[Cite as Paulsen v. Dennis , 2010-Ohio-4579.]


                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                  HOCKING COUNTY

CHARLES S. PAULSEN,             :
                                :
     Plaintiff-Appellant,       : Case No. 09CA25
                                :
     vs.                        : Released: September 20, 2010
                                :
SHELLEY DENNIS,                 : DECISION AND JUDGMENT
                                : ENTRY
     Defendant-Appellee.        :
_____________________________________________________________
                          APPEARANCES:

Charles Paulsen, Logan, Ohio, Plaintiff-Appellant, pro se.

Larry D. Wines, Mollica, Gall, Sloan & Sillery Co., L.P.A., Athens, Ohio,
for Defendant-Appellee.
_____________________________________________________________

McFarland, P.J.:

           {¶1}        Charles S. Paulsen, Plaintiff-Appellant, appeals the decision

of the Hocking County Court of Common Pleas granting summary judgment

in favor of Defendant-Appellee, Shelley Dennis.1 Paulson claims there was

error below in that 1) the trial court improperly struck the affidavit of his

expert witness; and 2) the trial court's decision violated a city zoning

ordinance. After a full review of the proceedings below, we overrule both

assignments of error and affirm the trial court’s decision.


1
    Paulsen mistakenly refers to himself as the appellee and to Dennis as the appellant in his brief.
Hocking App. No. 09CA25                                                        2


                                  I. Facts

      {¶2}    Paulsen and Dennis are neighbors whose properties are

separated by an alley. In 2005, Dennis constructed a drainage bed along the

side of her house that borders the alley. She was given verbal permission to

do so by the Logan City Service Director. In April 2008, Paulsen filed a

nuisance complaint against Dennis, alleging that the drainage bed

diminished the value of his property.

      {¶3}    Dennis subsequently moved for summary judgment. Attached

to Paulson's memo contra was the “affidavit” of Robert Cecil. Cecil stated

in that document that the drainage bed had substantially devalued Paulsen’s

property. Dennis moved to strike Cecil’s statement, arguing that the

document did not constitute an affidavit because it did meet the requirements

of Civ.R. 56(E). The trial court agreed, struck Cecil's statement from

Paulsen's memo contra, and granted summary judgment in favor of Dennis.

Paulson challenges that decision in the current appeal.

                          II. Assignments of Error

First Assignment of Error

      STRIKING OF THE AFFIDAVIT BY ROBERT CECIL.
Second Assignment of Error

      DISMISSAL OF CASE CONTRARY TO LOGAN CITY CODE.
Hocking App. No. 09CA25                                                             3


                        III. First Assignment of Error

      {¶4}     In his first assignment of error, Paulsen argues that the trial

court erred in striking Robert Cecil's statement from Paulsen's memo contra.

The appropriate appellate standard of review is abuse of discretion. See,

e.g., Madison Cty. Bd. of Commrs. v. Bell, 12th Dist. No. CA2005-09-036,

2007-Ohio-1373, at ¶86; Ohio Farm Bur. Fedn. v. Amos, 5th Dist. No. 05

COA 031, 2006-Ohio-1512, at ¶41. Abuse of discretion is more than an

error of judgment. Rather, it indicates that a ruling was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219, 450 N.E.2d 1140. Furthermore, when applying the abuse of

discretion standard, we may not substitute our judgment for that of the trial

court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301.

      {¶5}     Affidavits are among the evidentiary materials that may be

used to substantiate or contest a motion for summary judgment. But to

qualify as an affidavit, certain requirements must be met. “Supporting and

opposing affidavits shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated in the affidavit.”

Civ.R. 56(E). Additionally, R.C. 2319.02 states that “[a]n affidavit is a

written declaration under oath * * *.”
Hocking App. No. 09CA25                                                        4


      {¶6}     Paulsen asserts that Cecil's statement, attached to Paulson's

memo contra, qualifies as in affidavit and, thus, the trial court erred in

striking it. The contents of Cecil’s statement are presented below:

      {¶7}     “To Whom It May Concern;

      {¶8}     I have been active in the Real Estate industry for over 30

years. It is my opinion that the encroachment of the Flower [sic] bed next

door, into the alley, between the two properties will hinders [sic] the value of

Mr. Paulsen's property about $10,000.00-$15,000.00.

      {¶9}     Any future buyer that may have a larger vehicle or a boat,

camper, trailer would have trouble getting them into the alley. Thereby

reducing the buyer pool. This encroachment also reduces Mr. Paulsen's

access for the same reasons mentioned above.”

      {¶10} Following the text related above is Cecil's signature, a notary

stamp, the date, and the signature of the notary.

      {¶11} We agree with the trial court that this statement does not

constitute an affidavit. As both the trial court and Dennis note, though the

document contains a notary seal and stamp, and the signatures of Cecil and

the notary, nowhere does the document state that Cecil made the statements

under oath or that he made the statements to the best of his knowledge,

information and belief. The document also fails to state that the notary
Hocking App. No. 09CA25                                                         5


witnessed Cecil's signature. In very similar circumstances, the Supreme

Court of Ohio has found that such a document is not an affidavit. Moss v.

Bush, 104 Ohio St.3d 1443, 819 N.E.2d 1125, 2004-Ohio-7119 (Table, No.

2004-2088). See, also, Occhionero v. Cox, 8th Dist. No. 92334, 2009-Ohio-

3891, at ¶7.

      {¶12} Because Cecil's statement does not qualify as an affidavit, the

trial court did not abuse its discretion in striking it from Paulsen's memo

contra. Accordingly, we overrule Paulsen's first assignment of error.

                      IV. Second Assignment of Error

      {¶13} Paulson's second assignment of error is that the trial court's

decision to grant summary judgment in favor of Dennis was contrary to

Logan City Code. But as will be shown below, Paulson lacks standing to

assert this assignment of error.

      {¶14} R.C. 713.13 governs when a person may bring suit for a

violation of a zoning ordinance:

      {¶15} “No person shall erect, construct, alter, repair, or maintain any

building or structure or use any land in violation of any zoning ordinance or

regulation enacted pursuant to sections 713.06 to 713.12, inclusive, of the

Revised Code, or Section 3 of Article XVIII, Ohio Constitution. In the

event of any such violation, or imminent threat thereof, the municipal
Hocking App. No. 09CA25                                                        6


corporation, or the owner of any contiguous or neighboring property who

would be especially damaged by such violation, in addition to any other

remedies provided by law, may institute a suit for injunction to prevent or

terminate such violation.”

      {¶16} Under R.C. 713.13, the party seeking relief bears the burden

of showing that he or she would be “especially damaged.” Conkle v. S. Ohio

Med. Ctr., 4th Dist. No. 04CA2973, 2005-Ohio-3965, at ¶13. Though

evidence of diminished property value is enough to establish special damage

in the context of R.C. 713.13, a party lacks standing under the statute when

he or she fails to present such evidence. Id. at ¶14.

      {¶17} In the case sub judice, Paulson has failed to produce

admissible evidence that the drainage bed has diminished his property value.

Dennis’ expert witness, Katie Perez, stated that the drainage bed has no

negative impact on the value of Paulson's property. And in his deposition

testimony, even Paulson's expert witness, Robert Cecil, indicated that there

was no diminution. He testified as follows:

      {¶18} “Q. Okay. And, again, setting aside, you know, theoretical or

hypothetical vacations and closings are the alleyway, then what impact does

the drainage bed have on Mr. Paulson's property as it currently stands?”

      {¶19} “A. As it currently stands, it really doesn't have any.”
Hocking App. No. 09CA25                                                         7


      {¶20} “Q. Okay.”

      {¶21} “A. Because there is enough room that he can get by that to

get back to his garage. But if it was extended on back across from his

garage, then, no, there wouldn't be enough room.”

      {¶22} “Q. Okay. But as it currently is, but as it currently is, there's

no negative impact on Mr. Paulson's property; is that your opinion?”

      {¶23} “A. Other than encroaching other property, yes.”

      {¶24} Accordingly, the only assertion of a diminution in value is the

purported “affidavit” of Robert Cecil that was attached to Paulson's memo

contra. As already shown in our analysis of Paulson's first assignment of

error, that document does not constitute a valid affidavit. Accordingly, all

the evidence properly before the trial court showed that there was no

diminution in the value of Paulson's property. As such, he lacks standing to

challenge Dennis’ drainage bed on the basis that it violates a zoning

ordinance.

                                V. Conclusion

      {¶25} After reviewing the record below, we find that neither of

Paulson's assignments of error are warranted. Because Robert Cecil’s

statement was not properly sworn, it does not constitute a valid affidavit. As

such, the trial court was correct in striking it from the record. Further,
Hocking App. No. 09CA25                                                       8


because Paulson failed to present admissible evidence that the value of his

property was diminished by the installation of the drainage bed, he lacks

standing to bring suit under R.C. 713.13. Accordingly, we overrule both of

his assignments of error and affirm the decision of the court below.

                                                JUDGMENT AFFIRMED.
Hocking App. No. 09CA25                                                         9


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J.: Concurs in Judgment and Opinion.
Harsha, J. Concurs in Judgment Only.


                                       For the Court,


                                       BY: _________________________
                                           Matthew W. McFarland
                                           Presiding Judge



                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
