JAMES MERINO v. THE SALEM HUNTING CLUB, et al
CASE NO. 11 CO 2
COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, COLUMBIANA COUNTY
September 28, 2012
2012-Ohio-4553
Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 05 CV 381. JUDGMENT: Affirmed in part. Reversed in part.
For Plaintiff-Appellant: Attorney John A. Burnworth, Krugliak, Wilkins, Griffiths, Dougherty, 4775 Munson Street, N.W., P.O. Box 36963, Canton, OH 44735-6963
For Defendants-Appellees: Atty. K. Bret Apple, 243 North Lincoln Avenue, Salem, OH 44460
{1} Appellant James Merino appeals the decision of the Columbiana County Court of Common Pleas to award attorney fees to Appellee, The Salem Hunting Club (“Club“). This is the second time this matter has been before us on appeal. In our first appellate review, we determined that there were material facts in dispute as to Appellant‘s claims of qualified nuisance and negligence, and that summary judgment in favor of the Club was not appropriate. The case was remanded for trial on these matters. Appellant did not prevail at trial, and Appellee subsequently filed a claim pursuant to
BACKGROUND
{2} Appellant owns property at 1069 Benton Road, Salem, Ohio, adjacent to the Club. On January 17, 2003, Appellant filed a complaint against the Club. He voluntarily dismissed the complaint on April 13, 2004, and refiled the action on April 8, 2005. He raised claims sounding in trespass, nuisance per se, qualified nuisance,
{3} We ruled in Merino I that based on the record, genuine issues of material fact existed with respect to the qualified nuisance and negligence claims. We noted that the evidence presented by Appellant‘s expert witness, Mr. Daniel Clevenger, “does at least create a genuine issue of material fact as to whether the Club breached its duty of care by failing to prevent bullets from escaping from its property.” Id. at 36. We concluded that “[s]ummary judgment was not appropriate in this case as there exists genuine issues of material fact as to whether the configurations of the shooting ranges at the Club created, ‘potentially or unreasonably dangerous conditions to exist,’ * * * and whether Appellant came to the nuisance or has seen it escalate to the point of being actionable.” Id. at 39.
{4} On remand, the case proceeded to a bench trial. Appellant presented testimony from four witnesses and introduced a number of exhibits. After Appellant rested his case, the Club requested that the judge issue a directed verdict. The Club‘s request was granted. On July 30, 2010, the trial court filed its judgment entry dismissing the complaint with prejudice. The trial court found that Appellant “failed to prove an essential element of his claim in that [his] own expert on the design and maintenance of a shooting range indicated he was not able to state an opinion that the Hunting Club was negligent in its operation of its shooting range. He further testified that the fact that some bullets may have ricocheted from protective mounds on [the Club‘s] property onto [Appellant‘s] property did not amount to negligence.” (7/30/10 J.E., p. 2.)
{6} A hearing was held on the motion for fees on November 15, 2010. The trial court issued its judgment on December 17, 2010. The court denied the expert witness fees because it did not find any evidence that those fees were reasonable. The court granted the attorney fees request of $8,381.25, on the grounds that Appellant “present[ed] no evidence of negligence,” and that “[w]ithout such evidence the Court finds his ‘[C]onduct consists of allegations or other factual contentions that have no evidentiary support....’
{8} The Club has failed to file a brief on appeal. We may “accept the appellant‘s statement of the facts and issues as correct and reverse the judgment if appellant‘s brief reasonably appears to sustain such action.”
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES FOR A CASE DISMISSED IN 2004, WHERE THE APPELLEE FAILED TO TIMELY REQUEST ATTORNEY FEES UNDER REVISED CODE 2323.51(B)(1).
{9} Appellant first submits that the Club was required to submit a request for fees relating to the originally filed complaint within thirty days of the voluntary dismissal of that complaint on April 13, 2004. Appellant points to
{10} A trial court has sound discretion to determine whether to award sanctions under
{11}
{12} We are aware that some courts have been asked to decide whether the time limit in
{13} When a complaint is refiled under the saving statute, the case relates back to the date of the original complaint for purposes of satisfying any statute of limitations problems. The events being litigated are those that relate to the original filing. When the refiled case terminates, it terminates with respect to both the original filing and the refiled case. We see no reason why a motion for attorney‘s fees for frivolous conduct under
{14} This comports with the reasoning in our Opinion in Olivito v. Cavanaugh, 7th Dist. Nos. 90-J-33, 90-J-39, 1992 WL 398435 (Dec. 30, 1992). Olivito was relied on by the Supreme Court in its Soler decision. Soler involved a multi-party lawsuit where plaintiff dismissed voluntarily his remaining claims against defendants after some defendants had been dismissed from suit in summary judgment. Once plaintiff dismissed, defendants filed a motion for attorney fees based on plaintiff‘s allegedly frivolous suit, but plaintiff claimed this motion was time-barred as to the defendants who had earlier been granted summary judgment, because
Olivito found that the statutory language supports the conclusion that a party is not required to wait until the end of the litigation to file a motion for sanctions. However, Olivito found that it is not necessary that the moving party always file the motion within twenty-one days of the entry of any judgment that could pertain to frivolous conduct. Instead, Olivito believed that the statutory language gives the moving party some discretion in deciding when to file the motion. Thus, Olivito found that the statute permits the moving party to file the motion at any time prior to the start of the trial or within twenty-one days after the entry of judgment, but that the term “judgment” should be interpreted as being synonymous with the term “final order” as defined in
R.C. 2505.02 .
{15} The Supreme Court accepted our reasoning and incorporated it into its holding: “We agree with the reasoning espoused in Olivito. The plain meaning of the statute provides a means for an immediate judicial determination and a speedy sanctioning of such abuse. However, the aggrieved party also has the option of waiting until the conclusion of the action to seek sanctions. Construing the word ‘judgment’ as used in the statute to mean a final appealable order serves the remedial purpose of the statute.” Id. at 436.
{16} Thus, based on our earlier Olivito decision, as it is incorporated into Soler, we hold that parties may file for frivolous conduct fees at the earliest possible
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES FOR FRIVOLOUS CONDUCT, WHERE APPELLANT RELIED ON AND PRESENTED COMPETENT AND CREDIBLE EVIDENCE OF NEGLIGENCE.
{17} Appellant‘s second argument is that frivolous conduct fees should not have been awarded because he attempted to obtain appropriate expert witness evidence, and we were convinced that there were enough material facts in dispute to warrant remand of the case to the trial court for trial, as explained in Merino I. There is no argument from the Club in response. We accept Appellant‘s argument as reasonable and sustain his second assignment of error. We agree with Appellant that he should have been able to rely on our remand in Merino I as evidence that his litigation was not frivolous. Further, the Club has not filed a brief in this appeal to contradict Appellant‘s assertions that there were material questions of fact in dispute about the negligence claim, or that he presented evidence of negligence at trial. The
{18} The trial court‘s decision to grant a directed verdict to the Club does not, in and of itself, justify the granting of fees under
{19} For all the aforementioned reasons, we sustain Appellant‘s second assignment of error.
CONCLUSION
{20} Appellant has appealed the trial court‘s decision to grant Appellee fees for frivolous conduct pursuant to
{21} Appellant also argues that he should not have been assessed fees for frivolous conduct when he procured an expert witness who created a genuine dispute of material facts to overcome summary judgment, as this Court held when we remanded the case to the trial court in Merino I, and when this expert testified at trial, even though the expert changed his testimony. Based on this record, he did attempt to present evidence of negligence and qualified nuisance. Although Appellant did not ultimately prevail at trial in part because his expert did not testify entirely as expected, he did present some evidentiary support for his claims both at the summary judgment stage and at the trial itself. Therefore, his claims cannot be determined to be frivolous, and we sustain his second assignment of error. The judgment of the trial court is reversed as to the decision to grant attorney fees to the Club.
Vukovich, J., concurs.
DeGenaro, J., dissents; see dissenting opinion.
{22} The trial court erred in awarding attorney fees incurred in the original action and I would reverse and vacate that award. But the trial court did not abuse its discretion in determining that Merino failed to provide evidentiary support for his claim at trial and awarding Salem Hunting attorney fees. Thus, I must respectfully dissent from the majority‘s disposition of both assignments of error.
{23} The first assignment of error raises an issue unresolved by the majority‘s opinion: when a party voluntarily dismisses a case under
{24} Ohio courts have interpreted a
{25} Likewise, the Eighth District held that although the trial court‘s dismissal of the case without prejudice was not a final, appealable order, the defendant‘s motion for sanctions filed 40 days after the dismissal was untimely because it was not
{26} In concluding that a motion for sanctions under
By enacting
R.C. 2323.51 , the General Assembly sought to provide a remedy for those harmed by frivolous conduct. Yet, by the same token, the General Assembly manifested its intent that there be a cutoff time for this sanction to be imposed. This purpose is served by giving the aggrieved party the option of filing the sanctions motion at any time prior to trial or within twenty-one days of the last judgment rendered in the case. This would assure that twenty-one days after the entry of final judgment, the proceedings would be over.
{27} Here, Merino voluntarily dismissed the original action without prejudice pursuant to
{28} Yet under the majority‘s analysis, had Merino not refiled his case, there would be no final appealable order to trigger the filing limit for a sanctions motion. Unless the voluntary dismissal was treated as the triggering event as in Baker and Edwards, the need for a time limit in which a party may file a sanctions motion would be completely ignored. Another option for the triggering event could be the one year savings statute plus one day, although this solution is less sound when considering the need for a timely resolution of the issue. Thus, I agree with the Baker and Edwards holdings that a
{30} I believe that this result is impractical and does not conform to the legislative intent as discussed in Soler, Baker, and Edwards. Thus, I would follow the rationale of our sister districts and hold that a
{31} Turning to the second assignment of error, I find that the trial court did not abuse its discretion in determining that Merino‘s conduct was frivolous and awarding attorney fees to Salem Hunting.
{32} To determine whether Merino properly supported his claims of negligence at trial, it is necessary to examine both the law on qualified nuisance claims and the evidence Merino presented at trial in an attempt to establish a qualified nuisance claim.
{33} In Merino I, this court set forth the applicable law regarding qualified nuisance claims:
“Nuisance” is defined as, “the wrongful invasion of a legal right or interest.” Taylor v. Cincinnati (1944), 143 Ohio St. 426, 432, 55 N.E.2d 724. “Wrongful invasion” encompasses the use and enjoyment of property or of personal rights and privileges. Id.
A “private nuisance” is, “a nontrespassory invasion of another‘s interest in the private use and enjoyment of land.” Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 712, 622 N.E.2d 1153. Unlike a public nuisance, a private nuisance threatens only one or few persons. Taylor, supra, at 442, citing McFarlane v. Niagara Falls (1928), 247 N.Y. 340, 160 N.E. 391.
A private nuisance may be further designated as absolute or qualified:
“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. 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.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998, ¶ 59.
Strict liability is imposed when an absolute nuisance is found. Taylor, supra, at paragraph two of the syllabus; State ex rel. Schoener v. Hamilton Cty. Bd. of Commrs. (1992), 84 Ohio App.3d 794, 799, 619 N.E.2d 2. In contrast, “qualified” nuisance is premised upon negligence.
A qualified nuisance arises from a failure to exercise due care. Taylor, at 436. Thus, “[t]he allegations of nuisance and negligence therefore merge, as the nuisance claims rely upon a finding of negligence.” Allen Freight Lines, Inc. v. Consol. Rail Corp. (1992), 64 Ohio St.3d 274, 276, 595 N.E.2d 855.
“In an action based upon the maintenance of a qualified nuisance, the standard of care is that care that a prudent man would exercise in preventing potentially or unreasonably dangerous conditions to exist; it is the same standard of care required of owners and occupiers of land toward business invitees.” Kramer v. Angel‘s Path, L.L.C., 174 Ohio App.3d 359, 2007-Ohio-7099, 882 N.E.2d 46, ¶ 23. The issue of reasonableness is an issue to be determined by the trier of fact. Id.
{34} This court noted in Merino I that the Ohio Administrative Code provides that shooting ranges “should substantially comply with safety guidelines generally recognized and accepted by the national rifle association (NRA). Suggested safety guidelines are described or explained in great detail in ‘The NRA Range Source Book, Section I, Chapter 2, (1999 Edition).‘”
{35} This court further explained that the violation of an administrative rule may be admissible as evidence of negligence. Id. at ¶ 33. It noted that Clevenger, Merino‘s expert, testified in his affidavit that the range backstops at Salem Hunting do not comply with the requirements in the NRA Range Source Book because “they consistently allow stray bullets to travel onto the Merino property, significantly increasing the risk of substantial harm to persons and property. Clevenger further stated in his affidavit that the bullets that either penetrated trees or came to rest on the Merino property did so in a pattern that indicates that the bullets came from the Club. Id. at ¶ 35. This court explained that while the NRA Range Source Book requirements are not specific and detailed enough to establish negligence per se, Clevenger‘s affidavit created a genuine issue of material fact regarding whether Salem Hunting “breached its duty of care by failing to prevent bullets from escaping from its property.” Id. at ¶ 36.
{36} When the case proceeded to a bench trial on remand in 2010, Merino presented testimony from four witnesses, including his own testimony and expert testimony from Clevenger and William Ullom from Vadose Environmental
{37} Clevenger testified that he owns a shooting range, which he built in 2004; he constructed his range according to the guidelines in the NRA Range Source Book. He stated that the NRA Range Source Book recommended that backstops on outdoor ranges should be at a minimum 15 to 20 feet high and should be “erected in such a way to stop any rounds going off-property.” He explained that he visited Merino‘s property approximately two years ago and he observed that there were two backstops that were not high enough to trap the rounds going off the range. However, he also stated that, “[a]t the end of the property there was a huge mound, probably forty, maybe forty-five feet high. * * * That would have stopped any rounds going off-property.” Clevenger testified that he did not know when the large mound was constructed. He also explained that while he was on Merino‘s property, he did not see any evidence of bullets going over the backstop.
{38} On cross-examination, Clevenger testified that the intermediate mounds that were not high enough were located in the direction of the last mound at the back of the property such that the shooting took place in the direction of that mound. He confirmed that even though the intermediate mounds were not high enough, the last mound was high enough to catch any round that would have gone beyond the intermediate mounds.
{39} Clevenger confirmed that building the backstops is a “judgment call.” The court asked him whether he felt that Salem Hunting was negligent in its construction of its backstops, and he responded that he could not say that Salem Hunting was negligent. The court also asked him whether the fact that the intermediate mounds were not high enough was inconsequential because of the high mound at the end of the property, and he replied that it was a difficult question to answer because bullets can ricochet on impact. He explained that even though the last mound was extremely high, it would not have trapped every round on the range because a bullet could ricochet off of a shorter mound and travel over the high mound. However, Clevenger acknowledged that even on his own range which has high backstops, bullets can ricochet and land in his trees. He confirmed that he does not consider himself negligent because of the occasional ricochet nor could he say
{40} Upon review, I find that unlike his statements in his affidavit which merely raised a genuine issue of material fact to survive summary judgment, Clevenger‘s testimony at trial does not provide any evidentiary support for Merino‘s qualified nuisance claim. As the trial court noted, Clevenger could not say that Salem Hunting was negligent in its construction of the backstops nor could he say that it was negligent because of the possibility of bullet ricochet. Further, Clevenger‘s trial testimony does not support the conclusion that Salem Hunting failed to substantially comply with the safety guidelines in the NRA Range Source Book. Although he testified that the intermediate backstops were not high enough to stop rounds from leaving the range, he testified that the high mound at the end of the property was high enough to stop any rounds from exiting the range, including those that the intermediate backstops would not stop.
{41} This court correctly relied on Clevenger‘s affidavit to determine that a genuine issue of material fact existed as to whether Salem Hunting breached its duty of care in the first appeal. However, Merino failed to present evidence at trial that the backstops were inadequate to protect adjacent property owners. In fact, Clevenger‘s testimony at trial was to the contrary, that the backstop along the back of the property was high enough.
{42} Merino also argues that Ullom‘s testimony regarding lead contamination on his property shows that bullets from Salem Hunting were traveling onto his property. Merino hired Ullom, an environmental consultant, to evaluate Merino‘s property for lead contamination in 2003. Ullom‘s firm tested soil and stream water samples from Merino‘s property. The results showed soil samples containing lead in concentrations exceeding the levels of lead hazardous to human health as defined in the Ohio Revised Code. Ullom explained that typically the highest concentration of contamination on a property occurs near the source of the contamination. On the Merino property, the highest concentration of lead in the soil was located adjacent to Salem Hunting‘s property. In addition, the stream water samples showed the highest lead concentration in the samples taken near the area where the highest soil lead concentrations were found.
{44} While Ullom testified regarding the levels of lead contamination on Merino‘s property, he did not state an opinion that the contamination was due to bullets from Salem Hunting landing on Merino‘s property. Although Ullom‘s testimony that the lead concentration was highest near the Salem Hunting property line could support an inference that the lead contamination resulted from stray bullets from the Club, the trial court, as the trier of fact, did not make this inference. Since Ullom stated that he was not hired to determine causation, it was within the trial court‘s discretion, again, as the trier of fact, to conclude that Ullom‘s testimony was not evidence that Salem Hunting failed to exercise due care.
{45} Merino further contends that his own testimony is evidence of Salem Hunting‘s negligence. He described an incident where a horse was shot on his property approximately 25 years ago, and Salem Hunting paid for the veterinarian bills. He claimed that over the years, there has been an increase in shooting. He stated that he can hear the shooting and can hear the bullets ricochet through the trees on his property. He said that he has been in his woods and pellets have rained down on him from the skeet range. The last time he saw a bullet on his property was about six months ago; he was at the back of his property and a bullet flew through the trees.
{46} Merino identified his Exhibit 1 as a photograph he took of the shooting range from his property. He claimed that Salem Hunting had recently built up their backstop and it was approximately ten feet high in the photograph. Merino also introduced photographs that he took of Salem Hunting‘s no trespassing signs located on their property line. He explained that the signs contained bullet holes created by bullets going in the direction of his property. Next, he showed photographs of bullet marks in his trees located ten feet from his property line, which he stated were taken around August 2001. He also explained that he has found bullets in his trees using a
{47} On cross-examination, Merino testified that Salem Hunting built up their backstop since he took the photograph marked as Exhibit 1 in August of 2001 or 2002. He admitted that he has not taken photographs of bullet holes since the ones he took in 2001.
{48} While Merino did testify that he observed bullets landing on his property, Clevenger testified that some bullets could escape the range due to ricochet, but he could not say that Salem Hunting was negligent. Furthermore, Merino‘s testimony is vague in general. His exhibits showing evidence of bullet marks in his trees were taken in 2001, and he did not have any current pictures showing bullets on his land. While he testified that Salem Hunting had recently increased the height of their backstop, his photograph showing the backstop, Exhibit 1, was taken in 2001 or 2002. It is unclear when Salem Hunting raised their backstop to comply with the NRA Source Book, and, pertinent to this appeal, whether Salem Hunting raised the backstop before or after Merino initiated this matter. The trial court, as the trier of fact, was in a better position to view Merino‘s testimony, judge his credibility, and weigh the evidence. Thus, the trial court did not err in determining that this testimony was not evidence of negligence.
{49} The majority concludes that the fact that Merino survived summary judgment and attempted to present the same evidence at the bench trial via Clevenger‘s testimony is proof that Merino‘s claims are not frivolous. I do not agree. The majority cites to Wrinch, where the Ninth District found that “[a]lthough not determinative, the fact that summary judgment was denied demonstrates that Wrinch provided at least some factual basis to support the claims.” Id. at ¶ 55. While in many cases survival of a summary judgment motion may demonstrate that the plaintiff‘s claims have some factual basis as the case proceeds past summary judgment, the facts and procedural posture of this case warrant a different result.
{50} On remand, this case proceeded as a bench trial, with the judge serving as the trier of fact. After the close of Merino‘s case in chief, the trial court granted a directed verdict in favor of Salem Hunting. The majority correctly notes that the trial
{51} Having survived summary judgment, it was incumbent upon Merino to prepare his case to sustain his burden of proof. The evidence that was presented at the bench trial must be put in context: Merino originally filed the action in 2003 and refiled it in 2005; after this court remanded the case in 2008, the matter proceeded to a bench trial in 2010. Merino‘s testimony was vague, and the photographic evidence he submitted was from 2001; as the trier of fact, the trial court could give this vague and stale evidence little or no weight.
{52} We held in the first appeal that Clevenger‘s affidavit, which stated that Salem Hunting‘s backstop was not high enough, was sufficient to establish a genuine issue of material fact regarding negligence for summary judgment purposes. Conversely, at trial, Clevenger testified that the approximately 40 foot high backstop along the back of the property in his opinion was high enough; he could not say that Salem Hunting was negligent. The NRA Range Source Book introduced at trial, suggested backstops should be at least 15-20 feet high. Thus, Merino presented no evidence at trial regarding whether or not Salem Hunting breached its duty of care.
{53} Ullom testified at trial that there was lead contamination on Merino‘s property, that it accumulated over a period of years, and that it was higher near the shooting range. But he was not asked by Merino to assess the cause of the lead contamination, and presented no testimony as to whether the contamination was
{54} For these reasons, I cannot say that the trial court‘s determination that Merino‘s conduct was frivolous was unreasonable. I would affirm this assignment of error.
{55} Accordingly, I dissent with respect to both assignments of error. The trial court erred in awarding attorney fees incurred in the original action and I would reverse and vacate that award. However, the trial court did not abuse its discretion in determining that Merino failed to support his claims at the bench trial and I would affirm the trial court‘s award of attorney fees for that frivolous conduct.