Tillman v. Watson, 06-Ca-10 (5-18-2007)Tillman v. Watson, 06-Ca-10 (5-18-2007)
- Reporters:
- Before:
- Walters, Wolff, Fain
{¶ 1} Dеfendant-Appellant, Roger L. Watson, Trustee, appeals the judgment of the Champaign County Common Pleas Court finding that a conditional use permit was required for the operation of Watson‘s farm market, and granting an injunction ordering him to either remove or abate infractions of the Salem Township Zoning Law. Watson claims that the trial court erred in denying his motion for a directеd verdict and that the trial court‘s decision was contrary to the manifest weight of the evidence. Because we find that the trial court judgment was neither contrary to law, nor to the manifest weight of the evidence, we affirm the judgment of the Champaign County Common Pleas Court.
{¶ 2} The following facts are pertinent to the instant matter: Roger Watson owns and operates a 924-acrе farm in Logan and Champaign Counties. While the majority of the farm is devoted to row crops, approximately 55 acres are used for the production of non-traditional crops, such as pumpkins, sweet corn, tomatoes, Indian corn, peppers, asparagus, flowers, herbs, and berries. In order to market these non-traditional crops, Watson operates thе Mad River Farm Market located on U.S. Route 68, on the farm.
{¶ 3} Upon investigation of several alleged violations of the Salem Township zoning law, Richard Tillman, the township zoning inspector, filed the within suit seeking abatement of these alleged violations. Tillman alleges that Watson‘s market was being operated without any conditional use or zoning permits, and that signs advertising the store werе in violation of the zoning code. Watson claimed that the “farm market” exemption, contained in R.C.
{¶ 4} At trial, the principal issue was whether more than 50 percent of Watson‘s gross income from the operation of the farm market was derived from produce raised оn farms owned or operated by Watson. The only direct evidence applicable to this issue came from the testimony of Roger Watson. After the conclusion of the trial, the trial сourt issued its judgment, containing detailed findings of fact and conclusions of law, and granted judgment to Tillman. Specifically, the court found that Watson had failed to prove that the farm market exemption applied to Watson‘s business, that the advertising trailer used by Watson was not permitted under the zoning regulations, and that a conditional use permit was required. The trial court also grantеd an injunction enjoining Watson to remove and abate the infractions determined by the court.
{¶ 5} Watson appealed this judgment, setting forth two assignments of error.
First Assignment of Error
{¶ 6} The Trial Court erred as a mattеr of law by denying defendant‘s motion for directed verdict when plaintiff had not presented evidence of substantial probative value that defendant was not exempt from township zoning pursuаnt to O.R.C.
Second Assignment of Error
{¶ 7} The decision of the trial court in favor of plaintiff was against the manifest weight of the evidence because plaintiff presented no competent, credible, evidencе to support it.
{¶ 8} Watson denominates his motion at the close of the plaintiff‘s case as a motion for a directed verdict, and cites
{¶ 9} “After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff‘s evidence, the defendant, * * *, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine [the facts] and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.” (parеnthetical material added).
{¶ 10} Dismissals pursuant to
{¶ 11}
{¶ 12} A trial court‘s ruling on a
{¶ 13} We further note that the standard just quoted for
{¶ 14} Thus, when a motion to dismiss is made, the trial court can choose either to dismiss the action or to proceed with further evidence and not render any judgment until the closе of all of the evidence. Since the trial court selected the second option of hearing additional evidence, and because this was a choice expressly allоwed by
{¶ 15} Nonetheless, we must reconsider this motion in the light of all of the evidence, and apply the same standard at the conclusion of the evidence.
{¶ 16} In this case, Tillman‘s complaint alleged that Watson was in violation of the Salem Township Zoning Code. Watson‘s answer raised the defense of whethеr the Township had the power to subject his property to such zoning regulations by virtue of R.C.
{¶ 17} At trial, evidence was presented by both parties as to this issue: whether Watson‘s operation was exempt by virtue of the fifty percent test contained in the statute. Both the current zoning inspector, Tillman, and his predecessor, Jene Gaver, testified that, by far, the majority of the items held for sale in Watson‘s market were packaged or bottled and obviously not items that were produced on the farm. In addition, the township eliсited testimony from Watson that his 2000, 2001 and 2002 federal income tax returns showed that more than 50% of his gross farm market income came from items that were “bought for resale.” Those items would
{¶ 18} On direct examination by his own counsel, Watson presented a “sales analysis” of Mad River Farm Market that he produced, and he testified further as to the preparation of his income tax returns. In the sales analysis, Watson breaks down all of the items sold in the market that were raised on the farm, and the analysis shows that betwеen 56% and 61% of the market‘s sales came from produce raised on the farm. While Watson‘s testimony either refuted or explained each item on his tax returns, the trial court determines “what wеight and credibility to afford the appellant‘s version of the events and the appellee‘s version of the events.” Smith v. Wunsch, 162 Ohio App.3d 21, 2005-Ohio-3498, at ¶ 22 (citations omitted). Therefore, the trial court may determine what evidence to believe and what evidence to disbelieve, and which side of an issue has the preponderance of the evidence.
{¶ 19} In ruling after the conclusion of the trial, the court held that Watson must raise the statutory exemption as an affirmative defense and that he therefore has the burden of proof of this issue. Upon making the finding that Watson had the burden of рroof, the trial court found that Watson failed to prove that he was exempt.
{¶ 20} On that basis, we cannot say that the trial court‘s decision is either contrary to the law or to the manifest wеight of the evidence. Therefore, we must overrule both of Watson‘s assignments of error.
{¶ 21} For the reasons stated herein, the judgment of the Champaign County Common Pleas Court is hereby affirmed.
WOLFF, P.J., and FAIN, J., concur.
(Hon. Sumner E. Walters, retired from the Third District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).