c. the court's power to direct or vacate a jury verdict our system of jurisprudence, its...
TRANSCRIPT
IN THE SUPREME COURT OF OHIO
KENNETH J. ADAMS,
V.Appellant,
PITORAK & COENENINVESTMENTS LTD., et aL,
David S. Pennington (0031477)WRIGHT LAW CO. LPA4266 Tuller RoadDublin, Ohio 43017Ph: 614-791-9112Fax: 614-791-9116E-Mail: dpenninat on(a wrieht-law.netAttorney for Appellant Kenneth J. Adams
G. Michael Curtin (0016462)Kimberlee J. Kmetz (0063404)CURTIN & KMETZ, LLP159 South Main Street, Suite 920Akron, Ohio 44308Ph: 330-376-7245Fax: 330-376-8128E-Mail: mcurtingcurtinlawfirm.comE-Mail: kkmetzna curtinlawfinn.comAttorneys for Appellee Pitorak & Coenen Investments Ltd.
David J. Fagnilli (0032930)DAVIS & YOUNG1200 Fifth Third Center600 Superior Avenue EastCleveland, Ohio 44114Ph: 216-348-1700Fax: 216-621-0602E-Mail: dl:aenilli it)davisyoung.comAttorneyfor Appellee Clemson Excavating, Inc.
Appellees.
CASE NO.
On Appeal from GeaugaCounty, Court of Appeals,Eleventh Appellate District
Court of AppealsCase No. 2011-G-3019
APPELLANT'S MEMORANDUM OF JURISDICTION
12m^^490
TABLE OF CONTENTS
TABLE OF CONTENTS ...... .... ..... ...... ...... ........ ....... ...... ...... ......... ........ .............ii
...TABLE OF AUTHORITIES ......... .. .... ......... ........ ................... .....:...... ....... ..... ... ui
1. PROPOSITION OF LAW
A COURT MAY NOT EXERCISE ITS POWER TO DIRECT ORVACATE A JURY VERDICT UNDER OHIO RULE OF CIVILPROCEDURE 50 IN A MANNER THAT DENIES A PARTY'SRIGHT TO TRIAL BY JURY UNDER ARTICLE 1, SECTION 5OF THE OHIO CONSTITUTION ..............................................................1
II. EXPLANATION OF WHY A SUBSTANTIAL CONSTITUTIONALQUESTION IS INVOLVED AND WHY THE CASE IS OF PUBLICOR GREAT GENERAL INTEREST ............................................................:................1
III. STATEMENT OF THE CASE AND FACTS .........:.......................................3
A. PROCEDURAL HISTORY ... .: . :... .. ...... ...... ...:.. ...... ..... . ...... .. ..... .. ......3
B. FACTUAL OVERVIEW ...................................................................5
IV. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW.............................. 9
A. PROPOSITION OF LAW . ................................................................9
B. THE INDIVIDUAL'S RIGHT TO TRIAL BY JURY AND THE"SCINTILLA" RULE ... ...... ............ ...... ...... ...... ...... ... .......................9
C. THE COURT'S POWER TO DIRECT OR VACATE A JURY VERDICT.......12
C.1 By Reversing The Trial Court's Denial Of Defendant Pitorak'sMotion For Directed Verdict And, Thereby, Also ReversingThe Trial Court's Denial Of Defendant Pitorak's Motion ForJudgment NOV, The Court Of Appeals Substituted Its JudgmentFor That Of The Jury On The Qnestion Of Liability And Damages ................13
C.2 At Minimum, The Court Of Appeals Should Have Remanded The CaseFor A New Tria1 ............................................................................14
C.3. By Affirming The Trial Court's Rulings Granting Four Separate
Motions For Directed Verdict, The Court of Appeals DeniedAppellant The Right To Trial By Jury ................................................... 15
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V. CONCLUSION .......................................................:............................15
CERTIFICATE OF SERVICE .. . ... ..... .... ...... ......... ......... . ..... ............... ..............16
APPENDIX . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... . . . . .17
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TABLE OF AUTHORITIES
CONSTITUTIONAL CITATIONS
Ohio Constitution, Article 1, Section 5 .......................................1, 2, 3, 9, 10, 11, 12, 14, 15
CASES
Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 474,880 N.E.2d 420, 430 .........................................:............:......................1, 10, 11
Gibbs v. Girard (1913), 88 Ohio St. 34, 47, 102 N.E. 299 ...............................1, 9, 10, 11, 14
Hanna v. Wagner, 39 Ohio St. 2d 64, 66, 313 N.E.2d 842, 843 (1974) ..........................14, 15
McGlashan v. Spade Rockledge Corp., 62 Ohio St. 2d 55 .............:...............................14
Pang v. Minch, 53 Ohio St. 3d 186, 195, 559 N.E.2d 1313, 1322 (1990) .............................13
Posin v. A. B. C. Motor Court Hotel, Inc., 45 Ohio St. 2d 271, 275, 344 N.E.2d 334, 338 (1976).......... 12
OHIOSTATUTES
.......................................................11R.C. §2315.18 ...... ................ ......... ...........
R.C. §2315.21 ........... . ...... .................. ..... . ......... ...... ...... .. .... ...... ............ ..., ......11
OTHER AUTHORITIES
Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), reprinted in15 The Papers of Thomas Jefferson (Boyd Ed. 1958) 269 ......................................1
Ohio Civil Rule 38(A) ........................................................................................9
Ohio Civil Rule 50 .....................................................................................L9,12
Ohio Civil Rule 56 ...........................................................................................12
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I. PROPOSITION OF LAW
A COURT MAY NOT EXERCISE ITS POWER TO DIRECT OR VACATE AJURY VERDICT UNDER OHIO RULE OF CIVIL PROCEDURE 50 IN AMANNER THAT DENIES A PARTY'S RIGHT TO TRIAL BY JURY UNDERARTICLE 1, SECTION 5 OF THE OHIO CONSTITUTION.
IL EXPLANATION OF WHY A SUBSTANTIAL CONSTITUTIONAL QUESTIONIS INVOLVED AND WHY THE CASE IS OF PUBLIC OR GREAT GENERALINTEREST
For the average citizen who finds himself a participant in the American legal system,
preservation of the right to a trial by jury is most certainly a matter of "great general interest."
Thomas Jefferson once wrote that the right to trial by jury is "the only anchor, ever yet imagined
by man, by which a government can be held to the principles of it's [sic] constitution."' As a
"constitutional question," the right to a trial by jury is among the most cherished provisions in
the Bill of Rights. In the words of this Court, the right to trial by jury "serves as one of the most
fundamental and long-standing rights in our legal system, having derived originally from the
Magna Carta. (citation omitted) It was `[d]esigned to prevent government oppression and to
promote the fair resolution of factual issues."'z Moreover, "So long as the trial by jury is a part of
our system of jurisprudence, its constitutional integrity and importance should be jealously
safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is
in the wording of our Constitutions."3
Nevertheless, the right to trial by jury is not absolute. In a civil case, the Trial Court has
authority to deny a party a trial by jury under authority of Civil RiaIe 50. When that authority is
I Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), reprinted in 15 The Papers of ThomasJefferson (Boyd Ed.1958) 269, cited in Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d
468, 474, 880 N.E.2d 420, 430.2 See, Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 474, 880 N.E.2d 420, 430.3 See, Gibbs v. Girard (1913), 88 Ohio St. 34, 47, 102 N.E. 299.
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exercised, there is a natural tension between the individual's right to trial by jury and the Court's
authority to deny that right by way of a directed verdict or Judgment NOV.
In this case, the Trial Court granted four separate Motions for Directed Verdict at the
close of Plaintiffs case but allowed the jury to decide the following issue: "Plaintiffs action
against Defendants Pitorak & Coenen, Ltd., Larry Pitorak, and Loretta Pitorak may proceed as to
any damages claimed to have been suffered by Plaintiff Kenneth Adams for the loss of
enjoyment or use of his real property and for damages for nuisance that occurred subsequent to
2006 and for trespass."4 The jury was given a clear limiting instruction on the damages to be
awarded on this issue. Trial Transcript (Tr.) pp. 1224-1225. The jury returned a verdict on these
claims and awarded Appellant $89,200 in damages against Defendant Pitorak & Coenen, Ltd.
("Defendant Pitorak"). The Trial Court denied Defendant Pitorak's Motion for Judgment NOV.
On appeal, the Eleventh District Court of Appeals vacated the jury's verdict on the
ground "there is insufficient evidence to determine that Pitorak & Coenen maintained the
subdivision in a negligent fashion thereby creating an unreasonable risk of harm." See Opinion at
Para. 73, App. 1, emphasis added. Appellant believes this ruling runs afoul of Article I, Section 5
of the Ohio Constitution (Right to Jury Trial). Notwithstanding the Eleventh District's view of
the evidence, the jury clearly found otherwise and that finding is reflected in the jury's award of
damages. As more fully explained below, the evidence of record is sufficient to sustain the jury's
verdict under Article 1, Section 5 of the Ohio Constitution.
By substituting its judgment on a question of fact for that of the jury, the Court of
Appeals has denied Appellant his constitutional right to have the facts of his case decided by a
jury. Similarly, by directing a verdict in four separate journal entries filed on March 4, 2012, the
° See Judgment Entry (JE) on Motion for Directed Verdict filed by Defendants Pitorak & Coenen, Ltd.,Larry J. Pitorak and Loretta M. Pitorak (Defendant Pitorak), filed March 4, 2011, App. 2.
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Trial Court denied Appellant his constitutional right to have the facts of his case decided by a
jury•
Finally, it is a relatively rare occasion when a jury verdict is affirrried by the Trial Court
but later vacated by the Court of Appeals, without remand. In such a case, the Ohio Supreme
Court is the only forum available to a party for a determination of whether the Court of Appeals'
ruling runs afoul of Article I, Section 5 of the Ohio Constitution. Appellant believes that the
opinion of the Eleventh District Court of Appeals does, in fact, run afoul of the Constitution and
respectfully asks this Court to accept this case for review.
III. STATEMENT OF THE CASE AND FACTS
A. Procedural History
A Complaint was filed by Plaintiff/Appellant in the Geauga County Court of Conunon
Pleas on August 8, 2008 for damages associated with the construction of the "Heather Hollow"
subdivision in Geauga County. The Complaint alleged nuisance, trespass, unreasonable diversion
of surface water and related claims. The Complaint was amended on November 3, 2008 to add a
party Defendant. Following a summary judgment appeal, the case went to a jury trial from
February 28 to March 4, 2011. At the close of evidence, several motions for directed verdict
were filed.5 The Trial Court granted these motions for the most part but allowed the following
issue to go to the jury: "Plaintiffs action against Defendants Pitorak & Coenen, Ltd., Larry
Pitorak, and Loretta Pitorak may proceed as to any damages claimed to have been suffered by
Plaintiff Kenneth Adams for the loss of enjoyment or use of his real property and for damages
for nuisance that occurred subsequent to 2006 and for trespass." See Judgment Entry (JE),
5 See App 3, 4, 5 and 2: On March 4, 2012 the Trial Court ruled on Motions for Directed Verdict filed onbehalf of Defendant Clemson Excavating, Inc., Defendant s Richard Jaynes and the Jaynes Company,Defendant Pitorak & Coenen Investments LLC, and Defendants Pitorak & Coenen, Ltd., Larry J. Pitorak,
and Lorretta M. Pitorak.
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March 4, 2011, App. 2. The jury returned a verdict on these claims and awarded Appellant
$89,200 in damages against Defendant Pitorak.
Following the announcement of the jury's verdict, Defendant Pitorak moved for a
Judgment NOV. This motion was denied by the trial court. See JE, April 20, 2011, App. 6.
Defendant Pitorak appealed and asserted six assignments of error. Appellant cross
appealed and asserted two cross-assignments of error. On June 29, 2012 the Eleventh District
Court of Appeals determined that only one assignment of error had merit. All other assignments
of error were either rejected or deemed moot.
The single assignment of error approved by the Court of Appeals was Defendant
Pitorak's Fourth Assignment of Error, which states: "The trial court erred by refusing to grant
Defendant, Pitorak & Coenen's motion for directed verdict," Opinion, Para. 73. This assignment
of error is a little misleading because the Trial Court did grant Defendant Pitorak's Motion for
Directed Verdict, in part. See Judgment Entry, March 4, 2011, attached at App. 2. The Trial
Court did not grant the motion in its entirety, however. As stated above, the Trial Court allowed
the jury to decide the question of liability and damages arising out of "loss of enjoyment or use
of his [Plaintiffs] real property and for damages for nuisance that occurred subsequent to 2006
and for trespass." See Judgment Entry, March 4, 2011, at App. 2.
In its opinion, the Court of Appeals conceded that the jury verdict could be sustained on a
theory of "continuing nuisance" or "continuing trespass" and further found that this crucial issue
had not been resolved at trial. See Opinion, p. 21-22, App. 1. Ordinarily such a fmding would
result in a remand to the Trial Court for further proceedings. However, the Court of Appeals did
not remand. Instead, the Court of Appeals evaluated the evidence for itself and concluded,
"However, even if the trespass and nuisance were to be considered `continuing,' there is
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insufficient evidence to determine that Pitorak & Coenen maintained the subdivision in a
negligent fashion thereby creating an unreasonable risk of harm." Opinion, Para. 73. Upon this
finding, the Court of Appeals reversed that portion of the Trial Court's order denying Defendant
Pitorak's Motion for Directed Verdict and, thereby, vacated the jury verdict rendered on that
issue. Given the Court's ruling on Defendant Pitorak's Motion for Directed Verdict, the
assignment of error related to the Motion for Judgment NOV was deemed moot. Id., Para. 83, 84.
B. Factual Overview
Kenneth J. Adams (Appellant) owns property located at 9441 Pekin Road, Novelty, Ohio
that once included a pristine, spring-fed pond. In 2004 and 2005, the Heather Hollow subdivision
was constructed in Russell Township, Geauga County, Ohio. This case involves daniages
sui'fered by Appellant during and. after the construction of the Heather Hollow subdivision.
Heatlier Hollow was owned and developed by Defendant/Appellee Pitorak & Coenen
Investments, Ltd. Appellant was a property owner downhill of the Heather Hollow subdivision
and had lived at this property with his wife, Jacqueline Adams, for many years before
construction of Heather Hollow began in 2004. For reasons not relevant to this appeal,
Appellant's property was originally deeded only in the name of Appellant's spouse (Jacqueline)
until May 4, 2006, when she quit-claimed herinterest in the property to her husband, Appellant
Ken Adams. At the time of recording the Quit Claim Deed, Jacqueline Adants also assigned to
her husband all rights and interest in all claims and causes of action for damage to the referenced
real. property. Opinion, Para. 9 to 15. The assignment of rights was never requested by a
Defendant or produced, by Appellant during discovery, nor was it identified as a trial exhibit
before commencement of the jury trial.
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From. the date the Heather Hollow construction commenced in 2004, an excessive
amount of heavily silted, surface water flowed over the Adams' property and 'nito Appellant's
pond. The heavily silted water flowing from Heather Hollow caused significant damage to
Appellant's pond and property. While the muddy water flowing into the pond and subsequent
fish kills were obvious to a casual observer, the impact of the silt settling to the bottom of the
pond was not visible from the surface. Long before litigation was ever contemplated, Appellant
sought to objectively measure the impact of the silt and sediment accumulating in his pond by
taking regular measurements of the pond's depth. Appellant constructed the pond, so he knew
the original depth of his pond and had measured it in the winter of 2003-2004, before the
construction of the Heather Hollow subdivision began. The depth was nine (9) feet, plus or
minus one-half inch. (Tr. 728-730) In the winter of 2004-2005, after the construction of the
Heather Hollow subdivision, Appellant measured the depth of the water in his pond and found it
to be approximately seven (7) feet. (Tr. 731) Appellant last measured the depth of the water in
his pond in March of 2010, and it measured less than seven (7) feet at that time. (Tr. 779) The
March 2010 measurement is evidence that the depth of the pond continued to diminish between
2005 and 2010.
In addition, at the end of the summer of 2004, Appellant observed that the inlet to his
pond, which had initially been dug to seven (7) feet in depth, was filled to the top with silt. (Tr.
733, 751-754, 761) Whenever a significant rain event occLured, Appellant would walk the
property up to the Heather Hollow subdivision to investigate. There he observed that there were
no sediment traps and no silt fences in place in August of 2004 or September of 2004. There
were no silt fences until the end of September of 2004. (Tr. 764-765)
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Appellant testified that every time it rains more than a half inch of water, a rain event
including excess flow of surface water filled with sediment comes from the Heather Hollow
subdivision onto the Adams' property and into the Adams' pond. (Tr. 787) Since 2004,
whenever there is a'heavy rainfall or heavy snowfall, Appellant receives a gush of "tan colored
water" conling into the pond. Appellant testified that he observed this event repeatedly before
and after May, 2006. See, e.g., Tr. 787 et seq. (Appellant testified that he observed tan colored
water entering his pond in February 2011 and as recently as "Monday of this week.")
Mrs. Adams explained that "in 2004 and since then" (no end date), the pond has been
continually affected by the loss of trees and fish have died as a result of this ongoing situation.
(Tr. 911). In reference to the pond, Mrs. Adams was then asked the question: "What does it look
like? What do you see?" It is significant that the question was not "What did you see," but
"What do you see?" in the present tense. The exchange is as follows:
Q: What does it look like? What do you see?A: Heavy rainfalls, heavy snowfalls you get a gush of silt coming in. You want toknow how it looks like you're saying also?Q; Yes.A: Okay. A lot of trees have fallen down. A lot of trees have died. Vegetation hasdied. Fish has died. Birds, they used to come like a Blue Heron would come every yearand I guess eat the fish and little frogs, whatever they're called. I haven't seen thatanymore. It's just a total mess. It's heartbreaking.
See, Tr. 911
The continuing nuisance and ongoing loss of enjoyment aspect of this testimony is both.
obvious and sufficient ta sustain the jury's verdict.
Jacqueline Adams quit-claimed her ownership interest in the property at issue in 2006.
(Tr. 917-918) She also assigned all rights and interest in claims that she may have had for
damages to this property in 2006. (Tr. 918) See also, Motion for Leave to Proffer Evidence
7
Concerning Assignment of Rights and Interests in All Claims and Causes ofAetion for Damages
to Real Property filed with the trial court on March 4, 2011.
Doyle Hartman, a professional engineer, testified as an expert on bebalf of Appellant. Mr.
Hartman has a Bachelor's Degree and a Master's Degree in Civil Engineering from The Ohio
State University, with an emphasis in Water Resources Engineering. Mr. Hartman lias worked
with the Ohio Department of Natural Resources and has operated his own company, called
Hartman Engineering, for the last eighteen years. (Tr. 954) Doyle Hartman inspected the
property at issue on July 7, 2009. (Tr. 956-958) Mr. Hartman described the multiple items that
he reviewed before rendering his expert report and expert testinlony, including the Engineer's
plans, the calculations that were developed for the subdivision, inspection reports from the Soil
and Water Conservation District and the Ohio EPA, correspondence, aerial photographs and
some topographical mapping of the area at issue. (Tr. 958-959) and concluded that the sediment
control plan was not implemented as designed and caused "an increase in sediment that was
carried frornthe_ site [construction site at Heather Hollow] on downstream nito Mr. Adams'
pond." (Tr. 995) Mr. Ijartman farther testified that erosion from the Heather Hollows
subdivision eontinued long after the actual construction and continued through the date of his last
inspection of the property on July 7, 2009, albeit at a much reduced rate. (Tr. 997-998). This
expert testimony supports Appellant's claim of a continuing nuisance/trespass/loss of enjoyment
through July 7, 2009 and is alone is sufficient to sustain the Jury's verdict.
As the above summary of the record reveals, Appellant offered ample evidence in support
of his claims.
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IV. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
A. PROPOSITION OF LAW
A court may not exercise its power to direct or vacate a Jury verdict under Ohio Rule of
Civil Procedure 50 in a manner that denies a party's right to trial by Jury under Article 1, Section
5 of the Ohio Constitution.
B. THE INDIVIDUAL'S RIGHT TO TRIAL BY JURY AND THE"SCINTILLA" RULE
The Ohio Constitution, Article I, Sec. 5 states:
The right of trial by jury shall be inviolate, except that, in civil cases, laws may bepassed to authorize the rendering of a verdict by the concurrence of not less than
three-fourths of the jury.
The right to trial by jury is affirmed in Civil Rule 38, which states, "The right to trial by
jury shall be preserved to the parties inviolate." Ohio Civ. R. 38(A).
One hundred years ago, the Ohio Supreme Court had occasion to assess the scope of a
Plaintiffs constitutional right to trial by jury in the context of a "trip-and-fall" case brought
against the Village of Girard. In that case, a pedestrian tripped over an uneven sidewalk and
brought an action against the Village. A jury trial was had and at the close of the Plaintiff's case,
the Village moved for a directed verdict. The Trial Court granted the Motion and the Court of
Appeals affirmed. This Court reversed those rulings because:
The right of trial by jury, being guaranteed to all our citizens by the Constitution ofthe state, cannot be invaded or violated by either legislative act or judicial order or
decree.
A cause of action for damages brought against a village for negligence in the care ofits sidewalks, by reason of which it is claimed plaintiff was injured, presents a jury
issue if there is some evidence tending to prove every essential fact necessary toentitle plaintiff to recover; and an order of the trial judge at the close of the plaintiffscase directing a verdict in favor of defendant over the objection of such plaintiff is adenial and violation of the right of trial by jury, and therefore reversible error.
Gibbs v. Vill. of Girard, 88 Ohio St. 34, 102 N.E. 299 ( 1913) (emphasis added)
9
In the opinion, the Gibbs Court referred to the above ruling as the "scintilla rule.":
Wherever there is any evidence, however slight, tending to prove the facts
essential to make out a case for the plaintiff, a nonsuit cannot be properly ordered;it is in no case a question as to the weight, but as to the relevancy of thetestimony. If the testimony tends to prove a prima facie case for the plaintiff, anonsuit cannot be properly ordered." It is manifest that this doctrine is the one
legally known as the scintilla rule.
See, Gibbs v. Vill. of Girard, 88 Ohio St. 34, 41, 102 N.E. 299, 300 ( 1913) (emphasis added).
Accordingly, if there is a scintilla of evidence in support of the jury's verdict in this case,
a directed verdict or a post-verdict Judgment NOV is a violation of Appellant's right to trial by
jury guaranteed by Art. 1, Sec. 5 of the Ohio Constitution.
In the wake of the Ohio legislature's attempt at tort reform, the Ohio Supreme Court has
had several occasions to consider the statutory erosion of the right to trial by jury. In an eloquent
dissent in the 2007 case of Arbino v. Johnson & Johnson, Justice Pfeiffer expressed the public
interest in the constitutional guarantee of trial by jury as follows:
According to the majority opinion, the Ohio Constitution does little more thanenable the jury to determine facts-what a judge does with those factualdeterminations is of no constitutional consequence. Plainly, the majority doesn'tthink the right to a trial by jury entitles a plaintiff to much protection. Thefounding fathers thought much more highly of the right. Among the "repeatedinjuries and usurpations" that caused them to declare their independence from theKing of England was his refusal to confer "the benefits of Trial by Jury."Declaration of Independence, July 4, 1776. Ignoring factual findings is the
equivalent of changing them. Ignoring factual findings is the equivalent of
rendering those findings impotent (citation omitted) However you characterizeit, a statute that authorizes a judge to ignore or change factual findings depriveslitigants "of the benefits of Trial by Jury" and must be declared unconstitutional.
Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 505-06, 880 N.E.2d 420,
456 (Pfeiffer, J., dissenting) (emphasis added)
To paraphrase the last sentence of Justice Pfeiffer's above quote, a Civil Rule (e.g. Civil
Rule 50) that is facially neutral but applied in a way that allows a Judge to ignore or change
factual findings deprives litigants of the benefits of Trial by Jury.
10
The views of Justice Pfeiffer were echoed by Justice O'Donnell:
In Gibbs v. Girard (1913), 88 Ohio St: 34, 102 N.E. 299, which quotedextensively, with approval and admiration, from Judge Ranney's opinion in Work,
this court reaffirmed the right to have a jury determine every question of disputed
fact in civil cases and stated that "[t]o hold otherwise would not only commit butpermit, in a multitude of cases, a sinister and indirect invasion and usurpation ofthe right of trial by jury. A legislative act impairing it would be clearly
unconstitutional." Id. at 43, 102 N.E. 299. The syllabus in Gibbs summarizes the
case, holding as follows: "The right of trial by jury, being guaranteed to all ourcitizens by the constitution of the state, cannot be invaded or violated by eitherlegislative act or judicial order or decree." Id. at paragraph two of the syllabus.
See, Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 502-03, 880 N.E.2d
420, 453 (O'Donnell, J., dissenting in part).
Even though the majority in Arbino concluded that the provisions of R.C. §2315.18 and
2315.21 do not violate the right to trial by jury, it affirmed the rule that the fact finding function
of the jury may not be subjected to "outside interference:"
This right [to trial by jury] serves as one of the most fundamental and long-standing rights in our legal system, having derived originally from the Magna
Carta. ... It is settled that the right applies to both neeligence and intentional-
tort actions. ... To properly approach this issue, one must define what exactly isguaranteed under this right. We are guided by long-standing precedent in thisregard: "The right thus intended to be secured by the constitution, was the right oftrial by jury as it was recognized by the common law; and within the right thus
secured is the right of either party, in an action for the recovery of money only, to
demand that the issues offact therein be tried by a jury." ... In short, the right to
trial by jury protects a plaintiffs right to have a jury determine all issues of fact
in his or her case. ... Because the extent of damaees suffered by a plaintiff is a
factual issue, it is within the iury's province to determine the amount ofdamages to be awarded. Section 5, Article I of the Ohio Constitution clearlyprotects this fact-finding function from outside interference. Any law thatprevents the jury from completing this task or allows another entity to substituteits own findings of fact is unconstitutional.
Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 474-75, 880 N.E.2d 420,
430-31 (citations omitted, emphasis added)
In sum, there are few matters of greater constitutional concern or general public interest
than preservation of the right to trial by jury. Unlike Arbino, however, the instant case does not
11
involve a statutory erosion of the right to jury trial but a judicial erosion of that right by the
misapplication of Civil Rule 50.
C. THE COURT'S POWER TO DIRECT OR VACATE A JURY VERDICT
Notwithstanding the provisions of Art. I, Sec. 5 of the Ohio Constitution, a court may
properly prohibit the jury from deciding an issue by way of a directed verdict. The Trial Court
may also vacate a jury verdict that has already been entered by way of Judgment NOV.6 The test
to be applied is the same for a directed verdict as it is for a Judgment NOV.7 Both Motions are
govemed by Civil Rule 50 which states, in relevant part:
(A) Motion for Directed Verdict. ... (4) When granted on the evidence. When a
motion for a directed verdicf has been properly made, and the trial court, afterconstruing the evidence most strongly in favor of the party against whom themotion is directed, finds that upon any determinative issue reasonable mindscould come to but one conclusion upon the evidence submitted and thatconclusion is adverse to such party, the court shall sustain the motion and direct averdict for the moving party as to that issue.
(B) Motion for judgment notwithstanding the verdictWhether or not a motion to direct a verdict has been made or overruled and notlater than fourteen days after entry of judgment, a party may move to have theverdict and any judgment entered thereon set aside and to have judgment enteredin accordance with his motion; ... A motion for a new trial may be joined with thismotion, or a new trial may be prayed for in the alternative. If a verdict wasreturned, the court may allow the judgment to stand or may reopen the judgment.
If thejudgment is reopened, the court shall either order a new trial or direct the
entry of judgment, but no judgment shall- be rendered by the court on theground that the verdict is against the weight of the evidence. If no verdict was
returned the court may direct the entry of judgment or may order a new trial.
See, Ohio Civ. R. 50 (emphasis added).
In the proper case, a court's exercise of the power granted by Civil Rule 50 will past
constitutional muster. This is not such a case.
6 A Rule 56 summary judgment will also prevent a case from reaching the jury but this case does notinvolve a summary judgment ruling. Therefore, the applicable Rules are not discussed.
7 See, Posin v. A. B. C. Motor Court Hotel, Inc., 45 Ohio St. 2d 271, 275, 344 N.E.2d 334, 338 (1976)
("The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict isthe same test to be applied on a motion for a directed verdict.")
12
C.1 By Reversing The Trial Court's Denial Of Defendant Pitorak's Motion ForDirected Verdict And, Thereby, Also Reversing The Trial Court's Denial OfDefendant Pitorak's Motion For Judgment NOV, The Court Of AppealsSubstituted Its Judgment For That Of The Jury On The Question Of Liability AndDamages.
On March 4, 2011 seven of eight jurors determined that Defendant Pitorak was liable to
Plaintiff in damages for the sum of $89,200. See "Verdict for Plaintiff," attached at App. 7, p. 2.
Although the jury was polled, the trial transcript does not indicate that any party submitted jury
interrogatories to ascertain the theory of liability applied by the jury to determine liability and
damages. See Record, Vol. VI, pp. 1168 - 1175 (discussion of verdict fonns) and, pp. 1236 to
1244 (announcement of verdict). Accordingly, the Court should presume that the verdict was
properly grounded upon the issues submitted to them by the Court in the jury instructions. See,
Pang v. Minch, 53 Ohio St. 3d 186, 195, 559 N.E.2d 1313, 1322 (1990) ("A presumption always
exists that the jury has followed the instructions given to it by the trial court.")
Following the jury's verdict, the sole Defendant found liable by the jury (Defendant
Pitorek) filed a Motion for Judgment NOV. That motion was denied by the Trial Court. See JE,
Apri120, 2011, App. 6.
On appeal, Defendant Pitorak asserted six assignments of error. The fourth assignment of
error claimed that the Trial Court erred by denying its Motion for Directed Verdict at the close of
Plaintiffs case. Opinion, p. 16 at Para. 51, App. 1. Defendant Pitorak also claimed, as its sixth
assignment of error, that the Trial Court erred by denying its Motion for Judgment NOV
following jury's verdict. Id. at Para. 83. In its opinion, the Court of Appeals reversed the Trial
Court's denial of Defendant Pitorak's Motion for Directed Verdict (Opinion, p. 19, Para. 62 and
p. 24, Para. 76, App. 1) and deemed the Motion for Judgment NOV to be moot, given its ruling
on the Motion for Directed Verdict. Id., Para. 84.
13
In rendering its decision, the Court of Appeals violated Article 1, Section 5 of the Ohio
Constitution. Evidence of this can be found in the text of the Opinion. At page 16 of its
Opinion, the Court of Appeals identifies the issues that went to the jury as follows: "The trial
court found that Adams [Appellant] could recover damages for interference with water rights,
trespass, and nuisance occurring after May 2006." See Opinion, Para. 54. Thus, the question of
liability and damages arising out of "interference with water rights, trespass, and nuisance
occurring after May 2006" were for the jury to decide. In its analysis of Appellant's claim for
"interference with surface water," the Court begins by correctly quoting the reasonable use
doctrine established by this Court in the 1980 case of McGlashan v. Spade Rockledge Corp., 62
Ohio St. 2d 55. Opinion, p. 17. The Opinion then goes on to say: "Thus, the principal question is
whether there was sufficient evidence to determine that the increase in the amount of runoff
entering Adams' [Appellant's] pond was unreasonable." (emphasis added). Appellant disagrees.
Under Article 1, Section 5 of the Ohio Constitution, the "principle question" is not whether the
jury's verdict is sustained by "sufficient" evidence but whether it is sustained by a "scintilla" of
evidence. Gibbs v. Vill. of Girard, 88 Ohio St. 34 at 41. While the Opinion goes on to say that
"no evidence" was introduced on certain aspects of the damage claim, the Opinion ignores the
evidence that was introduced and properly considered by the jury. See Section III, supra.
C.2 At Minimum, The Court Of Appeals Should Have Remanded The Case ForA New Trial.
When sufficiency of the evidence is the i ssue, the Court of Appeals may not substitute its
own judgment for that of the jury. In such cases, the Court of Appeals must remand the case for
to the Trial Court. As this Court stated in the 1974 case of Hanna v. YVagner:
Koykka, Ohio Appellate Process 39, Section 4-19(b), deftly phrases appellateprocedure in a jury case, as follows:`In a jury case the Court of Appeals:
14
•*^^`(b) May not enter final judgment on the weight of the evidence but must remandthe cause for a new trial.'It is obvious that to do otherwise would be the denial of the fundamental rightto a jury trial.
See, Id., Hanna v. Wagner, 39 Ohio St. 2d 64, 66, 313 N.E.2d 842, 843 (1974) (emphasis added).
C.3. By Affirming The Trial Court's Rulings Granting Four Separate Motions ForDirected Verdict, The Court Of Appeals Denied Appellant The Right To Trial ByJury
On March 4, 2011, the Trial Court entered Judgment Entries granting four separate
Motions for Directed Verdict. These were grounded on the Trial Court's finding that Plaintiff
had presented "no evidence" in support of his claims. Appellant respectfully disagrees. Due to
page limitations, Appellant will not attempt to present the evidence in support of each claim the
Trial Court dismissed, as that is not the purpose of this Memorandum. Instead, Appellant will
merely state that the issues involved in the Trial Court's directed verdicts at Apps. 2, 3, 4 and 5
present the same substantial constitutional question and matters of public or great general interest
as are presented in the Court of Appeals ruling discussed above.
V. CONCLUSION
Upon the foregoing points and authorities, Appellant respectfully requests that the Court
accept this case for review and reverse the decision of Eleventh District Court of Appeals.
Respectfully submitted,
WRIGHT LAW CO. LPA
uid S. Pennington (0031477)4266 Tuller RoadDublin, Ohio 43017-5027Ph: 614-791-9112Fax: 614-791-9116E-mail: dpenninatonna wri¢ht-law.netAttorney for Appellant
15
CERTIFICATE OF SERVICE
This certifies that a true copy of the foregoing document was served via Ordinary U.S.
Mail this e day of August, 2012, upon the following:
G. Michael Curtin David J. FagnilliKimberlee J. Kmetz DAVIS & YOUNGCURTIN & KMETZ, LLP 1500 Fifth.Third Center159 South Main Street, Suite 920 600 Superior Avenue EastAkron, Ohio 44308 Cleveland, Ohio 44114
Da,rTTS. Pennington (0031477)
16
APPENDIX
17
ArrFNDIx 1
STATE OF OHIO frv co F r^ Zw u- IN THE COURT OF APPfALS
COUNTY OF GEAUGA Arp% 2012
l
ELEVENTH DISTRICTENf7'9,6!`F7 ^ pg
^
Ys^w
4Yf^f^^^^\^
KENNETH J. ADAMS, cc+ch;;y JUDGMENT ENTRY
Plaintiff-Appeliee/Cross-Appellant, CASE NO. 2011-G-3019
-vs-
PITORAK & COENEN INVESTMENTS,LTD., et al.,
Defendant-Appellant/Cross-Appellee,
CLEMSON EXCAVATING, INC.,
Defendant-Appellee.
For the reasons stated in the opinion of this court, it is the judgment and
order of this court that the judgment of the Geauga County Court of Common
Pleas is affirmed in part and reversed in part, and judgment is entered for
defendant-appellant/cross-appel lee,
Costs to be taxed against plaintiff-appelleefcross-appellant.
PR E TIMOTHY P. CANNON
FOR THE COURT
^
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
G t^ ^ ^NTY, OHIO
iN CouRr aF ap^c sKENNETH J. ADAMS, ^^^^ ^ O P I N 10 N
3 zQizPlaihtiff-Appellee/ oEtvIse^ KAMINsKlCross-Appellant, CC^R6.copCouPTs CASE NO. 2011-G-3019
GEAUGA CooNTY- vs -
PITORAK & COENEN INVESTMENTS,LTD., et al.,
Defendant-Appellant/Cross-Appellee,
CLEMSON EXCAVATING, INC.,
Defendant-Appellee.
Civil Appeal from the Court of Common Pleas, Case No. 08 M 000868.
Judgment: Affirmed in part and reversed in part.
James A. Sennett, Cowden & Humphrey Co., L.P,A., 4600 Euclid Avenue, Suite 400,Cleveland, OH 44103 ( For Plaintiff-AppelleelCross-Appellant).
G. Michael Curfrn and Kimberlee J. Kmetz, Curtin & Kmetz, LLP, 159 South Main St.,Suite 920, Akron, OH 44308 ( For Defendant-Appellant/Cross-Appellee).
David J. Fagnilli, Davis & Young, 1200 Fifth Third Center, 600 Superior Avenue, East,Cleveland, OH 44114-2654 (For Defendant-Appellee).
TIMOTHY P. CANNON, P.J.
{q1} Defendant-appellant/a,oss-appellee, Pitorak & Coenen Investments, Ltd.
("Pitorak & Coenen"), appeals the judgment of the Geauga County Court of Common
Pleas, after trial by jury, entered in favor ofplaintiff-appellee/cross-appellant, Kenneth J.
Adams. By its verdict, the jury found for Adams for the loss of enjoyment of his real
property, awarding damages for trespass; nuisance, and interference with surface water
that occurred due to the runoff of a neighboring uphill subdivision project, owned and
developed by Pitorak & Coenen. For the reasons that follow, the judgment is affirmed in
part and reversed in part.
{q2} Adams. has resided at a five-acre country lot in Novelty, Ohio, since the
1 970s. The property contains a small pond, fed by natural springs and precipitation
runotf, In 1992, Adams modified the pond, increasing its depth from one foot to
approximately ten feet. Soon thereafter, Adams stocked the pond with several species
of fish.
{¶3} In 2003, plans were initiated to develop a neighboring upland parcel into a
residential subdivision known as "Heather Hollow." Defendant-appellee, Clemson
Excavating, Inc., was hired as the general contractor for work on the subdivision project,
Clemson Excavating performed the bulk of its work in 2004, removing trees,
demc>lishing existing structures, constructing a sub-base for roadways, installing culvert
pipes, laying catch basins, trenching for electrical lines, and digging ditches,
{¶4} Clemson Excavating constructed a retention pond on the Heather Hollow
property. It dug out the pond and built an earthen dam to form a barrier at the
downstream side of this pond, Clemson Excavating also installed an overflow structure
at the edge of the pond. At times of high volume, water enters the overflow structure, is
piped about 60 feet away from the pond, and is permitted to run off the property,
Eventually, however, this water entered Adams' property and allegedly caused damage.
2
{¶5} Clemson Excavating, acting on the directives of the Geauga County Soil
and Water Conservation District ("Geauga Soi( and Water") and the Ohio Environmental
Protection Agency ("Ohio EPA"), installed barriers and additional standpipe in an effort
to control erosion and sedimentation from the development's property. Notwithstanding
these efforts, Adams continually reported erosion and runoff problems as a result of the
development throughout the construction phase of the project. He further claimed that
dirty "scum colored" sediment in the runoff had increased since construction, resulting in
damage to his pond.
{¶6} In August 2008, Adams filed a complaint alleging interference with surface
water, nuisance, and trespass against several defendants, including Pitorak & Coenen,
the developer and owner of the property, and Clemson Excavating, the contractor who
installed the infrastructure for the development. The complaint indicated the action was
a refiling of a prior lawsuit, which was voluntarily dismissed without prejudice by Adams
in 2007. The complaint alleged that, in July 2004 and intermittently since that date,
runoff from the Heather Hollows subdivision had crossed Adams' property; polluted his
freshwater pond and its natural stream; killed the various species of fish in the pond;
and caused other, permanent damage to the property. An amended complaint followed
which similarly alleged Adams to be the owner of the real property in 2004. Pitorak &
Coenen and Clemson Excavating filed answers denying all pertinent allegations set
forth in the complaint.
{¶7} After discovery concluded, the trial court entered summary judgment in
favor of Clemson Excavating. However, this court reversed and remanded that
judgment in Adams v. Pitorak & Coenen Invests., Ltd., 11th Dist. Nos. 2009-G-2931 and
3
2009-G-2940, 2010-Ohio-3359. In Adams, we concluded that Clemson Excavating did
not nieet its burden in the summary judgment exercise as to whether it caused damage
to Aciams' property during the construction of the project. Id. at ¶52. As to any post-
construction runoff, we determined that Clemson Excavating supplied sufficient
evidentiary material to shift the burden to Adams, who ultimately failed to demonstrate
that a genuine issue of material fact remained to be litigated as it pertained to the time
period after construction. Id. at ¶64. The court's entry of summary judgment was
therefore affirmed on Clemson Excavating's liability after the end of the construction. Id.
at ¶71. Thus, we determined Clemson Excavating's potential liability was from April
2004, when construction started, to October 2005, when construction ceased. /d. at
¶49-51. The decision in Adams pertained exclusively to Clemson Excavating's motion
for summary judgment and did not involve the claims against Pitorak & Coenen. Id. at
¶10, fn, 3.
{¶8} The matter was set for trial. In anticipation of trial, several motions in
limine to seek or limit expert testimony were filed. Specifically relevant to this appeal,
the trial court overruled Pitorak & Coenen's motion in limine regarding damages
estimates prepared by restoration contractors with OCI Construction, Inc. and Clean
Harbors, Inc.
(¶9) A five-day jury trial commenced, On March 3, 2011, during the fourth day
of trial, it was discovered that Adams did not own the property in question during the
time of development and construction of Heather Hollows. Instead, it was discovered
that Adams' wife, who was not a party to the suit, quitclaim deeded the property to
Adams in May 2006. Prior to May 2006, Adams did not own the property and was not
4
listed on the title. Based on the record before us, this is the first time the ownership
issue was revealed. The matter surfaced out of the court's own curiosity, after
discovering that the real property in question had been transferred to Adams:
{¶10} The Court: Curiosity issue I have, because we have been
referencing Geauga Access I have been looking at it. I note that in
2006 there appears to have been a transfer of the real property in
question from Jacqueline Adams to Ken Adams. Mr. Adams, did
you own the property in 2004? Were you on the title?
{¶11} Adams: No, sir.
{112} The Court: When did you first become on the title in the property?
{¶13} Adams: It was May 2006,
{¶14} The Court: We'll take our recess,
{¶i5} Back in the presence of the jury, Adams' wife, Jacqueline Adams, took the
stanci and was questioned on the ownership issue. She affirmed quitclaiming the
property to her husband in 2006. She was then questioned on whether she also
assigned all her rights and interest in all claims and causes of action for damages to the
real property to her husband in 2006. This was the first time during the trial that any
assignment instrument was mentioned. Over objections, Mrs, Adams affirmed that she
did, in fact, assign her rights to her husband on the same day as the quitclaim deed.
The assignment instrument was presented to the court while Mrs. Ada,ms was still on
the stand, but was not admitted into evidence. Ultimately, the court denied admission of
the assignrnent instrument because Adams had never listed it as an exhibit at any time
prior to the trial and failed to explain why it was not listed or attached to any pre-trial
5
pleadings, including the complaint. Leave was subsequently requested to proffer the
exhibit, which the trial court granted.
{q16} At the close of Adams' case, both Pitorak & Coenen and Clemson
Excavating moved for a directed verdict. The parties discussed the basis for their
respective directed verdicts at sidebar. The defense explained to the court that Adams
affirmatively maintained throughout the entire pre-trial process that he was the owner of
the subject parcel. The defense pointed to (1) the complaint which alleged Adams was
the owner in 2004, (2) the amended complaint which again alleged Adams was the
owner in 2004, (3) the deposition of Adams where he stated that he acquired ownership
of the subject parcel in 1973, and (4) the trial testimony of Adams wherein he referred to
"his" property back in 2004. While the defense stated it was aware of a quitclaim deed
between Mrs. Adams and Adams, it was led to believe that the purpose of the deed was
merely to quitclaim Mrs, Adams' interest in the property to Adams. According to the
deferise, there was no mention of any assignment or that Adams was not on the deed at
the time.
{¶17} The trial court granted Pitorak & Coenen's motion for directed verdict in
part, First, as to punitive damages, the court explained that Adams did not offer any
evidence that Pitorak & Coenen's acts or failures to act demonstrated actual malice
such that punitive damages would be warranted. Second, as to compensatory
damages, the court explained that Adams' evidence in regards to the cost of repair or
remediation of the damage alleged to have been caused by Pitorak & Coenen was, "at
best, speculative and remote." Finally, as to the ownership issue, the court held that
Adams may maintain claims for nuisance, trespass, and interference with the surface
6
flow of water during the time he owned the property, but that he cannot maintain them
for the period of time his wife owned the property. Thus, the court held that Adams'
action against Pitorak & Coenen could still proceed as to any damages claimed for
nuisance, trespass, and the loss of enjoyment of his real property occurring after May
2006. As a result, because there was no evidence that any defendant did anything
necessitating repair of Adams' property prior to May 2006, the jury was not permitted to
consider punitive or compensatory damages for property repair for any time period. In
addition, the jury was not permitted to consider damages for nuisance, trespass, or the
loss of enjoyment for the time period prior to May 2006.
{¶1II} The trial court granted Clemson Excavating's motion for directed verdict in
its eritirety, relying on this court's previous decision in Adams, supra, which determined
that Clemson Excavating may only be held liable for those acts beginning with the
construction in April 2004 and ending in October 2005 when construction ceased, As
Clemson Excavating's motion was granted, it did not present a case and did not make a
closing argument.
{¶19} The jury entered a verdict in favor of Adams and against Pitorak & Coenen
in the sum of $89,200.00. Shortly thereafter, Pitorak & Coenen filed a motion for
"remittitur, judgment notwithstanding the verdict, and/or a new trial," The trial court
denied all requested relief,
{¶20} Several other post-trial pleadings were filed, including a motion for
sanctions against Adams and a motion to tax costs against Pitorak & Coenen.
However, these matters are not part of the instant appeal and are currently being held in
abeyance in the trial court pending disposition of the appeal.
7
{¶21} Pitorak & Coenen timely appeals and assert six assignments of error.
Adams has filed a cross-appeal with two assignments of error. Clemson Excavating
has filed briefs in opposition to both Pitorak & Coenen and Adams, defending the trial
court's granting of its directed verdict motion and seeking to preserve its judgment.
{¶22} As Adams' cross-appeal involves issues dispositive of the entire appeal, it
will be addressed first.
{¶23} Adams' first assignment of error in his cross-appeal states:
{¶24} "The trial court erred when it directed a verdict on the cost of repair or
remediation of the real property owned by Plaintiff/Cross-Appellant."
{¶25} The trial court granted both Pitorak & Coenen's and Clemson Excavating's
directed verdict motions as they pertained to compensatory damages on the cost of
repair or remediation. Adams claims this was error because there was sufficient
evidence as to the existence of damages from repairs needed to restore the pond.
{¶26} Pursuant to Civ.R. 50(A)(4), a motion for directed verdict should be
granted when, after construing the evidence most strongly in favor of the party against
whoni the motion is directed, "reasonable minds could come to but one conclusion upon
the evidence submitted and that conclusion is adverse to such party[.]"
{¶27} When a trial court determines whether to grant a motion for directed
verdict, it is testing the legal sufficiency of the evidence by examining the materiality of
the evidence rather than the conclusions which can be drawn from such evidence.
Eldridge v. Firestone Tire & Rubber Co., 24 Ohio App.3d 94, 96 (10th Dist.1985). It is
therefore a legal determination which gauges whether only one result can be reached
under the theories of law set forth by the opposing party. Id. The trial court must give
8
the opposing party the b:nefit of all reasonable inferences from the evidence and must
not independently weigh the evidence or determine the credibility of the witnesses. Id.
As the motion for directed verdict presents questions of law and not factual issues, this
court employs a de novo standard of review.. Nationwide Mut. Fire Ins. Co. v. Guman
Bros, Farm, 73 Ohio St,3d 107, 108 (1995).
{128} In order to recover damages, the injury and resulting damage must be
ascertained with reasonable certainty and not left to conjecture and speculation. D.A.N.
Joint Venture lll, L.P. v. Med-XS Solutions, Inc., 11th Dist, No, 2011 -L-056, 2012-Ohio-
980, ¶35, quoting Barker v. Sundberg, 11th Dist. No. 92-A-01756, 1993 Ohio App.
LEXIS 5112, *4 (Oct. 25, 1993). A plaintiff bears the burden of "proving the nature and
exterit of damages whether an action sounds in tort or contract." Countywide Home
Loans, Inc, v. Huff, 11th Dist, No. 2009-T-0044, 2010-Ohio-1164, ¶47, citing Cleveland
Builders Supply Co. v. F=armers Ins. Group of Companies, 102 Ohio App.3d 708, 714
(8th Dist.1995).
{¶29} Here, the existence of damages for repair or remediation was never
established. Damages testimony from two restoration contractors, Thomas Zahler and
Robert Battisti, though iriitially permitted, was ultimately stricken from the record by the
trial court. Mr. Zahier was dismissed from the stand because the trial court ruled it
would not hear any testimony on repair or remediation without first hearing testimony on
how much sediment came from the construction and, of that amount, how much was
unreasonable. Later in the trial, Mr. Zahler returned to the witness stand and testified
over objections that the total cost of remediation was $208,120. Mr. Battisti testified in a
similar fashion; his estimate was $80,170 plus "some [unknown] operator expenses." At
9
the conclusion of the testimony, the trial court struck from the record the damages
testimony of both witnesses, as it concluded their calculations were based on the
removal of an unproven amount ofsilt. The trial court explained that "there is absolutely
no basis for either witness to assume that there are 1,000 tons of silt that should be
removed."
{¶30} Adams suggested the court erred in striking the testimony of Mr. Zahler
and Mr: Battfsti, though this is not an assignment of error in his cross-appeal and will not
be considered.
{¶31} An increase in the amount of surface water onto an adjoining property is
not, in and of itself, actionable. However, an unreasonable increase in the amount of
surface water runoff may result in liability. That is, one may make reasonable usage of
his surface water, incurring liability only when his harmful interference with the flow of
that surface water is unreasonable. Guarino v. Farinacci, 11th Dist. No. 2001-L-158,
2003-Ohio-5980, ¶36, quoting McGlashan v. Spade Rockledge Corp., 62 Ohio St2d 55
(1980), syllabus,
{¶32} With the testimony of Mr. Zahler and Mr. Battisti stricken, the only
damages testimony on the cost of repair or remediation due to silt caused by Clemson
Excavating and/or Pitorak & Coenen came from Adams and one Doyle Hartman,
However, this testimony was not substantiated. The figures introduced were predicated
on an estimated amount of silt to be removed; yet there is no testimony about (1) the
amount of silt that resulted from an unreasonabfe increase in surface water flow nor (2)
the amount of silt that accumulated in the pond subsequent to May 2006. The trial court
therefore properly dismissed this testimony as speculative at best. As noted above, the
*
10
injury (the level of unreasonable silt) and resulting damage must be determined with a
reasonable degree of certainty and not left to conjecture. As there was no competent
testirnony to this point, in particular as to the relevant time period, compensatory
damages for the cost of repairing the pond were properly dismissed by the trial court.
{¶33} Adams' first assignment of error in his cross-appeal is therefore without
merit.
{¶34} Adams' second assignment of error in his cross-appeal states:
{¶35} "The trial court erred when it directed a verdict on damages for nuisance
and interference with surface flow of water, which occurred prior to deed ownership of
the property by Plaintiff/Cross-Appellant, and when it excluded the instrument assigning
all rights and claims involving the property to Plaintiff/Cross-Appellant."
{¶36} In his brief in support of this portion of the second assignment of error in
his cross-appeal, Adams fails to refer to a single authority in support of this argument.
App.R. 16(A)(7) requires citations to authority on which an appellant relies. This alone
justifies finding the assignment of error to be without merit. However, we will proceed to
consider the merits of the assignment of error.
{¶37} The trial court granted Pitorak & Coenen's and Clemson Excavating's
directed verdict motions as to damages for nuisance, trespass, and the loss of
enjoyment for any time period prior to May 2006. Adams claims this was error because
Mrs. Adanis, the property owner prior to May 2006, assigned all rights and interests to
the property to Adams. Adams argues that he attempted to introduce the assignment
instrument at trial, but the trial court denied admissibility of the document. Adams
claims this evidentiary ruling was in error, and had the assignment instrument been
11
admitted, the court would not have directed a verdict in favor of Pitorak & Coenen for
pre-2006 claims.
{¶38} Conversely, Pitorak & Coenen claims the assignment instrument was not
properly proffered, and even if it were, the trial court properly excluded it because
Adarris misrepresented his ownership status and, for the first time in the long history of
this litigation, attempted to introduce the assignment instrument near the conclusion of
trial, even though it was riot listed on the exhibit list.
{¶39} Thus, two issues need to be addressed, as they pertain to the trial court's
ruling on the ownership issue: (1) whether Adams properly proffered the assignment
instrument thereby preserving any error, and (2) whether the court properly excluded
the admission of the assignment instrument.
{140} First, Adanis properly proffered the assignment instrument after the trial
court denied its admission as an exhibit. The assignment instrument was moved to be
entered as an exhibit during the testimony of Mrs. Adams on March 3, 2011, the same
day the ownership issue first came to light. The trial court denied admission of the
instrument. Later that same day, the trial court made a ruling that Adams could not
proffer the instrument. He therefore did not proffer the exhibit. However, the trial court
later allowed Adams to proffer the evidence. The proffer was made on the last day of
trial, on March 4, 2011, via "motion for leave to proffer evidence." The assignment
instrument was attached to the motion, The instrument, dated May 24, 2006, was
signed by Mrs. Adams and notarized. By proffering the evidence itself, Adams made
the assignment instrument part of the record and available to this reviewing court,
Thus, Adams has preserved the issue for review.
12
{¶41} Second, evidentiary rulings fall within the trial court's sound discretion.
Kent v. Atkinson, 11th Dist. No. 2010-P-0084, 2011-Ohio-6204, ¶42, citing Peters v.
Ohio State Lottery Comm., 63 Ohio St.3d 296, 299 (1992). As a result, the decision to
inclu(Je or exclude certain evidence will not be disturbed absent an abuse of discretion.
Id. An abuse of discretion is the trial court's "`failure to exercise sound, reasonable, and
legal decision making."' State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62,
quoting Black's Law Dictionary 11 (8th Ed.2004). Here, we cannot determine that the
trial court abused its discretion in excluding the assignment instrument.
{¶42} Adams was not the real party in interest and lacked standing to assert any
claims prior to the time when he received the quitclaim deed to the property in May
2006. See Wash Mut. Bank v. Novak, 8th Dist. No. 88121, 2007-Ohio-996; 715. ("If a
claim is asserted by one who is not the real party in interest, then the party lacks
stanciing to prosecute the action.") Adams was not an owner of the land prior to this
period of time. Moreover, there was no joinder or substitution of Mrs. Adams, the
property owner, prior to May 2006. Mrs. Adams was not a party to the suit in any
capacity. Adams essentially concedes this point because he argues that relief could
have nonetheless been granted via the assignment instrument of claims and rights.
Thus, he argues his claims can be brought by way of the assignment.
(143} However, a review of the record reveals that the assignment instrument
was never filed with the trial court prior to trial in any manner. It was not attached to the
complaint or the amended complaint. It was not mentioned or referred to in any pre-trial
pleaciings, including Adams' trial brief. It was not included on an exhibit list, It was not
mentioned at trial until the trial court discovered that Adams did not own the property
13
prior to May 2006. According to Pitorak & Coenen, it was not included in discovery.
Rather, the record is replete with affirmative representations throughout the pleading
stage that Adams was, in fact, the owner of the subject parcel in 2004, 2005, and part of
2006. These representations continued throughout Adams' deposition and even during
his trial testimony,
{¶44} The trial court's ruling was not a result of "failure to exercise sound,
reasonable, and legal decision making." Rather, the parties were four days into trial
when it was discovered the subject parcel was not owned by the plaintiff seeking to
recover damages for much of the time the purported damage occurred. Adams' theory
of recovery changed on 'the fourth day of trial from landowner to assignee, As a result,
the defense did not havE: an opportunity to conduct discovery on this issue, which they
were entitled to do. The defense was unable to depose Mrs. Adams on the assignment,
inspect the assignment instrument, and research the applicable law on assigning claims
and rights to property. If there were questions regarding the validity of the assignment
and the actual date it was executed, the defense was denied the opportunity to
investigate those potential defenses.
{¶45} Adams claims the quitclaim deed was served to the opposing parties more
than two years prior to trial in response to a request for production of documents. The
purpose of discovery rules is to prevent surprise and the "secreting of evidence."
Lakewood v. Papadelis, 32 Ohio St.3d 1, 3(1987), "The overall purpose is to produce a
fair trial." /d. The opposing parties were actually misled as to the real party in interest
and to a potential issue in the litigation. Adams cannot argue that the defense should
have been aware of this assignment when his theory of recovery was premised on him
14
being an owner, not an assignee. At the very least, days of testimony concerning
alleged damage done to the pond in 2004 and 2005 may have been excluded before it
reached the jury's ears. Instead, the jury was exposed to significant testimony of
damage that happened in 2004 and 2005, when Adams did not own the property.
{q46} Moreover, Civ.R. 10(D) explains, "[w]hen any claim or defense is founded
on an account or other written instrument, a copy of the account or written instrument
must be attached to the pleading. If the account or written instrument is not attached,
the reasori for the omission must be stated in the pleading." Thus, "(a]n assignee of a
claim, bringing an actiori upon the claim in his own name, must allege and prove the
assignment of the claim sued upon." Zwick & Zwick v. Suburban Constr. Co., 103 Ohio
App. 83 (8th Dist.1956), paragraph one of the syllabus, "In other words, in order to
prevail, the assignee must prove that it is the real party in interest for purposes of
bringing the action. An assignee cannot prevail on the claims assigned by another
holder without proving the existence of a valid assignment agreement." Hudson &
Keyse, LLC v. Yarnevic-Rudolph, 7th Dist. No, 09 JE 4, 2010-Ohio-5938, ¶21, citing
Natl. Check Bur,, Inc, v. Cody, 8th Dist. No, 84208, 2005-Ohio-283. If Adams was to
recover by virtue of his status as an assignee, at a minimum, the assignment instrument
should have been referenced in the complaint and a copy provided to the defense.
{q47} Thus, we cannot conclude the court abused its discretion in excluding the
assignment instrument. Without the instrument, the only evidence to support Adams'
position as an assignee was Mrs. Adams' affirmation that she recalled assigning her
rights and interests to the property to her husband sometime in 2006. This testimony is
insufficient to establish Adams' pre-2006 rights.
15
{148} Adams' second assignment of error in his cross-appeal is without merit.
{¶49} Pitorak & Coenen in its appeal raise assignments of error concerning the
remainder of the court's directed verdict.
{¶50} Pitorak & Coenen's fourth assignment of error in its appeal states:
{¶51} "The trial court erred by refusing to grant Defendant, Pitorak & Coenen's
motion for directed verdict."
{¶52} The trial court denied the remainder of Pitorak & Coenen's directed verdict
motion, allowing the action to proceed as to damages claimed for nuisance, trespass,
and the loss of enjoyment of Adams' real property occurring after May 2006. Pitorak &
Coenen argues that there was no evidence as to any damage for these claims after
May 2006, when Adams took ownership of the property.
{¶53} Before we assess the damage claims advanced by Adams for the relevant
period, we must first address Adams' claim that Pitorak & Coenen waived the ownership
issue by not presenting it to the trial court in its oral motion for a directed verdict.
Factually, there is no indication that Pitorak & Coenen waived this argument while
seeking a directed verdict. Even if Pitorak & Coenen had not argued this ownership
issue when requesting a directed verdict, upon a defendant's motion, the trial court has
a duty to direct a verclict when no evidence is produced substantiating a material
allegation of the action. Zafires v. Peters, 160 Ohio St. 267 (1953), paragraph two of
the syllabus.
{¶54} The trial court found that Adams could recover damages for interference
with water rights, trespass, and nuisance occurring after May 2006, Adams argues that
the trial court's ruling allowed him to recover damages for trespass for any period of
16
surface water flow from the time prior to development of the upstream property. It must
then be determined if that increase, if any, was unreasonable.
{q58} After a review of the complete transcript, it is apparent there was no
evidence presented as to a quantification of the increase in the amount of runoff
entering Adams' pond after he acquired title in May 2006 and, likewise, that any such
increase was unreasonable; and if it was, what was the resulting damage.
{¶59} There was no evidence as to the increase in the level of silt caused by the
development (versus organic silt that would have accumulated regardless of the
construction). Each expert acknowledged that silt accumulation is part of organic pond
life. Dariiel Bogoevski of the Ohio EPA explained that, even if there were no
construction, there would still be silt collecting in the pond and periodic maintenance
would be required. That is, without Adams taking certain action, silt would continue to
accumulate irrespective of any construction site or surface flow issues. Doyle Hartman
opined that the runoff was caused by the Heather Hollows subdivision, but neither he
nor any other witness was able to quantify the level of silt which came from the site. No
expert performed independent calculations in an effort to distinguish how much
sedimentation came from the runoff.
{160} Second, as there was no evidence as to how much, if any, silt was due to
the amount of runoff frorn the site, it was naturally impossible to determine how much of
that (unknown amount of) silt coming from the site was unreasonable. While Doyle
Narfman opined that he considered the runoff to be "unreasonable," his entire opinion
was predicated on Adams' estimations. Specifically, Adains would periodically venture
into his pond, "if not every year, than every two years," with a rope tied to a bucket. He
74^
18
would then lower the bucket and mark the water line of the rope. Alternatively, Adams
would use a pole to similarly make measurements. However, neither one of these
techniques employed measure the silt level. nor do they designate what silt was
produced from the pond and what silt was carried into the pond by the runoff.
{161} Third, even if, resolving all doubt in favor of Adams, there was evidence
supporting an "unreasonable" finding, there was no evidence which illustrates this
unreasonable, harmful runoff occurred after Adams took title in May 2006. No witness
was able to differentiate between the level of silt that entered the pond in 2004 and
2005, versus the level oT silt that entered after May 2006. This is, of course, critical to
the cause of action because Adams can only recover for damages that occurred while
he owned the property. As repair measures to restore the pond had yet to be
implemented, any silt entering Adams' pond had been accumulating for years.
{¶62} Based on the foregoing, the court erred in not directing a verdict in favor of
Pitorak & Coenen on Adams' claim of interference with surface water.
{¶63}. As to the trespass claim, it is well founded that "`common-law tort in
trespass upon real property 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 (1998), quoting Linley v.
DeMoss, 83 Ohio App.3d 594, 598 (10th Dist.1992), and citing Chance v, BP
Chemicals, Inc., 77 Ohio St.3d 17, 24 (1996).
{¶64} Regarding trespass in the context of surface water interference, there are
generally two categories of trespass-permanent and continuing. Sexton v. Mason,
117 Ohio St.3d 275, 2008-Ohio-858, ¶28. "A permanent trespass occurs when the
44
19
defendant's torfious act has been fulfy accomplished, but injury to the plaintiff's estate
from that act persists in the absence of further conduct by the defendant." Reith v.
McGill Smith Punshon, Inc., 163 Ohio App.3d 709, 2005-Ohio-4852, ¶49 (1st Dist.). "In
contrast, a continuing trespass results when the defendant's tortious activity is ongoing,
perpetually creating fresh violations of the plaintiff's property rights." Id.
{¶65} The First Appellate District in Weir v. E. Ohio Gas Co., 7th Dist. No. 01 CA
207, 2003-Ohio-1229, highlighted the paramount distinction between permanent and
continuing trespass: parties are deemed liable for a continuous trespass when they
retairr control over the source of the trespass. Id. at ¶27. The court, citing its previous
line of cases, illustrated the differences. Id.
{¶66} Findings of continuing trespass included a case where the defendant had
control over a pile of debris that created numerous landslides and another case where
the defenciant had control over loose, heavy debris that was causing property damage.
Id. Conversely, findings of permanent trespass included a case where the defendant
had no control over a se;wage-treatment system it had previously installed and another
case where the defendant retained no control over the dredge it placed on the plaintiff's
property. Id. These findings are similar to the First Appellate District's finding of
permanent trespass in Reith, where the court concluded that "the allegedly tortious act
by [the defendant] was the design of a drainage system that did not account for the
eventual outfall of surface water. It is undisputed that [the] deslgn of the system,
including even the installation of the system, was completed by 1994, at the latest." Id,
at ¶50.
20
{q67} Here, whether Pitorak & Coenen's alleged trespass is permanent or
continuing is important. If the trespass is permanent, then Adams lacks standing to
bring the claim because the trespass was caused by systems installed prior to when he
took ownership that did not control the outfall of surface water. If, however, the trespass
is continuous, Adams tias standing to bring the claim because damage allegedly_^.__._.. - ---•--'_- ---__---.w.-_.^.____continued throughout the weeks before triaf and Pitorak & Coenen retained control over^-----....__-...-_.------ - ------- ----- --.^
the problem._...._--•---,
{¶68} Unfortunately, this pivotal question must remain unanswered because the^.-- ____ _-----•--- - ^..._.
extent of Pitorak & Coenen's over the subdivision is not established on this^_.----- -_.---.record. Though construction and development on the project has been completed, it is
not clear whether the lots have sold and whether Pitorak & Coenen has any continuing
involvement, If Pitorak & Coenen had sold all the lots; it is not clear when such transfer
occurred. The record indicates that Pitorak & Coenen owned a spec house at the end
of the cul de sac, but it is unclear whether it retained ownership. As this court is
reviewing a directed verdict claim, it must resolve all doubt in favor of the nonmoving
party-Adams. In so doing, though it is likely Pitorak & Coenen has sold the lots and
retains no ownership or control over the subdivision, such an important consideration
cannot merely be assumed.
{¶69} Similarly, as to the nuisance claim, Adams contends that Pitorak &
Coenen interfered with the use and enjoyment of his land; thus, he is asserting a
private, rather than a public, nuisance. Guarino v. Farinacci, 11th Dist. No, 2001-L-158,
2003-Ohio-5980, ¶14. There are two types of private nuisance-a qualified nuisance
and an absolute nuisance. Id, at ¶15. This court has held that actions affecting the
21
natural drainage of water as a result of regrading or excavation generally fall into the
category of a qualified nuisance, Id, at ¶17-18.
{q70} "A qualified nuisance is essentially a tort of negligent maintenance of a
condition that creates an unreasonable risk of harm, ultimately resulting in injury." State
ex rel. R.1'.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, ¶59. The Ohio Supreme
Court has held that, "in order to establish a cause of action for negligence, the plaintiff
must show (1) the existence of a duty, (2) a breach of duty, and (3) an injury proximately
resulting therefrom." Armstrong v. Best Buy Co., Inc., 99 Ohio St,3d 79, 2003-Ohio-
2573, ¶8, citing Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77 (1984),
{¶71} Much like a continuous trespass, a continuing nuisance arises
when the wrongdoer's tortious conduct is ongoing, perpetually
generating new violations. Conversely, a permanent nuisance
occurs when the wrongdoer's tortious act has been completed, but
the plaintiff continues to experience injury in the absence of any
further activity by the defendant. Weir v. E. Ohio Gas Co., 2003-
Ohio-1229, ¶30. See also Creech v. Brock & Assocs. Constr., 183
Ohio App.3d 711, 2009-Ohio-3930, ¶17-18 (12th Dist.).
(t72) For the reasons explained above, it is not clear whether the nuisance
claim in this case would gualiv_ac.p^t nr ntinuing.
{¶73} However, even if the trespass or nuisance were to be considered
"continuing," there is insufficient evidence to determine that Pitorak & Coenen
maintained the subdivision in a negligent fashion thereby creating an unreasonable risk
of harm. Adams presented no evidence that the harm caused was proximately caused--^
22
by any negligent operation of the subdivision's containment efforts. In fact, the ^.^..._..._..._..._._....,___ .
evidence supports a claim to the contrary. Initially, the site did not comply with
regulations and there were several concerns from Geauga Soil and Water about the
efforts taken by the site to control sedimentation and runoff in general. However, this
evidence all pertains to site conditions in 2004 and 2005. When Adams took title to the
property iri May 2006, the evidence indicates the retention areas passed all inspections
and were in accordance with state and locat environmental protection policies.
Witnesses from Geauga Soil and Water testified that by the final inspection on October
5, 2005, the subdivision was in full compliance with all requirements. A witness from
the Ohio EPA testified that the site was in general compliance with all state regulations.
A civil erigineer and land surveyor testified the detention basins were acting as.^.._,r_..^_
designed. Notdence was produced o suggest any negligence such that a trespass
or nuisance claim could be properly maintained.
{q74} In his response brief, Adams does not point to any evidence in the record
at trial that supports his claims after May 2006. However, at oral argument, he
highlighted several pieces of evidence as sufficient to support claims for trespass and
nuisance after May 2006. First, Adams noted his testimony that every time there is a
rain event, he sees dirty water entering his pond. Photos were admitted as evidence to
support this claim. As to Adams' testimony, the existence of dirty water entering his
pond during rain events does not provide support for the claim that Pitorak & Coenen's
action (or inaction) proximately caused this to occur. As to the photographs entered into
evidence, only one photograph was confirmed to have been taken after May 2006.
Other photographs were taken in August 2004, November 2004, April 2005, and
23
sumrner 2005. There were also three photographs admitted from spring 2006. Even
assuming "spring" to be after May 2006, the photographs merely show muddy water
flowing in a stream.
{q75} Next, Adams pointed to his testimony whereby he details the fish in the
pond continually dying after May 2006. Review of this claim was especially difficult
because Adams did not refer to any transcript page numbers indicating where this
testimony could be found, as required by App.R. 16(A)(7). Nonetheless, a detailed
review of the transcript indicates that Adams only testified to the number and type of fish
he found dead in 2005. A photograph was entered into evidence showing two dead fish
floating in the pond, but again, Adams stated he took that photograph in April 2005.
Adams also pointed to his testimony where he discussed trees around the pond
continually dying after May 2006. Review of this claim was again difficult because
Adams did not refer to the transcript in support of this proposition. Ultimately, after a
review of the complete transcript, it is clear this testimony does not exist with regard to
the time period after May 2006,
{¶76} Thus, the court likewise erred in not directing a verdict in favor of Pitorak &<Z^ . _._.._._.,....__._....._._...._.__
Coerien on Adams' claim of trespass and nuisance.
{¶77} Based on the law of each respective claim and the evidence presented,
the trial court erred in failing to grant Pitorak and Coenen's request for a directed
verdict, Pitorak & Coenen's fourth assignment of error is with merit. In so holding, we
express no opinion regarding the misrepresentations of ownership as they may apply to
the pending sanctions hearings.
{q78} Pitorak & Coenen's remaining assignments of error are:
24
{¶79} [1.] The verdict of the jury was against the manifest weight of the
evidence and should be reversed where Plaintiff-[Appellee's]
recovery was limited, repair and restoration damages were
excluded and Defendant-Appellant passed all government
inspections,
{¶80} [2.] The trial court erred by permitting testimony from Thomas
Zahler and Robert Battisti and the trial court's decision to later
strike the testimony did not cure the error inasmuch as the
evidence had gone to the jury.
{¶8Il} [3] Plaintiff, Kenneth Adams, perpetuated a deception upon the
court because he did not own the property which is the subject
matter of the litigation yet falsely represented that he did which
should have resulted in a directed verdict which the court failed to
grant on the issue of ownership of the property.
{¶82} [5] The lower court erred by refusing to give an instruction on
independent contractor status between Clemson Excavating and
Defendant-Appellant and committed prejudicial error by virtue of the
agency instruction given to the jury thus necessitating a defense
verdict or new trial.
{¶83} [6.] The trial court erred by overruling Defendant's motion for
remittitur, judgment notwithstanding the verdict and/or motion for
new trial.
25
{¶84} Based onthe disposition of the above assignments of error, Pitorak &
Coenen's remaining assignments of error are moot,
{¶85} The judgment of the Geauga County Court of Common Pleas is hereby
affirmed in part and reversed in part, and final judgment is rendered in favor of
defendant-appellant/cross-appellee, Pitorak & Coenen, in accordance with this opinion.
CYNTHIA WESTCOTT RICE, J,,
MARY JANE TRAPP, J,,
concur.
26
MAR 0 4 2011! / ,' i f /9 .,-. 4--,/
IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO
KENNETH J ADAMS
-vs-
CASE NO. 08M000868
Plaintiff(s) . JUDGE FORREST W. BURT
JUDGMENT ENTRY
PITORAK & COENENINVESTMENTS LTD, et al.
Defendant(s)
This matter came on for consideration upon the Motion for Directed Verdict of Defendants
Pitorak & Coenen, Ltd, Larry J. Pitorak, and Loretta M. Pitorak at the close of Plaintiffs case.
After construing the evidence presented most strongly in favor of Plaintiff the Court finds that
reasonable minds can come to but one conclusion and that conclusion is adverse to Plaintiff Kenneth
Adams on the following issues:
l. Punitive Damages: Plaintiff has offered no evidence, much less clear and convincing evidence,
that these Defendants' acts or failures to act demonstrated malice, aggravated or egregious
fraud, oppression, or insult. Any evidence presented that Defendant Clemson failed to install
or correct adequate water flow and erosion control devices was accompanied by evidence that
upon being advised of such failure, immediate action was taken to correct any inadequacies.
2. Compensatory Damages:
The evidence presented by Plaintiff in regards to cost of repair or remediation of the damage
alleged to have been proximately caused by these Defendants' conduct is, at best, speculative and
remote. The estimates submitted as evidence of the claimed damages are unsupported by any
evidence presented. Although Plaintiff testified as to measurements of water depths he conducted
over a period of years, assuming arguendo the accuracy of those measurements, there is no basis
^ ^
for the contractors providing estimates that assume that 1000 tons of silt are required to be removed
in order to return the property to the condition it was prior to the alleged diversion of surface
waters caused by this Defendant. While the Court agrees that estimates by their very nature require
some approximation, there must be an evidentiary basis for that approximation. The record of this
case is completely devoid of any evidence regarding how the amount of 1000 tons was determined
as the amount of silt required to be removed in order to return the property to its previous
condition. Again, assuming arguendo that Mr. Adams measurements were accurate, he measured
in feet and inches, not in tons. No one testified or presented any evidence that would support the
contention that X inches or feet of silt equals Y tons of silt to be removed.
The Court cannot simply subtract any amount sought for removal of the 1000 tons of silt and
allow the jury to consider the other components of the claimed repairs because the various
elements are all interrelated,
3. Plaintiff in this action is Kenneth Adams, the current owner of the real property alleged to have
been damaged by Defendants' actions. The evidence presented to the Court is that Mr. Adams did not
become owner of the real property until 2006. Testimony was also presented that from 1973 until
2006, Jacqueline Adams owned the real property which she quit-claimed to Mr. Adams in 2006.
Testimony was also presented that in 2006 she assigned all claims she had to Mr. Adams. Because
Plaintiff had never listed the assignment instrument as an exhibit at any time prior to the trial and
because the Court heard no reasonable excuse or reason for the failure to list the assignment as an
exhibit, the Court denied admission of the assignment instrument as an exhibit.
This Court is of the opinion that claims for nuisance or interference with the surface flow of
water cannot be assigned. While Mr. Adams may maintain actions for nuisance or interference with
surface flow of water occurring during the time that he has owned the real property, he cannot maintain
those actions for the period of time that Jacqueline Adams owned the property.
The Motion for Directed Verdict of Defendants Pitorak & Coenen, Ltd, Larry J. Pitorak, and
Loretta M. Pitorak is sustained as to the issues of punitive damages and compensatory damages for
the costs of repair or remediation of the real property owned by Plaintiff. The Motion for Directed
Verdict is also sustained as to any claim for damages alleged to have occurred prior to 2006.
Plaintiffs action against Defendants Pitorak & Coenen, Ltd., Larry J. Pitorak, and Loretta
Pitorak may proceed as to any damages claimed to have been suffered by Plaintiff Kenneth Adams
for the loss of enjoyment or use of his real property and for damages for nuisance that occurred
subsequent to 2006 and for trespass.
ORREST W. BURT, JUDGE
James A. Sennett, Esq.Kimberlee J. Kmetz, Esq.David J. Fagnilli, Esq.
COMMON yLF-?-^3 C(3flC`S'I
Vi,4R 0 4 2011//,/ C roh. '2--,.
E?ca-:.:; F r; _+.['-;P.4`s tIv i4icje:L
IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO
KENNETH J ADAMS
-vs-
CASE NO. 08M000868
Plaintiff(s) JUDGE FORREST W. BURT
JUDGMENT ENTRY
PITORAK & COENENINVESTMENTS LT'D, et al.
Defendant(s)
This matter came on for consideration upon the Motion for Directed Verdict of Defendant
Clemson Excavating, Inc., at the close of Plaintiffs case.
After construing the evidence presented most strongly in favor of Plaintiff the Court finds that
reasonable minds can come to but one conclusion and that conclusion is adverse to Plaintiff Kenneth
Adams on the following issues: -
1. Punitive Damages: Plaintiff has offered no evidence, much less clear and convincing evidence,
that the Defendant Clemson Excavating's acts or failures to act demonstrated malice,
aggravated or egregious fraud, oppression, or insult. Any evidence presented that Defendant
Clemson failed to install or correct adequate water flow and erosion control devices was
accompanied by evidence that upon being advised of such failure, immediate action was taken
to correct any inadequacies.
2. Compensatory Damages:
The evidence presented by Plaintiff in regards to cost of repair or remediation of the damage
alleged to have been. proximately caused by Defendant Clemson Excavating's conduct is, at best,
speculative and remote. The estimates submitted as evidence of the claimed damages are
unsupported by any evidence presented. Although Plaintiff testified as to measurements of
depths he conducted over a period of years, assuming arguendo the accuracy of those
measurements, there is no basis for the contractors providing estimates that assume that 1000 tons
of silt are required to be removed in order to return the property to the condition it was prior to the
alleged diversion of surface waters caused by this Defendant. While the Court agrees that
estimates by their very nature require some approximation, there must be an evidentiary basis for
that approximation. The record of this case is completely devoid of any evidence regarding how
the amount of 1000 tons was determined as the amount of silt required to be removed in order to
return the property to its previous condition. Again, assuming arguendo that Mr. Adams'
measurements were accurate, he measured in feet and inches, not in tons. No one testified or
presented any evidence that would support the contention that X inches or feet of silt equals Y tons
of silt to be removed.
The Court cannot simply subtract any amount sought for removal of the 1000 tons of silt and
allow the jury to consider the other components of the claimed repairs because the various
elements are all interrelated.
The Court of Appeals has determined that Defendant Clemson Excavating may only be held liable
for those damages arising from Clemson's acts beginning in April, 2004, and ending in October, 2005.
Plaintiff has provided the Court with no probative evidence that would enable the jury to calculate how
much or what percentage of the claimed costs of repair or remediation are based upon improper
diversion of surface waters that occurred between the aforementioned dates.
3. Ownership of 9441 Pelcin Rd., Russell Township, Ohio, and Assignment of Rights and Claims:
As noted above, The Court of Appeals has determined that Defendant Clemson Excavating may
only be held liable for those damages arising from Clemson's acts beginning in April, 2004, and ending
in October, 2005. Plaintiff in this action is Kenneth Adams, the current owner of the real property
alleged to have been damaged by Defendant Clemson's actions. The evidence presented to the Court is
that Mr. Adams did not become owner of the real property until 2006. Testimony was also presented
that from 1973 until 2006, Jacqueline Adams owned the real property which she quit-claimed to Mr.
Adams in 2006. Testimony was also presented that in 2006 she assigned all claims she had to Mr.
Adams. Because Plaintiff had never listed the assignment instrument as an exhibit at any time prior to
the trial and because the Court heard no reasonable excuse or reason for the failure to list the
assignment as an exhibit, the Court denied admission of the assignment instrument as an exhibit.
This Court is of the opinion that claims for nuisance or interference with the surface flow of
water cannot be assigned. While Mr. Adams may maintain actions for nuisance or interference with
surface flow of water occurring during the time that he has owned the real property, he cannot maintain
those actions for the period of tiine that Jacqueline Adams owned the property.
Although the Court has determined that Defendant Clemson Excavating, Inc., cannot be held
liable for the costs of repair or remediation of the real property, arguably, Defendant could be liable for
nominal damages resulting from trespass; however, there is no evidence that any trespass or nuisance
occurred subsequent to October, 2005, or subsequent to Mr. Adams assumption of ownership of the
real property.
The Motion for Directed Verdict of Defendant Clemson Excavating, Inc., is sustained.
Judgment is entered in favor of Defendant Clemson Excavating, Inc., and against Plaintiff Kenneth
Adams..
James A. Sennatt, Esq.Kimberlee J. Kmetz; Esq.David J. Fagnilli, Esq. ^
BA1 C:f.19:9r°hS4?N! P%-:GE:A:` C:C3tPf81
MAR 0 4 7011l/%ia'/im s^
Dc:Pw:aE' N.CCiO1K Mi ..`.e.Yl.i.''N
- 17
IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO
KENNETH J ADAMS
-vs-
CASE NO. 08M000868 ,
Plaintiff(s) JUDGE FORREST W. BURT
.IUDGMENT ENTRY
PITORAK & COENENINVESTMENTS LTD, et al.
Defendant(s)
This matter came on for consideration upon the Motion for Directed Verdict submitted by
Defendants Richard Jaynes and The Jaynes Company at the close of Plaintiff's case.
After construing the evidence presented most strongly in favor of Plaintiff the Court finds that
reasonable minds can come to but one conclusion and that conclusion is adverse to Plaintiff Kenneth
Adams on the following issues:
1. Individual liability of Richard Jaynes: Absolutely no evidence was presented that Mr.
Jaynes acted in an individual capacity during the construction and development of the
Heather Hollow Subdivision. Any actions of Mr. Jaynes were as an employee or officer of
The Jaynes Company.
2. Wrongful Acts of The Jaynes Company:
The Jaynes Company served as project or construction manager; it's duties were to oversee and
supervise the construction of the road and improvements within the Heather Hollow Subdivision. No
evidence was presented that actions or inactions of The Jaynes Company proximately caused any
injury to Plaintiff or his real property. At best, it can be argued that since it supervised the project, The
Jaynes Company is responsible for any deviation from plans or any construction that went awry.
There is no testimony or evidence that Mr. Jaynes directed or approved any construction that resulted
a f70Lo
in injury to Plaintiff or that The Jaynes Company failed to correct any deficiencies brought to the
attention of Richard Jaynes.
3. Punitive Damages: Plaintiff has offered no evidence, much less clear and convincing
evidence, that the Defendants Richard Jaynes or The Jaynes Company's acts or failures to
act demonstrated malice, aggravated or egregious fraud, oppression, or insult. Any
evidence presented that Defendant Richard Jaynes failed to install or correct adequate water
flow and erosion control devices was accompanied by evidence that upon being advised of
such failure, inunediate action was taken to correct any inadequacies.
4. Ownership of 9441 Pekin Rd., Russell Township, Ohio, and Assignment of Rights and
Claims:
The Court of Appeals has deternuned that Defendant Clemson Excavating may only be held liable
for those damages arising from Clemson's acts beginning in April, 2004, and ending in October, 2005.
The same rationale applies to Richard Jaynes and The Jaynes Company. Plaintiff in this action is
Kenneth Adams, the current owner of the real property alleged to have been damaged by Defendant
Clemson's actions. The evidence presented to the Court is that Mr. Adams did not become owner of
the real property until 2006. Testimony was also presented that from 1973 until 2006, Jacqueline
Adams owned the real property which she quit-claimed to Mr. Adams in 2006. Testimony was also
presented that in 2006 she assigned all claims she had to Mr. Adams. Because Plaintiff had never
listed the assignment instrument as an exhibit at any time prior to the trial and because the Court heard
no reasonable excuse or reason for the failure to list the assignment as an exhibit, the Court denied
admission of the assignment instrument as an exhibit.
This Court is of the opinion that claims for nuisance or interference with the surface flow of
water cannot be assigned. While Mr. Adams may maintain actions for nuisance or interference with
surface flow of water occurring during the time that he has owned the real property, he cannot maintain
those actions for the period of time that Jacqueline Adams owned the property.
The Motion for Directed Verdict subnvtted by Defendants Richard Jaynes and The Jaynes
Company is sustained.
I^ ^f?!".,-{rr , ; .Tit:{t
MAR042011F.s. 6ARRrNA3K!
CIerK of CaurlsGeauAq Cm:ttt'j
IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO
KENNETH J ADAMS
-vs-
CASE NO. 08M000868
Plaintiff(s) JUDGE FORREST W. BURT
JUDGMENT ENTRY
PITORAK & COENENINVESTMENTS LTD, et al.
Defendant(s)
This matter came on for consideration upon the Motion for Directed Verdict of Defendant
Pitorak & Coenen Investments, LLC, at the close of Plaintiffs case.
Plaintiff presented no evidence that Pitorak & Coenen Investments, LLC, had or have any
ownership interest in the real property known as Heather Hollow Subdivision, or any other real
property adjacent to or near Plaintiff's real property. Additionally, Plaintiff has presented no evidence
that this Defendant has anything to do with any of the actions, inactions, or claims within this action.
The Motion for Directed Verdict of Pitorak & Coenen Investments, LLC, is sustained.
Judgment is entered in favor of Defendant Pitorak & Coenent Investments, LLC, and against Plaintiff
Kenneth Adams.
James A. Sennett, Esq.Kimberlee J. Kmetz, Esq.David J. Fagnilli, Esq.
RECEIVEDAPR222011
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CURTIN & IQMEI'Z, IyP
IN THE COURT OF COMNFON PLEASGEAUGA COUNTY, OHIO
KENNETH J ADAMS
-vs-
CASE NO. 08M000868
Plaintiff(s) JUDGE FORREST W. BURT
JUDGMENT ENTRY
PITORAK & COENENINVESTMENTS LTD
Defendant(s)
This matter came on for consideration upon the motions of Defendant Pitorak & Coenen
Investments, Ltd, for Remittitur, Judgment Notwithstanding the Verdict and/or New Trial. Also before
the Court is Plaintiffs Motion to Strike. Exhibits.
Plaintiffs Motion to Strike Exhibits is overruled.
The motions of Defendant Pitorak & Coenen Investments, Ltd, for Remittitur, Judgment
Notwithstanding the Verdict and/or New Trial are overruled. This Court cannot agree that the jury's
verdict was so excessive that it demonstrates that the jury "lost its way" or was unduly influenced by
sympathy or prejudice. The Court also does not agree that the jury ignored the Court's admonition to
disregard evidence of estimates submitted by Plaintiff. To the contrary, the verdict demonstrates that
the jury did, indeed, disregard the stricken evidence.
F RREST W. BURT, JUDG
cc: James A. Sennett, Esq. 3'
G. Michael Curtin, Esq. VZ
`';''-t^`' COURT,^ :^3MM4N Ptf AS
2911 l4^R -$ PM ^ ^
©f^tct ;.KC ^TSICO11 U THE COURT OF COMMON PLEAS
GEAUGA COUNTY, OffiO
KENNETH J. ADAMS,
PLAINTIFF
vs.
PITORAK & COENEN INVESTMENTS,
LTD., et at,
DEFENDANTS
0Q ;•5#33
CASE NO. 08M868
JUDGE FORREST W. BURT
l ^
JiTDGMENT
This matter came on to be tried before a jury from February 28 through March 4, 2011,
and in confotmity to the verdict of the jury rendered herein, judgment is entered in favor of
Plaintiff Kenneth J. Adams and against Defendant Pitorak & Coenen Investments, Ltd., in the
sum of $89,200.00. Judgment is entered in favor of Defendants Larry Pitorak and Loretta
Pitorak and against Plaintiff Kenneth J. Adams on Plaintiffs Complaint.
At the conclusion of Plaintiff's case, this Court entered judgment in favor of Defendants
Clemson Excavating, Inc., Richard Jaynes, The Jaynes Company, and Pitorak & Coenen
Investments, LLC.
Plaintiff Kenneth J. Adams and Defendant Pitorak & Coenen Investments, Ltd., shall
equally pay the costs of these roceedings for which judgment is entered and execution may
issue.
pEP1ISE_SA. YQWAd:CsitcalIrcietftGeakwomEty
cc: James A. Sennett, Esq.
Kimberlee J. Kmetz, Esq.
David J. Fagnilli, Esq.
FOOEST W. BURT, J?
THIS IS TO CERTIFY THAT THE FOliEG006 ISA TRUE ANDZM€CT CffPY?^T4fE DOGliME .ON FILE-1P,ki:HiS OFFiCE.ENTE§Et7 . -.$ ,WfTNESS MY HAND A:vD SEAL DF AID CQl1RTFNtS DAY ^ 20DENIS€ A4. KAb11NSKi, f( ERK OF COURTSBY ?d- DEPUlYCLERK
i
IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO
I^NNE'^7 ADAlYIS CASE NO. o83vFO00868
Plaintiff(s) JUDGE FORREST W. BURT
-vs- VERDICT FOR PLAINTIFF
PTTORAK & COENENINVESTIviENTS LTD, et al.
Defendant(s)
We, the jury, find in favor of Plaintiff Kenneth J. Adams and against:
J<'Defendant Pitorak & Coenen, Ltd.,
Defendant Larry Pitorak
Defendant Loretta Pitorak
(P3^^h Yx
awa^g ^ab°es); awazd d to Plaintiff Kenneth J. Adams^^ ^°f ^^^
We the j . ,.
I \
u- U
(All jurors in agreement shall sign in ink)