*1
al., Appellants,
et
WAGONER
v.
al., Appellees.
et
OBERT
Obert,
App.3d
No. 07 CA 31. 31, 2008. Decided Dec. *4 O’Reilly, Michael for appellants.
Stebelton, Snider, Aranda & Snider and N. appellees. John for Schneider, Maguire & for appellees Winona Donnall and Home Connection Realty. Harker,
John Martin appellees Rosemary Kellenbarger. Judge.
Edwards, This appeal involves a dispute over two acres of that are titled appellants, Wagoner, Donald and Glenna and upon appellees which and cross- appellants, Obert, Michael and Rebecca constructed a leach bed for household septic system. Both the Wagoners and the Oberts appealed jury’s verdict *5 and the trial court’s denial of their motions judgment notwithstanding the verdict, alternative, or in the motions for trial. appellees new Additional are Winona Donnall and Home Realty Rosemary Connection and Martin and Kellen- barger.
392 FACTS AND CASE OF
STATEMENT matter are as follows: history of the facts and procedural The 2}{¶ two acres of land approximately a over dispute This concerns appeal originally a dispute was parcel The two-acre County, in Fairfield Ohio. located Hill. In the Hills Mr. and Mrs. by tract of land owned of a 14-acre portion part land. As 14-acre tract of survey split to their George Better hired boundary mark the survey pipes half-inch iron to Better used survey protocol, the property a of the legal description also prepared Better property. lines of office. County Engineer’s it with the Fairfield and filed 17, 1975, Rosemary Kellenbarger pur- Martin May appellees On from the Hills. property 14 acres of unimproved 6.05 acres of the chased original of the Thereafter, remaining 7.96 acres purchased McCandish Jeff Wagoner, Donald and Glenna appellants, the Hills. In by acres owned initially of property from McCandish. The 7.96 acres acreage the 7.96 purchased just is located Wagoners and later transferred purchased by McCandish Kellenbargers’ property. north of the erected a Kellenbargers property, cleared the 1975 and
5}{¶ shed, boundary of their they and fenced off what believed be house and The address of the dispute. which included the two acres property, Grove, Road, County, part Ohio. As of the home Sugar Fairfield Dupler construction, for a tank for their home and believed Kellenbargers paid septic installed, they tank but had no documentation of related septic that a had been Furthermore, of Health County Department the Fairfield expense. construction any application being Kellenbargers relative to made has no record system any septic system being inspected record of private septic install agency. they claimed that made exclu- Kellenbargers From 1975 until Hills, purchased had from the they they sive use of the land believed Kellenbargers two acres in The stated including approximately dispute. shed, a concrete goats, dog pad a wood raised and built a kennel with they built that he hunted the adjacent Kellenbarger two acres. Mr. also stated on the regular entire on a basis. 11, 2003, purchased a new residence July Kellenbargers On
7}{¶ Road, Ohio, Dupler the home at 7920 and hired realtor County, Fairfield vacated September part now vacant On as Henry property. Leanne to list the executed, reviewed, Henry and the listing procedures, of the County Department stating require- Fairfield Health published by form home form informs the owner septic inspections. septic-inspection ments for sold, be septic system may required if an being inspection a home is *6 lending the institution the department. health The form further states and/or if that the septic system pumped has not been within the last four “it years, must be pumped by a licensed septic pumper.” Finally, the form advised the Kellen- bargers 3701-29-07, that pursuant Ohio Adm.Code a minimum capacity septic 1,500 tank a for three-bedroom gallons home must be in one- or two-tank compartments. The Kellenbargers also completed property residential disclosure form
in which they system stated that the septic servicing consisted of a field, leach that they did not know septic-system the date of the last inspection, and that they leaks, were of any unaware current backups, other material problems with the septic system servicing property. The did Kellenbargers not check the boxes on the residential disclosure form that would have indicated that their property was a septic sewer, serviced with tank or a private or that they a general had knowledge type septic system serviced the property. form, on Finally, the Kellenbargers certified that there were no boundary disputes involving property. The Kellenbargers’ property at 7920 Road Dupler remained vacant for
approximately year. In April realtor, the Kellenbargers hired a new Winona Donnall of Home Connection Donnall Realty. asked the Kellenbargers complete form, new residential property disclosure form. On the new Kellenbargers that they indicated had a private septic and filtration bed on the they leaks, and that any were not aware of backups, or other material problems with the septic system. The Kellenbargers also left the box marked tank” “septic Finally, blank. Kellenbargers certified that they were not of any boundary aware disputes. Appellees and cross-appellants, Obert, Michael and began Rebecca Fairfield, for
looking acreage 17, 2004, July Ohio. On the Oberts and the executed real estate purchase contract for the 6.05 tract of land located at 7920 Dupler Road. The purchase agreement gave the Oberts a 20-day inspection grace period. 1, 2004, August On Mr. Obert and Mr. Kellenbarger walked the Mr.
property. Kellenbarger stated he used red to mark spray paint boundary northernmost property. Mr. Kellenbarger also showed Mr. supposed Obert the location of underground septic system. Mr. Kellenbarger advised Mr. Obert that septic tank was garage/pole buried between the barn and a large poplar tree. Mr. Kellenbarger also told Mr. Obert the line to the leach field ran down hill behind the garage. purchase executed, After the contract was realtor Donnall Winona (“IHS”)
contacted Independent Health Services to perform necessary inspec- septic/aeration and the of the water well inspection an requested Donnall tions. inspection. and a termite system, sanitarian, conducted a licensed Carpenter, Bruce August On water, protocols inspection followed Carpenter requested inspections. was he stated he subsequent report, In a
sewer, inspections. and termite *7 not the size verify that he could tank risers and any septic to find and/or unable noted that the system. He further leaching tank or property’s septic of the type County Fairfield per risers installed to be pumped tank would need septic any problems that did not locate he also stated he report, In the regulations. until daily might apparent not become problems but that septic system, with the report but Carpenter’s Donnall received was resumed. system of the operation tank septic insure that the concerns notify septic the Oberts of the did not and/or that were installed. risers pumped was 11, 2004, property on the mortgage survey performed a was August On survey showed the true mortgage 4733-38-01.1 The
pursuant to Ohio Adm.Code did not include the two the The true boundaries boundary property. 6.05-acre Instead, survey showed two mortgage the property dispute. acres of boundary belonged the along the northern property dispute acres of survey prior to the seeing mortgage denied ever Wagoners. The Oberts on the closing property. property closing, closed. At the both August property On report. paid The Oberts Kellenbargers Carpenter’s and the initialed Oberts $180,000 possession. and took immediate The property for the in dispute. maintain and use the two acres proceeded
Oberts from Fairfield received a bill On March Oberts $40 they had not renewed their County Department, advising Health them The had never been advised private-septic-system operation permit. Oberts necessary property for their and contacted permit a was septic-system Deeter, a for more information. Steve County Department Fairfield Health to the department, responded the health registered employed by sanitarian Upon inspection, Deeter septic-system inspection. Oberts’ to conduct property of a dumped pipe was at the end property’s sewage being discovered that the not house into a ravine. Deeter did find 150 feet from the Oberts’ approximately that it was and advised the Oberts any septic system property Survey Surveyor mortgage survey completed by D. Grundei of Landmark 1. was Scott The mortgage mortgage-lending industry, providing proof to the Group and is common to the buildings legal description. It is a and land in the lender title insurer as to the and/or closing. required residential real estate document in standard approved an live that is not serviced regulations to in a house county health system. septic County Department Health the Fairfield The then worked with Oberts 17}
{¶ installed system was septic The for the system leach septic system. to install dispute, which that is parcel on underground the two-acre They owned, to the legally Wagoners. but was titled they believed which Oberts they on which only it other level area land two because was the chose the acres system. for the septic could install leach bed in May took system place for the septic The and other work excavation 18}
{¶ $7,738.30. septic system approximately 2005. cost of the new was and June The time, that an area of During Wagoner Mrs. became aware this Wagoners were concerned being was excavated Oberts. on On June was done their land. or about being excavation extent, any, if surveyor hired Vince Evans determine Wagoners on the an of 0.432 acres survey revealed encroachment encroachment. Evans’s system. for the underground septic the Oberts’ leach bed Wagoners’ property by *8 29, 2005, septic completely the had system or June after been On about installed, system’s leach bed septic the informed the Oberts that the Wagoners encroaching property. their was on George Wagoners, the the Oberts hired After their conversation with boundary to them as the location of the property to come the and advise to
Beiter and Beiter Wagoners’ property. their the discovered property line between boundary had been iron that he had set the line original pins along the survey survey north his Better’s concurred with the authority. moved without within dispute property the two acres were the completed Evans for Wagoners’ property. boundaries the error, cure the the tried to Having boundary parties verified the 22}
{¶ area, the problem dispute through and the sale of the encroached but resolve unsuccessful, at and the did not move the leach attempts resolution were Oberts 6, result, 2005, an Wagoners trespass, As a on the filed action for bed. October Wagoners In complaint, and title. the first count of the the ejectment, quiet their real trespass invading that the had committed by physically stated Oberts field line and onto property when the Oberts built a leach across the property for sought by Wagoners real the adjoining their 7.96 acres of estate. relief use of the for a fair rental value for the damages trespass, the included trespass count, set Wagoners In the ejectment. and an second property, order quiet a cause of action for title. forth 2005, 3, filed a answer and set forth timely the Oberts On November 23}
{¶ granted, relief upon failure to a cause which can be affirmative defenses of state laches, complaint and The Oberts filed a estoppel, third-party waiver. also contract, against negligent for breach of Kellenbargers promissory estoppel, enrichment, misrepresentation, unjust and fraud. The Oberts from sought relief part compensatory damages, punitive and damages, attorney fees. 2006, 2, order, February pursuant scheduling On to a the matter was set 24}
{¶ 24, 4, April 2006, depositions for trial on October 2006. On were held for the Oberts, Kellenbargers, Wagoners. and April On their third-party complaint amended 25}
{¶ include realtor Realty theory Winona Donnall and Home on Connection professional negligence. Donnall filed a answer timely and filed a cross-claim Kellenbargers. April On the Oberts also to the fourth responded interrogatory 26}
{¶ Wagoners’ discovery request, written that the stating Wagoners had done nothing to assert at ownership issue.2 On August Wagoners for partial judg- moved summary ment, requesting the trial court to find that the Oberts had on their trespassed property by underground an installing leach bed and an requesting order of ejectment. supported The motion was affidavits asserted that there was dispute no about the argued location line that no landowner may acquire rights against for an neighboring property encroaching septic system under the of prescriptive theories possession. easement adverse response, Oberts stated adverse Kellenbargers’ years use for many of the two acres, acres dispute, continued use of the two gave them the right assert the affirmative defense of possession against Wagon- trespass ers’ claim and to assert their right have the leach bed on remain *9 acres in dispute. two 2006, 15(A), On August pursuant to Civ.R. the 28} Oberts and Kellenbar-
{¶ gers joint filed a motion to amend the pleadings to assert a against counterclaim Wagoners the for possession adverse and quiet title. The Oberts and Kellenbar- also gers attached an for “Action for Declaratory Judgment Adverse Possession Quiet amend, Title” to motion to they the in which moved to a seek interrogatory proposed by Wagoners 2. The the any stated as follows: "State affirmative pled A.) it; by you B.) so, pursue defense you the Plaintiffs If to [and] want what do If defense; you operative C.) believe are support the facts that such a and What witness and you produce prove documents do intend responded to such The facts.” Oberts to the Yes; B.) interrogatory "A.) Wagoners nothing as follows: ownership have done assert their past approximately Wagoners of the at years. only issue for the took after action septic system placed property. the Wagoners was on the timely have failed to exercise their rights relative to the real at issue.” estate they possession, of adverse court, to the doctrine pursuant the by declaration filed Wagoners the September dispute. in On owners of the are the trial, days made 60 before that the motion was opposition, arguing in response be denied. untimely, and should was and Kellenbar- the Oberts’ trial court denied the On October 29}
{¶ denial, trial the In support pleadings. motion to amend the joint gers’ trial.3 days prior less than 60 had been filed that the motion court stated for an order 19, 2006, a motion in limine filed the Oberts On October in about, any to use attempting or commenting from any party adverse barring a certain document form, into evidence attempting to enter way, shape, or on the real closing in with the conducted connection mortgage survey as a known the definition “given specific support, argued at estate issue. 4733-38-01, Code Section by the Ohio Administrative mortgage survey given of a mortgagee and use the solely for the intent survey that a location is mortgage buyers insurer, an argument it to advance improper title and/or (Oberts) upon representations or form any way, shape relied in should have or the title mortgagee are not the survey they since mortgage made opposition. response The filed insurer.” continuance of 20, 2006, joint motion for parties filed On October motion for date, joint court granted That same the trial the trial date. parties’ agreement joint parties, motion of upon continuance based case, that a criminal and the fact resolving be helpful that mediation would did not v. case, on that same date. Oberts Wiggins, State was set to be tried action for to include a cause of amend their counterclaim renew their motion to Furthermore, appears it granted. was after the continuance possession easement. prescriptive considered a claim for that the Oberts never jury for trial on 17, 2006, matter was rescheduled November On 6, 2007. February Wagon- trial court considered and denied January On motion in limine. The and the Oberts’ summary judgment for partial
ers’ motion ownership disputed claim of Wagoners’ legal that as to the trial court held minds cannot come land, as “reasonable appropriate was not summary judgment The trial court further the issues the matter.” regarding to but one conclusion upon the the Court entry, follows: “This matter comes before 3. In the the trial court stated as Kellenbarger Third-Party to Amend Defendants Defendants Obert and Joint Motion of filed a memoran- Adverse Possession. Plaintiffs Pleadings and to Assert a Counterclaim for consideration, light that this matter was set Upon and in of the fact opposition. dum *10 24, 2006, present on filed the motion February 2006 and the Defendants October in trial on trial, 31, 2006, Pleadings Amend sixty days prior Defendant’s Motion to August than to less DENIED, accordingly.” proceed This matter shall held that the evidence the concerning mortgage survey incompetent was not or improper. 2, 2007, trial, February prior On to the a motion in Wagoners filed preclude any
limine to from party placing any evidence on the record relating the theory possession. of adverse The trial court denied the motion and ruled possession presented could be as a defense to Wagoners’ the claims but not aas counter or cross-claim of the Kellenbargers Oberts the ownership. establish After the of presentation prior evidence and to the jury deliberations, the trial court found that the line as shown on surveys that Wagoners established held in legal title the area of dispute. deliberations, After due the jury found as follows. The Oberts did not commit a trespass against Wagoners. Kellenbargers The were not responsi- ble to the for any negligence Oberts claims. Kellenbargers The committed fraud against $6,800 the Oberts. The jury awarded the Oberts the sum compensa- tory damages and in punitive damages and an $0 recommended award of attorney Finally, fees. jury found favor of the against Oberts Donnall for the negligence $1,197.97 claim and awarded the Oberts in compensatory damages. Both Wagoners and the timely Oberts filed judgment motions for (“JNOV”) notwithstanding the verdict motion, and for a new trial. In their Oberts argued jury’s against decision was weight manifest of the evidence and inconsistent as a matter of Specifically, law. argued Oberts jury’s verdict on the fraud claim granting punitive damages but $0 recommending that the trial grant court attorney fees to the Oberts was inconsistent and indicated that jury clearly lost way. its The Wagoners also argued jury’s that the against verdict was the manifest weight the evidence and contrary to law. April On trial court entered judgment
{¶ as follows: 37} “1. jurors Six of the Defendants, found favor of the Michael and Rebecca Obert on the claim Trespass against Plaintiffs, asserted them by the Donald and Glenna Wagoner; “2. Eight jurors of the found in favor of the Defendants/Third-Party
Plaintiffs Michael and Rebecca on Obert the claim of Fraud asserted them against the Third Party Defendants Martin Rosemary and Kellenbarger. jury $6,800.00 awarded in compensatory damages, punitive damages, $0 circled that the fees; are liable for the attorney’s Oberts “3. Eight jurors found in favor of Third-Party Defendants Martin Rosemary Kellenbarger on the claim Negligence asserted them the Defendants/Third-Party Obert; Plaintiffs Michael and Rebecca *11 Defendants/Third-Party jurors
“4. found in favor of the Eight by claim of asserted Negligence Plaintiffs Michael and Rebecca Obert on the Party the Third Defendant Donnall dba Home Connection against them Winona $1,197.67in Realty. jury compensatory damages. awarded “Wherefore, as judgment the Court enters follows: Wagoner “In favor of Plaintiffs Donald and Glenna on the Wagoner by against claim of Possession asserted them the Defendants Michael Obert and Obert; Rebecca
“In claim of favor of the Defendants Michael and Rebecca Obert on the Plaintiffs, asserted them Donald and Glenna Trespass against by Wagoner Wagoner;
“$6,800.00 Defendants/Third-Party in favor of the Plaintiffs Michael by against Obert and Rebecca Obert on the claim of Fraud asserted them Party Kellenbarger Rosemary Kellenbarger, Third Defendants Martin and to- gether statutory filing Judgment with interest at the rate from the date of of this Entry, Third-Party and for the costs of this case to be divided with the equally Realty; Defendant Winona Donnall dba Home Connections “In favor of the and Third-Party Kellenbarger Defendants Martin Rosemary Kellenbarger against on the claim of asserted them the Negligence Obert; Defendants/Third-Party Plaintiffs Michael Obert and Rebecca “$1,197.67in Defendants/Third-Party favor of the Plaintiffs Michael and Negligence Rebecca Obert on the claim of asserted them the Third- Party Realty, Defendant Donnall dba Home with together Winona Connection statutory Entry, interest at the rate from the date of of this and filing Judgment Third-Party for the costs of this case to be divided with the Defendants equally Rosemary Kellenbarger.” Martin and date, judgment denying
That same the trial court issued a the motions trial. JNOV and the motions for new Donald and Appellants, Wagoner, appellees and Glenna cross- Obert, appellants, timely Michael and Rebecca filed of the trial court’s appeals judgments. Realty final Donnall and Home Appellees Winona Connection Martin and final Rosemary Kellenbarger appeal judgment. did not Donald and forth the
Appellants, Wagoner, following assign- Glenna set ments of error:
“I. The trial court to follow case law which by failing prohibits erred and similar doctrines to obtain prescription, possession, the use adverse sewage disposal. land for public to find that as stated failing policy “II. The trial court erred allowing courts from Department prohibits of Health regulations and similar doctrines to possession, use of adverse
litigants prescription, for sewage disposal. obtain land failing public policy “HI. The trial court erred in to find that as stated Department prohibits allowing of the Ohio of Health courts from regulations and similar doctrines to
litigants prescription, possession, the use of *12 for sewage disposal.” obtain land Obert, and Michael and Rebecca set forth Appellees cross-appellants,
{¶ 54} of error: following assignments “I. court in denying The committed error and abused its discretion {¶ 55} joint pleadings motion of the Oberts and the to amend the to possession against Wagoner. assert a claim of adverse defendants “II. prejudice The trial court erred to the of Oberts in appellant {¶ 56} its motion for the verdict overruling judgment notwithstanding relative issue of for Kellenbarger’s liability punitive damage practical which had the effect of from barring recovering attorney’s Oberts their fees from Kellenbarger. “III. trial prejudice The court erred to the of appellants Oberts
{¶ 57} overruling their motion for new trial. findings jury “IV. Certain of the court which were embodied
{¶ 58} and/or 18, judgment entry April of 2007 are both weight manifest prejudicial appellants evidence and Obert. “V. The court committed error to the of prejudice
{¶ 59} admitting mortgage survey into evidence the immediately conducted before the Kellenbarger/Obert closing.” shall first Wagoners’ assignments We address the of error.
I
error,
In appellants’
assignment
first
of
the Wagoners argue that
the trial
in permitting
court erred
to assert
Oberts
the affirmative defense of
possession against
adverse
their action for trespass
trespass
when the
claim was
solely
based
on the
septic-system
Oberts’ installation of a
underground leach bed
adjacent
on .432 acres of their
property.
appellants argue
that use of
prescription,
possession,
adverse
and similar
cannot
doctrines
be used to obtain
(1902),
land for
sewage disposal, citing
support
v. Balliett
65 Ohio
Mansfield
451,
86,
Andros,
396,
401 In response, appellees argue that their of possession use as an affirmative upon defense is based the initial use of the property by the Kellenbar- gers, they which tacked on to their continued use of the property storage, daily recreational an purposes, underground leach bed. argue The Oberts trial court did not abuse its in permitting discretion the use of adverse possession as an affirmative defense and in denying appellants’ motions for summary judgment motion for JNOV. and/or We will first address our summary standards review for judgment
motions and for motions for JNOV.
We review an
from
appeal
summary judgment under a de novo standard
(2000),
1,
review. Baiko v. Mays
618,
140 Ohio App.3d
746 N.E.2d
citing
Smiddy
(1987),
35,
v. Wedding Party,
78,
Inc.
30 Ohio St.3d
30 OBR
506 N.E.2d
212; Northeast
Apt.
(1997),
Ohio
Assn. v.
Bd.
Cuyahoga Cty.
Commrs.
188,
App.3d
Ohio
reviewed de
(1986),
novo.4 Osler v.
345, 347,
Lorain
28
410,
Ohio St.3d
28 OBR
could come issues, ¶ but factual not determine a decision does 50(B); at 3. Such Goodyear and consider necessary to review law, it is though even only questions ¶ weight at 4. “Neither Goodyear the motion. deciding evidence determination is for the court’s the witnesses credibility of nor the evidence 19, 410, 347, N.E.2d 28 504 Osler, at OBR 28 Ohio St.3d ruling upon [JNOV].” 275, 271, 74 (1976), 45 Ohio St.2d Hotel Motor Court Posin v. A.B.C. quoting 427, N.E.2d 334. 344 O.O.2d must party adverse possession, acquire To real in an land evidence, has possessed that he
establish, convincing and by clear 21 adverse, years. for at least exclusive, continuous manner notorious, open, Each case of 577, 579, N.E.2d 1009. (1998), 692 81 St.3d v. Koch Grace Didday facts. v. set of particular its own upon turns possession adverse CA99-06-059, (Feb. 22, 2000), Nos. CA99-05-049 App. Clermont Bradburn Koch, that claims explained Court Supreme v. 2000 197245. Grace WL in a claim results a successful disfavored because should be possession adverse compensation. holder without ownership to an adverse forfeiting title holder legal 580, 1009. Koch at 692 N.E.2d Grace v. of adverse use the period “tack” to his may An individual (1979), Ferrari 66 Ohio Lyman with him. v. privity owners by previous
use
(1926), 114
1112,
72, 76,
citing Zipf
v. Dalgarn
20
419 N.E.2d
App.2d
O.O.3d
only
not
those who
291, 296,
protects
Adverse possession
bar the owner
(June
Assoc., Inc. v. Mink
Soifer,
Nathaniel
M.D.
statute of limitations.
21-year
v.
5737,
216206. See also Rhodes
12, 1978),
No.
1978 WL
App.
Montgomery
Cannon,
In
to
387, 391;
29
359.
order
Gunn,
v.
Ohio St.
Kyser
35 Ohio St.
an
on the
of the
part
must have been
intention
there
possession,
establish adverse
acts,
title,
or his
by his declarations
to claim
“so manifested
possession
person
limited, raises a
within the time
prosecute
the owner to
that a failure of
Koch,
claim.”
v.
of his
Grace
extinguishment
an
or
surrender
of
presumption
Curran,
1009;
v.
155 Ohio
581,
also Bravard
at
692 N.E.2d
see
St.3d
81 Ohio
¶
or
846,
mowing
grass
11
affirmative
Mansfield
Andros,
Balliett,
86,
App.3d
v.
158 Ohio
v.
St.
63 N.E.
and Moms
to
396,
{¶ 70} Mansfield
of
drainage
to recover
for an
nuisance caused
damages
alleged
Mansfield
18,000
from a
of
into a natural
city’s sewage
population
approximately
people
watercourse,
River,” that ran
“Rocky
through
known as
Fork of the Mohican
of the
property.
argued
prior
city’s
Balliett’s
Balliett
to the construction
natural
and was
sewage drainage system,
springs
the stream came from
water
pure
great continuing
purpose
and wholesome and of
value to Balliett for the
his stock.
into the stream
watering
argued
sewage emptied
Balliett
ordinary
and rendered the
and unfit for
poisoned, polluted,
water unwholesome
city
use. The
to have the water descend on
argued
right
“[t]he
[Balliett]
him in
must
of a denser
pristine
yield
population
its
clearness
to the demands
march
of civilization.”
review, the
found that the issue in
v.
Upon
Supreme Court
Mansfield
rights
Balliett
to a
owner’s
and the constitutional
pertained
riparian
right
“taking”
for
caused
compensation
damages
by municipality’s
private property
public
for
use. The court found that
to the doctrine of
pursuant
domain, private property
waterway may
acquired
public
eminent
such as a
be
However,
vested,
riparian rights
use.
the court reasoned that once
these
can be
public
only
just compensation
taken for
use
when
is made. The court further
“
drainage
reasoned that
of water
artificial
which causes
pollution
‘[t]he
stream,
well,
sewage to flow into a
or
whether done
spring
by municipal
individual,
or an
the owner to
corporation
constitutes
nuisance which entitles
therefor,
damages
being
municipal corporation
right
the rule
that a
has no more
injure
the waters of a
of an individual than a natural
premises
stream the
”
Balliett,
Wood,
A
person.’
quoting
v.
1147, declaratory judgment a action James Morris and his wife filed trespass, ejectment, and his wife for and nuisance abatement. Edward Andros boundary. Morris that controversy property complained The involved shared that on septic system whereby septic originated Andros had constructed a line protruded through property Andros’s a hillside located on Morris’s property argued waste on Morris’s Morris he had not deposited septic property. permission septic system septic system Andros to install the given In a unreasonably altering drainage property. posthearing was across his brief, prescriptive septic-discharge Andros raised a claim for a easement for his to one-half system ownership by possession disputed and asserted acre of The trial court ruled that Andros was entitled to a property. prescriptive by way easement but had failed to state a claim to take title of adverse possession. appeal, argued ruling On Andros that the trial court erred in that he had possession.
failed to establish a claim for adverse The court appellate affirmed decision, finding the trial court’s that Andros had part prove failed exclusive years. use of the for 21 court property found the evidence established However, that a run prior septic system owner had on Morris’s property. evidence also prior trying established owner was not to take the Therefore, property. appellate court found that Andros was the first person and, therefore, who had tried to take the septic purposes had failed an 21 years. establish adverse use for (¶ cross-appeal, argued On Morris that the trial court erred as a matter of law when it Andros a granted prescriptive purpose easement for the of allowing dump septic Andros to his onto discharge Specifically, Morris’s land. Morris argued that the prescriptive contrary easement was to the rule of law set forth in (1948), 191, v. Bldg. 144, Vian & Dev. 85 App. Co. Ohio 40 O.O. 88 Sheffield N.E.2d 410. Vian, The court In applied prior holding Vian. the court held that may
“one
by prescription,
not obtain
or otherwise than
by purchase,
right to
Vian,
sewage upon
cast
the lands of another without his consent.”
85 Ohio App.
198,
144,
Andros,
396,
at
40
O.O.
{¶ 77} permitting possession trespass Oberts assert the defense of adverse to the claim. We further find that the trial court did not err as a matter of law in denying motion for appellant’s summary judgment JNOY. and/or first of Appellants’ assignment hereby error is not well taken and is
{¶ 78} overruled.
II error, In assignment the second of that the Wagoners argue {¶ 79} trial court abused its discretion in to find that as stated in the failing public policy regulations of the Ohio of Health of Department prohibit prescription, the use possession, and similar doctrines to obtain land for sewage disposal. such, Wagoners argue further that as the trial court erred as matter law their motions for denying summary judgment and JNOV. Specifically, the Wagoners argue Department the Ohio Health in effect
regulations when the Oberts installed their leach bed on their property it “make clear that leach fields which over go subject lines must be the of recorded voluntary easement written consent obtained on a basis from and/or the adjoining property citing Wagoners owner” Ohio Adm.Code 3701-29-02. The argue stand, further allowing adverse-possession the Oberts’ defense to the lower court an act by county department countenanced health that was vires, i.e., clearly ultra county department’s permit health issuance of the the Oberts to install their leach enforcing requirement field occurred without for an easement. 3701-29-02, response, argue Oberts Ohio Adm.Code entitled alternative,
“Easement Requirement,” apply does not to this situation. In the that if argue apply, county Oberts the Ohio Administrative Code does not department grant health could a variance difficulties. upon showing practical Finally, argue Wagoners’ timely object failure to to the effectively excavation them from about the location of the estopped complaining leach bed. 3701-29-02(E) prohibits discharge sewage Ohio Adm.Code of raw open ground
onto and states as follows: “(E) to be treated or discharge, permit discharged, shall or person No tank, or other sewage or contents of a drainage untreated the overflow sewage, well, supply, into an abandoned water or offensive waste putrescible, impure, well, hole, crevice, or other or into a natural or artificial sink spring, or cistern formation, limestone, sandstone, shale, into or other rock opening extending ground normal water table.” 3701-29-02(G), Requirements,” entitled “Easement Ohio Adm.Code
states as follows: “(G) not disposal sewage permitted except Off-lot effluent shall be system specified of an on-lot is not as possible, where the installation *17 (B) (A) 3701-29-10, 3701-29-10, paragraph paragraph para- of rule of rule (B) Code, graph following of rule 3701-29-11 of the Administrative and the conditions are met: “(1) of of disposal sewage requires crossing When off-lot effluent
{¶ 86} adjacent to reach the of a recorded or properties point discharge easement established, legally drainage use of a maintained from the publicly improvement dwelling lot line to the of shall point discharge required. be “(2) permission discharge sewage person Written effluent from the or
{¶ 87} persons properties point discharge control of the or at the of shall be * * *.” required point discharge Ohio AdmuCode 3701-29-01 defines the as follows: {¶ 88} “(T) ‘Point of means at Discharge’ point which the effluent from a sewage system household or curtain disposal public drain enters ditch or discharges body to the surface of the or to a of water.” ground 3701-29-20, “Variance,” Ohio Adm.Code entitled states as follows:
{¶ 90} “The of health may grant requirements board variance from the (Ohio Code) rules 3701-29-01 to 3701-29-21 of Sanitary the Administrative Code interest, contrary as will not be to the where a public person shows because of practical special difficulties or other conditions their strict application will However, unnecessary cause unusual and no variance shall be hardship. granted spirit rules, will defeat the intent of said or general be otherwise contrary public to the interest.” Essentially, appellants argue the use of permitting
possession as an affirmative defense to the trial court trespass, negates requirement department, prior administrative the health to the issuance of a easement, must first an permit, existing necessary determine whether there is use, or public drainage permission adjacent property written from the owner. disagree. We Upon record, a review of the it does not appear that the Oberts have
requested a variance from the board of health. It appear also does not that the Oberts have been served with a notice of violation of the Ohio Administrative However, Code. it appear does that a variance is or a violation required has occurred because the regulation Ohio Revised Code at strictly applies issue to the discharge of effluent in three specific circumstances including discharge onto the ground, ditch, surface of the discharge public into a discharge body into water. judice, the case sub the evidence established that the Oberts’ leach
bed was installed underground and cured a waste-disposal system that was discharging into a sewage ravine on Wagoners’ adjacent private land. Therefore, itself, the leach bed which origin is the of the alleged trespass, does not appear violate the regulation. OAC Accordingly, the trial court did not abuse its discretion by allowing the Oberts to assert adverse possession as an affirmative defense to the installation of an underground leach bed that does not appear to violate nor negate the administrative regulations of the OAC. Accord- ingly, the trial court did not err as a matter law overruling Wagoners’ motion for summary judgment and motion for JNOY. reasons, For these we do not find appellants’ argument well taken and
hereby overrule the second assignment of error.
Ill
In
error,
the third assignment of
Wagoners
{¶ 96}
argue that the trial
court erred in denying their motion for JNOV based on
argument
their
that
existing
possession
adverse
and prescriptive case law should be modified to
conform with the Ohio Supreme Court’s
in
ruling Norwood v. Horney, 110 Ohio
353,
advance a public-policy argument that
possession
adverse
should be
in
abandoned
Ohio. Appellees urge this court to disregard
argument
this
based on the decision
by the Ohio Supreme Court in Houck v. Bd.
Park Commrs. Huron Cty.
of
of
Disk,
148,
Park
1115, the city of Norwood filed an eminent-domain action a against private landowner to appropriate their property just for compensation and transfer the property to a private developer part as of an urban-redevelopment plan for a deteriorating area. Judgment was entered for the city, and the landowner appealed. address States Constitution to the United Fifth Amendment The * * * life, of deprived shall be person that “[n]o states domain and
es eminent
be
law;
property
private
nor shall
process
without due
property,
liberty,
amendment confirms
The
use,
just compensation.”
without
for public
taken
authority upon
of that
take,
the exercise
conditions
authority to
but
sovereign’s
use” and
is for
taking
“public
that the
standards:
conjunctive
two
satisfaction of
Norwood
owner.
property
to the
taking
given
for the
“just compensation”
¶
1115,
district
districts,
landown-
and the
park
in favor of the
judgment
trial court entered
The
x-eal
Court was whether
Supreme
The issue before the
appealed.
ers
acquired by
can
Chapter
R.C.
be
district established under
by park
owned
v. Hen-
the decision Heddleston
The court reaffirmed
possession.
entity
government
(1895),
recognizing
40 N.E.
dricks
52 Ohio St.
trespassers
its
vigilant monitoring
as
expected
not be
to be
should
at
being against public policy, we likewise decline to find possession against adverse public policy Therefore, in this case. appellants’ we find third assignment error to be without merit. Accordingly, appellants’ assignment hereby of error is overruled.
THE OBERTS’ CROSS-APPEAL
I In the assignment first of error on cross-appeal, argue that the trial court abused its discretion in denying joint their motion with the Kellenbargers to amend their complaint include a cause of action for possession adverse the Wagoners. The argue Oberts the trial court’s ruling has left the parties a “legal quagmire as to what respective their are rights to control the two acres that at are issue.” A trial court’s determination whether to grant motion for leave to amend a complaint will not be reversed on appeal absent an abuse of (Feb. 2, discretion. Ayers 1999), Darulis v. 1996CA00398, 5th Dist. No. 1999 WL 669240, citing v. Csejpes (1996), Cleveland Catholic Diocese 109 Ohio App.3d 541, 672 N.E.2d 724. To demonstrate abuse discretion in denying motion for leave to amend a complaint, an appellant must demonstrate more than error of law and that the trial court’s denial of unreasonable, the motion was arbitrary, or unconscionable. Id. 15(A), Pursuant to Civ.R. “A party may amend his pleading once as a matter of course at any
time before a responsive pleading or, is if served the pleading is one to which no responsive pleading permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend pleading only his leave of court or written consent of the party. Leave of court freely shall be given when justice requires. so A party shall plead response to an pleading amended within the remaining time for response to the original pleading or within fourteen days after service of the pleading, amended period may whichever be the longer, unless the court otherwise orders.”
410 of discretion that is an abuse “[i]t has held Court Supreme The Ohio {¶ 109} ** *, plaintiff filed, possible it is motion, where timely a deny court to
for a reason otherwise and no may granted be which relief upon state a claim may (1973), 34 Ohio Peterson v. Teodosio of the motion is disclosed.” denial justifying 113, syllabus. of the six 262, paragraph N.E.2d 161, 297 63 O.O.2d St.2d by adopting in Peterson holding refined Supreme Court Ohio 110} {¶ 115,117, 169, (1982), 8 OBR App.3d 8 Ohio v. Bennett test found Solowitch “ showing that the a 562, prima must at least ‘there be 456 N.E.2d facie and that pleaded, to be sought new matters for the support can marshal movant tactic, would cause nor one which delaying a simply is not the amendment ” Prods., Elec. Inc. v. Cleveland Steel Wilmington to the defendant.’ prejudice 622, 120, 122, syllabus. (1991), 573 N.E.2d 60 Ohio St.3d Illum. Co. 15(A) amendment, trial court for liberal allows While Civ.R. 111}
{¶ if there is pleadings if it a motion to amend denies not abuse its discretion does opposing party. to the faith, delay, prejudice or undue undue showing of bad 377, 1, 1, paragraph 465 N.E.2d (1984), 12 St.3d OBR v. Hoover Sumlin (1999), 95, St.3d Dist. 85 Ohio v. Cent. Local School syllabus; of the Turner two 99, 1261. 706 N.E.2d order, 2, 2006, scheduling case, February pursuant In on this 24, 2006. set for trial on October
matter was Oberts, 2006, Kellenbargers, for the 4, were held depositions On April Wagoners.
and complaint to third-party amended their the Oberts April On theory on the Realty Home Connection Donnall and include realtor Winona a cross-claim answer and filed timely Donnall filed negligence. professional against Kellenbargers. interrogato- to the fourth 19, 2006, responded also the Oberts April On had Wagoners that the discovery request stating Wagoners’ of the written
ry at issue. nothing ownership to assert done 15(A), and Kellen- to Civ.R. pursuant August On to assert counterclaim pleadings motion to amend the joint filed a bargers and title. The Oberts quiet Wagoners possession Declaratory for Adverse Judgment an “Action for also attached they moved seek to the motion to amend which Quiet Title” Possession court, possession, of adverse to the doctrine pursuant a declaration dispute. the owners of the they were response opposition, filed a Wagoners September On and that the Oberts before trial days had been filed 60 that the motion
arguing convincing claim clear and support possession by could not their for adverse conclusion, the late and the Wagoners argued “given filing evidence. *21 doubtfulness that the standard could be met the court should exacting evidentiary deny leave.” 4, 2006, trial court denied the and Kellenbar- On October Oberts’
{¶ 118} denial, motion to In of the the trial gers’ joint pleadings. support amend the days prior court that the motion had less than 60 to a trial that stated been filed 2, February had been scheduled on 2006. back The trial date was continued the court so that the subsequently
{¶ 119} parties request could in mediation. The did not renew their engage Oberts complaint possession. amend the to include a cause of action for adverse In judice, appellants complaint the case sub moved to amend them on {¶ 120} 31, 2006, August days less than 60 before the scheduled trial date. This short notice for gave opposing party prepare presentation limited time to that potentially defense created undue to the prejudice opposing party. Accord- we do not find trial ingly, appellant’s court’s denial of motion to amend to be unreasonable, arbitrary, or unconscionable. Accordingly, we do not find the Oberts’ first of error on assignment
cross-appeal Cross-appellants’ assignment be well taken. first of error is hereby overruled.
II In assignment the second of error in the cross-appeal, argue the Oberts trial court abused its discretion in denying their motion for JNOV relative to the issue of the Kellenbargers’ liability punitive for damages. argue Oberts that the effect practical of the trial court’s decision is to bar the Oberts from recovering attorney their fees from Kellenbargers. The standard of for a review JNOV is as follows: 50(B) grant The decision to deny Civ.R. motion for is JNOV (1986),
reviewed de novo.
410,
Osler v. Lorain
28 Ohio St.3d
28 OBR
504
(equating
N.E.2d 19
the test
of a
regarding review
JNOV to the test applied
verdict);
review directed
directed verdict is reviewed de novo. Goodyear
Co.,
512,
evidence for the court’s determination credibility of the witnesses is nor the evidence ” 410, 19, Osler, 504 N.E.2d at 28 OBR 28 Ohio St.3d ruling upon [JNOV].’ (1976), St.2d at 74 Motor Court Hotel Posin v. A.B.C. quoting N.E.2d 334. O.O.2d JNOV, reopen moved the trial court to In motion for the Oberts to a jury’s punitive damages award of jury’s judgment change $0 thereby eligible the Oberts punitive damages, making award of
nominal $10 attorney an award of fees.5 First, arguments. the Oberts made several support, that a unanimous jury interrogatories that the verdicts and established
argued rejected negligence against the Oberts’ claim of jury *22 claim against found in favor of the Oberts on the of fraud the Kellenbar- instead Second, that they argued testimony presented damages that was their gers. Third, jury’s that the verdict form and attorney they argued included fees. jury’s establish that it was the intention to award the Oberts interrogatories claim, a nominal of attorney thereby supporting punitive fees on the fraud award support that there was sufficient evidence to damages. Finally, they argued malice, ill-will, particularly gross of or that was or finding by jury wrongdoing the for the of egregious part Kellenbargers imposition punitive on the of the damages. argument, jury In their first the Oberts state that the verdicts and
{¶ 127} that a claim interrogatories jury rejected established unanimous the Oberts’ of in negligence against Kellenbargers the and instead found favor of the Oberts on claim against Kellenbargers. agree. the of fraud the We 18, 2006, by The verdict filed the trial court on stated as follows: April {¶ 128} jurors “2. of in favor of Eight Defendants/Third-Party found by Plaintiffs Michael and Rebecca Obert on the claim of Fraud them asserted against Party Rosemary the Third Defendants Martin and Kellenbarger. $6,800.00 jury compensatory damages, awarded punitive damages, $0 fees; attorney’s circled that the are liable for the Oberts jurors in favor of the Eight Third-Party “3. found Defendants Rosemary Kellenbarger Negligence Martin and on the claim of asserted Defendants/Third-Party them Plaintiffs Michael and Rebecca Obert.” trial, jury During cross-appellants' the trial back to 5. counsel asked court send punitive damages attorney $0 reconsider their award of and the recommendation fees. Although The trial court declined to return the matter for further consideration. cross- court, bring cross-appellants' appellants this to the attention of this the trial court's denial of assigned appeal. request jury not as error on to return the matter to is
413
But,
an award
agree
We
with
Oberts’ statement.
obtain
fraud,
punitive
additional
must be
damages following
finding
findings
Therefore,
fraud,
itself,
jury.
support
made
and of
does not
finding
of a
for an
grant
punitive damages.
JNOV
award
nominal
Second,
argue
they
evidence that
their
presented
Third,
damages included
attorney
they argue
jury’s
fees.
verdict form
interrogatories
provide
attorney
for the reimbursement of
fees support
their motion for JNOV to award nominal punitive damages.
disagree.
We
In establishing
punitive
a claim for
in an action for
damages
fraud,
demonstrate,
plaintiff must
addition to
the elements of
proving
“
itself,
will,
tort
‘that the
aggravated by
fraud is
the existence of malice or ill
or
”
must demonstrate that
wrongdoing
particularly
gross
egregious.’
(1996),
42, 58,
Davis v. Sun Refining Marketing
&
Co.
109
671
App.3d
1049,
N.E.2d
R.
quoting
Trucking,
Charles
Combs
Inc. v. Internatl. Harvester
(1984),
883,
Co.
12
12
Ohio St.3d
OBR
466 N.E.2d
paragraph three of
the syllabus.
provides
Ohio law
punitive damages
when
are
an
proper,
aggrieved
Fin.,
also
party may
attorney
recover reasonable
fees. Columbus
Inc.
(1975),
v. Howard
654;
Ohio St.2d
71 O.O.2d
327 N.E.2d
see also
Maynard
9-03-48,
{¶ 134} punitive damages: you “If find that proven by the Oberts have clear convincing and
{¶ 135} all fraud, evidence of the elements of your verdict must be for them and you will damages then consider and or whether not the should be Kellenbargers responsi- ble for punitive However, the Oberts’ and if damages attorney you fees. find that the Oberts failed to prove by convincing any clear and evidence one or more of fraud, the elements of or if you are unable to determine what happened, your verdict for Kellenbargers. fraud must be for the previously “As explained, convincing clear and evidence must have
{¶ 136} more than a simply greater than the weight opposed evidence to it and must in produce your minds a firm belief or conviction about the truth of matter. Oberts, “If you find for the you greater will decide from the weight {¶ 137} money evidence what amount of will compensate damage them for the actual directly by caused the fraud. against the damages and award actual you “If find for the Oberts
{¶ 138} punitive award you separately whether will you may consider Kellenbargers, punitive cannot consider damage, you If not find actual you do damages. damages. a to a lawsuit as may party be awarded damages “Punitive acts. You are committing wrongful from similar discourage others
punishment Oberts, may not do so you to the punitive damages to award required not acted Kellenbargers evidence you convincing unless find clear for the of other disregard rights Actual malice is a conscious with actual malice. substantial harm. great probability causing that has a persons amount should be fair and damages, “If award you punitive It all facts and circumstances. should neither be excessive reasonable under sympathy prejudice. influenced or passion, nor major significance, or of importance, great “Substantial means real trifling and not small. Kellenbargers punitive damages, you “If are liable for must you decide attorney’s are for the fees of counsel they
also decide whether or not liable If you in the of this action. decide employed by prosecution Oberts fees, attorney’s are liable for those the court will determine the amount.” being they After instructed that must find actual malice before jury punitive damages. jury awarded
awarding punitive damages, $0 “yes” attorney further circled to indicate their recommendation for an award of However, (and, punitive damages fees. determined that there were no having thus, malice), trial attorney Similarly, no actual court could not award fees. trial nominal province jury by awarding court could not invade malice, finding would in effect be a of actual in order to punitive damages, which attorney the collection of fees. permit Finally, argue although jury awarded $0 in favor
punitive damages, support finding there was sufficient evidence that while punitive damages. response, Kellenbargers argue there is support jury punitive damages, evidence the record to verdict there is not upon jury also evidence the record which the could return verdict awarding punitive damages. *24 stated, in a claim for in previously establishing punitive damages As we demonstrate, fraud, in addition to the plaintiff proving
an action for the must “ itself, ‘that fraud is the existence of aggravated elements the tort will, gross ill that the wrongdoing particularly malice or or must demonstrate ” Co., App.3d 109 Ohio egregious.’ Refining Marketing Davis v. Sun &
415 671 quoting N.E.2d Charles R. Trucking, Combs Inc. v. Internatl. Harvest Co., er St.3d OBR 466 N.E.2d paragraph three of the syllabus. trial, During Michael Obert testified that Kellenbarger Martin
walked him property, around the showed him the iron pins property for the boundaries, and advised him that the in property included the two acres dispute. He testified that George he hired Better to perform survey of the property and that him Better advised that survey pins the iron had been moved without his authorization. He testified that Mr. him Kellenbarger showed the location of the system septic y-box and a for the separation of the leach system. He testified that Mr. Kellenbarger said that the tank septic was located in underground area between the barn and a large poplar tree. He that testified Mr. Kellenbar- him ger told that he had purchased the tank biggest septic buy he could and that it was a faultless septic system. Additional presented evidence established on two resi- separate forms, property
dential the Kellenbargers they indicated that had a septic system servicing property, field, which included a leach they did not know the date of septic-system the last inspection, and that they were unaware of any leaks, current backups, or other material problems system with the septic However, servicing property. Kellenbargers did not check the boxes on the residential disclosure forms that would have indicated that their property was tank, serviced with a septic sewer, a private or that they general had a knowledge type septic system that serviced the property. forms, on Finally, the Kellenbargers certified that there were no boundary disputes involving the property. Mr. Kellenbarger testified that he purchased
{¶ in property 148} 1975 and that the iron pipes are their original positions. He testified that he built a house on the property and for a applied well and septic-system permit. He paid testified he for a septic system and believed that it had been installed builder, Henman, Mr. and inspected. He testified that he had no knowledge sewage being pumped through pipe onto the Wagoners’ property. He testified he and prior adjacent owners, property Jeff and LuAnne McCandish, met and discussed line mutually on agreed location for a fence that was installed on the boundary dispute 1976. He testified that he built a shed and kennel dog and maintained and believed that he owned the dispute. He testified that the Wagoners visited his home and never claimed to own the area within the fence. record, Based upon we find that there was evidence presented upon
which the jury could have reasonably found that did not act *25 or gross that was particularly wrongdoing commit malice or ill-will with and/or egregious. the denying in its discretion not abuse trial court did the Accordingly,
{¶ 150} damages. punitive nominal and award the judgment to reopen request Oberts’ denying in its discretion did not abuse that the trial court we find Accordingly, for a JNOY. motion the Oberts’ is not well cross-appeal in the of error assignment second The Oberts’
{¶ 151} hereby overruled. taken and is
Ill the cross-appeal, in the Oberts of error assignment In the third 152} {¶ for a new in their motion denying its discretion trial court abused that the argue damages. liability punitive for Kellenbargers’ the issue of the trial relative to trial upon to a new based they were entitled argued The Oberts 153} {¶ (7) (9) (6), also based on the discretion 59(A)(5), and in “Civ.R. provisions shown.” good court for cause of the as 59(A) trial and states new grounds sets forth Civ.R.
{¶ 154} follows: all or and on any parties to all or of the may granted “A trial be new 155}
{¶ following grounds; of the upon any of the issues part small, too “(5) large whether too recovery, in amount of Error injury property; or detention of a contract or for upon action is when the evidence; “(6) weight of the is not sustained judgment The evidence in the weight on the of the may granted trial be only however one new case; same “(7) law; contrary to judgment is “(9) to the attention brought at the trial and occurring Error of law application; party making trial court in granted trial be may a new grounds, “In addition to the above cause shown.” good of the court for
sound discretion 59(A)(6), award of argue jury’s to Civ.R. Oberts Pursuant 161} {¶ For the of the evidence. weight the manifest damages against in punitive $0 assignment second regards with Oberts’ opinion reasons set forth this weight manifest error, to be not find the verdict we do evidence. jury’s 59(A)(5), argue that the Pursuant Civ.R. recommending grant damages punitive granting
decision $0 fees, attorney which can’t be awarded without punitive damages, leads to an inadequate recovery because they are not able to recover attorney fees this case, i.e., $25,000. which were significant, excess of 59(A)(7), Pursuant to Civ.R. *26 the Oberts that the trial argue
{¶ 163}
court’s judgment award on the
claim contrary
fraud
is
upon
law based
the
inconsistency in the interrogatories. Specifically, the Oberts argue
pursuant
that
49(B),
to Civ.R.
there are essentially three remedies available when an answer to
an interrogatory
(1)
is inconsistent with the general verdict. The trial court may
return
jury
(2)
the
for further
answer,
consideration of its
enter
in
judgment
(3)
answer,
accordance with the
order a new trial.
In response, the Kellenbar
gers argue that the verdict and the interrogatories are not inconsistent.
In
form,
the verdict
the
in
jury found
favor of the
against
Oberts and
the Kellenbargers on the fraud claim.
in
Additionally,
form,
the
jury
verdict
the
awarded the Oberts
in punitive
In
damages.
jury
$0
the
interrogatory,
jury
the
awarded the Oberts
in punitive damages. These findings
$0
are not inconsistent.
Having denied an award of punitive damages, the trial court
proceed
cannot
award attorney
Fin.,
fees. See Columbus
(1975),
Inc. v. Howard
42 Ohio St.2d
654;
O.O.2d
327 N.E.2d
see
Maynard
also
v.
Corp.,
Eaton
Marion
9-03-48,
App.
{¶ Oberts that the trial 165} court erred and that they are entitled to a new trial because the trial court did not address the inconsistencies in the verdict at the time of trial. In the trial April court’s 2007 judgment entry, the trial court stated
that “[b]y answering the question on the interrogatory concerning award of attorney affirmative, fees claim Oberts the jury’s verdict ‘inconsistent’ and that the Court should have addressed the ‘inconsistency’ with However, jury. this court believes that to have done so would have invaded province of the jury.” stated, previously As Supreme Court of Ohio has determined “that a litigant does not have a right by jury to trial to determine the amount of attorney Zoppo Co., fees.” v. Homestead Ins. 71 Ohio St.3d 644 N.E.2d 397. Finally, argue Oberts that the trial court abused its discretion
not granting shown, a new trial for good cause good cause all being the issues previously addressed. Specifically, argue any Oberts that “[b]arring directive JNOV, the issuance of a only way legal uncertainty concerning the to the legally are titled dispute which of land the two acres right to use
Oberts’ and verdict interrogatories jury’s to the any meaning give and to Wagoners, attor- for the Oberts’ responsible should be statements above, we stated For the reasons for new trial.” an order through fees is ney’s trial. for a new cause was shown good do not find not its trial court did abuse reasons, find that we For these third trial. The Oberts’ motion for new the Oberts’ overruling discretion hereby and is denied. is not well taken of error assignment IV argue appeal, of error on cross assignment fourth 18, 2007, are April filed on judgment trial court’s verdict and the jury’s that the incorporated The Oberts of the evidence. weight manifest one. Essential- of error number assignment forth in set arguments reference the *27 and a punitive damages the denial of that argument reiterate their ly, the Oberts inconsistent and that are attorney granted that fees be recommendation weight manifest of the against is punitive damages to regard decision with evidence. second, first, and third in the stated previously For the reasons
{¶ 171} weight the manifest error, find the verdict to be of we do not assignments of error is not well assignment fourth Accordingly, the Oberts’ of the evidence. hereby is overruled. taken and
V the Oberts cross-appeal, of error in the assignment In the fifth in the introduction of permitting its discretion that the trial court abused argue pursuant that survey. argue the Oberts mortgage Specifically, intent of and use 4733-38-01, survey solely is for the mortgage Adm.Code Furthermore, that argue the Oberts the title insurer. mortgagee and/or ever saw the at trial to that the Oberts presented no establish there was evidence it. that asked to initial survey they were mortgage and/or within the sound of evidence are regarding the admission Decisions an not reversed absent abuse may trial court and be discretion of the 159, 163, (1980), 17 O.O.3d 63 Ohio St.2d Angley v. discretion. O’Brien or than an error of law connotes more 490. An abuse discretion N.E.2d unreasonable, arbitrary, is the court’s attitude implies it judgment; (1983), 5 OBR 5 Ohio St.3d Blakemore v. Blakemore unconscionable. 1140. 450 N.E.2d mortgage- that the established judice, case sub the evidence Testimony presented was statement. appeared closing costs on the survey The Oberts mortgage survey. initial the requested are generally buyers survey. Assuming arguendo received or viewed the they testified that never mortgage survey, in the introduction of allowing the trial court erred survey mortgage how the introduction have failed to establish appellants in jury’s affected the verdict favor of Oberts. abuse its reasons, trial court did not For these we find fifth into The Oberts’ survey in evidence. admitting mortgage
discretion hereby overruled. of error is not well taken and assignment Pleas is Court of Common judgment County of the Fairfield affirmed. hereby affirmed.
Judgment Farmer, J., concurs.
Hoffman, P.J., in in part part. concurs and dissents part dissenting part. and Presiding Judge, concurring Hoffman, analysis and majority’s I and well-reasoned thorough concur I of error. assignments three disposition appellants cross-appellees’ and cross- majority’s analysis disposition appellees further concur a new trial deny cross-appeal, except for its decision appellants’ claim jury’s between the verdict on Oberts’ inconsistency because of the $0 fees. attorney to award the Oberts *28 damages and its recommendation punitive right I that a does not have the determine Although agree jury fees, an award of jury right does have a to recommend attorney amount of if it awards attorney instructed that fees are allowable Having them. been in not implementing I believe the trial court erred punitive damages, 49(B) I find the inconsistency. to resolve the remedies available under Civ.R. 59(A). a new trial under Civ.R. proper remedy now be appel- overrule majority’s I from the decision to Accordingly, dissent of error. assignment lees and third cross-appellants’