[Cite as Yeager v. Carpenter, 2010-Ohio-3675.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               UNION COUNTY




RALPH YEAGER,

        PLAINTIFF-APPELLEE,
        CROSS-APPELLANT,                                CASE NO. 14-09-19

        v.

RICHARD D. CARPENTER, ET AL.,

        DEFENDANTS-APPELLANTS,                          OPINION
        CROSS-APPELLEES.




                  Appeal from Union County Common Pleas Court
                           Trial Court No. 2006 CV 0561

                       Judgment Reversed and Cause Remanded

                            Date of Decision: August 9, 2010




APPEARANCES:

        David A. Herd and J.C. Ratliff for Appellants

        David W. Orlandini and David S. Pennington for Appellee
Case No. 14-09-19


PRESTON, J.

       {¶1} Defendant-appellants/cross-appellees, Richard D. and Iva Eileen

Carpenter (“the Carpenters”), and plaintiff-appellee/cross-appellant, Ralph Yeager

(“Yeager”), appeal the judgment of Union County Court of Common Pleas. For

the reasons that follow, we reverse.

       {¶2} The Carpenters and Yeager own neighboring farmland on Osborne

and Fish Daum Roads in Union County, Ohio. (Tr. Vol. I at 79-82); (Yeager Aff.

at ¶¶4-5).    Portions of both parties’ farm fields are located in watersheds

susceptible to surface water flooding. (Tr. Vol. VI at 52); (P’s Exs. 24-25). On

Osborne Road, Yeager’s fields are on the west side of the road, and the

Carpenters’ fields are on the east side of the road. (P’s Exs. 1-4). On Fish Daum

Road, Yeager’s field is adjacent to the north side of the road, and the Carpenters’

field is north of Yeager’s field. (P’s Ex. 1). Three road culvert pipes run east and

west under Osborne Road connecting the roadside ditches on Yeager’s and the

Carpenters’ sides of the road. (Tr. Vol. III at 30); (P’s Ex. 43). Two of these

culverts are near the southern portion of the parties’ fields, and one culvert is near

the parties’ northern property boundary. (Tr. Vol. I at 83); (Tr. Vol. III at 30); (Tr.

Vol. VI at 42, 48); (P’s Ex. 43).

       {¶3} In April 2001, Yeager began efforts to divert surface waters and

alleviate flooding in his Osborne Road field by land-leveling and power-ditching



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Case No. 14-09-19


into the Osborne Road county ditch. (Tr. Vol. III at 48-49, 53); (Tr. Vol. I at 94-

95). As a result of Yeager’s actions, surface water from his field flowed east to

the roadside ditch, then north in the roadside ditch to the north culvert pipe, and

then east through the north culvert pipe under Osborne Road onto Carpenter’s

field. (Tr. Vol. I at 94-95). In response, around May 18, 2001, Carpenter piled

stone on his property in front of the north culvert pipe to slow and disburse the

water before it crossed his field. (Id.); (Tr. Vol. III at 56); (Yeager Depo. at 44).

As a result of Carpenter’s stone pile, surface water began to back up on Yeager’s

field. (Tr. Vol. III at 54, 63); (Yeager Depo. at 46).

       {¶4} Around April of 2002, the county road department filled in the

Osborne Road ditch on Yeager’s side to prevent the surface water from his field

flowing north to the north culvert pipe. (Tr. Vol. III at 99). During this same time,

the county replaced a crushed portion of the south culvert pipe on the Carpenters’

side (east side) of Osborne Road and reinstalled the Carpenters’ drop inlet (a.k.a.

“breather” or “Higginbotham”) about eight to ten (8-10) inches from the mouth of

the newly repaired south culvert pipe. (Id. at 99-103); (Tr. Vol. I at 113-19); (P’s

Exs. 117-18).

       {¶5} On or about May 4, 2002, Carpenter removed the drop inlet that the

county reinstalled in front of the south culvert pipe and capped the drain tile that

ran to the drop inlet. (Yeager Depo. at 72); (Tr. Vol. III at 104-05); (Tr. Vol. I at



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Case No. 14-09-19


113-19). In June 2003, Carpenter piled 720 feet of stone along his Osborne Road

field in front of the two southern culvert pipes. (Tr. Vol. I at 119, 123); (Yeager

Depo. at 59).

       {¶6} On November 6, 2003, Yeager filed a complaint against the

Carpenters in the Union County Court of Common Pleas (case no. 2003 CV 0396)

alleging, in pertinent part, that:

       Defendants have unreasonably interfered with the natural flow
       of water by piling rocks, dirt and gravel at drainage pipes,
       digging up a drainage tile and capping it off, and depositing
       gravel along the county road ditch, all affecting the water
       course’s flow and greatly increasing the volume of water on
       Plaintiff’s property, causing flooding onto Plaintiff’s property.
       These actions by the Defendants have been performed
       maliciously, recklessly and deliberately to harm Plaintiff’s
       property.

(Doc. No. 96, Ex. 16). Yeager alleged three claims for relief, including: trespass,

nuisance, and negligence. (Id.).       Yeager sought compensatory damages of

$25,000.00, punitive damages of $100,000.00, and an injunction directing the

Carpenters to: remove their alterations or improvements causing the obstruction of

the natural flow of water; and restore the waterway course to its former condition.

(Id.). On July 12, 2004, the parties filed a joint stipulation of dismissal, dismissing

all claims with prejudice. (Id.). On May 13, 2005, Yeager filed a motion to vacate

the July 12, 2004 judgment pursuant to Civ.R. 60(B) and sought an order




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dismissing the cause without prejudice. (Id., Ex. 17). On August 18, 2005, the

trial court denied the motion. (Id.).

        {¶7} On December 14, 2006, Yeager filed another three-count complaint

against the Carpenters in the Union County Court of Common Pleas (case no.

2006 CV 0561), which is the subject of this present appeal. (Doc. No. 1). Count

one of the complaint asserted a claim for unreasonable interference with surface

water; count two asserted a claim for interference with prescriptive easement; and

count three asserted a claim for nuisance and water trespass. (Id.).

        {¶8} On January 16, 2007, the Carpenters filed an answer and a

counterclaim for declaratory judgment. (Doc. Nos. 7-8). On May 4, 2007, Yeager

filed an amended complaint asserting the same claims, and, on May 21, 2007, the

Carpenters filed an answer. (Doc. Nos. 29, 38). 1

        {¶9} On September 28, 2007, the Carpenters filed a motion for summary

judgment, arguing that Yeager’s claims were barred by the doctrine of res judicata

and the doctrine of reasonable use of surface water. (Doc. No. 77). On November

8, 2007, Yeager filed a memorandum in opposition. (Doc. No. 96). On November

29, 2007, the trial court denied the Carpenters’ motion for summary judgment.




1
  We note that, on May 14, 2007, Yeager filed a counter-motion to compel discovery that ultimately
resulted in a judgment of $6,661.10 in Yeager’s favor for attorney’s fees when the Carpenters failed to
comply with the court’s discovery order. (See Doc. Nos. 34, 177). This Court, however, reversed the trial
court’s judgment on September 15, 2008. Yeager v. Carpenter, et al., 3d Dist. No. 14-08-15, 2008-Ohio-
4646. (Doc. No. 253).


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Case No. 14-09-19


(Doc. No. 107).

        {¶10} On December 12, 2007, the Carpenters filed a motion for leave to

file an answer and first amended counterclaim. (Doc. No. 143). On December 26,

2007, the Carpenters filed a motion to clarify the trial court’s denial of summary

judgment. (Doc. No. 148). Yeager opposed both motions. (Doc. Nos. 154, 159).

        {¶11} On January 7, 2008, the trial court denied the Carpenters’ motion to

clarify but granted the motion to file their first amended counterclaim. (Doc. No.

162).    On January 9, 2008, the Carpenters filed their answer and amended

counterclaim asserting six claims for relief, including: declaratory judgment; water

trespass; nuisance and continuing nuisance; unreasonable interference with the

flow of surface water; permanent injunction; and intentional infliction of

emotional distress. (Doc. No. 163). On February 7, 2008, Yeager filed an answer

to the amended counterclaim. (Doc. No. 179).

        {¶12} An eight-day jury trial was scheduled to begin on March 24, 2009.

(Doc. No. 269). Prior to trial, however, the Carpenters voluntarily dismissed three

counterclaims, including: count one seeking declaratory judgment; count five

seeking a permanent injunction; and count six for intentional infliction of

emotional distress. (Doc. Nos. 286, 290, 291).

        {¶13} On March 24, 2009, the jury trial commenced. During the trial, the

trial court granted motions for directed verdicts as follows: in favor of the Eileen



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Carpenter on all counts; in favor of Richard Carpenter on the prescriptive

easement claim; in favor of Richard Carpenter on the claim for punitive damages

claim; and in favor of Yeager on the claim for punitive damages. (Tr. Vol. VA at

12-16); (Tr. Vol. VII at 123-126).

       {¶14} On April 3, 2009, the jury returned verdicts in favor of Richard

Carpenter on all of Yeager’s claims. (Doc. Nos. 294-296). The jury returned a

verdict in favor of Yeager on the Carpenters’ claims of nuisance but returned

verdicts in favor of the Carpenters on their claims for unreasonable interference

with the flow of surface water and trespass. (Doc. Nos. 293, 297-298). The jury

awarded the Carpenters $13,125.00 in compensatory damages. (Doc. No. 292).

       {¶15} On April 23, 2009, the trial court reduced the jury verdict to

judgment, finding Yeager liable to the Carpenters in the amount of $13,125.00 for

trespass and unreasonable interference with the flow of surface waters. (Doc. No.

299). The trial court also denied Yeager’s request for injunctive relief. (Id.).

       {¶16} On May 21, 2009, the Carpenters filed a notice of appeal. (Doc. No.

303). On June 1, 2009, Yeager filed a notice of cross-appeal. (Doc. No. 306). The

Carpenters now appeal raising three assignments of error for our review. Yeager

has filed one assignment of error on cross-appeal.

              CARPENTERS’ ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN DENYING THE
       DEFENDANT-APPELLANT/CROSS-APPELLEE’S MOTION


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       FOR SUMMARY JUDGMENT AND DEFENDANT-
       APPELLANT/CROSS-APPELLEE’S    MOTION     FOR
       DIRECTED VERDICT BASED ON THE DOCTRINE OF RES
       JUDICATA.

       {¶17} In their first assignment of error, the Carpenters argue that the trial

court erred by denying their motions for summary judgment and directed verdict

on the basis of res judicata. We disagree.

       {¶18} This Court reviews de novo a trial court’s rulings on motions for

directed verdict and summary judgment. Burns v. Prudential Securities, Inc., 167

Ohio App.3d 809, 2006-Ohio-3550, 857 N.E.2d 621, ¶18; Doe v. Shaffer (2000),

90 Ohio St.3d 388, 390, 738 N.E.2d 1243. Civ.R. 50(A)(4) provides:

       When a motion for a directed verdict has been properly made,
       and the trial court, after construing the evidence most strongly
       in favor of the party against whom the motion is directed, finds
       that upon any determinative issue reasonable minds could come
       to but one conclusion upon the evidence submitted and that
       conclusion is adverse to such party, the court shall sustain the
       motion and direct a verdict for the moving party as to that issue.

Similarly, summary judgment is proper where there is no genuine issue of material

fact, the moving party is entitled to judgment as a matter of law, and reasonable

minds can reach but one conclusion when viewing the evidence in favor of the

nonmoving party, and the conclusion is adverse to the nonmoving party. Civ.R.

56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69

Ohio St.3d 217, 219, 631 N.E.2d 150.




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Case No. 14-09-19


      {¶19} The Carpenters first argue that Yeager’s July 12, 2004 voluntary

dismissal with prejudice was an adjudication on the merits; and therefore, the acts

alleged in Yeager’s second complaint do not constitute trespass or nuisance as a

matter of law. To reach this conclusion, the Carpenters rely upon this Court’s

decision in Harmon v. Adams, 3d Dist. No. 14-01-27, 2002-Ohio-2103. The facts

and procedural posture of this case, however, are distinguishable from that

presented in Harmon v. Adams.

      {¶20} We explained the pertinent facts and procedural history of Harmon

v. Adams as follows:

      {¶ 3} [The Harmons] own a residence located in close proximity
      to a hog facility owned and operated by [Adams]. On December
      14, 1999, [the Harmons] filed the first of two complaints alleging
      that the facility was negligently constructed and operated and
      that noise and odors emanating from the facility constituted a
      nuisance. [Adams] responded to the first complaint asserting
      that R.C. 929.04 provided a complete defense against such
      claims. [The Harmons] moved to strike the defense, arguing that
      R.C. 929.04 violated state and federal constitutional rights. The
      trial court denied the motion and granted summary judgment in
      favor of [Adams]. [The Harmons] appealed the determination.
      {¶ 4} On appeal, [the Harmons] reasserted their constitutional
      challenge against R.C. 929.04, but did not contest the court’s
      substantive application of the statute. Upon review, we upheld
      the trial court’s determination, finding that the [the Harmons]
      had failed to satisfy jurisdictional prerequisites for
      constitutional challenges under R.C. 2721.12.
      {¶ 5} On June 6, 2001, [the Harmons] filed the immediate action
      against [Adams] asserting essentially identical claims of
      negligence and nuisance. [The Harmons] incorporated into their
      second complaint the previously unperfected constitutional
      challenge and served notice upon Ohio’s Attorney General by


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       certified mail. [Adams] moved for summary judgment on the
       basis of res judicata and, contending that the action constituted
       frivolous conduct, requested that the trial court impose
       sanctions against [the Harmons].
       {¶ 6} After a hearing on the matter, the trial court found that
       [the Harmons’] claims were barred by res judicata, granted
       summary judgment in favor of [Adams], and imposed sanctions
       upon the [the Harmons] and their counsel, awarding [Adams]
       $1,771.00. Upon satisfaction of the sanction award, the court
       dismissed [the Harmons’] claims with prejudice. The instant
       appeal followed.

2002-Ohio-2103, at ¶¶3-6 (footnotes omitted).

       {¶21} On appeal, the Harmons argued that their continuing nuisance claim

was a separate cause of action to which the doctrine of res judicata was

inapplicable. Id. at ¶10.    We rejected this argument, however, finding that it

presupposed that the activity complained of—the operation of a hog farm—

constituted a nuisance in the first place. Id. at ¶14. Next, we stated:

       An activity which has been found per legislative determination
       or entry of judgment not to constitute a nuisance as a matter of
       law cannot become a nuisance merely by virtue of the passage of
       time: otherwise, claimants could bring successive nuisance
       actions after repeated determinations that the conduct at issue is
       not a nuisance. Therefore, we must ascertain whether the
       judgment in the original action was tantamount to a determination
       that the activities complained of do not constitute a nuisance as a
       matter of law.

Id. (Emphasis added); (Footnote omitted).          In answering this question, we

observed that the trial court previously granted Adams summary judgment on the

basis of R.C. 929.04, which provides a complete defense in a civil action for



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nuisances involving agricultural activities if all the statute’s prerequisites are met.

Id. at ¶15; R.C. 929.04. The trial court in granting summary judgment specifically

found that R.C. 929.04 applied and was a complete defense. Harmon v. Adams,

2002-Ohio-2103, at ¶22.       Based upon the trial court’s explicit finding, we

reasoned that the trial court’s finding was “* * * equivalent to a finding that the

activities complained of do not constitute a nuisance as a matter of law * * * these

activities cannot become a nuisance merely by virtue of the passage of time or

support an action for continuing nuisance predicated upon identical conduct.” Id.

(Emphasis added).

       {¶22} In this case, we are presented with a stipulated dismissal with

prejudice under Civ.R. 41(A)(1)(b) not a prior judgment entry with an express

finding that the acts at issue were not a nuisance as a matter of law like in Harmon

v. Adams.     Although the parties’ stipulated dismissal with prejudice is an

adjudication on the merits, it does not necessarily follow that the alleged acts were

not a nuisance or trespass as a matter of law. See, e.g., Horne v. Woolever (1959),

170 Ohio St. 178, 182, 163 N.E.2d 378 (when a party consents to a judgment of

dismissal with prejudice, the judgment is final as to all claims asserted or which

should have been asserted therein); Tower City Properties v. Cuyahoga Cty. Bd. of

Revision (1990), 49 Ohio St.3d 67, 69, 551 N.E.2d 122 (where a dismissal is with

prejudice, the effect is an adjudication upon the merits). See, also, Lawlor v



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National Screen Service Corp. (1955), 349 U.S. 322, 327, 75 S.Ct. 865, 99 L.Ed.

1122 (judgment unaccompanied by findings does not bind parties on any issue

which might arise in connection with another cause of action.). Since the trial

court never expressly found that the acts alleged in Yeager’s first complaint were

not a nuisance or trespass as a matter of law, we find our decision in Harmon v.

Adams inapplicable. Darney v. Dragon Products Co., L.L.C. (D. Me. 2009), 592

F.Supp.2d 180, 184, Fn.4.

      {¶23} Alternatively, the Carpenters argue that the trial court erred in

finding that Yeager could proceed with a continuing trespass or continuing

nuisance claim, because they had not engaged in any tortious activity subsequent

to the July 12, 2004 stipulated dismissal. The record in this case demonstrates

otherwise.

      {¶24} As the Carpenters correctly point out, it is ongoing tortious conduct,

and not merely recurring injury, that gives rise to a continuing nuisance or

continuing trespass claim. Haas v. Sunset Ramblers Motorcycle Club, Inc. (1999),

132 Ohio App.3d 875, 878, 726 N.E.2d 612; Reith v. McGill Smith Punshon, Inc.,

163 Ohio App.3d 709, 2005-Ohio-4852, 840 N.E.2d 226, ¶49. However, even at

the summary judgment stage, the record contains evidence, which construed in

Yeager’s favor creates a question of fact concerning the Carpenters’ ongoing

tortious conduct subsequent to the July 12, 2004 stipulated dismissal.        For



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example, Yeager testified during his deposition that Carpenter expanded the south

culvert “dam” thirty (30) feet south with gravel in November 2004. (Yeager Depo.

at 74); (Complaint, Doc. No. 1, at ¶15d). Yeager also testified that Carpenter

added more material to the south culvert “dam” in December 2004 and on July 5,

2007. (Yeager Depo. at 76, 78). Additionally, Yeager testified that Carpenter

constructed another “dam” in May 2006 at the Fish Daum Road property. (Id. at

89-90); (Complaint, Doc. No. 1, at ¶15e). Yeager also submitted an affidavit in

response to the Carpenters’ motion for summary judgment wherein he averred to

these aforementioned acts and, additionally, that Carpenter reinstalled the drop

inlet tile behind the south culvert “dam” in 2005 “so that he, and he alone, would

benefit from the drainage outlet provided by the drop inlet.” (Doc. No. 96, Ex. 2 at

¶¶13, 15, 20). Yeager further averred that:

       Between July 13, 2004 and the present, I have personally
       observed Defendant Richard Carpenter extending, improving,
       repairing and maintaining the dams located at Osborne road. As
       noted, Defendant Carpenter extended the south dam in
       November 2004.       In December 2004, Defendant Richard
       Carpenter added material to the south dam. On at least five
       separate occasions, I have observed Richard Carpenter
       repairing and maintaining both the north and south dams at
       Osborne Road.       These repair and maintenance activities
       included, but are not limited to, adding material to the dams to
       counteract natural erosion and deterioration and packing down
       the material to decrease the permeability of the dam.

(Id. at ¶21).




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       {¶25} Likewise, at trial, Yeager testified that Carpenter added material to

the south culvert “dam” in November and December 2004, and that Carpenter was

adding material to and maintaining both dams during the end of 2004. (Tr. Vol. III

at 136-38). Yeager also testified that Carpenter was maintaining the “dams” in

2005. (Id. at 153). Yeager further testified that the “dam” at the Fish Daum Road

property was installed around May 17-20, 2006. (Id. at 176). Yeager, testifying

concerning activities that occurred in 2005, identified the drop inlet tile that

Carpenter reinstalled behind the south culvert “dam” in plaintiff’s exhibit eighty-

five (85). (Id. at 146); (P’s Ex. 85).

       {¶26} Construing this evidence in Yeager’s favor, we cannot conclude that

the trial court erred in denying the Carpenters’ motion for summary judgment or

motion for directed verdict based upon res judicata, because the record

affirmatively demonstrates a question of fact concerning the Carpenters’ ongoing

tortious conduct subsequent to the July 12, 2004 stipulated dismissal.           The

operative facts giving rise to Yeager’s claims for continuing nuisance, continuing

trespass, and interference with prescriptive easement, although necessarily

historically related to the claims he alleged in the first action, are, nonetheless,

substantively different. Moreover, because Yeager’s complaint asserted claims

arising from facts occurring after July 12, 2004, this case is further distinguishable




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from Harmon v. Adams, supra, wherein the subsequent complaint was “predicated

upon identical conduct.” 2002-Ohio-2103, at ¶¶5, 22.

      {¶27} To the extent the trial court ruled that the doctrine of res judicata was

inapplicable to Yeager’s claim for interference with prescriptive easement because

he never alleged this claim in the first action, we disagree with the trial court’s

reasoning. (Doc. No. 107). It is irrelevant whether Yeager, in fact, alleged a

prescriptive easement claim in the first action—he did not—the question for

purposes of res judicata is whether he could have alleged the claim. Whether

Yeager could have alleged the claim depends upon whether the claim arose out of

the “transaction or occurrence that was the subject matter of the previous action.”

Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 382, 653 N.E.2d 226.

“Transaction” is defined as a “common nucleus of operative facts.” Id., citing

Restatement of Law 2d, Judgments (1982) 198-99, Section 24, Comment b. The

Carpenters argue that Yeager could have asserted the interference with

prescriptive easement claim in his first action since Carpenter disconnected the

drop inlet tile in 2002. This argument is only partially correct. Yeager testified

that Carpenter cut off and capped the drop inlet tile on May 4, 2002, and Yeager

similarly averred that the drop inlet tile was removed in 2002. (Yeager Depo. at

72); (Yeager Aff., Doc. No. 96, Ex. 2 at ¶13). Yeager also alleged in his first

complaint that the Carpenters had unreasonably interfered with the natural flow of



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water by, among other things, “digging up a drainage tile and capping it off.”

(Doc. No. 96, Ex. 16 at ¶5). Thus, the Carpenters are correct that Yeager’s

interference with prescriptive easement claim based upon Carpenter’s act of

cutting the drop inlet tile and capping it off would be barred under the doctrine of

res judicata. However, the Carpenters fail to account for the fact that, in 2005,

Carpenter reinstalled the drop inlet behind the south culvert “dam” where only he

could benefit from it. This act, occurring subsequent to the dismissal of the

previous action, is the factual basis of Yeager’s second interference with

prescriptive easement claim, which is not barred by res judicata because it did not

arise out of the same nucleus of operative facts as the first action. Similarly,

Yeager’s claims of continuing nuisance and continuing trespass arose from new

tortious acts—“fresh violations” of property rights—all occurring subsequent to

July 12, 2004; namely, Carpenter’s acts of expanding the south culvert “dam,”

maintaining the “dams,” adding material to the “dams,” and constructing a new

“dam” at the Fish Daum Road property. Haas, 132 Ohio App.3d at 878; Reith,

2005-Ohio-4852, at ¶49.     Therefore, we reject the Carpenters’ argument that

Yeager’s claims were barred by res judicata.

       {¶28} For all these reasons, the Carpenters’ first assignment of error is

overruled.




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               YEAGER’S CROSS-ASSIGNMENT OF ERROR

       ON THE FACTS OF THIS CASE THE TRIAL COURT’S
       INSTRUCTION TO THE JURY ON RES JUDICATA WAS
       ERROR.

       {¶29} In his sole cross-assignment of error, Yeager argues that the trial

court erred by allowing the jury to determine whether his claims were barred by

the doctrine of res judicata. Specifically, Yeager argues that whether claims are

barred by res judicata is a question of law for the trial court, and not the jury, to

decide. Yeager also argues that the trial court erred in submitting the issue of res

judicata to the jury when it had already ruled on this issue in its summary

judgment entry. We agree with Yeager that the trial court’s jury instruction on res

judicata constitutes reversible error.

       {¶30} “A single instruction to a jury may not be judged in artificial

isolation but must be viewed in the context of the overall charge.” State v. Price

(1979), 60 Ohio St.2d 136, 398 N.E.2d 772, paragraph four of the syllabus. An

incomplete or inadequate jury instruction will constitute grounds for reversal of a

judgment where the charge as given misleads the jury. Groob v. KeyBank, 108

Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶32; Columbus Ry. Co. v.

Ritter (1902), 67 Ohio St. 53, 65 N.E. 613. A jury instruction “should also be

adapted to the case and so explicit as not to be misunderstood or misconstrued by

the jury.” Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12, 482 N.E.2d 583, citing



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Aetna Ins. Co. v. Reed (1878), 33 Ohio St. 283, 295. Additionally, the jury must

have been misled to the prejudice of the party seeking reversal. Laverick v.

Children’s Hosp. Med. Ctr. of Akron, Inc. (1988), 43 Ohio App.3d 201, 202, 540

N.E.2d 305.

       {¶31} Prior to instructing the jury, Yeager’s counsel objected twice to

including res judicata in the jury instructions. (Tr. Vol. VI at 171-72); (Tr. Vol.

VIII at 4). Yeager’s counsel argued that it was a legal conclusion, which the trial

court had already ruled upon and was inappropriate to submit to the jury. (Tr. Vol.

VI at 172). Yeager’s counsel also asked the trial court for an interrogatory on the

issue of res judicata so that this Court might be able to determine whether Yeager

was prejudiced by the instruction. (Tr. Vol. VIII at 4-7, 80). The trial court noted

Yeager’s objection and denied his request for an interrogatory. (Id. at 11, 80). The

trial court then instructed the jury, in pertinent part:

       The defendant claims an affirmative defense of res judicata. The
       burden of proving an affirmative defense by a preponderance of
       the evidence is on the defendant. * * * Res judicata. The
       defendant alleges an affirmative defense of res judicata. This
       means the parties to this action have previously litigated this
       [sic] same issues and that the prior case was concluded by a final
       judgment on the merits. And therefore, any subsequent action
       or lawsuit based on the same claims and arising out of the same
       trans -- and arising out of the same transaction or occurrence is
       barred by this doctrine.

(Tr. Vol. VIII at 84, 95).      Thereafter, Yeager’s counsel objected to the jury

instruction as follows:


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       On behalf of plaintiff we object to the instruction on res
       judicata. * * * We object to the fact that there was no
       interrogatory provided to the jury to address the issue of res
       judicata. And we object to the fact that there was no language in
       there about a continuing tort and its effect on a claim for res
       judicata.

(Id. at 111). The trial court, again, overruled Yeager’s objections. (Id. at 112).

       {¶32} The Carpenters argue that the trial court’s jury instruction on res

judicata was not erroneous because it was a central issue in the case. We disagree

for several reasons. First, the application of the doctrine of res judicata is a

question of law. Hancock Cty. Treasurer v. Ludwig, 3d Dist. No. 5-06-26, 2006-

Ohio-6486, ¶14; State ex rel. Davis v. Pub. Emps. Retirement Bd., 174 Ohio

App.3d 135, 2007-Ohio-6594, 881 N.E.2d 294, ¶41; Nationwide Ins. Co. v. Davey

Tree Expert Co., 166 Ohio App.3d 268, 2006-Ohio-2018, 850 N.E.2d 127, ¶15;

Payne v. Cartee (1996), 111 Ohio App.3d 580, 586, 676 N.E.2d 946. “It is clearly

error to submit to the jury questions which should be decided by the court as

matters of law * * * and this error is ground for reversal on the application of a

party who may have been prejudiced thereby.” 89 Ohio Jurisprudence 3d Trial,

Section 157, citations omitted. See, also, United Tel. Co. of Ohio v. Williams

Excavating, Inc. (1997), 125 Ohio App.3d 135, 146-47, 707 N.E.2d 1188

(allowing trial court to decide whether a contract’s terms are ambiguous, a

question of law, is reversible error where the jury was misled). Notably, no

instructions on the doctrine of res judicata appear in the Ohio Jury Instructions.


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Case No. 14-09-19


       {¶33} Second, even assuming that a jury instruction on res judicata might

be appropriate in certain cases as the Carpenters’ contend, the trial court in this

case determined twice that res judicata did not bar Yeager’s claims arising after

the July 12, 2004 stipulated dismissal. (Nov. 29, 2007 JE, Doc. No. 107); (Tr. Vol.

VA at 24). That the trial court had already determined Yeager’s claims arising

subsequent to the July 12, 2004 stipulated dismissal were not barred by res

judicata is further evidenced by the fact that it specifically instructed the jury that

Yeager’s claims did not involve damages incurred before July 2004 “[a]nd any

testimony about losses before 2004 should not be considered for purposes of

calculating damages.” (Tr. Vol. III at 81). Furthermore, when the Carpenters’

counsel objected to the res judicata jury instruction because it omitted a sentence

stating that a stipulation of dismissal is a final adjudication on the merits, the trial

court responded, “* * * I think that’s a non-issue. You know, the complaint says

that they’re not seeking damages before July 13th of ’04.” (Tr. Vol. VIII at 12).

       {¶34} Third, the trial court’s instruction is inadequate and incomplete

because it fails to define the terms “transaction” or “occurrence,” which are,

themselves, significant legal terms for purposes of res judicata. KeyBank, 2006-

Ohio-1189, at ¶32; Ritter, 67 Ohio St. 53; Grava, 73 Ohio St.3d at 382, citing

Restatement of Law 2d, Judgments (1982) 198-99, Section 24, Comment b.

Further, the instruction lacks any definition or explanation of continuing nuisance



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Case No. 14-09-19


or continuing trespass claims; specifically, how continuous tortious conduct can

give rise to “fresh violations” of property rights not barred under the doctrine of

res judicata. Reith, 2005-Ohio-4852, at ¶49.

       {¶35} Fourth, the wording of the instruction is misleadingly suggestive.

The instruction’s wording suggests that the parties herein had, in fact, previously

litigated the case; and therefore, the claims asserted are barred under the doctrine.

       {¶36} For all these reasons, we reject the Carpenters’ argument that the

trial court’s jury instruction on res judicata was proper under the facts of this case.

       {¶37} The Carpenters next argue that the trial court’s res judicata

instruction, if error, was harmless. We cannot agree. In addition to the reasons

already given above, the Carpenters throughout the trial characterized Yeager as

“litigious,” having a case of “suititis,” for filing multiple lawsuits against several

different people, including two against them, concerning these same issues.

During opening statements, counsel for the Carpenters told the jury:

       * * So let’s talk about the litigation history here. I could tell that
       there’s definitely some, I don’t know, insenescent [sic] over with
       Mr. Yeager that there’s a counterclaim by the Carpenters.
       Okay. Mr. Yeager’s come to court trying to present his side.
       The Carpenters are entitled to try to present their side. Well,
       what you need to know and what you’re going to find out
       through a number of witnesses that we’re calling is that this has
       been going on a long time. Mr. Yeager has prior suits he’s filed
       against Mr. Carpenter. He even sued the county also. He sued
       the county unsuccessfully trying to argue about this point. And
       then he sued Mr. Carpenter in this court in 2004. Five years ago
       he agreed to walk away. To dismiss this whole thing. Dismiss


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Case No. 14-09-19


      this whole case. The Carpenters said yes. And we’ve got
      exhibits. I mean there’s a dismissal entry in this court. Case
      dismissed with prejudice. That means with prejudice to refiling
      [sic]. Gone. Done. Over. Nope. In a couple weeks Mr. Yeager’s
      out there trenching and digging and claims he didn’t agree to it.
      Sued his attorney and then comes back and files this case again.
      So here we are. * * * You will be instructed by the court because
      the court’s already ruled that anything Mr. Yeager has and is
      claiming from before he dismissed his last case in July 2004, he
      can’t present evidence on. He dismissed his case. * * * You talk
      about litigiousness and people filing suits and getting on the
      Carpenters for having a counterclaim.

(Tr. Vol. I at 49-51).   During cross-examination, counsel for the Carpenters’

questioned Yeager as follows:

      Q: * * * Mr. Yeager, I’m sorry, you had a lawsuit against the
      Carpenter’s that was dismissed in 2004 didn’t you?
      A: Yes.
      ***
      Q: I do want to ask you just this dismissal of the previous
      lawsuit that you had, you actually had given your consent to
      your attorneys to dismiss that case, hadn’t you?
      A: I withdrew my consent.
      Q: Okay. The question is, you had given consent to your
      attorneys, didn’t you?
      A: Initially.
      Q: Okay. And then you ended up suing your attorney, Frank
      Howard, and his firm over that dismissal, didn’t you?
      A: Yes, I did.
      Q: As a matter of fact also, you have also filed a suit against
      the Union County Commissioners, haven’t you?
      A: An action against the Union County Engineers.
      Q: Okay. This is Defendant’s Exhibit N. Defendant’s Exhibit
      N from United States District Court, October 18, 2005. Ralph
      Yeager versus the Union County Commissioners. Do you see
      that?
      A: Yes.
      Q: And Steve Stolte, Union County Engineer?


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Case No. 14-09-19


      A: Yes.
      Q: And the Carpenter’s as well, right?
      A: Right.
      Q: Sir, didn’t that Federal Court lawsuit, Exhibit N, that dealt
      with the same stuff we’re here for today, right? The same
      drainage, the same problems, didn’t it?
      A: That dealt with prescriptive easement, violation of
      prescriptive easement by the county.
      Q: Okay. You’ve also sued the Carpenters in that case too,
      didn’t you?
      A: They were part of the action. Yes.
      Q: Okay. And weren’t you making the same allegations that
      you’re making here today?
      A: On that part of it, yes, pretty much.
      ***
      Q: That’s the same allegations you’re making against the
      Carpenter’s here, right?
      A: Similar allegations. Yes.
      ***
      Q: Mr. Yeager, all this happened with this breather that you
      say Mr. Carpenter took out, which was on his property. That
      happened long before your dismissal of your case in July of
      2004, right? Didn’t it?
      A: Yes.
      ***
      Q: Okay. There’s a lot of talk about July, 2004, the dismissal
      of your first case. And I know we asked you at the hearing we
      talked about, about whether Mr. Carpenter had done anything
      or whether there had been any changes to the dam since 2002.
      And you said no. And then actually we asked you at deposition
      May 24, 2004, if after June of 2003, if anything else had
      happened that had hurt your drainage. And you told us, not
      that I can think of right now. Right?
      A: If that’s what the deposition said.
      ***
      Q: The filter zones that you complaint about were all in place
      before you dismissed your suit in July of 2004, right?
      A: Not to the extent they are now.
      Q: They were constructed and built, weren’t they? The county
      -- the county came and put more rock on them, right?


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Case No. 14-09-19


      A: Not to the extent they are now.
      ***
      Q: * * * do you have a way of separating the claims, you know,
      the claims you’ve made about the Union County Engineer
      causing you damage and the claims you made about the
      Carpenters causing you damages for the same things?
      A: Not for the same things. We’re talking about two different
      issues here.
      Q: Okay. Well, we’re talking not just about two different
      issues, but, what, four or five different lawsuits, too, right?
      A: Four.
      Q: How many lawsuits have you filed against -- relating to this
      drainage problem, how may lawsuits have you filed?
      A: I don’t know.
      Q: Okay.
      A: I initially tried for one.
      Q: Okay you filed one first. When did you file your first
      lawsuit?
      A: That would have been 2003.
      Q: Okay. Then you filed another lawsuit in Federal Court that
      we saw. That wasn’t until 2005 though, right, when you sued the
      Union County Commissioners?
      A: I believe. I believe.
      Q: Okay. You had your first lawsuit dismissed in July 2004,
      right?
      A: Correct.
      Q: You sued your lawyers then right? You sued your lawyers?
      A: Yes.
      Q: In a malpractice case, right?
      A: Correct.
      ***
      Q: And then your case with -- against your attorneys was
      settled, is that right also?
      A: Correct.
      Q: Okay. And then you filed another action against the
      Carpenters, right? And that’s the action we have here, right?
      A: After they filed an action against me.
      Q: Okay. Well, they filed a counterclaim here against you in
      this case after you filed this action.
      A: First they filed an action against me.


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Case No. 14-09-19


       Q: Okay. You had also filed an action against them in Federal
       Court in 2005 as well, right?
       A: Yes. They were -- * * * They were part of that action. Yes.
       Q: After your first suit was dismissed in July, 2004, you
       actually then thereafter conducted another -- you’ve called it a
       surface relief waterway, is that right? Did you do some
       additional trenching and construction?
       A: That was that power ditch. Yes.
       Q: Okay. So that’s after the first case is dismissed, then you
       continue to power ditch to move water, right?
       A: Yes.

(Tr. Vol. III at 180, 185-187, 212, 219-220, 251-254). In addition to Yeager’s

testimony, Yeager’s attorney, Frank K. Howard, Esq., who represented Yeager in

the 2003 lawsuit he filed against the Carpenters, testified about: filing the previous

lawsuit against the Carpenters, including the previous lawsuit’s general allegations

and facts; the stipulation of dismissal with prejudice; and the subsequent

malpractice lawsuit Yeager filed against him. (Tr. Vol. VI at 180-193). Finally,

during closing argument, counsel for the Carpenters, Mr. Herd, told the jury:

       * * Mr. Yeager doesn’t have a tile plan, an irrigation plan. He
       has a litigation plan is what he has. And you’ve all heard all
       about that throughout this case. A litigation plan. That’s his
       solution. Not a solution to work with people that are going to
       find out what’s going out [sic], and find out how to take the
       water off his field without hurting his neighbor. He just wants
       to litigate. He wants to litigate against the Carpenters. He
       wants to litigate against the county. He want [sic] to relitigate
       [sic]. After his case is over he wants to come back, try a second
       bite at the apple when it didn’t work the first time. It’s just a
       litigation plan. That’s all it is. Four lawsuits: this one, the one
       in Federal District Court where he sued the Union County
       Commissioners and the Union County Engineer and the
       Carpenters. * * * So you sue the county, you sue the Carpenters,


                                        - 25 -
Case No. 14-09-19


       and maybe, I don’t know, maybe you get lucky in one of these
       suits. Maybe you get lucky and you, you know, you roll the dice
       and you get your money. And that’s what he -- that’s what he’s
       trying to do and what he’s kept trying to do. So now he sued the
       Carpenters again, he sued his former lawyer. * * * And then it
       gets it to a point where that lawsuit’s dismissed, July 2004.
       You’re probably wondering why’s this guy keep saying July
       2004? Because that’s when this suit against the Carpenters was
       dismissed. It was a suit about this very same stuff. It was a suit
       about the north culvert and the south culvert dams, the filter
       erosion zones, the north one, the south one. And that wasn’t
       what that case is about Mr. Yeager would have told you. That’s
       exactly what that case was about. Okay? Exactly. And Mr.
       Carpenter has to defend himself. Well, the case is dismissed in
       July 2004. Well, what happens? A week later Mr. Yeager is
       power ditching through a ridge again. * * *

(Tr. Vol. VIII at 45-46, 55-56). Thereafter, co-counsel for the Carpenters, Mr.

Ratliff, continued with this theme:

       * * That’s one of the problems with America. And number two
       and more importantly in this case, we got too many people in
       America suing people. In 31 years of experience, I’ve seen this.
       It’s what I called suititis. Suititis. And Mr. Ralph Yeager has
       one of the worst cases of suititis you’ll ever see. It’s not who he
       sued. The question is, who hasn’t he sued? * * * But send the
       message to Mr. Yeager you don’t litigate. * * * Now, I’m asking
       you to send this message. * * * Quit suing. You’re a bad
       neighbor.

(Id. at 70, 75). The jury, thereafter, returned its verdicts, and Yeager lost on all of

his claims. (Tr. Vol. VIII at 115-117); (Doc. Nos. 294-296).

       {¶38} As the Court of Appeals for the Tenth District has noted:

       “The charge of litigiousness is a serious one, likely to result in
       undue prejudice against the party charged, unless the previous
       claims made by the party are shown [not] to have been


                                        - 26 -
Case No. 14-09-19


       fraudulent. * * * As we said in Raysor v. Port Authority, 768 F.2d
       34, 40 (2d Cir.1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227,
       89 L.Ed.2d 337 (1986), ‘[a plaintiff’s] litigiousness may have
       some slight probative value, but that value is outweighed by the
       substantial danger of jury bias against the chronic litigant. The
       trial court has a duty to prevent exploitation of this prejudice * *
       *.’ (Citation omitted.) Although Raysor dealt with questions
       asked of a pro se litigant, the serious impact of a charge of
       litigiousness, and the responsibility of the trial judge to guard
       against it, remain the same when the accusation is made in an
       opening statement or when the party is represented by counsel *
       * *, particularly since counsel’s objection to the statement was
       overruled. * * * ”

Eller v. Wendy’s Internatl., Inc. (2001), 142 Ohio App.3d 321, 332, 755 N.E.2d

906, quoting Outley v. New York (C.A. 2, 1988), 837 F.2d 587, 592. Throughout

the proceedings, and especially in opening and closing statements, counsel for the

Carpenters characterized Yeager as a litigious person, perpetuating one of the

great “problems with America.” The trial court’s jury instruction on res judicata

provided the jury the vehicle by which to send the message the Carpenters’ asked

the jury to send to Yeager: “Quit suing. You’re a bad neighbor.” Therefore, we

find that Yeager was prejudiced by the trial court’s erroneous instruction on res

judicata. Although the Carpenters correctly note that, without an interrogatory, it

is impossible to definitively conclude that the jury relied upon the erroneous res

judicata instruction to reach its verdicts, the trial court denied Yeager’s request for

such an interrogatory; and therefore, we will not hold this fact against Yeager in

light of the Carpenters’ emphasis of the prior litigation throughout the trial.



                                        - 27 -
Case No. 14-09-19


          {¶39} Therefore, we sustain Yeager’s cross-assignment of error and

remand this matter for further proceedings not inconsistent with our opinion

herein.

               CARPENTERS’ ASSIGNMENT OF ERROR NO. II

          THE TRIAL COURT ERRED IN GRANTING THE
          PLAINTIFF-APPELLEE/CROSS-APPELLANT’S  MOTION
          FOR A DIRECTED VERDICT ON THE DEFENDANT-
          APPELLANT/CROSS-APPELLEE’S CLAIM FOR PUNITIVE
          DAMAGES AND ATTORNEY FEES.

               CARPENTERS’ ASSIGNMENT OF ERROR NO. III

          THE TRIAL COURT ERRED IN INSTRUCTING THE JURY
          ON DAMAGE TO REAL ESTATE THAT IF THE REPAIR
          COSTS EXCEEDED THE DIFFERENCE IN THE FAIR
          MARKET VALUE OF THE PROPERTY IMMEDIATELY
          BEFORE AND AFTER THE DAMAGE THEN THIS
          DIFFERENCE IN VALUE WAS ALL THAT THE OWNER
          COULD RECOVER.

          {¶40} In their second assignment of error, the Carpenters argue that the

trial court erred by granting Yeager’s motion for a directed verdict on punitive

damages and attorney fees. In their third assignment of error, the Carpenters argue

that the trial court erred by instructing the jury that damages to real property are

limited to the diminution of real property’s fair market value if the repair costs

exceed this value.




                                        - 28 -
Case No. 14-09-19


       {¶41} We, however, overrule these assignments of error as moot in light of

our decision to sustain Yeager’s cross-assignment of error and remand for further

proceedings.

       {¶42} Having found error prejudicial to the cross-appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




                                      - 29 -
