[Cite as Estes v. Robbins Lumber, L.L.C., 2016-Ohio-8231.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




PAUL ESTES, et al.,                                    :

        Plaintiffs-Appellants,                         :     CASE NO. CA2016-02-011

                                                       :          OPINION
    - vs -                                                        12/19/2016
                                                       :

ROBBINS LUMBER, LLC, et al.,                           :

        Defendants-Appellees.                          :



       CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                           Case No. 2013-CVH-0332



Donald W. White, 237 Main Street, Batavia, Ohio 45103, for plaintiffs-appellants, Paul Estes,
Allison Estes, Alan Meyer and Lysa Meyer

Matthew R. Skinner, P.O. Box 145496, Cincinnati, Ohio 45250-5496, for defendants-
appellees, Don Kellerman and Joanne Kellerman



        RINGLAND, J.

        {¶ 1} Plaintiffs-appellants Paul Estes, Alison Estes, Alan Meyer, Lysa Meyer, and the

Haunnha Meyer Trust, appeal from the decision of the Clermont County Court of Common

Pleas that granted summary judgment in favor of defendant-appellees, Don Kellerman

(hereafter, "Don"), Joanne Kellerman, and 1040 TechneCenter Drive, Ltd. (collectively, "the

Kellermans").
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        {¶ 2} Appellants own property in Milford, Ohio that abuts land owned by the

Kellermans. In 2012, Don entered into an oral agreement with William Robbins to clear-cut

trees from the Kellermans' property. The agreement called for Don and Robbins to split the

profits from the timbering operation. Robbins then subcontracted the logging work to another

person, Robert Walls.

        {¶ 3} After work began, appellants noticed that loggers were removing trees on their

property. Paul Estes called Don to complain. Don told Estes that he would contact Robbins.

        {¶ 4} Don called Robbins and told him to resolve the problem with Estes. A few days

later Estes noticed that the loggers were back felling trees on or near his property. Estes

called Don again and the two met on site where the loggers were working. Don told the

loggers to stop working and to leave the property.                 It is undisputed that the loggers

trespassed on appellants' property and removed a substantial number of trees.

        {¶ 5} Appellants sued the Kellermans and Robbins Lumber, LLC for trespass. 1 The

parties conducted discovery.          Robbins testified in his deposition that he walked the

Kellermans' property with Don and saw wooden stakes tied with blue ribbons that marked the

boundary lines. Robbins further testified that his agreement with Don was only to cut trees

on the Kellermans' property.

        {¶ 6} The Kellermans moved for summary judgment and attached Don's affidavit, in

which he averred that neither he or his wife trespassed on appellants' property, nor did they

direct Robbins or any of his employees or agents to trespass. The Kellermans also filed

Robbins' deposition.         The Kellermans argued that the summary judgment record

demonstrated that they did not personally trespass or remove trees on appellants' land and

that they did not authorize or instruct Robbins or any other person to do so.


1. Robbins is the sole owner of Robbins Lumber, LLC. Appellants did not sue Robbins, individually, or Robert
Walls.
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      {¶ 7} In response, appellants argued that the Kellermans could be liable for Robbins'

or his agents' or employees' trespasses because Don exerted control over Robbins' work,

i.e., by walking the property with Robbins and directing him where to harvest trees, and by

ordering the loggers to stop logging after Estes complained.

      {¶ 8} In its decision, the trial court noted that it was undisputed that the Kellermans

did not personally trespass or remove any trees from appellants' property. It then analyzed

whether the Kellermans could nevertheless be liable to appellants through agency principles.

The court concluded that the facts of the case demonstrated that Robbins was an

independent contractor and the Kellermans had no control over how he ran his logging

operation. Accordingly, the court concluded that the Kellermans could not be liable for any

trespass committed by Robbins or his employees or agents and granted them summary

judgment.

      {¶ 9} Appellants assign two errors for our review.

      {¶ 10} Assignment of Error No. 1:

      {¶ 11} THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT "THE

BOUNDARIES WERE CLEARLY MARKED WITH STAKES AND RIBBONS" SINCE THAT

FACT WAS IN DIRECT CONFLICT WITH PLAINTIFF, ALAN MEYER'S TESTIMONY.

      {¶ 12} Appellants argue that the trial court erred when it found in its decision that the

boundary line between the Kellermans' and appellants' properties was "clearly marked with

stakes and ribbons," an alleged fact in Don's summary judgment affidavit. Robbins also

testified in his deposition that when he walked the property with Don it was bounded by

wooden stakes tied with blue ribbons.

      {¶ 13} However, appellants contend that Alan Meyer disputed this fact in his

deposition testimony when he testified that there were only steel pins in the ground at the

time of the logging operation and that stakes were put in later by a surveyor hired by the
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parties after the trespass. However, Meyer's testimony was uncertain on this point because

he also testified that he had "no idea" how the Kellermans' property was marked.

         {¶ 14} In reviewing a decision granting summary judgment, our standard of review is

de novo. White v. DePuy, Inc., 129 Ohio App.3d 472, 477-478 (12th Dist.1998). We review

the trial court's decision independently and without deference to the lower court decision.

And we follow the standards set forth in Civ. R. 56(C). Id.

         {¶ 15} Appellants do not explain why the existence or nonexistence of a clearly visible

boundary line is a material issue of fact in this case. Appellants merely argue that the

boundary line issue was a genuine issue of fact and "should cause a trier of fact to question

the integrity of all of [Don's] self-serving statements." Appellants also argue that if the trier of

fact believed Alan Meyer's testimony that the boundary was not clearly marked then "there is

a clear basis for liability on [Don.]" However, appellants never explain the basis for that

liability.

         {¶ 16} "Trespass is an unlawful entry upon the property of another." Chance v. BP

Chemicals, Inc., 77 Ohio St.3d 17, 24 (1996). To state a cause of action in trespass, a

property owner must prove two essential elements: (1) an unauthorized intentional act, and

(2) an intrusion that interferes with the owner's right of exclusive possession of her property.

Robinson v. Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 11. The

plaintiff bears the burden of proving each element of a trespass claim. Id.

         {¶ 17} Intentional conduct is an element of trespass. A person can be liable for

trespass whether he causes harm to any legally protected interest so long as he intentionally

enters land in the possession of another or causes a thing or a third person to do the same.

An intentional tort occurs when the actor desires to cause the consequences of his act, or

believes that the consequences are substantially certain to result from it. Robinson at ¶ 12.

         {¶ 18} The issue of whether the boundary line between the property was clearly
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marked is peripheral to the material and controlling issues of fact in this case.        The

Kellermans supported their summary judgment motion with evidence demonstrating that they

did not personally trespass on appellants' land and that they did not direct Robbins or anyone

else to trespass. Appellants did not submit any summary judgment evidence that would

controvert these points and create a triable issue.

       {¶ 19} Moreover, appellants did not raise the boundary line issue in summary

judgment proceedings. In fact, appellants' statement of facts in its memorandum opposing

the Kellermans' summary judgment motion recites Don's affidavit for the proposition that he

walked the property with Robbins and the boundaries were clearly marked with stakes.

Although appellants filed Alan Meyer's deposition, they did not refer to his allegedly

inconsistent testimony.

       {¶ 20} The "failure to raise arguments, affirmative defenses, and objections to

evidence in opposition to summary judgment will constitute waiver of such arguments."

Zeallear v. F & W Properties, 10th Dist. Franklin No. 99AP-1215, 2000 WL 1015345, *5 (July

25, 2000). Appellants did not contest the Kellermans' factual assertion that Don walked the

property with Robbins and the boundaries were clearly marked. They have waived that

argument on appeal.       In addition, the trial court's decision is properly supported by

uncontroverted summary judgment evidence showing that the Kellermans did not trespass or

intentionally cause another to do so. Accordingly, the first assignment of error is overruled.

       {¶ 21} Assignment of Error No. 2:

       {¶ 22} THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT KELLERMAN

AND ROBBINS' BUSINESS ARRANGEMENT WAS A JOINT VENTURE, THUS BOTH

WERE LIABLE FOR THE ACTS AND/OR CONSEQUENCES OF THE OTHER WHILE IN

THE COURSE OF THEIR BUSINESS [VENTURE].

       {¶ 23} Appellants argue that the trial court should have found that Don's agreement
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with Robbins was a joint business venture and, further, that the Kellermans are liable for the

trespass committed by Robbins or his agents and employees. The Kellermans contend that

appellants are raising this argument for the first time on appeal and are thus precluded from

arguing it now. The Kellermans also argue that the facts do not demonstrate a joint venture.

       {¶ 24} We have reviewed the record and find that appellants did not raise this

argument in the summary judgment proceedings.            Appellate courts do not consider

arguments raised by parties for the first time on appeal. State ex rel. Quarto Mining Co. v.

Foreman, 79 Ohio St.3d 78, 81 (1997). Appellate courts review summary judgment decisions

de novo but the parties are not given a second chance to raise arguments that they should

have raised below. Touhey v. Ed's Tree & Turf, LLC, 194 Ohio App.3d 800, 808-809, 2011-

Ohio-3432, ¶ 27. Accordingly, the second assignment of error is overruled.

       {¶ 25} Judgment affirmed.


       M. POWELL, P.J., and S. POWELL, J., concur.




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