Telle v. Pasley
2013 Ohio 2407
Ohio Ct. App.2013Background
- Telle and Dupler own property in Powell, Delaware County, Ohio; 18 blue spruce trees between their property and Pasleys’ property, 16 of which were later trimmed; the trees encroached over the Pasleys’ property according to one survey but were found on Telle/Dupler property by a later survey.
- In 2009, Pasleys contracted Maplewood Tree Service to trim the trees; Pasleys believed most trees were on their property and directed Maplewood to trim 16, not 18, trees.
- Maplewood trimmed all lower branches, removing branches to about six feet, exposing trunks, which Pasleys did not intend.
- Telle and Dupler alleged trespass, conversion, and later added a claim under R.C. 901.51 for treble damages; Maplewood and Pasleys admitted trespass and agency relationship.
- The trial court granted a directed verdict limiting damages to restoration costs not exceeding $24,800, and later denied a new-trial motion; jury awarded $28,350 in damages, attributing liability among Maplewood and Pasleys with privilege applied to Pasleys’ actions.
- The court ultimately sustained one assignment, sustained the third assignment related to recklessness, but remanded for a new trial on recklessness as to Maplewood; judgment affirmed in part and reversed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages measure cap valid? | Telle/Dupler contend measure should reflect diminished property value. | Court should cap at restoration costs per Fronsman v. Risaliti. | Cap upheld; restoration-cost measure supported by record. |
| Privilege instruction proper? | Privilege cannot excuse damages; overruled. | Privilege valid; allowed to reduce damages. | Privilege instruction proper; jury could consider privilege in damages. |
| Recklessness under R.C. 901.51 for Maplewood? | Maplewood reckless; damages should be trebled. | Maplewood’s acts as Pasleys’ agent precluded recklessness finding. | Recklessness issue entrusted to jury; third assignment sustained; remand on recklessness for Maplewood. |
| Should trespass definition have been given? | Definition needed for punitive-damages context. | Stipulated trespass; no instruction needed. | No reversible error; no harm from lack of trespass definition. |
| Punitive damages proper? | Evidence supported malice/need for treble damages. | Insufficient evidence of actual malice. | Directed verdict on punitive damages sustained; this issue resolved in favor of defendant. |
Key Cases Cited
- Fronsman v. Risaliti, 5th Dist. No. 2008CA00028, 2008-Ohio-5074 (Ohio 5th Dist. (2008)) (measures of damages for destruction of trees; restoration vs. diminution)
- Denoyer v. Lamb, 22 Ohio App.3d 136, 490 N.E.2d 615 (1st Dist. 1984) (measure of damages for property restoration after trespass)
- ALH Properties v. Procare Automotive Service Solutions, LLC, 2002-Ohio-4246 (9th Dist. 2002) (privilege issue in tree-trimming context)
- Murphy v. Carrollton Manufacturing Co., 61 Ohio St.3d 585, 575 N.E.2d 828 (Ohio 1991) (instructional accuracy for jury instructions)
- Groob v. Keybank, 108 Ohio St.3d 348, 843 N.E.2d 26 (Ohio 2006) (directed verdict de novo standard of review)
- Hargrove v. Tanner, 66 Ohio App.3d 693, 586 N.E.2d 141 (9th Dist. 1990) (directed verdict standard; evidence sufficiency)
- Estate of Thompson v. Club Car, Inc., 2010-Ohio-2593 (5th Dist. 2010) (reckless conduct standard for punitive damages)
- Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (Ohio 1987) (definition of actual malice for punitive damages)