Estes v. Robbins Lumber, L.L.C.
2016 Ohio 8231
| Ohio Ct. App. | 2016Background
- Appellants (Estes, Meyers, and Haunnha Meyer Trust) own property adjacent to land owned by Don and Joanne Kellerman.
- Don orally agreed with William Robbins to timber the Kellermans' land and share profits; Robbins subcontracted to Robert Walls and operated the logging.
- Loggers cut trees that appellants claim were on their property; Paul Estes repeatedly complained to Don, who later told the loggers to stop and leave the site.
- Appellants sued the Kellermans and Robbins Lumber, LLC for trespass; discovery included Don's affidavit denying he trespassed or authorized trespass and Robbins’ deposition that he walked the property with Don and saw boundary stakes.
- The trial court granted summary judgment for the Kellermans, finding they neither personally trespassed nor exercised control over Robbins as to make him their agent; appellants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the boundary was clearly marked (creates factual dispute undermining Don's affidavit) | Meyer testified stakes were not present and only steel pins existed; boundary was not clearly marked | Don and Robbins stated the boundary was marked with stakes/ribbons; appellants failed to challenge this in summary-judgment briefing | Court held boundary-marking dispute was peripheral, appellants waived contest by not raising it below, and uncontroverted evidence showed Kellermans did not trespass or direct trespass; assignment overruled |
| Whether Don and Robbins formed a joint venture or agency making Kellermans liable for Robbins' trespass | The business arrangement was a joint venture or created agency/control, making Kellermans liable for Robbins' acts | Kellermans argued appellants raised joint-venture theory for first time on appeal and factual record does not show control/agency | Court held appellants did not raise the argument below (waiver) and refused to consider it on appeal; assignment overruled; summary judgment affirmed |
Key Cases Cited
- Chance v. BP Chemicals, Inc., 77 Ohio St.3d 17 (trespass requires unauthorized intentional entry)
- White v. DePuy, Inc., 129 Ohio App.3d 472 (standard of review for summary judgment is de novo and follows Civ.R. 56(C))
- State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 (appellate courts generally do not consider arguments raised for first time on appeal)
- Touhey v. Ed's Tree & Turf, LLC, 194 Ohio App.3d 800 (parties cannot raise new theories on appeal after failing to assert them below)