[Cite as Wallace v. Ferguson,
2012-Ohio-4839.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LOIS W. WALLACE : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 12-CA-5
CRAIG AND LISA FERGUSON :
:
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Municipal
Court, Case No. 11-CVI-2381
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 15, 2012
APPEARANCES:
For Appellant: For Appellees:
L. JACKSON HENNIGER CHARLES M. ELSEA
150 N. Market St. 109 N. Broad St., Suite 200
Logan, OH 43138 P.O. Box 130
Lancaster, OH 43130
Delaney, P.J.
{¶1} Plaintiff-Appellant Lois W. Wallace appeals the January 3, 2012
judgment entry of the Fairfield County Municipal Court approving and adopting the
November 18, 2011 magistrate’s decision. Defendants-Appellees are Craig and Lisa
Ferguson.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Lois W. Wallace and Defendants-Appellees Craig and
Lisa Ferguson are next-door neighbors in a residential neighborhood located in
Pickerington, Ohio. Located on the property of the Fergusons are several full-grown
cottonwood trees. Cottonwood trees are known to be messy trees, with falling
branches and cotton-like seeds. A few cottonwood trees grow directly on the property
line between Wallace and the Fergusons. The trees are very tall and the branches
hang over Wallace’s property. Wallace alleges the branches of the trees touch her
roof and have caused damage to her skylight. She states the roots of the cottonwood
trees have grown into her foundation, causing the basement walls to crack. She
complains the cottony seeds that fall from the tree are so pervasive they prevent her
from enjoying the outside of her property.
{¶3} Wallace and the Fergusons have had numerous disputes about the
alleged damage the cottonwood trees caused to Wallace’s property. Wallace asked
the Fergusons to trim or cut down the cottonwood trees. The Fergusons declined to
cut down the trees. Without the permission of the Fergusons, Wallace hired tree
trimmers to cut down the cottonwood branches hanging over her property, but the tree
trimmers also went onto the Fergusons’s property to cut the trees. A deputy from the
Fairfield County Sheriff’s Department was contacted because of this incident.
{¶4} On August 23, 2011, Wallace filed a complaint against the Fergusons
with the Small Claims Division of the Fairfield County Municipal Court. Wallace
alleged in her complaint she suffered $1,927.00 in damages based on the damages to
her property and the loss of use and enjoyment of her property due to the cottonwood
trees.
{¶5} Wallace filed an amended complaint on September 6, 2011. In her
amended complaint, she alleged damages of $2,627.00. Her damages included the
costs of trimming two cottonwood trees, root grinding, trenching, repair of skylight,
temporary skylight repair, removal of roots from drain tile, survey, and loss of use of
upper level of house.
{¶6} The matter came on for a bench trial before the magistrate. Both parties
appeared pro se. At the hearing, Wallace introduced a brief with attachments in
support of her case. The magistrate accepted the brief and stated he would consider
the brief in making his determination. The parties testified, as well as the Fairfield
County Sheriff’s Deputy called to the scene of the parties’ dispute over tree trimming.
There were multiple photographs of the property line, the cottonwood trees, and the
cracks in Wallace’s basement wall.
{¶7} On November 18, 2011, the magistrate issued findings of fact and
conclusions of law. The magistrate found based on Wallace’s brief and the evidence
presented at the hearing, Wallace failed to prove by a preponderance of the evidence
that Wallace suffered damages and if there were damages, Wallace failed to prove
those damages were caused by the Fergusons.
{¶8} Wallace filed objections to the magistrate’s decision.
{¶9} On January 3, 2012, the trial court overruled Wallace’s objections. The
trial court approved the decision of the magistrate and dismissed Wallace’s complaint.
{¶10} It is from this decision Wallace now appeals.
ASSIGNMENTS OF ERROR
{¶11} Wallace raises three Assignments of Error:
{¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND
THAT APPELLANT LACKED CREDIBILITY.
{¶13} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
ALLOW THE PLAINTIFF-APPELLANT TO FULLY PRESENT HER CASE AND THE
CONTENTS OF HER BRIEF.
{¶14} “III. THE TRIAL COURT’S FINDING THAT PLAINTIFF-APPELLANT
FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THE DAMAGES
TO HER PROPERTY AND THE CAUSE OF THOSE DAMAGES IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
ANALYSIS
I. and III.
{¶15} We consider Wallace’s first and third Assignments of Error together
because the standard of review is interrelated. Wallace argues in her first Assignment
of Error that the trial court erred when it found Wallace was not credible. She argues
in her third Assignment of Error the trial court’s conclusion that Wallace failed to prove
her case was against the manifest weight of the evidence.
{¶16} In Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179,
972 N.E.2d
517, the Ohio Supreme Court recently clarified the standard of review appellate courts
should apply when assessing the manifest weight of the evidence in a civil case. The
Ohio Supreme Court held the standard of review for manifest weight of the evidence
for criminal cases stated in State v. Thompkins,
78 Ohio St.3d 380,
678 N.E.2d 541
(1997), is also applicable in civil cases. Eastley, at ¶ 17-19. A reviewing court is to
examine the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses, and determine “whether in resolving conflicts in the
evidence, the finder of fact clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed and a new trial ordered.”
Eastley, at ¶ 20 quoting Twearson v. Simon,
141 Ohio App.3d 103, 115,
750 N.E.2d
176 (9th Dist. 2001); See also Sheet Metal Workers Local Union No. 33 v. Sutton, 5th
Dist No. 2011CA00262,
2012-Ohio-3549 citing State v. Martin,
20 Ohio App.3d 172,
175,
485 N.E.2d 717 (1st Dist.1983).
{¶17} While we utilize the manifest weight of the evidence standard of review
to consider the trial court’s judgment, we remain cognizant of the trial court judge’s
role as the fact finder. In a bench trial, it remains that “the trial judge is best able to
view the witnesses and observe their demeanor, gestures and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984).
{¶18} “In a civil case, in which the burden of persuasion is only by a
preponderance of the evidence, rather than beyond a reasonable doubt, evidence
must still exist on each element (sufficiency) and the evidence on each element must
satisfy the burden of persuasion (weight).” Eastley, at ¶ 19. In her complaint, Wallace
alleged real property damage, private nuisance, and loss of enjoyment of use of
property.
{¶19} The Tenth District Court of Appeals recently summarized the tort of
“nuisance” in Hamilton v. Hibbs L.L.C., 10th Dist. No. 11AP-1107, 2012-Ohio-4074:
A “nuisance” is a wrongful invasion of a legal right ord [sic]
interest. Banford v. Aldrich Chem. Co. Inc., 126 Ohio St.3d 210, 2010–
Ohio–2470, ¶ 17. A plaintiff asserting a suit for nuisance may recover for
a public nuisance, i.e., an unreasonable interference with a right
common to the general public. Cincinnati v. Beretta U.S.A. Corp., 95
Ohio St.3d 416, 2002–Ohio–2480, ¶ 8; Hurier v. Ohio Dept. of Transp.,
10th Dist. No. 01AP1362, 2002–Ohio–4499, ¶ 9. Alternatively, such a
plaintiff may recover for a private nuisance, i.e., the wrongful invasion of
the use and enjoyment of property. Beretta U.S.A. Corp. at ¶ 8; Arkes v.
Gregg, 10th Dist. No. 05AP–202, 2005–Ohio–6369, ¶ 43; see also
Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 714 (4th
Dist.1993) (when a particular nuisance qualifies as both a public and
private nuisance, a plaintiff “may recover either on the basis of the
particular harm to her resulting from the public nuisance or on the basis
of private nuisance”). …
A nuisance may be further categorized as either an absolute or
qualified nuisance. The distinction between absolute and qualified
nuisance depends on the conduct of the defendant. Angerman v. Burick,
9th Dist. No. 02CA0028, 2003–Ohio1469, ¶ 10; Hurier at ¶ 10. “An
absolute nuisance is based on either intentional conduct or an
abnormally dangerous condition that cannot be maintained without injury
to property, no matter what care is taken.” State ex rel. R.T.G., Inc. v.
State, 98 Ohio St.3d 1, 2002–Ohio–6716, ¶ 59. On the other hand, a
qualified nuisance is the “negligent maintenance of a condition that
creates an unreasonable risk of harm, ultimately resulting in injury.” Id. *
…
An action for damages due to a qualified nuisance is premised on
a defendant's negligence in allowing a dangerous or bothersome
condition to exist. Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio
St.3d 274, 275 (1992). Therefore, a plaintiff must aver and prove
negligence in order to prevail. Id. at 276. To succeed on a claim for
negligence, a plaintiff must establish that the defendant breached an
applicable duty of care and that the breach proximately caused the
plaintiff injury. Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562,
2009–Ohio–3718, ¶ 36. The standard of care is that care a reasonable
person would exercise in preventing or correcting the dangerous or
bothersome condition. Rothfuss v. Hamilton Masonic Temple Co., 34
Ohio St.2d 176, 180 (1973); Kramer v. Angel's Path, L.L.C.,
174 Ohio
App.3d 359, 2007–Ohio–7099, ¶ 23 (6th Dist.).
Hamilton, at ¶ 15-17.
{¶20} Upon our review of the transcript, photographs, and documentary
evidence, we cannot find the trial court clearly lost its way and created a manifest
miscarriage of justice in ruling against Wallace. In order to prevail on her claim for
nuisance, Wallace must show the Fergusons’ negligence. Wallace did not meet her
burden to demonstrate it was the Fergusons’ cottonwood trees that cause the alleged
damage to her home. There are cottonwood trees on the Fergusons’ property. The
Fergusons testified there are also large locust trees on Wallace’s property that are
near Wallace’s home. The photographic evidence supports this. There was no
evidence that the damage to the skylight or crack in the basement wall was caused by
the cottonwood trees.
{¶21} As the fact finder, it is within the trial court’s purview to rule on the
credibility of the witnesses. The magistrate’s decision found Wallace’s credibility as to
the evidence of nuisance to be “questionable” based on the caustic interactions
between the parties. At one point, Wallace posted a sign on her property with an
arrow pointing to “Lois’s Yard” and an arrow pointing to the Fergusons’ yard labeled
“Idiots Yard.”
{¶22} Based on our review, we find the decision of the trial court to grant
judgment in favor of the Fergusons and to dismiss Wallace’s complaint was supported
by the manifest weight of the evidence.
{¶23} Our decision to overrule Wallace’s first and third Assignments of Error
remains the same when reviewing the matter under an abuse of discretion standard.
When reviewing an appeal from the trial court's ruling on objections to a magistrate's
decision, this Court must determine whether the trial court abused its discretion in
reaching its decision. Wade v. Wade, 113 Ohio App.3d 414, 419,
680 N.E.2d 1305
(11th Dist.1996). An abuse of discretion is defined as “more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140
(1983). An abuse of discretion demonstrates “perversity of will, passion, prejudice,
partiality, or moral delinquency.” Pons v. Ohio State Med. Bd.,
66 Ohio St.3d 619,
621,
614 N.E.2d 748 (1993). When applying the abuse of discretion standard, this
Court may not substitute its judgment for that of the trial court.
Id.
{¶24} Upon review of the record, we find no error in the trial court’s adoption of
the magistrate’s decision.
{¶25} Wallace’s first and third Assignments of Error are overruled.
II.
{¶26} Wallace argues in her second Assignment of Error the trial court abused
its discretion in failing to allow Wallace to argue the contents of her brief presented to
the magistrate at the small claims hearing. We disagree.
{¶27} At the hearing, Wallace introduced to the trial court her written brief she
intended to present at the hearing. The magistrate accepted the brief and stated he
would read the brief in addition to considering the evidence presented at the hearing.
(T. 36.) The magistrate stated he would allow Wallace to present additional evidence
at the hearing. (T. 47.) The magistrate assured Wallace he was going to read the
entire record before rendering his decision. (T. 51.)
{¶28} The record demonstrates Wallace was able to fully argue her case. The
magistrate explicitly stated he would consider all the evidence presented in the
complaint, brief, and testimony before rendering his decision.
{¶29} Wallace’s second Assignment of Error is overruled.
CONCLUSION
{¶30} The three Assignments of Error raised by Plaintiff-Appellant Lois W.
Wallace are overruled.
{¶31} The judgment of the Fairfield County Municipal Court is affirmed.
By: Delaney, P.J.
Farmer, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
PAD:kgb
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
LOIS W. WALLACE :
:
Plaintiff - Appellant : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 12-CA-5
CRAIG AND LISA FERGUSON :
:
Defendants-Appellees :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Fairfield County Municipal Court is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
