zoning ordinance:
{¶15} “No person shall erect, construct, alter, repair, or maintain any
building or structure or use any land in violation of any zoning ordinance or
regulation enacted pursuant to sections 713.06 to 713.12, inclusive, of the
Revised Code, or Section 3 of Article XVIII, Ohio Constitution. In the
event of any such violation, or imminent threat thereof, the municipal Hocking App. No. 09CA25 6
corporation, or the owner of any contiguous or neighboring property who
would be especially damaged by such violation, in addition to any other
remedies provided by law, may institute a suit for injunction to prevent or
terminate such violation.”
{¶16} Under R.C. 713.13, the party seeking relief bears the burden
of showing that he or she would be “especially damaged.” Conkle v. S. Ohio
Med. Ctr., 4th Dist. No. 04CA2973, 2005-Ohio-3965, at ¶13. Though
evidence of diminished property value is enough to establish special damage
in the context of R.C. 713.13, a party lacks standing under the statute when
he or she fails to present such evidence. Id. at ¶14.
{¶17} In the case sub judice, Paulson has failed to produce
admissible evidence that the drainage bed has diminished his property value.
Dennis’ expert witness, Katie Perez, stated that the drainage bed has no
negative impact on the value of Paulson's property. And in his deposition
testimony, even Paulson's expert witness, Robert Cecil, indicated that there
was no diminution. He testified as follows:
{¶18} “Q. Okay. And, again, setting aside, you know, theoretical or
hypothetical vacations and closings are the alleyway, then what impact does
the drainage bed have on Mr. Paulson's property as it currently stands?”
{¶19} “A. As it currently stands, it really doesn't have any.” Hocking App. No. 09CA25 7
{¶20} “Q. Okay.”
{¶21} “A. Because there is enough room that he can get by that to
get back to his garage. But if it was extended on back across from his
garage, then, no, there wouldn't be enough room.”
{¶22} “Q. Okay. But as it currently is, but as it currently is, there's
no negative impact on Mr. Paulson's property; is that your opinion?”
{¶23} “A. Other than encroaching other property, yes.”
{¶24} Accordingly, the only assertion of a diminution in value is the
purported “affidavit” of Robert Cecil that was attached to Paulson's memo
contra. As already shown in our analysis of Paulson's first assignment of
error, that document does not constitute a valid affidavit. Accordingly, all
the evidence properly before the trial court showed that there was no
diminution in the value of Paulson's property. As such, he lacks standing to
challenge Dennis’ drainage bed on the basis that it violates a zoning
ordinance.
V. Conclusion
{¶25} After reviewing the record below, we find that neither of
Paulson's assignments of error are warranted. Because Robert Cecil’s
statement was not properly sworn, it does not constitute a valid affidavit. As
such, the trial court was correct in striking it from the record. Further, Hocking App. No. 09CA25 8
because Paulson failed to present admissible evidence that the value of his
property was diminished by the installation of the drainage bed, he lacks
standing to bring suit under R.C. 713.13. Accordingly, we overrule both of
his assignments of error and affirm the decision of the court below.
JUDGMENT AFFIRMED. Hocking App. No. 09CA25 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
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 Common Pleas 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. Exceptions.
Kline, J.: Concurs in Judgment and Opinion. Harsha, J. Concurs in Judgment Only.
For the Court,
BY: _________________________ Matthew W. McFarland Presiding 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.