[Cite as Novy v. Ferrera, 2014-Ohio-1776.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


DR. EUGENE NOVY, et al.,                       :      OPINION

                 Plaintiffs-Appellants,        :
                                                      CASE NO. 2013-P-0063
        - vs -                                 :

JOSEPH FERRARA, JR., et al.,                   :

                 Defendants-Appellees.         :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2009 CV
01654.

Judgment: Affirmed in part, reversed in part, and remanded.


Diane A. Calta and Joseph W. Diemert, Jr., Joseph W. Diemert, Jr. & Associates Co.,
L.P.A., 1360 S.O.M. Center Road, Cleveland, OH 44124 (For Plaintiffs-Appellants).

Harry A. Tipping, Harold M. Schwarz, III and Christopher A. Tipping, Stark & Knoll Co.,
L.P.A., 3475 Ridgewood Road, Akron, OH 44333 (For Defendants-Appellees).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiffs-appellants, Anne and Dr. Eugene Novy, appeal from the

judgments of the Portage County Court of Common Pleas, granting summary judgment

in favor of defendants-appellees, Joseph and Victoria Ferrara, on the Novys’ claim for

Intentional Interference with the Flow of Water, denying the admission of certain

evidence, and following a trial, entering judgment in favor of the Ferraras on the Novys’

remaining claims. The issues to be determined in this case are whether the trial court
erred by dismissing a claim for interference with surface water, whether it is error to fail

to award nominal damages in a trespass action, whether a permanent injunction is

proper when the grounds for such injunction are unclear, and whether the trial court errs

in excluding testimony of a witness who is undisclosed and a witness who did not

prepare the report to which he was testifying. For the following reasons, we affirm in

part, reverse in part, and remand the decision of the lower court.

        {¶2}   On October 28, 2009, the Novys filed a Complaint against their neighbors,

the Ferraras. The Novys owned a property located at 8574 Peck Road, Ravenna, Ohio.

This property’s eastern border adjoined the Ferraras’ property, located at 5241 Gray

Road.     Pursuant to the Complaint, the Ferraras caused a mound of dirt to be

constructed abutting the Novys’ property, which “serves as a dam to the natural flow of

water,” causing water drainage problems on their property. Count One raised a claim

for Trespass, asserting that parts of the mound encroached upon the Novys’ property

and the Ferraras caused excavating equipment to enter the property. Count Two raised

a claim for Nuisance, asserting that the mound prevented the drainage of water,

causing the Novys’ property to regularly flood.         Count Three raised a claim for

Intentional Interference with the Flow of Water, again arguing that the mound blocked

the natural flow of water, causing damage to the Novys’ property.

        {¶3}   The Novys requested damages, a judgment ordering the Ferraras to alter

the grade of their property, and preliminary and permanent injunctions.

        {¶4}   On the same date, the Novys filed a Motion for Preliminary Injunction,

requesting that the Ferraras be enjoined from “continuing to add to, and/or continu[ing]




                                             2
construction of, the mound of debris currently encroaching upon and trespassing onto

Plaintiffs’ property.”

        {¶5}   The Ferraras filed an Amended Answer on December 28, 2009.

        {¶6}   The Novys filed a Motion for Summary Judgment on all three claims on

February 14, 2011.

        {¶7}   The Ferraras filed a Brief in Opposition to Summary Judgment on March

11, 2011. They argued, inter alia, that the claim for Intentional Interference with the

Flow of Water failed because no such claim exists. On the same date, they filed a

Motion to Dismiss or Alternatively, Motion for Summary Judgment, raising the same

argument. The Novys filed a Memorandum in Support of their Motion for Summary

Judgment and Memorandum in Opposition to Defendants’ Motion to Dismiss on April 5,

2011.    Regarding the interference with water issue, they argued that they had

established the elements of common-law negligence, and the requirements for liability

for interference with surface water.

        {¶8}   On April 18, 2011, the trial court issued a Judgment Entry converting the

Motion to Dismiss into a Motion for Summary Judgment.

        {¶9}   On March 12, 2012, a Magistrate’s Decision was filed, denying the request

for a preliminary injunction, finding that there was no evidence of irreparable injury. A

Judgment Entry overruling objections and adopting the Decision was subsequently

issued by the trial court.

        {¶10} On April 30, 2012, the trial court issued an Order and Journal Entry,

granting the Ferraras’ Motion for Summary Judgment as to the claim for Intentional

Interference with the Flow of Water, holding that “[n]either common law nor Ohio




                                            3
statutory law recognizes such a cause of action.” The Motions for Summary Judgment

as to the remaining claims were overruled.

      {¶11} On July 27, 2012, the Novys filed a Motion to Request Court Authorized

On-Site Soil Evaluation, opposed by the Ferraras, asking that they be permitted to

obtain samples of the fill material constituting the mound on the Ferraras’ property. This

request was denied in a Magistrate’s Order, which was adopted by an Order of the trial

court, noting that the composition of the mound was not at issue and that no Civ.R.

34(A)(3) request was served on the Ferraras.

      {¶12} A jury trial was held in this matter on April 17-24, 2013. The following

pertinent testimony and evidence were presented.

      {¶13} The Novys own a horse farm located on Peck Road, purchased in 1990,

which is approximately 95 acres. The property includes several structures, as well as

fenced-in horse pastures. Eugene Novy testified that, when preparing these pastures, it

was necessary to even and grade the ground and add fences.

      {¶14} In the early part of 1998, Eugene had concerns about changes that were

occurring on the portion of the Ferraras’ property adjoining the Novys’. Eugene noticed

that Joseph Ferrara had added a pile of dirt in that area, which he believed affected

water flow. Joseph subsequently added a pipe in the dirt mound, which was on the

Novys’ property by a few inches.       In 1999, the pipe became “crushed,” but was

subsequently fixed.

      {¶15} In the following years, the Novys contacted various local agencies to

express their concerns about the dirt mound.        Eugene testified that the drainage

concerns continued throughout the years. In February of 2008, Eugene contacted the




                                             4
Portage County Soil and Water Conservation District, due to an ongoing flooding

problem that took place over a period of months. James Bierlair of Soil and Water

subsequently contacted the Ferraras regarding this problem. A letter was sent on April

24, 2008, from Bierlair to Joseph, informing him that it “appears that a culvert/crossover

has plugged or smashed.” Joseph fixed this condition in the beginning of May of 2008,

but flooding still remains a concern.

       {¶16} Eugene testified that some boulders on the Ferraras’ property were also

encroaching onto his land, by less than a foot. He believed the boulders may also be

blocking the natural drainage of the water. Eugene testified that he believed these

issues caused a decrease in the value of his property.

       {¶17} Anne Novy, Eugene’s wife, and their daughter, Cheryl, both testified about

the water pooling that was occurring on the property and noted that it was causing

erosion and potentially impacting the fence and pasture nearest the property line.

       {¶18} Daniel Ballentine testified regarding excavation work that he did on both

the Ferraras’ and the Novys’ properties. He performed work on the Ferraras’ property,

moving fill near their property line around 1998. Ballentine began conducting work on

the Novys’ property in 1998, much of it occurring in the area close to the property line.

He removed trees, leveled the area near the boundary, flattened out a “knoll,” dug

trenches, and installed a pipe to divert a spring.

       {¶19} Joseph Gregory, a certified arborist, assessed trees on the Novys’

property and determined that the poor condition of several trees may have been caused

by root damage from the soil and boulders in the area of the boundary line.




                                             5
      {¶20} Steven Hovanscek, an engineer and surveyor, reviewed various

documents in this matter, including surveys and maps, and visited the site several

times. He relied on a survey that had been prepared by another surveyor. He noted

that the Ferraras’ pipe and boulders encroached on the Novys’ property by less than a

foot. He testified that the mound on the Ferraras’ property was causing surface water to

run back onto the Novy property.

      {¶21} Hovanscek prepared a report with suggestions to fix the problem,

including removing the fill from the Ferraras’ property. He noted that he had not come

up with the cost estimate to remove the fill and this was done by Tom Cappello, the Vice

President of Hovanscek and Associates. The court determined that Hovanscek could

not testify to this since he did not prepare the estimate and was not qualified to give an

estimate on such a project.

      {¶22} Joseph Ferrara testified that he purchased the property at Gray Road,

where his current residence is, in 1991.    In 1998, he began to use dirt to fill the area

adjacent to the Novys’ property, leveling an area of “rough terrain.” He continued work

on this project over a period of years. He did not believe that this work had any impact

on the way the water flowed in this area and had no intention of diverting the surface

water to the Novys’ property.

      {¶23} Ferrara noted that he had changed the elevation of his property by

approximately 3 to 4 feet in the area that was filled, which was approximately 200 by

100 feet, and built a rock retaining wall in the same area. He added the pipe on his

property through the mound on the recommendation of the Soil and Water Conservation




                                            6
District to help the water travel. He believed that construction by the Novys caused the

flooding problem.

         {¶24} Ferrara admitted that in 2008, the pipe became plugged and the water

flow stopped, but that he fixed this problem once he was made aware that it had

occurred.

         {¶25} Dustin Keeney, a civil engineer, explained that grade changes on the

Novys’ property could have altered the drainage patterns.          He explained that the

construction of Ferraras’ mound did not alter the flow of the surface water.

         {¶26} During the trial, the court dismissed Victoria Ferrara as a party, since she

was not involved in making the changes on the Ferraras’ property.

         {¶27} On the Trespass claim, the jury found that the Ferraras did enter upon the

Novys’ land without permission, but that no damage was caused by this trespass. The

jury also found that no nominal damages were caused by the trespass. Regarding the

Nuisance claim, the jury found that the defendant did not create “a nuisance by

unreasonably interfering with the flow of surface water on and around the * * * property

line.”

         {¶28} A Magistrate Entry of Judgment on Jury Verdict was filed on April 25,

2013.

         {¶29} On May 8, 2013, the Novys filed a Motion for Permanent Injunction,

Judgment Notwithstanding the Verdict, or New Trial.

         {¶30} The trial court issued an Order and Journal Entry on June 18, 2013,

denying the Motion. The court found that the Novys failed to establish any of the factors

necessary for an injunction.




                                             7
       {¶31} The Novys timely appeal and raise the following assignments of error:

       {¶32} “[1.] The trial court erred as a matter of law when it granted Defendants’

motion for summary judgment on Plaintiffs’ claim for intentional interference with the

flow of water and dismissed Plaintiffs’ cause of action based upon its finding that neither

Ohio common law nor Ohio statutory law recognizes such a cause of action.

       {¶33} “[2.] The jury verdict finding against the Appellants and for the Defendant

on their claim for trespass was against the manifest weight of the evidence.

       {¶34} “[3.] The trial court abused its discretion when it failed to enter a

permanent injunction order based upon the evidence and testimony elicited at trial, the

jury determination that the Defendant trespassed on Appellants’ property, the showing

of irreparable injury and the existence of no adequate remedy at law.

       {¶35} “[4.] The trial court abused its discretion when it failed to allow Stephen

Hovanscek to testify as to the cost estimate to restore the property to its original and

natural drainage condition when Mr. Hovanscek was qualified as an expert to render

such opinion, when it failed to allow Mr. Cappello to testify as to the data he compiled

and when it failed to allow Appellants to conduct soil borings of the mound.”

       {¶36} In their first assignment of error, the Novys argue that the trial court erred

by dismissing their claim for Intentional Interference with the Flow of Water, based on its

holding that no such claim of action is permissible under the law.

       {¶37} The Ferraras argue that no cause of action for such a claim exists under

statutory or common law.

       {¶38} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated,




                                            8
(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from

the evidence * * * that 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, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate

court to conduct an independent review of the evidence before the trial court without

deference to the trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist.

Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27.

       {¶39} Pursuant to McGlashan v. Spade Rockledge Terrace Condo Dev. Corp.,

62 Ohio St.2d 55, 402 N.E.2d 1196 (1980), a landowner may be held liable when “his

harmful interference with the flow of surface water is unreasonable.” (Citation omitted.)

Id. at 60.   Courts have noted that surface water disputes are, “[u]nder a rule of

reasonableness, determined on a case-by-case basis, [and] the essence of liability is

measured by principles of common-law negligence.” Hughes v. Mill Creek Properties,

Ltd., 11th Dist. Trumbull No. 2005-T-0151, 2006-Ohio-7008, ¶ 21, citing Ogle v. Kelly,

90 Ohio App.3d 392, 396, 629 N.E.2d 495 (1st Dist.1993). “Under the reasonable-use

rule, * * * the defendant’s liability for interference with surface water flow is controlled by

principles of common law negligence, regardless of whether the plaintiff’s cause of

action sounds in nuisance or trespass.” Franklin Cty. Dist. Bd. of Health v. Paxson, 152

Ohio App.3d 193, 2003-Ohio-1331, 787 N.E.2d 59, ¶ 30 (10th Dist.). Thus, it appears




                                              9
that some courts evaluate claims for interference with surface water as negligence

claims.

       {¶40} Several cases from this court refer to claims for “Interference with Surface

Water” being raised, although they do not evaluate the issue of whether such claims are

existing causes of action under the law, since the parties did not raise this issue. See

Adams v. Pitorak & Coenen Invests., Ltd., 11th Dist. Geauga No. 2011-G-3019, 2012-

Ohio-3015; Duncan v. Clapp, 11th Dist. Portage No. 2011-P-0060, 2012-Ohio-5595.

       {¶41} Regardless, in the present case, although the Novys were not permitted to

maintain their separate action for Intentional Interference with the Flow of Water, the

court, under their Nuisance claim, instructed the jury regarding both the reasonable use

rule and the principles of negligence. The Novys do not dispute the validity of this

instruction. Although the claim sounded in Nuisance, the jury was able to apply the

pertinent and appropriate standard for evaluating surface water disputes. Thus, the

Novys were not prevented from pursuing their claim for the surface water dispute.

Further, the Novys’ claims for Intentional Interference and Nuisance were essentially

identical, since both alleged that the mound stopped the drainage of water, resulting in

stagnant water and flooding, and we cannot find that it was error to allow them to

proceed only on the Nuisance claim. Kerans v. Porter Paint Co., 61 Ohio St.3d 486,

495-496, 575 N.E.2d 428 (1991) (where the appellees raise separate types of claims

for relief, but the allegations within the claims are essentially duplicative, dismissal of

one claim is proper).

       {¶42} The first assignment of error is without merit.




                                            10
       {¶43} In their second assignment of error, the Novys argue that the jury’s verdict

on the claim of Trespass was against the manifest weight of the evidence, since the jury

should have found that nominal damages were incurred and/or the court should have

assessed such damages.

       {¶44} The Ferraras argue that the case law does not support a holding that

nominal damages are required when a trespass is found by a jury.

       {¶45} When reviewing the weight of the evidence, the reviewing court “weighs

the evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost

its way and created such a manifest miscarriage of justice that the [judgment] must be

reversed and a new trial ordered.” (Citation omitted.) Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.

       {¶46} In the present matter, although the jury found that the Ferraras did enter

upon the Novys’ land without permission, it specifically determined that no nominal

damages were caused by the trespass. It also awarded no actual or punitive damages.

       {¶47} Contrary to the Ferraras’ contention, various appellate courts, including

this district, have found that “in an action for trespass, if trespass is shown, the plaintiff

is always entitled to some damages, even though they may be nominal.” (Citation

omitted.) Rini v. Dyer, 4th Dist. Scioto No. 07CA3180, 2008-Ohio-4172, ¶ 33, citing

Pearl v. Pic Walsh Freight Co., 112 Ohio App. 11, 13, 168 N.E.2d 571 (1st Dist.1960);

W. Channel Yacht Club v. Turner, 11th Dist. Lake No. 98-L-156, 1999 Ohio App. LEXIS

5757, 10-11 (Dec. 3, 1999) (“[i]t is well-settled Ohio law that once a party proves that he

has been trespassed against that party has a right to nominal damages * * * even if an




                                             11
individual actually benefited by the act of the trespasser”) (citation omitted); Misseldine

v. Corporate Investigative Servs., Inc., 8th Dist. Cuyahoga No. 81771, 2003-Ohio-2740,

¶ 31 (“a showing of trespass entitles a plaintiff to at least nominal damages”). Since the

jury in this case found that trespass did occur, nominal damages should have been

awarded.

      {¶48} The Novys argue that, if the jury had properly awarded nominal damages,

it also would have considered awarding punitive damages and attorney fees. However,

since the jury failed to determine that even nominal damages were necessary to remedy

the trespass, it appears that it had no intent to award any other damages. The jury was

instructed as to punitive damages and chose to give no award, a determination which

we need not second-guess. Furthermore, it has been noted that “[n]ominal damages * *

* are not the actual damages that are a prerequisite to an award of punitive damages.”

Caserta v. Connolly, 6th Dist. Ottawa No. OT-03-004, 2004-Ohio-6001, ¶ 14, citing

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 82, 461 N.E.2d 1273 (1984); Utz v.

Stovall, 11th Dist. Portage No. 2012-P-0135, 2013-Ohio-4299, ¶ 62 (“[p]unitive

damages may not be awarded when a jury fails to award compensatory damages”).

      {¶49} Based on the foregoing, and since it was an error as a matter of law to fail

to award nominal damages, we remand for the trial court to issue a judgment ordering

nominal damages.

      {¶50} The second assignment of error is with merit, to the extent discussed

above.

      {¶51} In their third assignment of error, the Novys argue that the trial court

abused its discretion when it failed to enter a permanent injunction, based on the




                                            12
evidence presented at trial and the jury’s determination that Joseph Ferrara trespassed

on the Novys’ property.

       {¶52} The Ferraras argue that the Novys failed to prove the elements necessary

for a permanent injunction, including that they suffered an irreparable injury.

       {¶53} The decision “whether to grant or deny an injunction is a matter solely

within the discretion of the trial court and a reviewing court should not disturb the

judgment of the trial court in the absence of a clear abuse of discretion.” Danis Clarkco

Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590, 653 N.E.2d 646

(1995), paragraph three of the syllabus; Bd. of Suffield Twp. Trustees v. Rufener, 11th

Dist. Portage No. 2010-P-0061, 2011-Ohio-3294, ¶ 28.

       {¶54} In determining whether to grant an injunction, a court must look at the

“character of the case, the particular facts involved, and factors relating to public policy

and convenience.” Cementech, Inc. v. Fairlawn, 109 Ohio St.3d 475, 2006-Ohio-2991,

849 N.E.2d 24, ¶ 10; Orrenmaa v. CTI Audio, Inc., 11th Dist. Ashtabula No. 2007-A-

0088, 2008-Ohio-4299, ¶ 95 (“[a]n injunction is an extraordinary equitable remedy which

is particularly dependent on the specific facts and circumstances of a given case”)

(citation omitted).

       {¶55} “To be entitled to a preliminary injunction, the moving party must establish,

by clear and convincing evidence, that (1) there is a substantial likelihood of ultimately

prevailing on the merits, (2) irreparable injury will occur if the injunction is not granted,

(3) the rights of third parties will not be harmed if the injunction is granted, and (4) the

injunction will serve the public interest.” (Citation omitted.) Arndt v. P & M Ltd., 11th

Dist. Portage Nos. 2007-P-0038 and 2007-P-0039, 2008-Ohio-2316, ¶ 64.                   “The




                                             13
requirements for a permanent injunction are essentially the same as those for a

preliminary injunction, ‘except instead of the plaintiff proving a “substantial likelihood” of

prevailing on the merits, the plaintiff must prove that he has prevailed on the merits.’”

(Citation omitted.) (Emphasis sic.) Id. at ¶ 65.

       {¶56} Following the trial in this matter, the Novys moved for an injunction “based

upon the finding of trespass resulting from the encroaching soil, mound, rocks, and

water,” and requested an order for the “encroachment” to be removed.

       {¶57} The court concluded that the Novys failed to meet the elements necessary

to prevail on a claim for a permanent injunction.        Although the jury did find that a

trespass occurred, several different issues were raised by the Novys in their Complaint

for Trespass, including that the mound, as well as other items including boulders, were

encroaching upon their property, and that the Ferraras brought excavating equipment

on their land.   The jury was also instructed regarding the flow of water under the

Trespass claim instruction. It is not clear from the jury’s verdict whether it believed

there is an ongoing trespass that must be remedied through an injunction or whether it

found that the trespass was related to some limited entry onto the property or flooding

that occurred when the pipe was clogged. The jury found no damages were caused to

the Novys through any of the Ferraras’ actions, which appears to support a conclusion

that they did not believe there was an ongoing problem that would justify the trial court

finding that a permanent injunction was necessary and that irreparable injury exists.

       {¶58} Further, it appears from the Novys’ Motion that they are requesting

removal of the entire mound, as they noted that both the mound and water were part of

the “encroachment” that they want removed. However, under the nuisance claim, which




                                             14
was based entirely upon the existence of the mound and its impact upon the flow of

water, the jury found in the Ferraras’ favor. Thus, removal of the mound would not be

warranted under the facts presented or the jury’s verdict.

       {¶59} The remaining injunction factors also do not appear to have been met,

since evidence was not presented that the injunction would serve the public interest. It

is questionable whether there was any evidence that the injunction would not hurt a

third party, given that Victoria Ferrara was dismissed from the case and any removal of

fill from the property would presumably harm her right to utilize her property. Based on

the foregoing, we cannot find that the trial court’s decision to deny the request for a

permanent injunction rises to the level of an abuse of discretion.

       {¶60} The third assignment of error is without merit.

       {¶61} In their fourth assignment of error, the Novys raise several issues related

to the trial court’s rulings on the admission of certain evidence and testimony.

       {¶62} Both the admission of evidence and the determination regarding the

admission of expert witness testimony lie within the sound discretion of the trial court.

Peters v. Ohio State Lottery Comm., 63 Ohio St.3d 296, 299, 587 N.E.2d 290 (1992);

Rilley v. Twp. of Brimfield, 11th Dist. Portage No. 2009-P-0036, 2010-Ohio-5181, ¶

56. Discovery matters are also reviewed under an abuse of discretion standard. Mauzy

v. Kelly Servs., Inc., 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996).

       {¶63} The Novys first argue that the trial court erred by failing to allow

Hovanscek to testify about the estimate to perform work to remove the Ferraras’ mound.




                                            15
       {¶64} Pursuant to Evid.R. 703, “facts or data upon which an expert bases an

opinion must be those perceived by him or admitted in evidence at the hearing.” State

v. Jones, 9 Ohio St.3d 123, 125, 459 N.E.2d 526 (1984).

       {¶65} In the present case, Hovanscek was permitted to testify as an expert

regarding his determination of the cause of the flooding to the Novys’ property and

remedies to this problem. He prepared a report addressing this issue. However, he

was not permitted to testify regarding a cost estimate to fix the flooding problem. During

his testimony, he stated that he did not prepare the estimate and that another member

of Hovanscek and Associates did this at his direction. That individual, Tom Cappello,

prepared drawings regarding “earth work quantities,” used a computer to determine the

cubic yards of work needed, and determined the costs of removing and transporting the

dirt. Cappello was also the one to do the pricing work. Hovanscek stated that he has

“been retired since ‘04 so, therefore, it would be more practical to have someone that’s

actively in it come up with those numbers.” Hovanscek did review the estimate when it

was finished. The court held that the cost estimate could not be admitted and stated

that Hovanscek “isn’t qualified to give any more information on that or give an estimate

for that matter.”

       {¶66} Based on the foregoing facts, and Hovanscek’s apparent limited

involvement and knowledge of the figures and measurements in the estimate, we

cannot find that the trial court abused its discretion in disallowing this testimony.

Hovanscek admitted he does not generally do these types of estimates anymore and

that he did not do the work to determine the price. His familiarity with the property for




                                           16
the purposes of determining the cause of the flooding does not translate into familiarity

with the necessary facts to determine the cost of performing the work in question.

       {¶67} The Novys also argue that the trial court erred by not allowing Cappello,

the individual who prepared the cost estimate of removing the mound from the Ferraras’

property, to testify.   The court’s ruling on this issue was based on its finding that

Cappello was not disclosed on the witness list or in any other way to the Ferraras. A

review of the record reveals that this was the case.

       {¶68} “Excluding testimony of an undisclosed witness is not an abuse of

discretion when the nondisclosure caused unfair surprise and prejudice to the opposing

party.” Bernard v. Bernard, 7th Dist. Columbiana No. 00 CO 25, 2002 Ohio App. LEXIS

499, 9 (Jan. 30, 2002), citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 85, 482

N.E.2d 1248 (1985). Factors that have been used to determine whether the admission

of testimony of an undisclosed witness is a surprise and is prejudicial include the

complexity of the subject matter, whether the party seeking exclusion of the testimony

has had the ability to interview the witness, the knowledge the moving party has of the

witness’ testimony, and whether the testimony is cumulative. Earley v. Earley, 12th

Dist. Clinton No. CA2012-01-001, 2012-Ohio-4772, ¶ 38.

       {¶69} The Novys argue that since the cost estimate Cappello prepared was

disclosed as part of Hovanscek’s report, the Ferraras were not unfairly surprised.

However, the failure to disclose Cappello as a witness prevented the Ferraras from

researching his qualifications, performing a deposition, or preparing questions. The

Ferraras were not even informed that the witness would testify until he appeared in

court, after the trial had already commenced. Further, the subject matter of Cappello’s




                                           17
proposed testimony was not cumulative of that of disclosed witnesses, since no

testimony was admitted regarding the estimate of the cost of changes to the mound.

Based on these facts, we cannot find that the trial court abused its discretion in

disallowing Cappello to testify.

       {¶70} Finally, the Novys take issue with the trial court’s denial of their Motion to

Request Court Authorized On-Site Soil Evaluation. Given the facts of the present case,

and that the claims were based on the existence of the soil as a cause of change in the

flow of water, there was no issue that related to the composition of the soil in the

mound. The Novys cannot point to how the failure to allow them to obtain a soil sample

had any impact on their case. We cannot find that the denial of this Motion constituted

an abuse of discretion.

       {¶71} The fourth assignment of error is without merit.

       {¶72} For the foregoing reasons, the judgments of the Portage County Court of

Common Pleas are affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion. Costs to be taxed against the parties equally.



TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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