[Cite as CitiMortgage, Inc. v. Robson, 2011-Ohio-4617.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
CITIMORTGAGE, INC.                                   :        Hon. W. Scott Gwin, P.J.
                                                     :        Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee          :        Hon. Julie A. Edwards, J.
                                                     :
-vs-                                                 :
                                                     :        Case No. 2011-CA-0017
DONALD SCOTT ROBSON, ET AL                           :
                                                     :
                    Defendant-Appellant              :        OPINION




CHARACTER OF PROCEEDING:                                  Civil appeal from the Richland County Court
                                                          of Common Pleas, Case No. 2008-CV-2293

JUDGMENT:                                                 Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                   September 13, 2011



APPEARANCES:

For Plaintiff-Appellee                                    For Defendant-Appellant

ROBERT V. KISH                                            JAMES L. BLUNT, II.
REMINGER CO., L.P.A.                                      105 Sturges Avenue
65 East State Street, Ste. 400                            Mansfield, OH 44903
Columbus, OH 43215-4227


For M&K General Contracting
GREGORY G. BARAN
3 North Main Street, Ste. 500
Mansfield, OH 44902
[Cite as CitiMortgage, Inc. v. Robson, 2011-Ohio-4617.]


Gwin, P.J.

        {¶1}    Defendant-appellant Donald Scott Robson appeals a summary judgment

of the Court of Common Pleas of Richland County, Ohio, granted in favor of plaintiff-

appellee CitiMortgage, Inc. on appellant’s counterclaim. Appellant assigns two errors to

the trial court:

        {¶2}    “I. THE TRIAL COURT ERRED BY SUA SPONTE RULING THAT

PLAINTIFF, CITIMORTGAGE, INC., HAD AUTHORITY PURSUANT TO THE

MORTGAGE TO ENTER DEFENDANT’S REAL PROPERTY.

        {¶3}    “II. THE TRIAL COURT ERRED BY RULING THAT THE MORTGAGE

PROVISION ALLOWING ENTRY INTO THE REAL PROPERTY WHEN THE

MORTGAGOR BREACHED THE MORTGAGE AGREEMENT WAS VALID AND

ENFORCEABLE.”

        {¶4}    The case began as a mortgage foreclosure case, and appellant

counterclaimed for trespass and damage to his personal property. The court found the

mortgaged house was unoccupied so appellee hired a contractor to enter and secure

the house and change the locks. Appellant alleged the contractor damaged an alarm

system in the house. The property has since been sold in a foreclosure sale.

        {¶5}    Both appellee and the contractor moved for summary judgment. The trial

court found appellant did not file any opposing affidavits or point to any specific facts in

the record which created disputed issue of material fact, and found appellee was not

responsible for any acts of the contractor, because it was an independent contractor.

The court also found appellant had not established any damages.

        {¶6}    The contractor, M&K General Contracting, is not a party to this appeal.
Richland County, Case No. 2011-CA-0017                                                 3


                                                I.

       {¶7}   In his first assignment of error, appellant argues the trial court erred by

sua sponte ruling that appellee had authority pursuant to the mortgage to enter

appellant’s property.

       {¶8}   The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party’s claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280. Once the

moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist, Id. The

non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary material showing a genuine dispute over material

facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732.

       {¶9}   Appellee’s motion for summary judgment addresses only the issue of

whether the company it hired to perform the work on appellant’s house was an

independent contractor. Appellee argued the company was an independent contractor,

not an employee, and it was not responsible for any damages the independent

contractor caused in performing the work. Because appellant did not respond to the

motion for summary judgment, the court properly found the company was an

independent contractor. However, the court concluded appellee was not liable for the

acts of its independent contractor. This finding is premature.

       {¶10} An exception to the rule an employer is not liable for the actions of an

independent contractor is the trespass rule. In Conway v. Calbert (1997), 119 Ohio
Richland County, Case No. 2011-CA-0017                                                   4


App. 3d 288, 695 N.E. 2d 271, the Court of Appeals for the Tenth District quoted 3

Restatement of the Law 2d Torts (1965) 419, Section 427B: “One who employs an

independent contractor to do work which the employer knows or has reason to know to

be likely to involve a trespass upon the lands of another or the creation of the public or

private nuisance is subject to liability for harm resulting to others from such trespass or

nuisance.”   Conway at page 293-294. We agree. Appellee hired the independent

contractor specifically to enter onto the property in question, and is liable for any

trespass. The trial court could not find appellee was not liable for the trespass until it

determined whether the independent contractor trespassed on appellant’s property.

Appellee’s motion for summary judgment did not raise the issue of trespass.

      {¶11} Nonetheless, the trial court addressed the issue of trespass. We find the

trial court should not have proceeded to determine the mortgage permitted appellee to

enter appellant’s property. This was beyond the scope of the motion for summary

judgment.

      {¶12} The court also erred in finding appellant could not prevail because he had

not established damages. A property owner must prove two essential elements to state

a cause of action sounding in trespass: (1) an unauthorized intentional act, (2) resulting

in an intrusion that interferes with the owner’s right of exclusive possession of the

property. Merino v. The Salem Hunting Club, Columbiana App. No. 07CO16, 2008-

Ohio-6366, paragraph 41, citations deleted. If a property owner proves the elements of

trespass, he has a right to nominal damages without proof of actual damages. Id. at

paragraph 42, citations deleted.
Richland County, Case No. 2011-CA-0017                                                5


      {¶13} We agree the court improperly decided issues which were not raised

before it in the motion for summary judgment.

      {¶14} The first assignment of error is sustained.

                                                II.

      {¶15} In his second assignment of error, appellant argues the trial court erred in

finding the provision in the mortgage which allowed the mortgagee to enter the property

if the mortgagor breached the mortgage agreement was valid and enforcible. Because

we find the issue was not properly before the trial court, we find any discussion on our

part to be premature.

      {¶16} The second assignment of error is premature.

      {¶17} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is reversed, and the cause is remanded to the court for further

proceedings in accord with law and consistent with this opinion.

By Gwin, P.J., and

Farmer, J., concur;

Edwards, J., concurs

separately


                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. SHEILA G. FARMER

                                             _________________________________
                                             HON. JULIE A. EDWARDS
WSG:clw 0816
Richland County, Case No. 2011-CA-0017                                                 6


EDWARDS, J., CONCURRING OPINION

       {¶18} I concur with the majority’s decision to remand the matter for further

proceedings. The majority holds that appellee’s motion for summary judgment did not

raise the issue of trespass and that the trial court erred in addressing such issue.

       {¶19} However, the issue is whether, having employed an independent

contractor, appellee knew or had reason to know the work to be performed by M & K

General Contracting was likely to involve a trespass, not whether M & K committed a

trespass.

       {¶20} I respectfully write separately to clarify such issue.




                        _______________________________________

                                     Judge Julie A. Edwards




JAE/dr/rmn
Richland County, Case No. 2011-CA-0017   7
[Cite as CitiMortgage, Inc. v. Robson, 2011-Ohio-4617.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


CITIMORTGAGE, INC.                                        :
                                                          :
                            Plaintiff-Appellee            :
                                                          :
                                                          :
-vs-                                                      :       JUDGMENT ENTRY
                                                          :
DONALD SCOTT ROBSON, ET AL                                :
                                                          :
                                                          :
                        Defendant-Appellant               :       CASE NO. 2011-CA-0017




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Richland County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accord with law and consistent with this

opinion. Costs to appellee.




                                                              _________________________________
                                                              HON. W. SCOTT GWIN

                                                              _________________________________
                                                              HON. SHEILA G. FARMER

                                                              _________________________________
                                                              HON. JULIE A. EDWARDS
