[Cite as Alt v. Bauer, 2019-Ohio-2778.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


JANICE ALT,                                  :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
ROGER L. BAUER, ET AL.,                      :       Case No. 18CA123
                                             :
        Defendants - Appellees               :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2015CV1531




JUDGMENT:                                         Afffirmed in part, Reversed and
                                                  Remanded in part




DATE OF JUDGMENT:                                    July 2, 2019




APPEARANCES:

For Plaintiff-Appellant                              For Defendants-Appellees

J. JEFFREY HECK                                      ANDREW J. BURTON
The Heck Law Offices, Ltd.                           Renwick, Welsh & Burton LLC
One Marion Avenue, Suite 104                         9 N. Mullberry Street
Mansfield, Ohio 44903                                Mansfield, Ohio 44902
Richland County, Case No. 18CA123                                                    2



Baldwin, J.

       Plaintiff-appellant Janice Alt appeals from the October 25, 2017 Order of the

Richland County Court of Common Pleas granting summary judgment in favor of

defendants-appellees.

                        STATEMENT OF THE FACTS AND CASE

       {¶1}   Appellant is the owner of real properly located at 2953 Plymouth-Springmill

Road in Shelby, Ohio. Appellees are neighbors. Appellant and appellees have lived on

adjoining parcels for approximately twenty-two (22) years.

       {¶2}   According to appellant, on or about July 16, 2013, appellee Roger Bauer

and another family member entered onto her property without her permission while

carrying a can of spray paint, a piece of rebar, a metal detector and a sledge hammer.

Appellant, in her affidavit, alleged that she told them repeatedly to get off of her property

and that the property was hers, but appellee Roger Bauer claimed that it was his property

and proceeded to pound the rebar into the ground and spray paint a large “X” with orange

paint on the grass.

       {¶3}   On or about May 19, 2014, appellee Roger Bauer submitted an Application

for Zoning Certificate to Craig Stover as the Jackson Township Zoning Inspector, for the

construction of a six foot high fence at appellees' property. The application indicated that

the fence was to consist of four sections as follows: 24 feet, 24 feet, 80 feet and 120 feet

for a total of 248 feet. No sketch or plan of the proposed fence was attached to the

application which was approved on May 21, 2014 by Stover. Several weeks later, the plan

and sketch of the fence were delivered to the township. The fence was completed in June

of 2014. It was 275 feet.
Richland County, Case No. 18CA123                                                   3


       {¶4}   The Richland County Regional Planning Commission Staff, in September

of 2014, recommended revocation of the fence permit on the basis that it had been

improperly filed and approved, among other reasons.

       {¶5}   In December of 2015, appellant filed a complaint against appellees, alleging

nuisance and trespass. Appellant, in her complaint, sought injunctive relief and money

damages. Appellant, in her complaint, alleged in support of her nuisance claim that the

person who appellees submitted their application to for a fence permit was not the lawful

Zoning Inspector of Jackson Township at the time and that appellees “knew or should

have known” this; that the application was incomplete and improper and that appellees

knew this, and that the fence was completed in a manner inconsistent with the application.

Appellant further alleged in her complaint, in relevant part, as follows, at paragraphs 15-

16:

       {¶6}   “Further, since the erection of the fencing, defendants have failed and

refused to maintain the grass, noxious weeds and other plant materials along their fencing

and between that fencing and plaintiff's property line. This grass, noxious weeds and other

plant material are unsightly and have grown to the point that they violate provisions of the

Ohio Revised Code and also constitutes a nuisance.

       {¶7}   Further, defendants have cemented in place a six foot (6′) high permanent

post in the ground only 3 inches from the plaintiff's southern property line. Such post is

not any portion of any fencing and violates known an (sic) existing Jackson Township

setback regulations and requirements.”

       {¶8}   In support of her trespass action, appellant alleged that, before the fence

was constructed, appellees and their agents had entered onto her property without her
Richland County, Case No. 18CA123                                                  4


permission and remained thereon, refusing to leave despite being informed that they were

improperly on her real property.

        {¶9}   On February 22, 2016, appellees filed an answer and counterclaims for

trespass, nuisance and an injunction. In their counterclaims, they alleged that appellant

and/or her agent trespassed on their property and removed their survey stakes, that

appellant's chain link fence encroached on their property and that the portion of such

fence not encroaching on their property was not in compliance with applicable zoning

regulations, and that appellant's wooden fence was constructed in violation of applicable

zoning regulations, and was either too close to appellees' property or encroaching on it

and that appellant knew or should have known that construction and maintenance of the

fences was in violation of the zoning regulations. Appellees sought both injunctive relief

and damages.

        {¶10} On March 7, 2016, appellees filed a Third Party Complaint against Richard

Gorsuch, appellant's fiancé at all times complained of in the complaint and counterclaim,

alleging trespass. On March 22, 2016, appellant filed a reply to the counterclaim and

Gorsuch filed an answer to the Third Party Complaint.

        {¶11} Thereafter, on August 14, 2017, appellees filed a Motion for Summary

Judgment and a Notice of Dismissal of their counterclaim for nuisance pursuant to Civ.R.

41(A). Appellant and Gorsuch filed a memorandum in opposition to the Motion for

Summary Judgment on September 18, 2017 and appellees filed a reply on October 2,

2017.

        {¶12} Pursuant to an Order filed on October 25, 2017, the trial court granted

appellees' Motion for Summary Judgment and dismissed the case with prejudice.
Richland County, Case No. 18CA123                                                    5


Appellant and Third Party Defendant Richard Gorsuch, on November 1, 2017, filed a

Motion for Findings of Fact and Conclusions of Law. Via an Order filed on November 3,

2017, the trial court overruled the motion.

         {¶13} Appellant filed a Notice of Appeal on November 22, 2017, appealing from

the trial court's October 25, 2017 Order. On February 23, 2018, the trial court filed an

Amended Order overruling Appellant's Motion or Findings of Fact and Conclusions of

Law. On the same date, the trial court filed an Amended Order granting the Motion for

Summary Judgment to add language stating that “There is no just cause for delay.”

         {¶14} Pursuant to an Opinion filed on October 19, 2018 in Janice Alt v. Roger L.

Bauer, 5th Dist. Richland No. 17CA97, 2018 -Ohio- 4264, this Court dismissed the appeal

for want of jurisdiction, finding that the order appealed from was not a final, appealable

order.

         {¶15} Appellees and Third-Party Plaintiffs, on November 21, 2018, filed a Notice

of Dismissal pursuant to Civ.R. 41(A) of their remaining counterclaims and Third-Party

Complaint.

         {¶16} Appellant then appealed from the trial court’s October 25, 2017 Order

granting appellees’’ Motion for Summary Judgment, raising the following assignment of

error on appeal:

         {¶17} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO APPELLEES.”

                                              I

         {¶18} Appellant, in her sole assignment of error, argues that the trial court erred

in granting summary judgment in favor of appellees.
Richland County, Case No. 18CA123                                                    6


      {¶19} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said Civ.R. 56 was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211, 663 N.E.2d 639:

             Civ.R. 56(C) provides that before summary judgment may be

      granted, it must be determined that (1) no genuine issue as to any material

      fact remains to be litigated, (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 viewing such evidence most strongly

      in favor of the nonmoving party, that conclusion is adverse to the party

      against whom the motion for summary judgment is made. State ex rel.

      Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

      citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d

      466, 472, 364 N.E.2d 267, 274.

      {¶20} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

      {¶21} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:

             It is well established the party seeking summary judgment bears the

      burden of demonstrating that no issues of material fact exist for trial. Celotex

      Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d

      265(1986). The standard for granting summary judgment is delineated in
Richland County, Case No. 18CA123                                                    7

      Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: “* * * a party seeking

      summary judgment, on the ground that the nonmoving party cannot prove

      its case, bears the initial burden of informing the trial court of the basis for

      the motion, and identifying those portions of the record that demonstrate the

      absence of a genuine issue of material fact on the essential element(s) of

      the nonmoving party's claims. The moving party cannot discharge its initial

      burden under Civ.R. 56 simply by making a conclusory assertion the

      nonmoving party has no evidence to prove its case. Rather, the moving

      party must be able to specifically point to some evidence of the type listed

      in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

      no evidence to support the nonmoving party's claims. If the moving party

      fails to satisfy its initial burden, the motion for summary judgment must be

      denied. However, if the moving party has satisfied its initial burden, the

      nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

      set forth specific facts showing there is a genuine issue for trial and, if the

      nonmovant does not so respond, summary judgment, if appropriate, shall

      be entered against the nonmoving party.” The record on summary judgment

      must be viewed in the light most favorable to the opposing party. Williams

      v. First United Church of Christ (1974), 37 Ohio St.2d 150.

      {¶22} Appellees, in the case sub judice, sought summary judgment on appellant’s

nuisance and trespass claims.

      {¶23} The Tenth District Court of Appeals recently summarized the tort of

“nuisance” in Hamilton v. Hibbs L.L.C., 10th Dist. No. 11AP–1107, 2012–Ohio–4074:
Richland County, Case No. 18CA123                                                   8


            A “nuisance” is a wrongful invasion of a legal right ord [sic] interest.

     Banford v. Aldrich Chem. Co. Inc., 126 Ohio St.3d 210, 932 N.E.2d 313,

     2010–Ohio–2470, ¶ 17. A plaintiff asserting a suit for nuisance may recover

     for a public nuisance, i.e., an unreasonable interference with a right

     common to the general public. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio

     St.3d 416, 768 N.E.2d 1136, 2002–Ohio–2480, ¶ 8; Hurier v. Ohio Dept. of

     Transp., 10th Dist. No. 01AP1362, 2002–Ohio–4499, ¶ 9. Alternatively,

     such a plaintiff may recover for a private nuisance, i.e., the wrongful

     invasion of the use and enjoyment of property. Beretta U.S.A. Corp. at ¶ 8;

     Arkes v. Gregg, 10th Dist. No. 05AP–202, 2005–Ohio–6369, ¶ 43; see also

     Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 714, 622 N.E.2d

     1153 (4th Dist.1993) (when a particular nuisance qualifies as both a public

     and private nuisance, a plaintiff “may recover either on the basis of the

     particular harm to her resulting from the public nuisance or on the basis of

     private nuisance”). * * *

            A nuisance may be further categorized as either an absolute or

     qualified nuisance. The distinction between absolute and qualified nuisance

     depends on the conduct of the defendant. Angerman v. Burick, 9th Dist. No.

     02CA0028, 2003–Ohio-1469, ¶ 10; Hurier at ¶ 10. “An absolute nuisance is

     based on either intentional conduct or an abnormally dangerous condition

     that cannot be maintained without injury to property, no matter what care is

     taken.” State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 780 N.E.2d 998,

     2002–Ohio–6716, ¶ 59. On the other hand, a qualified nuisance is the
Richland County, Case No. 18CA123                                                    9


      “negligent maintenance of a condition that creates an unreasonable risk of

      harm, ultimately resulting in injury.” Id. * * *

             An action for damages due to a qualified nuisance is premised on a

      defendant's negligence in allowing a dangerous or bothersome condition to

      exist. Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio St.3d 274, 275,

      595 N.E.2d 855 (1992). Therefore, a plaintiff must aver and prove

      negligence in order to prevail. Id. at 276, 595 N.E.2d 855. To succeed on a

      claim for negligence, a plaintiff must establish that the defendant breached

      an applicable duty of care and that the breach proximately caused the

      plaintiff injury. Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 913

      N.E.2d 426, 2009–Ohio–3718, ¶ 36. The standard of care is that care a

      reasonable person would exercise in preventing or correcting the

      dangerous or bothersome condition. Rothfuss v. Hamilton Masonic Temple

      Co., 34 Ohio St.2d 176, 180, 297 N.E.2d 105 (1973); Kramer v. Angel's

      Path, LLC, 174 Ohio App.3d 359, 882 N.E.2d 46, 2007–Ohio–7099, ¶ 23

      (6th Dist.).

Hamilton, at ¶ 15–17, 297 N.E.2d 105.

         {¶24}       Appellant specifically maintains that appellee Roger Bauer clearly

   and intentionally failed to comply with the Jackson Township Zoning Regulations

   before constructing the fence and that, as a result of his intentional conduct, he

   created an absolute nuisance. Appellant contends that the application did not contain

   the required plot plan and sketch of the structure to be built and that the fence, as

   constructed, exceeded the dimensions of the fence contained on appellee’s original
Richland County, Case No. 18CA123                                                   10


   Application which had been approved by Craig Stover. Appellant also asserts that

   Craig Stover was no longer acting as the Zoning Inspector for Jackson Township and

   had no authority to approve appellee’s Application. In short, appellant contends that

   the zoning permit obtained by appellees to build the fence was invalid and that the

   fence, therefore, constituted a nuisance per se.

          {¶25}     R.C. 519.17 states as follows:

             No person shall locate, erect, construct, reconstruct, enlarge, or

      structurally alter any building or structure within the territory included in a

      zoning resolution without obtaining a zoning certificate, if required under

      section 519.16 of the Revised Code, and no such zoning certificate shall be

      issued unless the plans for the proposed building or structure fully comply

      with the zoning regulations then in effect.

      {¶26} Section 1200 of the Jackson Township Zoning Regulations, which is

captioned Public Nuisance” states as follows:

             Buildings erected, moved, razed, or converted, or any use of land or

      premises carried on in violation of any provision of this Resolution are

      declared to be a nuisance per se. Any building or land use activities

      considered possible violations of the provision of this Resolution, which are

      observed by any Township Official, shall be reported to the Zoning

      Inspector.

      {¶27} We concur with appellee that:

             As is very clear from reading the rest of Section 1200 and the rest of

      Article XII, the Zoning Inspector alone is authorized by the Resolution to
Richland County, Case No. 18CA123                                                    11

       investigate and enforce any zoning violations.       The use of the phrase

       “nuisance per se” has no relevance to the law regarding nuisance claims

       between adjoining property owners and is a phrase used within the context

       of the Zoning Resolution because possible violations must first be

       investigated by the Zoning Inspector. Section 1200.1 directs the Zoning

       Inspector to inspect each alleged violation and to enforce the Zoning

       Resolution if the violation exists. This section certainly cannot be relied

       upon as authority of one landowner to sue another for nuisance per se. The

       Township Zoning Inspector alone is responsible for enforcing Section 1200

       and has never found a zoning violation in this matter.

       {¶28} We note that Section 1200 is captioned. “Public Nuisance” and that such

section has no relevance with respect to a private nuisance as is alleged here. Moreover,

appellant does not allege that the fence encroaches on her land in any way or interferes

with her enjoyment of her property as is required for a private nuisance.

       {¶29} Based on the foregoing, we find that the trial court did not err in granting

summary judgment in favor of appellee on appellant’s nuisance claim.

       {¶30} Appellant also alleges that the trial court erred in granting summary

judgment in favor of appellee on her trespass claim. To prevail on a claim of civil trespass,

appellant must establish that appellee “engaged in (1) an unauthorized intentional act and

(2) entry upon land in the possession of another.” Henderson v. Glancy, 9th Dist. Wayne

No. 10CA0017, 2011–Ohio–1152, ¶ 6, quoting DiPasquale v. Costas, 186 Ohio App.3d

121, 2010–Ohio–832, 926 N.E.2d 682 ¶ 102.
Richland County, Case No. 18CA123                                                   12


       {¶31} Appellant, in her complaint, alleged that “shortly before beginning the

erection of the [fence]… defendants and their agents entered into and upon the real

property of plaintiff without right, without permission and remain (sic) thereon despite

being notified that they were improperly on plaintiff’s real property. Defendants’’ actions

and that of their agents in this regard constitute a trespass.” Appellant, in the affidavit

attached to her memorandum in opposition to the Motion for Summary Judgment, further

alleged, in relevant part, as follows:

       {¶32} “Prior to all of this, on or about July 16, 2013, defendant Roger Bauer and

another family member (his brother-in-law) entered upon my property without permission.

They carried a can of spray paint, a piece of rebar, a metal detector and a sledge hammer.

I told defendant Roger Bauer and his brother-in-law repeatedly to get off my property and

that the property was mines (sic). Bauer responded by yelling at me “no, it’s not. It’s my

property!” Defendant Roger Bauer then proceeded to pound the rebar into the ground on

my property and spray paint a large “X” with orange paint on the grass. See photographs

attached hereto as “Exhibits P and Q.” Defendant Bauer claims that he had a survey

completed at that time but I have confirmed that, in fact, no such survey was completed

until April 2014.”

       {¶33} We find that there is a genuine issue of material fact as to whether not

appelless’ actions constituted a trespass and that the trial court erred in granting summary

judgment on appellant’s trespass claim.

       {¶34} Appellant’s sole assignment of error is, therefore, overruled in part and

sustained in part.
Richland County, Case No. 18CA123                                                       13


       {¶35} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed in part and reversed in part. This matter is remanded to the trial court for further

proceedings consistent with this Opinion.

By: Baldwin, J.

Hoffman, P.J. and

Wise, Earle, J. concur.
