[Cite as Meffe v. Griffin, 2013-Ohio-4631.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


MARY J. MEFFE, et al.,                          :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2013-T-0031
        - vs -                                  :

DAVID GRIFFIN a.k.a.                            :
DAVE GRIFFIN, et al.,
                                                :
                 Defendants-Appellants.


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2010 CV
02891.

Judgment: Affirmed.


Frank R. Bodor, 157 Porter Street, N.E., Warren, OH 44483; and Michael E. Bloom,
5603 Mahoning Avenue, Warren, OH 44483 (For Plaintiff-Appellee).

Gary J. Rosati, Rosati Law Office, LLC, 860 Boardman-Canfield Road, Suite 102,
Boardman, OH 44512 (For Defendants-Appellants).



THOMAS R. WRIGHT, J.

        {¶1}     This is an appeal from the Trumbull County Court of Common Pleas.

 Following trial, judgment was entered awarding plaintiff-appellee Mary Meffe $10,560

 resulting from appellants’, David Griffin, Donald Griffin, Sr., and Big D’s of Ohio, Inc.,

 trespass of Meffe’s property. On appeal, appellants allege that the verdict is against

 the manifest weight of the evidence in multiple respects, challenge Meffe’s standing to
bring suit, assert that the awarding of treble damages was in error, and that a jury

instruction prejudiced appellants’ rights. For the following reasons, we affirm.

       {¶2}    This suit centers around Lot 183, located in the mid-800’s section on N.

River Rd. in Warren, Ohio. On one side of Lot 183 sits Mary Meffe’s house; on the

other side of Lot 183, there is appellants’ bar, Bushwhacker’s Bar. Before June of

2010, Lot 183 was a vacant lot covered with trees, shrubs, and rubble. At some point

in June 2010, David Griffin began to make improvements to the bar’s parking lot by

applying a layer of “grindings”1 to the pavement.

       {¶3}    During the process of laying down the grindings, he entered onto Lot 183.

To help prepare for the construction of the parking lot, David Griffin removed rubble,

tree, briars, bushes, and saplings from Lot 183. In response to David’s conduct, Judith

Maloney, an owner of Lot 183, requested the Warren Township Police Department to

force David Griffin to cease his conduct insofar as it interfered with Lot 183. Meffe

noticed the altercation occurring between appellants and Maloney, and therefore

sought to buy the property to preserve the buffer between her house and the bar.

Appellants also sought to buy Lot 183 for their bar.

       {¶4}    On July 7, 2010 Judith Maloney and her sister Kathryn Puskar executed

the deed to Lot 183, transferring it to Mary Meffe. On July 8, 2010, Mary Meffe paid the

escrow agent, who subsequently filed the deed in the recorder’s office. According to

Meffe’s testimony, David Griffin continued clearing out rubble and laying the grindings

down until July 8th or 9th against Meffe’s objections and display of a “no trespassing”



1. According to appellants, “[g]rindings are ground-up asphalt that is often-times used as a base for
asphalt paving.”



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sign that Meffe recently erected.           Appellants allege that they did not conduct any

activities on Lot 183 after Meffe acquired ownership of Lot 183.

        {¶5}    After a survey of Lot 183 was conducted, it became apparent that David

Griffin had put grindings three to five feet across the property line separating the bar

and Lot 183. As a result of the grindings and various debris that had travelled from the

bar onto Lot 183,2 Meffe purchased tools and supplies to remove the grindings, and

contracted help to clear the dead and dying trees, dislodge the grindings, and remove

the bar debris on Lot 183. A trial ensured and a jury determined that the appellants

had trespassed onto Meffe’s property, removed or destroyed at least one tree, bush or

sapling, and awarded Meffe $3,520 in damages. The trial court subsequently awarded

treble damages resulting in a $10,560 judgment against appellants.

        {¶6}    Because appellants have failed to provide a complete transcript of the trial

necessary for the resolution of all assignments of error, this court will consolidate the

first six assignments of error and then address the seventh assignment of error. As

appellant’s first, second, third, fourth, fifth, and sixth assignments of error, appellants

allege the following:

        {¶7}    “The Jury’s determination that Plaintiff/Appellant (sic) Mary Meffe was

entitled to damages because Defendant/Appellee, (sic) David Griffin, acted recklessly

when he caused injury to bushes, shrubs, saplings, or trees standing on Lot 183 was

against the manifest weight of the evidence.”

        {¶8}    “The trial court committed prejudicial and reversible error when it granted

plaintiff/appellee Mary Meffe treble damages pursuant to the O.R.C. §901.51 as Mary


2. The transcript indicates certain beer bottles came from the bar, but it is unclear whether the bottles
came onto Lot 183 from patrons or appellants’ conduct.


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Meffe had no standing to object to reckless conduct on Lot 183 which occurred prior to

her purchase of the property.”

       {¶9}   “The trial court committed prejudicial and reversible error when it granted

plaintiff/appellee Mary Meffe treble damages pursuant to O.R.C. §901.51 when the

Jury gave no damages for the diminution in value of the subject real estate.”

       {¶10} “The Jury’s award of damages to the appellee for the costs of removing

vegetation, grindings and debris from Lot 183 is contrary to the doctrine of caveat

emptor and against the manifest weight of the evidence.”

       {¶11} “The Jury’s award of damages to the appellee for her costs of removing

grindings from Lot 183 is contrary to the doctrine of mitigation and against the manifest

weight of the evidence.”

       {¶12} “The Jury’s finding that David Griffin was acting as an agent of Donald

Griffin Sr. and/or Big D’s of Ohio, Inc. was against the manifest weight of the evidence.”

       {¶13} Appellants have provided only a partial trial transcript, the missing parts of

which are necessary to resolve all of the assignments of error. An appellant has the

duty to provide a transcript for appellate review. Knapp v. Edwards Laboratories, 61

Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).            “When portions of the transcript

necessary for resolution of assigned errors are omitted from the record, the reviewing

court has nothing to pass upon and thus, as to those assigned errors, the court has no

choice but to presume the validity of the lower court's proceedings, and affirm.” Id.;

see also, Waclawski v. Waclawski, 11th Dist. Lake No. 2005 L-139, 2006-Ohio-3213,

¶14.




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        {¶14} In regard to the manifest weight, Meffe’s standing to bring suit, and treble

damages challenges, Meffe alleges testimony from various witnesses, whose

testimony was not included in the transcripts provided by appellants, would tend to

establish facts that helped Meffe defend against the assignments of error. Because of

the incomplete transcript provided, Meffe requests that we presume the trial

proceedings were validly conducted and affirm the trial judgment. Appellants do not

contest plaintiff’s characterization of the missing testimony; instead, appellants allege

that Meffe’s admissions during the trial sufficiently establish the relevant facts, and that

the other requested transcripts would be unduly cumulative or irrelevant.

        {¶15} We agree with Meffe. Without the additional transcripts of the witnesses

this court has no way of assessing the relevancy of any of the testimony of the

witnesses, or even whether the transcripts would be unduly cumulative.                         Though

witnesses may testify to the same facts, they may do so in different ways and these

differences affect both the credibility and reliability of other witnesses’ testimony. With

these particular assignments of error, in a case built on testimony, the testimony of

these witnesses is crucial to understanding the facts of the case and the weight to

place on various parts of witness testimony.

        {¶16} Moreover, for appellants’ challenge to Meffe’s standing in the second

assignment of error, the partial transcripts contain credible evidence that indicates the

verdict is not against the manifest weight of the evidence.3                   In civil cases, when

conducting a manifest weight of the evidence review, the court of appeals should affirm



3. Appellants frame their argument as a challenge to standing. However, appellants’ standing challenge
ultimately turns on whether there was a continued trespass on Lot 183 when Meffe owned the property.
Because a determination of the continued trespass would attack the jury verdict, we have elected to treat
the error as a challenge based on the manifest weight of the evidence.


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a decision that “‘is supported by some competent, credible evidence.’” Bryan-Wollman

v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, 874 N.E.2d 1198, ¶3, quoting State

v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264. Further, a court has

a duty to presume findings of fact are correct. Seasons Coal Co., Inc. v. Cleveland, 10

Ohio St.3d 77, 80-81, 461 N.E.2d 1273 (1984). Finally, “[a] reviewing court should not

reverse a decision simply because it holds a different opinion concerning the credibility

of the witnesses and evidence submitted before the trial court. A finding of an error in

law is a legitimate ground for reversal, but a difference of opinion on credibility of

witnesses and evidence is not." Id. at 81.

      {¶17} Appellants argue that Meffe has no standing to challenge activity that

occurred before Meffe acquired the property, unless the record demonstrates a

continuing trespass that occurred before and is ongoing after Meffe acquires

ownership. Appellants’ argument therefore hinges on there being no credible evidence

to support the claim of a continuing trespass during the period of Meffe’s ownership.

Generally, to recover on a claim of trespass, the plaintiff must have possession of the

land at the time of the trespass. Northfield Park Assoc. v. Northeast Ohio Harness, 36

Ohio App.3d 14, 521 N.E.2d 466 (1987).              However a “quasi-exception” to the

contemporaneous possession rule exists where, “even though the trespass began prior

to the plaintiff's taking possession, . . . the defendant's trespass continues after the

plaintiff takes possession." Abraham v. BP Exploration & Oil, Inc., 149 Ohio App.3d

421, 2002-Ohio-4392, ¶17 (10th Dist.).           A continuing trespass occurs when “the

defendant's tortious activity is ongoing, perpetually creating fresh violations of the




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plaintiff's property rights.” Adams v. Pitorak & Cohen Investments, Ltd., 11th Dist.

Geauga No. 2011-G-3019, 2012-Ohio-3015, ¶64 (citation omitted).

      {¶18} Here, testimony reveals that David Griffin entered Lot 183 and

continuously laid down grindings both before and after Meffe acquired the property. To

accept appellants’ assignment of error we would have to reject the deference that must

be given to the jury’s assessment of credibility.

      {¶19} Accordingly, appellants’ first, second, third, fourth, fifth, and sixth

assignments of error are without merit.

      {¶20} As appellants’ seventh assignment of error, they allege that:

      {¶21} “It was an abuse of discretion for the trial court to instruct the jury to

consider only damages which incurred [sic] after the appellee purchased Lot 183 and

that the instructions given the Jury [sic] were contrary to the law and likely to have

misled the jury on a matter materially affecting the appellants’ rights.”

      {¶22} Appellants’ challenge of the jury instruction fails for same transcript

problems as the other assignments of error.          Appellants have challenged a jury

instruction relating to damages to Lot 183, but have not provided a transcript of the jury

instruction. Griffin claims that statements made during his closing argument sufficiently

show the content of the objectionable instructions. We disagree. An appeal of a jury

instruction cannot be made with just an objection to a jury instruction made in a hearing

conducted outside the presence of the jury. Without the exact wording of the jury

instruction plainly available for the court to review, we cannot determine the jury

instruction’s validity or even what appellants are specifically appealing. We therefore

presume the regularity of the proceedings below.




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      {¶23} Griffin’s seventh assignment of error is without merit.

      {¶24} According, the judgment of the Trumbull County Court of Common Pleas

is affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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