[Cite as Hardin v. Naughton, 2013-Ohio-1549.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 98645




                                 KATHIE M. HARDIN
                                                      PLAINTIFF-APPELLANT

                                                vs.

                       MICHAEL NAUGHTON, ET AL.
                                                      DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-735851

        BEFORE: McCormack, J., Stewart, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: April 18, 2013
ATTORNEYS FOR APPELLANT

Sheryl H. Love
Robert P. Ducatman
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114


ATTORNEYS FOR APPELLEES

Patrick F. Roche
Davis & Young
1200 Fifth Third Center
600 Superior Avenue, E.
Cleveland, OH 44114

Sean P. Allan
Allan & Gallagher, L.L.P.
1300 Rockefeller Bldg.
614 West Superior Avenue
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Plaintiff-appellant, Kathie M. Hardin (“Hardin”), appeals the trial court’s

decision granting summary judgment in favor of defendants-appellees, Michael

Naughton, Rusty Naughton, and 29704 Lake Road Ltd. (“Naughtons”). The trial court

determined that the Naughtons were entitled to judgment as a matter of law on Hardin’s

claims of nuisance, Naughtons’ alleged violation of Bay Village zoning ordinances, in

part, conversion, and punitive damages.1 For the reasons that follow, we affirm.

                          Substantive Facts and Procedural History

       {¶2} Kathie Hardin testified in her deposition that she purchased lakefront

property on Lake Road in June 2007, in large part due to the exceptional city views over

the lake.2 In September 2007, the Naughtons purchased the neighboring property to the

east on Lake Road. In the spring of 2008, the Hardins removed an existing backyard

deck and designed a tiered stone patio to take its place. Mr. Hardin testified that he

advised the neighbors about the project, which necessitated the removal of certain


           The trial court determined that summary judgment was appropriate as to Hardin’s claim of
       1


a zoning violation with respect to the Naughtons’ playground equipment. The court, however, found
that genuine issues of material fact remained with respect to the arborvitae. The trial court granted
the Naughtons’ notice of voluntary dismissal of its counterclaim on May 15, 2012. Thereafter, upon
Hardin’s unopposed motion, the court dismissed Hardin’s remaining claims that were not dismissed
by the court’s granting of Naughtons’ summary judgment motion.

           Kathie Hardin is the titled owner of the lakefront property at issue in this appeal; however,
       2


she resides in the home with her husband, Charles Hardin.
arborvitae trees that were planted along the eastern side of the deck. According to Mr.

Hardin, the Naughtons fully supported the patio plan.

      {¶3} In August 2008, the Naughtons complained to the Hardins about the

number and placement of pine trees being installed to replace the arborvitae. According

to Mrs. Hardin’s testimony, Mr. Hardin, the Naughtons, and Jim Schill, the landscaper,

had a conversation concerning the pine trees. Mrs. Hardin testified that she listened to

the conversation, yet she did not participate. Following this conversation, according to

the Hardins’ testimony, the Hardins agreed to install additional pine trees along the

eastern side of their patio to address concerns the Naughtons had regarding their lack of

privacy. The Naughtons claim that the issue with respect to the arborvitae had not been

resolved and they objected to the use of pine trees rather than arborvitae. They further

testified that they objected to the pines because they did not extend as far north as the

former arborvitae.

      {¶4} Approximately two years later, in the spring of 2010, the Naughtons began

a landscaping project of their own, which involved installing playground equipment and a

fence around the rear of their property. The Naughtons also wished to install new

arborvitae to replace those that had been removed by the Hardins, as well as additional

trees or shrubs. Prior to proceeding with this project, the Naughtons obtained written

approval from the Bay Village Building Department to install certain trees or shrubs, side

yard vegetation, a playground set, and two maple trees in the backyard. This written
approval was obtained through correspondence conducted between the Naughtons and

Douglas L. Milburn, Bay Village’s building director.

       {¶5} The largest part of the Naughtons’ backyard project was the installation of

certain playground equipment.      Mr. Hardin testified that the Naughtons advised the

Hardins about the playground.        Mr. Hardin, however, further testified that, not

comprehending the size of the equipment, he raised no objection.

       {¶6} Mr. Milburn confirmed that prior permission from the city was not required

for the installation of playground equipment. The Naughtons elected to receive prior

approval for this equipment nonetheless. While such approval was obtained for the

“Super Sunshine Double Sunny,” the actual playground installed was, according to

Franklin David Williams, the playground equipment salesman, “a smaller version of the

Supersized Monster Double Whammy.”              This playground includes two bi-level

clubhouses, a bridge, a rock wall, a rope ladder, a slide, and a trapeze, among other items.

 Mr. Hardin testified that the playground destroyed their view of the city skyline from

their outdoor patio and the first floor of their home, and he believed that this obstruction

would negatively affect the resale value of the home. Mr. Hardin also testified that upon

seeing the playground for the first time, he told Mr. Naughton, “I think you purchased the

most expensive play structure in the history of the world.”

       {¶7} Upon Mr. Hardin’s request, the mayor of Bay Village, Deborah Sutherland,

visited the Hardins’ home in order to view the property and the Naughtons’ newly

installed playground. While Mayor Sutherland testified in her deposition that she was
“appall[ed]” at the sight of the playground, she confirmed that the city had no authority to

regulate the installation of the playground equipment.

       {¶8} During the summer of 2010, the Naughtons asked the Hardins to remove

the pine trees that had been planted along the eastern side of the Hardin’s patio, claiming

that the pines encroached on their property. The Hardins refused to remove the pines.

Subsequently, Mr. Naughton removed certain sections of the trees that he contended

encroached upon his property. The Naughtons, thereafter, completed the installation of

their fence, playground equipment, and maple trees.        The Hardins claimed that Mr.

Naughton’s removal of parts of the pine trees permanently damaged the trees and the

Hardins were forced to remove them.

       {¶9} On September 2, 2010, Kathie Hardin filed a complaint against the

Naughtons for nuisance, violation of Bay Village zoning ordinances, and conversion.

Hardin alleged that the Naughtons’ installation of its backyard playground equipment and

landscaping trees is a nuisance because it interferes with her view of the city skyline and

her use and enjoyment of her land, thus resulting in a loss of value. Hardin also claimed

that the installation of the playground and the trees is in violation of Bay Village’s zoning

ordinances. Finally, Hardin alleged that the Naughtons’ removal of certain sections of

her pine trees amounts to conversion. Thereafter, on October 26, 2010, the Naughtons

filed an answer and counterclaim, alleging trespass.

       {¶10} Following an unsuccessful settlement attempt, the Naughtons filed a motion

for summary judgment on March 13, 2012, pursuant to Civ.R. 56, contending that Hardin
has not properly pleaded a claim for qualified nuisance, and she failed as a matter of law

to establish absolute nuisance. The Naughtons further contended that their playground

equipment and trees did not violate Bay Village’s zoning ordinances.          Finally, the

Naughtons alleged that Hardin’s claim for conversion fails as a matter of law in that

conversion can only be asserted with respect to personal property, and the law does not

recognize a conversion claim for the cutting of trees.

       {¶11} On May 7, 2012, the trial court granted the Naughtons’ motion for summary

judgment, in part. The court determined that the Naughtons’ alleged conduct and the

type of harm Hardin alleged is not recognized under Ohio law as giving rise to an

actionable claim for private nuisance, and as such, Hardin’s claim for private nuisance

fails as a matter of law. The trial court also concluded that a plain reading of the city’s

zoning ordinance dictates that a playground cannot be considered a “fence” within the

terms outlined in the ordinance. Moreover, the court found the evidence demonstrated

that the city had approved the Naughtons’ playground equipment.

       {¶12} The trial court, however, concluded that there were genuine issues of

material fact as to whether the arborvitae is in compliance with section 1163(g) of the

city’s zoning ordinance. Specifically, it concluded that there were issues concerning the

height of the trees and their location in proximity to “the main building.” The court,

therefore, denied the Naughtons’ motion for summary judgment with respect to the

planting of the arborvitae.
         {¶13} Finally, the trial court determined that Hardin’s claim of conversion fails as

a matter of law in that Ohio law does not recognize such a claim for the cutting of trees.

Moreover, the court held that Hardin cannot assert a claim of trespass in her brief in

opposition for the first time, without requesting leave of court to file an amended

complaint.

         {¶14} On May 14, 2012, the Naughtons voluntarily dismissed their counterclaim.

Subsequently, Hardin filed a motion to dismiss her remaining claims, with prejudice,

which was granted by the trial court. This appeal followed.3

                                      Assignment of Error

         The trial court erred in granting defendants’ motion for summary judgment.

                                       Standard of Review

         {¶15} Summary judgment is appropriate where it appears that: (1) there is no

genuine issue as to any material fact; (2) the moving party is entitled to judgment as a

matter of law; and (3) reasonable minds can come to but one conclusion, and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, who is entitled to have the evidence construed most strongly in his favor.             Harless

v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978); Civ.R.

56(C).




          Hardin does not address her claim of conversion in her brief filed with this court, nor does
         3


she assign error with respect to the alleged conversion. We will, therefore, not address this claim.
          {¶16} The burden is on the movant to show that no genuine issue of material fact

exists.     Id. Conclusory assertions that the nonmovant has no evidence to prove its case

are insufficient; the movant must specifically point to evidence contained within the

pleadings, depositions, answers to interrogatories, written admissions, affidavits, etc.,

which affirmatively demonstrate that the nonmovant has no evidence to support his

claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264;

Civ.R. 56(C). Unless the nonmovant then sets forth specific facts showing there is a

genuine issue of material fact for trial, summary judgment will be granted to the movant.

          {¶17} An appellate court reviews a trial court’s grant of summary judgment de

novo.       Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d

241.      Accordingly, appellate courts must independently review the record to determine if

summary judgment was appropriate.         In other words, appellate courts need not defer to

trial court decisions on summary judgment. See Brown v. Scioto Cty. Bd. Commrs., 87

Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

                                         I. Nuisance

          {¶18} In Ohio, nuisance is defined as the wrongful invasion of a legal right or

interest.     Taylor v. Cincinnati, 143 Ohio St. 426, 436, 55 N.E.2d 724 (1944).          A

“nuisance” is categorized as either public or private.         Brown at 712.     A “public

nuisance” is “an unreasonable interference with a right common to the general public.”

Id. A “private nuisance,” however, is a “nontrespassory invasion of another’s interest in

the private use and enjoyment of land.” Id.
       {¶19} A public or private nuisance may be further classified as either an

“absolute” nuisance, or nuisance per se, or a “qualified” nuisance. Taylor at paragraphs

two and three of the syllabus. An absolute nuisance involves a wrongful act that is either

intentional or unlawful.    Kratochvil v. Mayfield Bd. of Edn., 8th Dist. No. 81790,

2003-Ohio-1360, ¶ 32. The wrongful act at issue “is so inherently dangerous that it

cannot be conducted without damaging someone else’s property rights, no matter the care

utilized, and strict liability attaches notwithstanding the absence of fault * * *.” Temple

v. Fence One, Inc., 8th Dist. No. 85703, 2005-Ohio-6628, ¶ 41, quoting Taylor at

paragraph two of the syllabus. In other words, “no matter how careful one is, such

activities are inherently injurious and cannot be conducted without [causing damage].”

Ogle v. Ohio Power Co., 4th Dist. No. 11CA27, 2012-Ohio-4986, ¶ 10, quoting Brown at

713.   The damage, or injury, must be “real, material, and substantial.” Banford v.

Aldrich Chem. Co., Inc., 126 Ohio St.3d 210, 2010-Ohio-2470, 932 N.E.2d 313, ¶ 17.

       {¶20} A qualified nuisance, however, concerns a lawful act “so negligently or

carelessly done as to create a potential and unreasonable risk of harm, which in due

course results in injury to another.” Temple at ¶ 41, quoting Taylor at paragraph three of

the syllabus. In essence, an action for qualified nuisance is an action for the negligent

maintenance of a condition that creates an unreasonable risk of harm that results in injury.

 Kratochvil at ¶ 32; Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio St.3d 274,

275, 595 N.E.2d 855 (1992). Because the nuisance claim relies upon a finding of
negligence, the allegations of nuisance and negligence merge. Allen at 276, citing Taylor

at 441.

                                    A. Qualified Nuisance

          {¶21} In this case, Hardin cannot establish a qualified nuisance as a matter of law.

Hardin’s complaint alleges that she has a “legal interest in enjoying [her] property that

includes an unobstructed view of Lake Erie and the downtown Cleveland skyline.”4 She

further alleges that the Naughtons “maliciously, deliberately, and intentionally” interfered

with her “legally protected interest,” and as a result of the Naughtons’ conduct, her

property “has lost value.”

          {¶22} As outlined above, Ohio law dictates that a cause of action in qualified

nuisance is essentially an action in negligence. See Allen at 275-276. Therefore, in

order for Hardin to properly maintain a qualified nuisance claim, she must allege

negligence: she must show that the Naughtons breached an applicable duty of care and

the breach proximately caused her injuries. Davis v. Widman, 184 Ohio App.3d 705,

2009-Ohio-5430, 922 N.E.2d 272, ¶ 23 (3d Dist.), citing Safeco Ins. Co. of Am. v. White,

122 Ohio St.3d 562, 2009-Ohio-3718, 913 N.E.2d 426, ¶ 36.

          {¶23} Hardin’s complaint, however, failed to set forth facts constituting

negligence. While Hardin does claim that the Naughtons’ interference with her view of

the city skyline caused her property value to decrease, she failed to allege that the


            While the complaint refers to “Plaintiffs” in all of the counts contained therein, we note
          4


here that the only plaintiff of record is Kathie Hardin.
Naughtons have a duty to not interfere with her enjoyment of such view and that the

Naughtons breached that duty. Moreover, Hardin failed to claim that the Naughtons’

actions in obstructing her view were “unreasonable,” which is the applicable standard of

care in a qualified nuisance or negligence claim. Taylor, 143 Ohio St. 426, 55 N.E.2d

724. Rather, Hardin alleged that the Naughtons’ behavior was “malicious, deliberate, and

intentional.”

       {¶24} Under these facts, and considering the complaint as alleged, we cannot find

that the Naughtons’ actions amounted to a qualified nuisance.

                                B. Absolute Nuisance

       {¶25} Hardin alleges that the Naughtons’ installation of the playground equipment

obstructs her view of the city skyline from her lakefront property. She further alleges

that this obstruction decreases the value of her property and interferes with her use and

enjoyment of her property. Hardin claims that such “harm” can provide a basis for a

private nuisance cause of action. For the reasons that follow, we agree with the trial

court and find no genuine issues of material fact with respect to Hardin’s absolute

nuisance claim.

       {¶26} The Naughtons’ conduct, however appalling or offensive it may have been

to the Hardins, does not rise to an absolute nuisance. Nor is the injury or damage alleged

by Hardin recognized under Ohio law as actionable private nuisance.

       {¶27} The installation of the playground was neither unlawful or so inherently

dangerous that it could not be installed without damaging someone else’s property rights.
It does not interfere with a legal and cognizable property interest of Hardin’s. The

Naughtons obtained, through correspondence, prior approval from the city to build their

playground, and according to Mayor Sutherland’s testimony, the play structure does not

violate any city ordinances. Moreover, the city’s building director testified that the

structure itself is not regulated by any city ordinance. Furthermore, Ohio law does not

recognize a cause of action in private nuisance for the obstruction of a view across

neighboring property.

      {¶28} In support of her position, Hardin cites to O’Neil v. Atwell, 73 Ohio App.3d

631, 598 N.E.2d 110 (11th Dist.1991), for the proposition that a diminished view can

present a private nuisance. In O’Neil, however, the court’s focus was on the placement

of the party’s deck and whether it infringed on the neighbor’s privacy. Furthermore, the

O’Neil court applied a very broad definition of private nuisance in determining that the

neighboring deck was a nuisance:

      “generally anything that by its continuous use or existence works
      annoyance, harm, inconvenience or damage to another landowner in the
      enjoyment of his property. Activity which results in an unreasonable
      interference with the use and enjoyment of another’s property. A nuisance
      affecting a single individual or definite small number of persons in
      enjoyment of private rights not common to the public.”

Id. at 635, quoting Black’s Law Dictionary (5th Ed.1983) at 624.

      {¶29} We agree with the trial court in this case, however, and find that the

definition of private nuisance as defined by the Ohio Supreme Court in Taylor and its

progeny is the more appropriate definition:
      Absolute nuisance, for which strict liability or liability without fault is

      imposed by law, may be defined as a distinct civil wrong arising or resulting

      from the invasion of a legally protected interest, and consisting of an

      unreasonable interference with the use and enjoyment of the property of

      another; the doing of anything or the permitting of anything under one’s

      control or direction to be done without just cause or excuse, the necessary

      consequence of which interferes with or annoys another in the enjoyment of

      his legal rights; the unlawfully doing of anything or the permitting of

      anything under one’s control or direction to be done, which results in injury

      to another * * *.

Taylor, 143 Ohio St. 426, 55 N.E.2d 724, at paragraph two of the syllabus; see also

Stewart v. Seedorff, 10th Dist. No. 98AP-1049, 1999 LEXIS 2375 (May 27, 1999),

* 19-20. Two years after Taylor, the Supreme Court reiterated its earlier findings:

      An absolute nuisance, or nuisance per se, consists of either a culpable and

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

      conduct causing unintentional harm, or a nonculpable act resulting in

      accidental harm, for which, because of the hazards involved, absolute

      liability attaches notwithstanding the absence of fault.

Metzger v. The Pennsylvania, Ohio & Detroit RR. Co., 146 Ohio St. 406, 66 N.E.2d 203

(1946), paragraph one of the syllabus.
       {¶30} There is no evidence in this case that the act of installing a substantial

playground, such as the smaller Supersized Monster Double Whammy, involves an

unlawful act or a hazard sufficient to invoke an absolute nuisance. Rather, Hardin

established that she is inconvenienced and annoyed by the structure because it obstructs

her view of the city skyline from across her neighbors’ yard. Hardin failed to show,

however, that she is legally entitled to an unobstructed view across her neighbor’s

property. Therefore, Hardin failed to establish that any legally protected right has been

invaded.

       {¶31} Finally, we agree with the trial court in finding that the type of harm

generally recognized by the courts is different from that of which Hardin complains. The

damage, or injury, must be “real, material, and substantial.” Banford, 126 Ohio St.3d

210, 2010-Ohio-2470, 932 N.E.2d 313, ¶ 17. The question “is not simply whether the

neighbor is annoyed or disturbed, but is whether there is an injury to a legal right of the

neighbor.”    Antonik v. Chamberlain, 81 Ohio App. 465, 476, 78 N.E.2d 752 (9th

Dist.1947).   As we discussed above, Hardin’s diminished view of the city skyline

through the Naughtons’ property is not legally protected, and therefore, it is not an

actionable nuisance.

       {¶32} Accordingly, we find no genuine issues of material fact exist as to Hardin’s

claim for absolute private nuisance.

                          II. Bay Village Zoning Ordinance
       {¶33} Hardin alleges that the Naughtons’ playground equipment violates the city’s

zoning ordinances.5 Hardin contends that the Naughtons’ playground can be considered

a “fence,” as the ordinances were intended to cover more types of structures than what is

typically considered a “fence.”        Because the playground equipment exceeds the

guidelines outlined in Sections 1163.03 and 1163.05 of Bay Village’s Codified

Ordinances, Hardin argues, the equipment violates such ordinances. We find Hardin’s

argument unpersuasive.

       {¶34} The Codified Ordinances of Bay Village, as it applies to planning and

zoning, provides as follows:

       1163.03 DEFINITION.
                                            ***
       (b) As used in Section 1163.05(g), Lakefront Yard, “fence” means any
       enclosing structure, permanent or planted, including walls, windbreaks,
       privacy screens, sight barriers, dog runs, hedges, shrubs or vines planted so
       as to constitute a fence. Retaining walls are specifically excluded from this
       definition.

                                            ***

       1163.05 FENCE REGULATIONS.

                                          ***
       (g) Lakefront Yard. Fences on a lakefront lot that are within the rear yard
       or the side yard which is adjacent to Lake Erie, lakefront yard, shall not
       exceed four feet, four inches in height confined to a distance not greater
       than twenty feet toward the lake from the main building. Only protective
       barriers which are not to exceed four feet, four inches in height with a
       minimum of seventy-five percent open area are permitted elsewhere within


            Hardin voluntarily dismissed her claim that the arborvitae planted by the Naughtons
       5


violated the zoning ordinance.
      the lakefront yard. Fence posts shall not exceed four feet, six inches in
      height.

Bay Village Codified Ordinances 1163.03 and 1163.05.

      {¶35} Courts must construe zoning ordinances in favor of the property owner, as

zoning laws “are in derogation of the common law and deprive a property owner of

certain uses of land to which he would otherwise be lawfully entitled.” Terry v. Sperry,

130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d 276, ¶ 19. We, therefore, construe

Bay Village’s ordinance governing fences on lakefront yards in favor of the Naughtons.

      {¶36} In so doing, we find that a plain reading of the ordinance provides that a

“fence” is an “enclosing structure” that is “permanent or planted.” A playground is

neither an “enclosing structure” or a “permanent” structure. Moreover, Mr. Milburn, the

city’s building director, approved the installation of the Naughtons’ playground. Mr.

Milburn determined that because the structure was considered “temporary playground

equipment,” a permit was not required for installation. Mayor Sutherland’s testimony

confirmed that the Naughtons’ playground did not violate the city’s zoning ordinances.

      {¶37} In light of the above, this court agrees with the trial court and finds that

there are no genuine issues of material fact concerning whether the Naughtons’

playground equipment is a “fence” as defined by the city’s zoning ordinances.        The

Naughtons, therefore, are entitled to summary judgment on this claim.

      {¶38} In accordance with this order, Hardin’s assignment of error with respect to

the trial court’s granting of summary judgment in favor of the Naughtons on Hardin’s

nuisance and zoning violations claims is overruled.
       {¶39} Judgment affirmed.

       It is ordered that appellees recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

MELODY J. STEWART, A.J., and
MARY J. BOYLE, J., CONCUR
