Novy v. Ferrera
2014 Ohio 1776
Ohio Ct. App.2014Background
- Novys sue Ferraras over a dirt mound/encroachment that allegedly dammed drainage and caused surface-water flooding; claims include Trespass, Nuisance, and Intentional Interference with the Flow of Water.
- Court granted summary judgment on the intentional interference claim, holding no such cause of action exists under law.
- Jury found trespass occurred but awarded no damages; nuisance claim submitted to jury with negligence-based standards for surface water.
- Trial court denied preliminary injunction; Novys moved for permanent injunction post-trial; injunction denied.
- On appeal, court affirms in part, reverse in part on nominal damages, and remands for nominal damages, while upholding denial of permanent injunction and other challenged rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a viable claim for intentional interference with the flow of water. | Novys argued surface-water interference is cognizable under common law negligence. | Ferraras contended no recognized cause of action exists for such interference. | Assignment 1 meritless; court allows surface-water dispute under nuisance/negligence framework. |
| Whether nominal damages should be awarded for trespass. | Trespass established; nominal damages needed. | No nominal damages required; jury awarded none. | Merits to the extent nominal damages should be awarded and remanded for entry of nominal damages. |
| Whether a permanent injunction was warranted given the trial record. | Removal of encroachment and ongoing nuisance justified injunctions. | No irreparable injury or adequate remedy; discretion favors denial. | Assignment 3 is without merit; denial of permanent injunction affirmed. |
| Whether the trial court abused its discretion by excluding undisclosed testimony and non-disclosing a witness. | Cappello and Hovanscek testimony and evidence were improperly limited. | Discretionary rulings; undisclosed witness prejudice potential. | Assignment 4 without merit; no abuse of discretion. |
Key Cases Cited
- McGlashan v. Spade Rockledge Terrace Condo Dev. Corp., 62 Ohio St.2d 55 (Ohio 1980) (landowner liability for unreasonable interference with surface water under a negligence framework)
- Paxson (Franklin Cty. Dist. Bd. of Health v. Paxson), 152 Ohio App.3d 193 (10th Dist. 2003) (surface water disputes judged by reasonableness and negligence principles)
- Kerans v. Porter Paint Co., 61 Ohio St.3d 486 (1991) (duplication of claims; permissible to dismiss a duplicative claim)
- Eastley v. Volkman, 132 Ohio St.3d 328 (2012) (negligence-based framework for surface-water interference)
- Cementech, Inc. v. Fairlawn, 109 Ohio St.3d 475 (2006) (injunction standards; factors for permanent injunction)
- Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590 (1995) (injunction/discretionary relief; standards for review)
- Eastley v. Volkman, 132 Ohio St.3d 328 (2012) (reaffirmation of evidentiary standards and negligence approach on surface water)