[Cite as Wallace v. Ferguson, 2012-Ohio-4839.]


                                      COURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


LOIS W. WALLACE                                  :      JUDGES:
                                                 :
                                                 :      Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellant                       :      Hon. Sheila G. Farmer, J.
                                                 :      Hon. John W. Wise, J.
-vs-                                             :
                                                 :      Case No. 12-CA-5
CRAIG AND LISA FERGUSON                          :
                                                 :
                                                 :
       Defendants-Appellees                      :      OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County Municipal
                                                     Court, Case No. 11-CVI-2381



JUDGMENT:                                            AFFIRMED




DATE OF JUDGMENT ENTRY:                              October 15, 2012




APPEARANCES:

For Appellant:                                          For Appellees:

L. JACKSON HENNIGER                                     CHARLES M. ELSEA
150 N. Market St.                                       109 N. Broad St., Suite 200
Logan, OH 43138                                         P.O. Box 130
                                                        Lancaster, OH 43130



Delaney, P.J.
      {¶1} Plaintiff-Appellant Lois W. Wallace appeals the January 3, 2012

judgment entry of the Fairfield County Municipal Court approving and adopting the

November 18, 2011 magistrate’s decision. Defendants-Appellees are Craig and Lisa

Ferguson.

                       FACTS AND PROCEDURAL HISTORY

      {¶2} Plaintiff-Appellant Lois W. Wallace and Defendants-Appellees Craig and

Lisa Ferguson are next-door neighbors in a residential neighborhood located in

Pickerington, Ohio. Located on the property of the Fergusons are several full-grown

cottonwood trees.    Cottonwood trees are known to be messy trees, with falling

branches and cotton-like seeds. A few cottonwood trees grow directly on the property

line between Wallace and the Fergusons. The trees are very tall and the branches

hang over Wallace’s property. Wallace alleges the branches of the trees touch her

roof and have caused damage to her skylight. She states the roots of the cottonwood

trees have grown into her foundation, causing the basement walls to crack.       She

complains the cottony seeds that fall from the tree are so pervasive they prevent her

from enjoying the outside of her property.

      {¶3} Wallace and the Fergusons have had numerous disputes about the

alleged damage the cottonwood trees caused to Wallace’s property. Wallace asked

the Fergusons to trim or cut down the cottonwood trees. The Fergusons declined to

cut down the trees. Without the permission of the Fergusons, Wallace hired tree

trimmers to cut down the cottonwood branches hanging over her property, but the tree

trimmers also went onto the Fergusons’s property to cut the trees. A deputy from the

Fairfield County Sheriff’s Department was contacted because of this incident.
         {¶4} On August 23, 2011, Wallace filed a complaint against the Fergusons

with the Small Claims Division of the Fairfield County Municipal Court.       Wallace

alleged in her complaint she suffered $1,927.00 in damages based on the damages to

her property and the loss of use and enjoyment of her property due to the cottonwood

trees.

         {¶5} Wallace filed an amended complaint on September 6, 2011.          In her

amended complaint, she alleged damages of $2,627.00. Her damages included the

costs of trimming two cottonwood trees, root grinding, trenching, repair of skylight,

temporary skylight repair, removal of roots from drain tile, survey, and loss of use of

upper level of house.

         {¶6} The matter came on for a bench trial before the magistrate. Both parties

appeared pro se.      At the hearing, Wallace introduced a brief with attachments in

support of her case. The magistrate accepted the brief and stated he would consider

the brief in making his determination. The parties testified, as well as the Fairfield

County Sheriff’s Deputy called to the scene of the parties’ dispute over tree trimming.

There were multiple photographs of the property line, the cottonwood trees, and the

cracks in Wallace’s basement wall.

         {¶7} On November 18, 2011, the magistrate issued findings of fact and

conclusions of law. The magistrate found based on Wallace’s brief and the evidence

presented at the hearing, Wallace failed to prove by a preponderance of the evidence

that Wallace suffered damages and if there were damages, Wallace failed to prove

those damages were caused by the Fergusons.

         {¶8} Wallace filed objections to the magistrate’s decision.
       {¶9} On January 3, 2012, the trial court overruled Wallace’s objections. The

trial court approved the decision of the magistrate and dismissed Wallace’s complaint.

       {¶10} It is from this decision Wallace now appeals.

                             ASSIGNMENTS OF ERROR

       {¶11} Wallace raises three Assignments of Error:

       {¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND

THAT APPELLANT LACKED CREDIBILITY.

       {¶13} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

ALLOW THE PLAINTIFF-APPELLANT TO FULLY PRESENT HER CASE AND THE

CONTENTS OF HER BRIEF.

       {¶14} “III. THE TRIAL COURT’S FINDING THAT PLAINTIFF-APPELLANT

FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THE DAMAGES

TO HER PROPERTY AND THE CAUSE OF THOSE DAMAGES IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

                                       ANALYSIS

                                        I. and III.


       {¶15} We consider Wallace’s first and third Assignments of Error together

because the standard of review is interrelated. Wallace argues in her first Assignment

of Error that the trial court erred when it found Wallace was not credible. She argues

in her third Assignment of Error the trial court’s conclusion that Wallace failed to prove

her case was against the manifest weight of the evidence.

       {¶16} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, the Ohio Supreme Court recently clarified the standard of review appellate courts
should apply when assessing the manifest weight of the evidence in a civil case. The

Ohio Supreme Court held the standard of review for manifest weight of the evidence

for criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541

(1997), is also applicable in civil cases. Eastley, at ¶ 17-19. A reviewing court is to

examine the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of witnesses, and determine “whether in resolving conflicts in the

evidence, the finder of fact clearly lost its way and created such a manifest

miscarriage of justice that the judgment must be reversed and a new trial ordered.”

Eastley, at ¶ 20 quoting Twearson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d

176 (9th Dist. 2001); See also Sheet Metal Workers Local Union No. 33 v. Sutton, 5th

Dist No. 2011CA00262, 2012-Ohio-3549 citing State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983).

       {¶17} While we utilize the manifest weight of the evidence standard of review

to consider the trial court’s judgment, we remain cognizant of the trial court judge’s

role as the fact finder. In a bench trial, it remains that “the trial judge is best able to

view the witnesses and observe their demeanor, gestures and voice inflections, and

use these observations in weighing the credibility of the proffered testimony.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

       {¶18} “In a civil case, in which the burden of persuasion is only by a

preponderance of the evidence, rather than beyond a reasonable doubt, evidence

must still exist on each element (sufficiency) and the evidence on each element must

satisfy the burden of persuasion (weight).” Eastley, at ¶ 19. In her complaint, Wallace
alleged real property damage, private nuisance, and loss of enjoyment of use of

property.

      {¶19} The Tenth District Court of Appeals recently summarized the tort of

“nuisance” in Hamilton v. Hibbs L.L.C., 10th Dist. No. 11AP-1107, 2012-Ohio-4074:

            A “nuisance” is a wrongful invasion of a legal right ord [sic]

      interest. Banford v. Aldrich Chem. Co. Inc., 126 Ohio St.3d 210, 2010–

      Ohio–2470, ¶ 17. A plaintiff asserting a suit for nuisance may recover for

      a public nuisance, i.e., an unreasonable interference with a right

      common to the general public. Cincinnati v. Beretta U.S.A. Corp., 95

      Ohio St.3d 416, 2002–Ohio–2480, ¶ 8; Hurier v. Ohio Dept. of Transp.,

      10th Dist. No. 01AP1362, 2002–Ohio–4499, ¶ 9. Alternatively, such a

      plaintiff may recover for a private nuisance, i.e., the wrongful invasion of

      the use and enjoyment of property. Beretta U.S.A. Corp. at ¶ 8; Arkes v.

      Gregg, 10th Dist. No. 05AP–202, 2005–Ohio–6369, ¶ 43; see also

      Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 714 (4th

      Dist.1993) (when a particular nuisance qualifies as both a public and

      private nuisance, a plaintiff “may recover either on the basis of the

      particular harm to her resulting from the public nuisance or on the basis

      of private nuisance”). * * *

            A nuisance may be further categorized as either an absolute or

      qualified nuisance.     The distinction between absolute and qualified

      nuisance depends on the conduct of the defendant. Angerman v. Burick,

      9th Dist. No. 02CA0028, 2003–Ohio1469, ¶ 10; Hurier at ¶ 10.            “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.” State ex rel. R.T.G., Inc. v.

      State, 98 Ohio St.3d 1, 2002–Ohio–6716, ¶ 59. On the other hand, a

      qualified nuisance is the “negligent maintenance of a condition that

      creates an unreasonable risk of harm, ultimately resulting in injury.” Id. *

      **

             An action for damages due to a qualified nuisance is premised on

      a defendant's negligence in allowing a dangerous or bothersome

      condition to exist. Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio

      St.3d 274, 275 (1992).      Therefore, a plaintiff must aver and prove

      negligence in order to prevail. Id. at 276. To succeed on a claim for

      negligence, a plaintiff must establish that the defendant breached an

      applicable duty of care and that the breach proximately caused the

      plaintiff injury. Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562,

      2009–Ohio–3718, ¶ 36. The standard of care is that care a reasonable

      person would exercise in preventing or correcting the dangerous or

      bothersome condition. Rothfuss v. Hamilton Masonic Temple Co., 34

      Ohio St.2d 176, 180 (1973); Kramer v. Angel's Path, L.L.C., 174 Ohio

      App.3d 359, 2007–Ohio–7099, ¶ 23 (6th Dist.).

Hamilton, at ¶ 15-17.

      {¶20} Upon our review of the transcript, photographs, and documentary

evidence, we cannot find the trial court clearly lost its way and created a manifest
miscarriage of justice in ruling against Wallace. In order to prevail on her claim for

nuisance, Wallace must show the Fergusons’ negligence. Wallace did not meet her

burden to demonstrate it was the Fergusons’ cottonwood trees that cause the alleged

damage to her home. There are cottonwood trees on the Fergusons’ property. The

Fergusons testified there are also large locust trees on Wallace’s property that are

near Wallace’s home.      The photographic evidence supports this.       There was no

evidence that the damage to the skylight or crack in the basement wall was caused by

the cottonwood trees.

       {¶21} As the fact finder, it is within the trial court’s purview to rule on the

credibility of the witnesses. The magistrate’s decision found Wallace’s credibility as to

the evidence of nuisance to be “questionable” based on the caustic interactions

between the parties. At one point, Wallace posted a sign on her property with an

arrow pointing to “Lois’s Yard” and an arrow pointing to the Fergusons’ yard labeled

“Idiots Yard.”

       {¶22} Based on our review, we find the decision of the trial court to grant

judgment in favor of the Fergusons and to dismiss Wallace’s complaint was supported

by the manifest weight of the evidence.

       {¶23} Our decision to overrule Wallace’s first and third Assignments of Error

remains the same when reviewing the matter under an abuse of discretion standard.

When reviewing an appeal from the trial court's ruling on objections to a magistrate's

decision, this Court must determine whether the trial court abused its discretion in

reaching its decision. Wade v. Wade, 113 Ohio App.3d 414, 419, 680 N.E.2d 1305

(11th Dist.1996). An abuse of discretion is defined as “more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). An abuse of discretion demonstrates “perversity of will, passion, prejudice,

partiality, or moral delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619,

621, 614 N.E.2d 748 (1993). When applying the abuse of discretion standard, this

Court may not substitute its judgment for that of the trial court. Id.

       {¶24} Upon review of the record, we find no error in the trial court’s adoption of

the magistrate’s decision.

       {¶25} Wallace’s first and third Assignments of Error are overruled.

                                             II.

       {¶26} Wallace argues in her second Assignment of Error the trial court abused

its discretion in failing to allow Wallace to argue the contents of her brief presented to

the magistrate at the small claims hearing. We disagree.

       {¶27} At the hearing, Wallace introduced to the trial court her written brief she

intended to present at the hearing. The magistrate accepted the brief and stated he

would read the brief in addition to considering the evidence presented at the hearing.

(T. 36.) The magistrate stated he would allow Wallace to present additional evidence

at the hearing. (T. 47.) The magistrate assured Wallace he was going to read the

entire record before rendering his decision. (T. 51.)

       {¶28} The record demonstrates Wallace was able to fully argue her case. The

magistrate explicitly stated he would consider all the evidence presented in the

complaint, brief, and testimony before rendering his decision.

       {¶29} Wallace’s second Assignment of Error is overruled.
                                   CONCLUSION

       {¶30} The three Assignments of Error raised by Plaintiff-Appellant Lois W.

Wallace are overruled.

       {¶31} The judgment of the Fairfield County Municipal Court is affirmed.

By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. SHEILA G. FARMER



                                       HON. JOHN W. WISE


PAD:kgb
                   IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


                                       :
LOIS W. WALLACE                        :
                                       :
   Plaintiff - Appellant               :      JUDGMENT ENTRY
                                       :
                                       :
-vs-                                   :
                                       :      Case No.    12-CA-5
CRAIG AND LISA FERGUSON                :
                                       :
   Defendants-Appellees                :
                                       :
   For the reasons stated in our accompanying Opinion on file, the judgment of the

Fairfield County Municipal Court is affirmed. Costs assessed to Appellant.




                                       HON. PATRICIA A. DELANEY



                                       HON. SHEILA G. FARMER



                                       HON. JOHN W. WISE
