[Cite as Amore v. Ohio Turnpike Comm., 194 Ohio App.3d 182, 2011-Ohio-1903.]


STATE OF OHIO                  )                       IN THE COURT OF APPEALS
                               )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT               )

AMORE et al.,                                          C.A. No.        25227

       Appellees,

       v.                                              APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
THE OHIO TURNPIKE COMMISSION,                          COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
       Appellant.                                      CASE No.   CV 06 12 8215


APPEARANCES:

       Michael A. Malyik and Scott Kolligian, for appellees.

      Anthony J. Coyne, Bruce G. Rinker, and Jennifer E. Horn; and Noelle Tsevdos, General
Counsel, for appellant.

       R. Todd Hunt and Charles T. Riehl, for amici curiae.



                               DECISION AND JOURNAL ENTRY

Dated: April 20, 2011



       MOORE, Judge.

       {¶1}    Appellant, the Ohio Turnpike Commission, appeals the judgment of the Summit

County Court of Common Pleas, General Division. This court affirms.

                                                   I

       {¶2}    In 1984, Christopher and Patricia Amore purchased the property located at 1600

Woodland Drive in Peninsula, Ohio.           In 1997, the Ohio Turnpike Commission began a

maintenance and construction project involving a portion of the turnpike adjacent to the Amores’
                                                2


property. The construction increased the number of travel lanes eastbound and westbound. This

involved removing several trees that stood between the Amores’ home and the turnpike. It also

brought the travel lane approximately 65 feet closer to their home. A steep hill was constructed

next to the Amore residence in order to build the additional lanes. As a result of the project,

there was an increase in traffic noise from the turnpike, and the Amores complained that they

lost the enjoyment and use of their home.

       {¶3}   The Amores filed a complaint on January 4, 2007, alleging that maintenance and

improvements to the Ohio Turnpike, created entirely within the right of way of the commission,

created a permanent nuisance. The Amores also alleged that the maintenance and improvements

of the turnpike constituted an illegal taking of their property without compensation. In an

amended complaint, the Amores included a count for mandamus and taking. The commission

moved for summary judgment on October 12, 2007, which the trial court denied on July 17,

2008. The action proceeded to a jury trial, which began on June 15, 2009.

       {¶4}   On the first day of trial, the Amores abandoned their mandamus claim. Several

days later, they attempted to orally dismiss their takings claim. The court denied the attempted

dismissal. The commission orally moved for a directed verdict at the close of the Amores’

evidence, and renewed its motion for a directed verdict at the close of trial. The court denied

both motions. The jury then retired to deliberate on both the takings claim and the nuisance

claim. It reached a jury verdict of $115,000 for the Amores on the takings claim and $115,000

for the Amores on the nuisance claim. The court filed a judgment entry in the amount of

$115,000 for the Amores.         After trial, the commission filed motions for judgment

notwithstanding the verdict and for a new trial. The court denied these motions.
                                                   3


         {¶5}   The commission appealed to this court, and we remanded the case to the trial

court because the judgment entry did not resolve all issues. Upon resolution of the issues, the

trial court filed another judgment entry and thereafter denied refiled motions for judgment

notwithstanding the verdict and for a new trial.

         {¶6}   The commission timely filed a notice of appeal. It raises six assignments of error

for our review. We have rearranged and consolidated some of the assignments of error to

facilitate our review.

                                                   II

                                     Assignment of Error III

                        The trial court erred when it allowed [the Amores’] nuisance claim
                to go to the jury because it was substantively deficient.

         {¶7}   The commission contends that the trial court erred when it allowed the Amores’

nuisance claim to go to the jury, because it was substantively deficient. Essentially, it argues that

the trial court erred when it denied the commission’s motion for directed verdict. We do not

agree.

         {¶8}   As an appellate court, we review the trial court’s ruling on a motion for a directed

verdict de novo to the extent that it presents a question of law. Jarvis v. Stone, 9th Dist. No.

23904, 2008-Ohio-3313, at ¶ 7. The focus of a motion for a directed verdict is on the sufficiency

of the evidence as opposed to the weight of the evidence or the credibility of witnesses. Id.

         {¶9}   After a court enters judgment on a jury’s verdict, a party may file a motion for

judgment notwithstanding the verdict in order to have the judgment set aside on grounds other

than the weight of the evidence. Civ.R. 50(B). As with an appeal from a court’s ruling on a

directed verdict, this court reviews a trial court’s grant or denial of a judgment notwithstanding

the verdict de novo. Williams v. Spitzer Auto World Amherst, Inc., 9th Dist. No. 07CA009098,
                                                4


2008-Ohio-1467, at ¶ 9, citing Osler v. Lorain (1986), 28 Ohio St.3d 345, 347. “[A judgment

notwithstanding the verdict] is proper if upon viewing the evidence in a light most favorable to

the nonmoving party and presuming any doubt to favor the nonmoving party reasonable minds

could come to but one conclusion, that being in favor of the moving party.” Williams at

¶ 9, citing Civ.R. 50(B)

       {¶10} “‘Nuisance’ is a term used to designate the wrongful invasion of a legal right or

interest. It comprehends not only the wrongful invasion of the use and enjoyment of property,

but also the wrongful invasion of personal legal rights and privileges generally.” Taylor v.

Cincinnati (1944), 143 Ohio St. 426, 431-432.

       {¶11} A nuisance can be private or public. A private nuisance is “a nontrespassory

invasion of another’s interest in the private use and enjoyment of land.” Ogle v. Ohio Power

Co., 180 Ohio App.3d 44, 2008-Ohio-7042, at ¶ 7, citing Brown v. Scioto Cty. Commrs. (1993),

87 Ohio App.3d 704, 712. For a private nuisance to be actionable, the invasion must be either

(1) intentional and unreasonable or (2) unintentional but caused by negligent, reckless, or

abnormally dangerous conduct. Brown at 712-713.

       {¶12} A private nuisance can be either qualified or absolute. Strict liability is imposed

on an absolute nuisance. Kramer v. Angel’s Path, L.L.C., 174 Ohio App.3d 359, 2007-Ohio-

7099, at ¶ 20, citing Taylor, 143 Ohio St. 426, at paragraph two of the syllabus. The Ohio

Supreme Court has explained that an absolute nuisance “consists of either a culpable and

intentional act resulting in harm, or an act involving culpable and unlawful conduct causing

unintentional harm.” Metzger v. Pennsylvania, Ohio & Detroit RR. Co. (1946), 146 Ohio St.

406, paragraph one of the syllabus.

               [T]he distinction between absolute and qualified nuisance depends upon
               the conduct of the defendant. * * * [A]n absolute nuisance requires
                                                   5


               intentional conduct on the part of the defendant[.] * * * Intentional, in this
               context, means not that a wrong or the existence of a nuisance was
               intended but that the creator of [it] intended to bring about the conditions
               which are in fact found to be a nuisance.

Angerman v. Burick, 9th Dist. No. 02CA0028, 2003-Ohio-1469, at ¶ 10.

       {¶13} In 1984, the Amores bought the home at 1600 Woodland Drive for $51,000. Mrs.

Amore testified that the couple purchased the home in 1984 when there was significant

vegetation that blocked the majority of the view and noise from the turnpike. Plaintiff’s Exhibit

1 was a picture of the back of the home around 1986 to 1987. The significant and hearty

vegetation can be seen, and the turnpike is not visible through the trees. Plaintiff’s Exhibit 2 was

a picture taken from the same vantage point after construction was completed. It shows much

less vegetation, the turnpike guardrail is visible, as well as a truck passing on the turnpike.

       {¶14} Mrs. Amore further testified about the family’s enjoyment of the property prior to

the construction. The Amores enjoyed a garden and a strawberry patch. They would often have

family picnics and spend significant amounts of time outside with family, friends, and pets. The

traffic noise from the turnpike was not an issue prior to construction. She explained that when

she purchased the home she did not have any concerns about the turnpike because it was not

visible and there was minimal sound, only a periodic “swish.” Between 1995 and 1996, the

Amores made extensive improvements to the property, investing about $120,000. They had

planned to stay there for retirement and for the rest of their lives.

       {¶15} The Amores received a letter around 1997 from the Turnpike Commission

informing them of meetings that would take place to advise residents of the upcoming

construction project. Prior to construction beginning, Mr. Amore attended two community

meetings with commission representatives. At one meeting, a gentleman from the commission

indicated to Mr. Amore, referring to his property that, “we intend to purchase that property. We
                                               6


need that for the construction of the new lanes.” The commission told Mr. Amore that he would

be contacted, but that never occurred. Later, the Amores were told that their property would not

be needed and that there would be an embankment built with attractive vegetation between the

turnpike and their property.

       {¶16} At some point, the Amores contacted the commission to inquire about the noise

levels that would result from construction.        Plaintiff’s Exhibit 5 was a letter from the

commission, dated May 26, 1998, with the subject line “Cuyahoga River Bridge Replacement –

Noise levels.”   Mrs. Amore testified that this letter was in response to the Amores’ concern

about the noise level from the construction. In it, the commission explained that the projected

change in noise levels would be four to five decibels.       Because a human ear can barely

distinguish a three-decibel change, the commission projected that the change would be

noticeable but not significant. Therefore, the commission concluded that it would not provide

noise abatement, such as a sound wall.

       {¶17} When construction began, many trees located between the Amores’ property and

the turnpike, including those shown in Plaintiff’s Exhibit 1, were cut down. These trees were not

on property belonging to the Amores. The majority of the remaining trees that were located on

the Amores’ property subsequently died following construction. Construction was completed in

October 2003. It included the addition of two lanes, increasing the total number from four to six

lanes. It also moved the lanes 65 feet closer to the Amores’ property. The speed limit, after the

project was completed, was increased from 55 miles per hour to 65 miles per hour.

       {¶18} William Fleischman, assistant chief engineer for the commission, testified about

the construction project. A steep hill, referred to as a “barrow,” was constructed next to the
                                                 7


Amore residence. The hill was necessary to build the additional lanes. The Amores testified that

this hill has created an increase in noise due to engine-braking by semi trucks.

       {¶19} Mrs. Amore explained that following completion of the construction project, it is

difficult to sit outside and hold a conversation. If there is additional noise from truck engine-

braking, the conversation has to be put on hold until the truck passes. In addition, Mrs. Amore

no longer keeps a garden because she does not enjoy spending as much time outside. The

Amores no longer keep their windows open due to the increased noise level. Mr. Amore

similarly testified that you can “hardly talk to each other unless you are right on top of each

other.” He further testified that he awoke at night because of the noise from trucks and the

engine-braking.

       {¶20} Mrs. Amore testified to the property value of her home. In 2004, the tax appraisal

stated that the property had a total value of $189,170. In 2005, following the addition of a

$50,000 pool, the property was valued at $264,300.           The Amores requested an adjusted

appraisal, and it was adjusted to $211,020. In 2007, after the addition of a pole barn, the

property was appraised at $215,800. In 2008, there was a proposed increase to $227,940. The

Amores contested again due to the previous adjustment and because of the proximity to the

turnpike. The property was then given an appraisal of $198,420. Mrs. Amore testified, as a

homeowner, that with the addition of the pool she believes the home would have been worth

$300,000. However, following the construction, she testified that she would “be surprised if

[they] could sell it for $200,000.”

       {¶21} Kimberly Burton testified as a sound expert for the commission. She explained

that 70 decibels would be a number that would prompt looking at installing a sound barrier wall.

She further explained that the human ear would perceive an increase of 10 decibels as a doubling
                                                 8


in sound. When she conducted testing at the Amores’ property after construction, and prior to

the lawsuit, she had a reading of 80.2 decibels. She agreed that it was noisy and would annoy

people. Another reading registered at 74.2 decibels. There was a maximum reading near the

house of 83.1 decibels. She agreed that it was “a little too noisy.”

       {¶22} There is no doubt that the commission intentionally carried out the construction

project adjacent to the Amores’ property. The testimony above indicates that there was an

increase in the noise level. The commission’s letter acknowledges that it anticipated an increase

in the noise level. In addition, the jury had the opportunity to view the property and to observe

the noise level firsthand. “Even if they did not intend to generate noise, it apparently was an

unavoidable byproduct of their intentional activity.” Angerman, 2003-Ohio-1469, at ¶ 11. In

Angerman, this court was “persuaded by Ohio appellate opinions that have analyzed the problem

of intentionally created excessive noise as an absolute nuisance.” Id. at ¶ 15, citing Zang v.

Engle (Sept. 19, 2000), 10th Dist. No. 00AP-290; Coe v. Pennington (Apr. 6, 1983), 12th Dist.

No. 470. “‘[I]f one does any other act, in itself lawful, which yet be done in that place

necessarily tends to the damage of another’s property, it is a nuisance: for it is incumbent on him

to find some other place to do that act, where it will be less offensive.’ ” Angerman at ¶ 10,

quoting 3 Blackstone, Commentaries on the Laws of England (1768) 217-218.

       {¶23} This court concludes, after viewing the evidence in a light most favorable to the

Amores, that the evidence of record was sufficient to support the claim of nuisance, and that

denial of the judgment notwithstanding the verdict was proper. Williams, 2008-Ohio-1467, at

¶ 9, citing Civ.R. 50(B). The commission’s third assignment of error is overruled.

                                     Assignment of Error IV

                       The trial court erred by permitting Patricia Amore to testify as to
               the value of her home, because it was based upon inadmissible hearsay.
                                                9


       {¶24} The commission contends that the trial court erred when it permitted Patricia

Amore to testify as to the value of her home, because it was based upon inadmissible hearsay.

We do not agree.

       {¶25} The owner-opinion rule in Ohio is expressed in Cincinnati v. Banks, (2001), 143

Ohio App.3d 272, 291. It provides that the owner of real property is competent to testify as to its

fair market value based upon his ownership of the property alone, without regard to any

particular expertise in the area. Id. The basis of the rule is that the homeowner is presumed to be

well enough acquainted with his or her own property to estimate its value without any expert

training. Id.

       {¶26} The commission contends that the Amores never established a before or after

valuation of the property because they never presented an expert opinion. In Banks, the court

held that one does not need to be qualified as an expert to testify as to the value of his own

property. Thus, the commission’s fourth assignment of error is overruled.

                                     Assignment of Error I

                        The trial court erred when it allowed [the Amores’] takings claim
                to go to the jury, both because the claim was deficient, as a matter of
                procedure, and because the jury was the improper body to decide the
                claim, as a matter of law.

                                    Assignment of Error II

                        The trial court erred when it allowed [the Amores’] takings claim
                to go to the jury because the takings claim was also substantively
                deficient.

       {¶27} The commission contends that the trial court erred when it allowed the Amores’

takings claim to go to the jury because the jury was an improper body to decide the claim and

because the claim was substantively deficient. Based upon our disposition of the commission’s

third assignment of error, we decline to address these assignments of error.
                                               10


       {¶28} The jury returned a verdict of $115,000 for the Amores on the takings claim and

$115,000 for the Amores on the nuisance claim. The court found that these awards were not

cumulative because the jury provided identical relief under two different theories of law. The

court entered a judgment in the amount of $115,000 for the Amores. Assuming for the purposes

of argument that the takings claim was deficient, the judgment for $115,000 would nonetheless

be upheld based upon the jury’s verdict on the nuisance claim.

       {¶29} This court has previously stated that “[w]e are nevertheless required to affirm the

trial court’s judgment if any valid grounds are found on appeal to support it.” McKay v. Cutlip

(1992), 80 Ohio App.3d 487, 491, citing Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93,

96. In addition, “ ‘[r]eviewing courts are not authorized to reverse a correct judgment on the

basis that some or all of the lower court’s reasons are erroneous.’” Goudlock v. Voorhies, 119

Ohio St.3d 398, 2008-Ohio-4787, at ¶ 12, quoting State ex rel. McGrath v. Ohio Adult Parole

Auth., 100 Ohio St.3d 72, 2003-Ohio-5062, at ¶ 8.

       {¶30} Here, our disposition of the third assignment of error concludes that there are

valid grounds to support the trial court’s judgment entry in favor of the Amores. Thus, we

decline to address the commission’s first and second assignments of error.

                                    Assignment of Error V

                   The trial court erred when it denied [the commission’s] motion for
              summary judgment because there were no genuine issues of material fact.

       {¶31} The commission contends that the trial court erred when it denied the

commission’s motion for summary judgment. We do not agree.

       {¶32} The Ohio Supreme Court has held that an error by the trial court in denying a

motion for summary judgment is rendered harmless if a later trial on the merits involving the

same issues demonstrates that there were genuine issues of material fact and results in a
                                               11


judgment in favor of the party against whom the motion was made. Continental Ins. Co. v.

Whittington (1994), 71 Ohio St.3d 150, 156.

       {¶33} The Supreme Court added:

               “We need not evaluate the evidentiary materials supporting and opposing
               the [party’s] summary judgment motion on [the] issue. Any error in
               denying that motion is moot or harmless, even if it had merit when the
               court denied it. * * *.” We are also persuaded by the fact that courts
               throughout this country generally hold that the denial of a motion for
               summary judgment is not a point of consideration in an appeal from a final
               judgment entered following a trial on the merits. See, generally,
               Annotation, Reviewability of Order Denying Motion for Summary
               Judgment (1967), 15 A.L.R.3d 899, 922-925, and 1994 Supplement at 72-
               76.

Id., quoting Sanders v. Mt. Sinai Hosp. (1985), 21 Ohio App.3d 249, 256, 21 OBR 292,
487 N.E.2d 588. See also Bies v. Huntington Natl. Bank, 9th Dist. No. 22660, 2005-
Ohio-6981, at ¶ 11.

       {¶34} “This Court, without determining whether the trial court committed any error in

denying appellant’s motion for summary judgment, need only determine whether genuine issues

of fact were raised at trial.” First Merit Bank, N.A. v. Wilson, 9th Dist. No. 23363, 2007-Ohio-

3239, at ¶ 24. We conclude that there were.

       {¶35} This court determined in the commission’s third assignment of error that the trial

court properly found in favor of the Amores.          Accordingly, any error in denying the

commission’s motion for summary judgment was harmless. The commission’s fifth assignment

of error is therefore overruled.

                                   Assignment of Error VI

                       The trial court erred when it denied [the commission’s] motion for
                directed verdict despite the absence of evidence proving the Amores’
                claims.

       {¶36} The commission contends that the trial court erred when it denied the

commission’s motion for directed verdict. Our disposition of the commission’s first, second, and
                                              12


third assignments of error renders this assignment of error moot.          App.R. 12(A)(1)(c).

Consequently, we decline to address the commission’s sixth assignment of error.




                                              III

       {¶37} The commission’s third, fourth, and fifth assignments of error are overruled. We

decline to address the first, second, and sixth assignments of error. The judgment of the Summit

County Court of Common Pleas, General Division, is affirmed.

                                                                            Judgment affirmed.




       WHITMORE, P. J., and DICKINSON, J., concur.



APPEARANCES:

       Michael A. Malyik, and Scott Kolligian, for appellees.

      Anthony J. Coyne, Bruce G. Rinker, and Jennifer E. Horn; and Noelle Tsevdos, General
Counsel, for appellant.

       R. Todd Hunt and Charles T. Riehl, for amici curiae.
