Viars v. Ironton , 2016 Ohio 4912 ( 2016 )

[Cite as Viars v. Ironton, 2016-Ohio-4912.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
RONNIE VIARS, ET AL, : Case No. 16CA8
Plaintiffs-Appellants, :
v. : DECISION AND
JUDGMENT ENTRY
IRONTON AND LAWRENCE :
COUNTY AREA COMMUNITY
ACTION ORGANIZATION, : RELEASED: 7/6/2016
Defendant-Appellee. :
APPEARANCES:
Ronnie A. Viars, Kitts Hill, Ohio, pro se appellant.
Richard F. Bentley, Bentley Law Firm, LLC and Curtis B. Anderson, Edwards, Klein,
Anderson & Shope, PLLC, Ironton, Ohio for appellee.
Harsha, J.
{¶1} Ronnie and Dreama Viars filed a pro se complaint against the Ironton and
Lawrence County Area Community Action Organization (the “Organization”) alleging
that the Organization trespassed upon their property and removed a tree situated along
a stream bank. The Viars alleged that the Organization’s removal of the tree altered the
stream dynamics, causing damage to their property. The trial court granted summary
judgment in favor of the Organization.
{¶2} In this pro se appeal Ronnie Viars asserts that the trial court erroneously
granted summary judgment for the Organization because: (1) the trial court did not
apply the relevant statutory provisions correctly, (2) there were disputed material facts,
(3) the trial court failed to construe the evidence in his favor, (4) the trial court failed to
hold an evidentiary hearing, and (5) the trial court did not address all the counts of his
Lawrence App. No. 16CA8 2
complaint. However, the Organization presented undisputed evidence that (1) Viars did
not own the property where the tree had grown, (2) the removal of the tree from the
stream and the temporary placement of the stump on the opposite stream bank did not
cause Viars’s erosion damage, and (3) the Organization performed its work within the
scope of its permit and used reasonable care. Because the trial court correctly granted
summary judgment to the Organization, we overrule Viars’s third, seventh, eighth, ninth,
and tenth assignments of error.
{¶3} Next, Viars claims that the trial court violated his state and federal rights to
a jury trial when it granted summary judgment. Because summary judgment is a proper
procedural mechanism for disposing of claims totally lacking a factual basis, the trial
court did not violate Viars’s right to a jury trial. We overrule Viars’s first and second
assignments of error.
{¶4} Viars also claims that the trial court erred when it denied his partial motion
for summary judgment on counts three and four of his amended complaint. However,
because summary judgment in the Organization’s favor was appropriate on those
counts, that precluded a judgment in his favor. The fourth and fifth assignments of error
are meritless and we overrule them.
{¶5} Finally, Viars asserts that the trial court erred when it reassigned the case
to another judge, who showed favoritism. However, the trial court stated on the record
that the reassignment was based on docket congestion, which is an appropriate basis
for reassignment. And, only the Supreme Court of Ohio has jurisdiction to consider
disqualification for bias or favoritism. Finally, Viars cites to no evidence of any judicial
prejudice or bias that would merit reversal of the trial court’s decision. Thus, we overrule
Lawrence App. No. 16CA8 3
Viars’s sixth and eleventh assignments of error and affirm the judgment of the trial court.
I. FACTS
{¶6} The Organization operates a stream maintenance program under a permit
from the Lawrence Soil and Water Conservation District. The Organization clears log
jams and accumulated flood debris that might restrict the flow of water and cause
further flood damage.
{¶7} In 2012 the Organization was working on Symmes Creek. Viars and the
Mootzes, neighbors opposite Viars on Symmes Creek, gave the Organization a
temporary easement, together with the right of ingress and egress, to clear log jams and
debris from Symmes Creek along their properties. The Organization removed a large
tree that had fallen into the creek nine months earlier after a storm uprooted it and blew
it over. Because the large size of the tree, its stump, and root ball made removing it
difficult, after the Organization removed this debris from the stream, it temporarily
placed the stump and root ball on the Mootzes’ bank until it could safely remove them.
{¶8} According to Viars the fallen tree had provided a natural “tree kicker” and
helped prevent erosion on his property.1 Viars testified that to use the tree as a “kicker”
he simply left it undisturbed where it fell – he did not take any affirmative steps to angle
or move the tree or to secure it with cable or roping after it fell, nor did he cut limbs or
attach brush or evergreen fill. Viars testified that the tree, which lay entirely across the
creek and up onto the bank on the opposite side, stayed in its location until the
Organization removed it. Viars documented the fallen tree’s location with photographs,
1 According to materials Viars attached to his Amended Complaint, a tree kicker is a cut tree that is
placed at a 30 to 40 degree angle to the bank and is secured with cable to an anchor tree growing along
the bank. Additional brush or evergreens should be tied together in bunches and cabled to the kicker tree.
Lawrence App. No. 16CA8 4
which matched those of the Organization. Viars also testified that he measured the
distance from the tree to the creek-side corner of his house as approximately 195 feet.
Viars contends that the Organization caused additional damage to his property as a
result of temporarily placing the stump and root ball on the Mootzes’ stream bank.
{¶9} The Viars filed a pro se complaint that alleged the Organization: Count 1 -
trespassed on his land without his consent; Count 2 - recklessly cut and removed a tree
from his property in violation of R.C. 901.51; Count 3 – violated his riparian rights by
acting recklessly with regard to his property and safety; Count 4 – intentionally
interfered with his riparian rights by placing his property in the stream; Count 5 –
negligently caused damage by failing to correct a known problem; and Count 6 –
intentionally violated its duty of care to him in such a reckless way that it was done
intentionally, with malice, and with total disregard to his rights or safety.
{¶10} Viars filed a partial motion for summary judgment on Counts 3 and 4,
stating that these counts were based on the Organization’s placement of the stump and
root ball on the Mootzes’ stream bank. He claimed that the placement of the stump
within the banks of Symmes Creek was an absolute nuisance or nuisance per se, and
alternatively, it was a qualified nuisance because placing the stump in an unnatural
place caused an alteration of the water course and changed the stream dynamics. Viars
included his affidavit and an affidavit of his neighbor, John Brumfield, in which both of
them state that the stump was left on the stream bank opposite Viars’s property for a
year and it caused noticeable erosion damage.
{¶11} The Organization opposed Viars’s motion by arguing that its stream
maintenance program did not qualify as the type of abnormally dangerous activity that
Lawrence App. No. 16CA8 5
would be an absolute nuisance under the law. They also asserted that the removal of
the tree from the stream and the placement of the stump on the bank was done with
reasonable care and in accordance with the permit granted by the Lawrence Soil and
Water Conservation District. The Organization included an affidavit of the Director of
the Stream Maintenance Program and a letter to Viars from the Conservation District’s
Floodplain Administrator that explained a licensed professional engineer would need to
perform a hydrologic and hydrodynamic study to determine if the removal of the tree
caused erosion damage to Viars’s property. It further asserted that Viars had existing
erosion damage prior to the tree removal and that he had made previous attempts to
stabilize his bank in the same area.
{¶12} The trial court denied Viars’s motion.
{¶13} Later at his deposition Viars testified that he lives in a floodplain and has
experienced numerous flooding since he purchased the property in 2003. He testified
that his property and the interior of his house flooded in 2004. In 2006 or 2007 he added
eight to ten 30-ton truck loads of limestone rock to his creek bank in an attempt to stop
erosion. Since adding limestone to the bank, his property and house have flooded two
more times – in March 2010 and in June 2015.
{¶14} Viars testified that his trespass claim against the Organization was based
upon its removal of the fallen tree outside the 90-day period granted by the temporary
easement. He testified that the tree removal occurred in mid-August after the expiration
of his temporary easement. He acknowledged that none of the tree removal activity
occurred on his property because the organization worked from the Mootzes’ property.
However, he alleges that the tree itself was on his property and the Organization
Lawrence App. No. 16CA8 6
trespassed upon his property when workers pulled the tree from his side to the Mootzes’
bank to remove it.
{¶15} Viars testified that his reckless tree cutting claim was based on the
Organization’s cutting and removing the fallen tree from his property and that the
remaining four counts of his complaint were based on the erosion damage he alleged
was caused by the removal of the tree and its temporary placement on the Mootzes’
stream bank.
{¶16} Viars testified that he had never had his property surveyed nor had he had
any engineering or hydrological studies done to determine if the Organization’s actions
caused property erosion damage.
{¶17} The Organization filed a summary judgment motion, attaching the affidavit
and survey of a registered surveyor, Jeffrey Eastham. As part of the survey he prepared
a plat. Based on this work Eastham concluded Viars did not own the property where the
tree had fallen. Instead, the survey showed that the fallen tree was located north of
Viars’s property boundary.
{¶18} The Organization also submitted the affidavit and report of licensed
engineer, Paul Amburgey. He determined that, in his professional engineering opinion,
the removal of the tree from Symmes Creek and the temporary placement of the
stump/root ball on the opposite creek bank did not cause damage to Viars’s property.
{¶19} The Organization argued that it was entitled to summary judgment
because Viars did not own the land the fallen tree was on, so his trespass claim and his
reckless cutting and removing a tree must fail. And, because the Organization’s
removal of the tree and temporary placement of the stump and root ball did not cause
Lawrence App. No. 16CA8 7
damage to Viars’s property, his claims for nuisance, violations of his riparian rights,
negligent failure to correct a known problem, and actual malice entitling him to punitive
damages must also fail.
{¶20} Viars opposed the motion, claiming that there were “issues” with the
Eastham survey, but he did not submit any expert testimony contesting Eastham’s
survey or Amburgey’s erosion study. Instead, he submitted a copy of his property deed
and the Eastham survey with presumably his own handwritten notations pointing our
purported flaws or omissions with the survey. Viars also argued that Amburgey’s
conclusions were wrong and not based on sufficient information. But he did not submit
any engineering reports or other expert evidence of his own to show a causal
connection between the tree removal and temporary stump placement and his alleged
property erosion damage. Although Viars personally disagreed with the survey and the
erosion study, he did not file a professional survey or erosion analysis that discredited
them.
{¶21} He did file a separate motion to strike Eastham’s survey and Amburgey’s
erosion study on the ground that they were “inaccurate and incomplete and not
adequate for this case”, but he provided no rationale or evidentiary support for the
motion.
{¶22} The Organization filed a reply that argued Viars presented no admissible
evidence, he merely repeated the allegations from his complaint, and he is not
personally qualified to testify as a professional surveyor or engineer.
{¶23} The trial court denied Viars’s motion to strike and granted the
Organization’s summary judgment motion.
Lawrence App. No. 16CA8 8
II. ASSIGNMENTS OF ERROR
{¶24} Viars assigns the following eleven errors for our review:
I. THE TRIAL COURT ERRED WHEN [IT] DEPRIVED THE PLAINTIFF-
APPELLANT OF HIS “SUBSTANTIAL RIGHT” GUARANTEED BY THE
UNITED STATES CONSTITUTION ARTICLE 3, SECTION 2 AND THE
6TH AMENDMENTS [SIC] “THE RIGHT TO A TRIAL BY JURY.”
II. THE TRIAL COURT ERRED WHEN IT DEPRIVED THE PLAINTIFF-
APPELLANT OF HIS “SUBSTANTIAL RIGHT” GUARANTEED BY
ARTICLE 1, SECTION 5 OF THE OHIO STATES [SIC] CONSTITUTION,
THE RIGHT TO A TRIAL BY JURY.
III. THE TRIAL COURT ERRED WHEN IT FAILED TO INVOLVE THE
PROPER AUTHORITIES OF WHICH THE ALLEGED VIOLATIONS OF
STATE STATUES [SIC], CODE, AND FEDERAL, STATE AND LOCAL
ORDINANCE STEM FROM DEPRIVING HIM OF EQUAL PROTECTION
OF THE LAW.
IV. THE TRIAL COURT ERRED WHEN IT OVERRULED THE PLAINTIFFS-
APPELLANT MOTION FOR PARTIAL SUMMARY JUDGMENT.
V. THE TRIAL COURT ERRED WHEN IT OVERRULED THE PLAINTIFFS-
APPELLANT MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO
ESTABLISHING THE FACTS THAT ARE AND ARE NOT IN DISPUTE
TOGETHER WITH THE LAWS INVOLVED WITH THE CASE AT THE
TIME.
VI. THE TRIAL COURT ERRED WHEN IT BROUGHT IN ANOTHER JUDGE
TO THE CASE AND HE FAILED TO FAMILIARIZE HIMSELF WITH ALL
THE ISSUES OF THIS CASE.
VII. THE TRIAL COURT ERRED WHEN [IT] GRANTED DEFENDANT-
APPELLEE’S MOTION FOR SUMMARY JUDGMENT ON ALL COUNTS
AS GENUINE ISSUES OF FACTS ARE IN DISPUTE.
VIII. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENT ON ALL COUNTS FOR IT FAILED TO CONSTRUE THE
EVIDENCE MOST STRONGLY IN FAVOR OF THE PLAINTIFF-
APPELLANT THE NONMOVING PARTY.
IX. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS-
APPELLEE’S SUMMARY JUDGMENT MOTION ON ALL COUNTS
WITHOUT HAVING SOME TYPE OF A [SIC] EVIDENTIARY HEARING
AND FINDING OF FACTS ON EACH CAUSE OF ACTION.
Lawrence App. No. 16CA8 9
X. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS-
APPELLEE’S MOTION FOR SUMMARY JUDGMENT MOTION [SIC] ON
ALL COUNTS IS A MISCARRIAGE OF JUSTICE THAT DEPRIVED
PLAINTIFF-APPELLANT A SUBSTANTIAL RIGHT.
XI. THE TRIAL COURT ERRED BY THE IRREGULARITIES IN THE
RECORD AND PROCEEDINGS.
III. LAW AND ANALYSIS
{¶25} Viars is acting pro se in this appeal, as he has throughout the lawsuit.
Because we prefer to review a case on its merits rather than dismiss it due to
procedural technicalities, we give considerable leniency to pro se litigants. In re Estate
of Pallay, 4th Dist. Washington No. 05CA45, 2006–Ohio–3528, ¶ 10; Robb v.
Smallwood, 165 Ohio App. 3d 385, 2005–Ohio–5863, 846 N.E.2d 878, ¶ 5 (4th Dist.);
“Limits do exist, however. Leniency does not mean that we are required ‘to find
substance where none exists, to advance an argument for a pro se litigant or to address
issues not properly raised.’ ” State v. Headlee, 4th Dist. Washington No. 08CA6, 2009–
Ohio–873, ¶ 6, quoting State v. Nayar, 4th Dist. Lawrence No. 07CA6, 2007–Ohio–
6092, ¶ 28. We consider a pro se litigant's appellate brief if it contains some cognizable
assignment of error. Coleman v. Davis, 4th Dist. Jackson No. 10CA5, 2011–Ohio–506,
¶ 14 (considering pro se appellant’s brief because it had “some semblance of
compliance” with appellate rules).
{¶26} Here, Viars has identified some cognizable assignments of error and he
labels different sections such as “Statement of Facts” and “Argument” for each of the
assignments of error. However, the brief does not comply with App.R. 16(3) – (7) and
many of his arguments are vague, which makes our task more difficult than need be. He
Lawrence App. No. 16CA8 10
does not make references to the place in the record where the errors have allegedly
occurred, nor does he make references to the parts of the record on which he relies for
his arguments.
{¶27} For purposes of our analysis, we group Viars’s assignments of error into
four main categories and address several at once. State v. Thompson, 4th Dist.
Washington App. No. 13CA41, 2014-Ohio-4665, ¶ 10 (“the appellate court has the
option to address two or more assignments of error at once”).
A. Errors in Granting Summary Judgment Motion
(Third, Seventh, Eighth, Ninth, and Tenth Assignments of Error)
1. Standard of Review
{¶28} Appellate review of a summary judgment decision is de novo, governed by
the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St. 3d 199, 2013-Ohio-
3020, 992 N.E.2d 1126, ¶ 19. Summary judgment is appropriate if the party moving for
summary judgment establishes that (1) there is no genuine issue of material fact, (2) the
moving party is entitled to judgment as a matter of law, and (3) reasonable minds can
come to but one conclusion, which is adverse to the party against whom the motion is
made. Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St. 3d 39,
2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist.
Ross No. 13CA3409, 2014-Ohio-3484, ¶ 26.
{¶29} The moving party has the initial burden of informing the trial court of the
basis for the motion by pointing to summary judgment evidence and identifying the parts
of the record that demonstrate the absence of a genuine issue of material fact on the
pertinent claims. Dresher v. Burt, 75 Ohio St. 3d 280, 293, 662 N.E.2d 264 (1996);
Lawrence App. No. 16CA8 11
Chase Home Finance at ¶ 27. Once the moving party meets this initial burden, the non-
moving party has the reciprocal burden under Civ.R. 56(E) to set forth specific facts
showing that there is a genuine issue remaining for trial. Dresher at 293.
2. Third Assignment of Error
{¶30} In his third assignment of error Viars argues that the trial court erred when
it failed to find the Organization liable under R.C. 901.51 for recklessly cutting and
removing the fallen tree. He also cites Lawrence County Special Purpose Flood
Damage Reduction Resolution 4.9(C) and R.C. 6105.133 but does not provide a
reasoned argument concerning the relevance of these provisions to his assignment of
error. “If an argument exists that can support [an] assignment of error, it is not this
court's duty to root it out. * * * It is not the function of this court to construct a foundation
for [an appellant's] claims [.]” (Citations omitted.) (Alterations sic.), Coleman v. Davis,
Jackson App. No. 10CA5, 2011–Ohio–506, at ¶ 13. In other words, “[i]t is not * * * our
duty to create an argument where none is made.” Deutsche Bank Natl. Trust Co. v.
Taylor, 9th Dist. Summit App. No. 25281, 2011–Ohio–435, ¶ 7. Thus, we will only
consider the trial court’s failure to find the Organization liable under R.C. 901.51.
Because this third assignment of error challenges the trial court’s grant of summary
judgment to the Organization on count 2 of his complaint, we will address it along with
Viars’s other challenges to the trial court’s grant of summary judgment.
{¶31} Viars claimed that the Organization violated R.C. 901.51 when it removed
the fallen tree from the creek. R.C. 901.51 governs injuries to vines, bushes, trees, or
crops and requires Viars to prove he owned the land the fallen tree was on:
Lawrence App. No. 16CA8 12
No person, without privilege to do so, shall recklessly cut down, destroy,
girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop
standing or growing on the land of another or upon public land.
In addition to the penalty provided in section 901.99 of the Revised Code,
whoever violates this section is liable in treble damages for the injury caused.
{¶32} Both Viars and the Organization introduced photographs of the location of
the fallen tree. Based on the photographs and Viars’s deposition testimony, there was
no factual dispute concerning the location of the fallen tree along the creek bank. Viars
testified that he measured out the distance from the fallen tree to the corner of his
house and the distance was approximately 195 feet. Viars introduced a copy of his
property deed that contained a legal description of his property boundaries but he did
not present a professional survey and he testified that he had never had a survey
performed.
{¶33} The Organization introduced Eastham’s survey, which he performed
based on the legal description of Viars’s deed. Based upon the survey Eastham
concluded the fallen tree was located north of Viars’s property boundary, not on his
property. Amburgey also reviewed the Eastham survey and photographs and visited the
site and determined that the tree was located approximately 175 feet from Viars’s
residence and about 60 feet north of Viars’s property line.
{¶34} The trial court did not err in finding in the Organization’s favor on Viars’s
claim under R.C. 901.51 because all of the evidence shows that the tree was never on
Viars’s property. Viars himself testified that the tree was about 195 feet from his
residence, which would place the fallen tree even farther north than Eastham’s survey
and Amburgey’s measurements, and about 80 feet north of Viars’s property line.
Although Viars argued that there were genuine issues of material fact about his northern
Lawrence App. No. 16CA8 13
property line based upon what he argued were missing “marks,” he did not hire a
professional surveyor to survey his property and presented no alternative northern
boundary line for the trial court’s consideration.
{¶35} The trial court properly relied upon the Organization’s survey to determine
the boundary lines of Viars’s property. See Robinson v. Armstrong, 5th Dist. Guernsey
App. No. 03CA12, 2004-Ohio-1463, ¶ 39 (the trial court cannot make boundary line
determinations based upon the legal description in the deed appellants submitted where
appellants did not submit a professional boundary line survey of their property: “Without
a survey to support their argument regarding the location of the old boundary fence, the
only evidence the trial court had to rely upon was the survey submitted by appellees.”).
Because the indisputable evidence shows that Viars does not own the property where
the tree was growing or had fallen, the trial court properly granted the Organization’s
summary judgment motion on Viars’s reckless tree cutting claim under R.C. 901.51.
{¶36} We overrule Viars’s third assignment of error.
3. Seventh and Tenth Assignments of Error
{¶37} In his seventh and tenth assignments of error, Viars claims that the trial
court erred when it granted summary judgment on all counts of his complaint because
genuine issues of material fact are in dispute and the trial court did not address all the
elements of each of his counts.
{¶38} As we previously determined in analyzing Viars’s third assignment of
error, the trial court properly granted summary judgment on count 2, reckless tree
cutting.
Lawrence App. No. 16CA8 14
{¶39} Likewise, the trial court properly granted summary judgment to the
Organization on Viars’s claim for trespass, count 1. The essential elements necessary
to state a cause of action in trespass are: (1) an unauthorized intentional act, and (2)
entry upon land in the possession of another. Brown v. Scioto Cty. Bd. of Commrs., 87
Ohio App. 3d 704, 716, 622 N.E.2d 1153 (4th Dist.1993). Viars acknowledged that the
Organization conducted all of its tree removal activity from Mootzes’ property, but he
based his trespass claim on his belief that the tree had fallen on his property. However,
the Organization established the undisputed fact that the fallen tree was not on Viars’s
property. Because Viars did not own the property where the tree lay, the Organization is
entitled to summary judgment on Viars’s trespass claim.
{¶40} Counts 3 and 4 are based upon Viars’s claims that the Organization
violated his riparian rights. In his motion for partial summary judgment he explained that
those counts were claims for private nuisance based upon the erosion damage the
Organization caused by removing the tree from the steam and temporarily placing its
stump on Mootzes’ bank. A private or “qualified nuisance” is premised upon negligence.
It consists of a lawful act that is so negligently or carelessly done as to have created an
unreasonable risk of harm, which in due course results in injury to another. Brown v.
Scioto Cty. Bd. of Commrs. at 713. Because the Organization presented undisputed
expert testimony that these actions did not cause Viars’s erosion damage, there was no
“injury” to Viars’s property and the trial court granted summary judgment to the
Organization on counts 3 and 4.
{¶41} The Organization submitted an affidavit and report of their expert
Amburgey, who testified that he is a registered professional engineer employed by E.L.
Lawrence App. No. 16CA8 15
Robinson Engineering. Amburgey testified that he conducted an inspection of Viars’s
property, the Symmes Creek area, Eastham’s survey, photographs, the Special Flood
Hazard Area Development Permit issued to the Organization, relevant flood plain maps,
and related flood insurance study documents. Based on his review of the materials and
his engineering education and experience, Amburgey determined in his professional
opinion that the removal of the fallen tree from the creek bank and the temporary
placement of the tree trunk and root nest on the Mootzes’ creek bank did not cause any
damage to Viars’s property. The Organization introduced Amburgey’s affidavit, expert
report and supporting documentation in support of its summary judgment motion.
{¶42} Viars criticized Amburgey’s testimony as “nothing more than a bought and
paid for opinion to try to make facts in the record without any studies at all to base his
opinion on.” However, Viars did not retain an engineer or provide the court with any
expert evidence to support his claim that the Organization damaged his property when
they removed the tree or when they placed the stump on Mootzes’ creek bank. In
support of his earlier motion for partial summary judgment, Viars submitted his own
affidavit and that of his neighbor, John Brumfield, in which both stated that the removal
of the tree and the placement of the stump caused erosion damage to Viars’s property.
However, Viars and Brumfield did not testify to having any education or training that
would qualify either of them as experts on erosion causation.
{¶43} Expert testimony is required to establish general causation and specific
causation in cases involving flooding and soil erosion because the determination
involves a scientific inquiry into matters beyond the knowledge or experience possessed
by lay persons. “Flooding issues are very complex matters and therefore, generally,
Lawrence App. No. 16CA8 16
require the use of expert testimony to prove the cause and frequency of flooding.” State
ex rel. Post v. Speck, 3rd Dist. Mercer No. 10-2006-001, 2006-Ohio-6339, ¶ 61; see
generally Terry v. Caputo, 115 Ohio St. 3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 16
(2007) (“Establishing general causation and specific causation in cases involving
exposure to mold or other toxic substances involves a scientific inquiry, and thus
causation must be established by the testimony of a medical expert.”). Although Viars
and Brumfield may testify as lay persons about the existence of erosion damage, i.e.
that it occurred, they provided no basis to establish themselves as experts to give
testimony about the cause of that erosion. See Speck, supra, ¶ 62 (Emphasis added.)
(“While the cause of the flooding is a complex factual issue that must be proven through
expert witnesses, the existence of flooding can certainly be proven through the
testimony of the landowners and photographs.”). Before a witness can testify as an
expert, Evidence Rule 702(B) requires that the witness have “specialized knowledge,
skill, experience, training, or education regarding the subject matter of the testimony.”
Because neither Viars nor Brumfield qualify as experts on erosion, the trial court did not
err in disregarding their affidavit testimony concerning the causation of Viars’s property
erosion. Valentine v. PPG Industries, Inc., 4th Dist. No. 03CA17, 158 Ohio App. 3d 615,
2004-Ohio-4521, 821 N.E.2d 580, ¶ 21, aff'd sub nom. Valentine v. Conrad, 110 Ohio
St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 21 (expert testimony must comply with
Evid.R. 702 to be admissible during summary judgment proceedings).
{¶44} Viars acknowledged that many years prior to the Organization’s actions,
he had existing erosion damage on his property. He had made several attempts to
prevent further erosion by adding eight to ten 30-ton truck loads of limestone rock to his
Lawrence App. No. 16CA8 17
creek bank in 2006 or 2007. Amburgey also noted longstanding stream bank erosion
damage and evidence of previous erosion mitigation efforts such as heavy wire fencing
and dumped rock and concrete block fragments. Thus, there is no dispute that erosion
damage on Viars’s property exists and had existed for a long time. The question is
causation. Here the Organization presented expert testimony that its removal of the
fallen tree and temporary placement of the stump on Mootzes’ bank did not cause
Vairs’s erosion damage. Viars presented no expert testimony to refute Amburgey or to
establish a genuine issue of material fact concerning the causation of his erosion
damage. There is no admissible evidence in the record that the Organization caused
Viars to suffer property damage when it removed the fallen tree and placed the stump
and root ball on Mootzes’ creek bank. The trial court did not err when it granted
summary judgment for the Organization on counts 3 and 4.
{¶45} Count 5 alleges that the Organization acted negligently in carrying out its
stream maintenance duties; Count 6 alleges Viars is entitled to punitive damages
because the alleged negligent acts were in fact carried out in such a reckless manner
that it constituted actual malice. A successful negligence action requires a plaintiff to
establish that (1) the defendant owed the plaintiff a duty of care; (2) the defendant
breached the duty of care; and (3) as a direct and proximate result of the defendant's
breach, the plaintiff suffered injury. If a defendant points to evidence illustrating that the
plaintiff will be unable to prove any one of the foregoing elements, and if the plaintiff fails
to respond as Civ.R.56 provides, the defendant is entitled to judgment as a matter of
law. Martin v. Lambert, 4th Dist. No. 12CA7, 2014-Ohio-715, 8 N.E.3d 1024, ¶ 15,
appeal not allowed, 139 Ohio St. 3d 1471, 2014-Ohio-3012, 11 N.E.3d 1193, ¶ 15. To
Lawrence App. No. 16CA8 18
show actual malice, which is necessary for an award of punitive damages, the plaintiff
must show (1) that state of mind under which a person's conduct is characterized by
hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety
of other persons that has a great probability of causing substantial harm. Preston v.
Murty, 32 Ohio St. 3d 334, 336, 512 N.E.2d 1174 (1987).
{¶46} The trial court granted the Organization summary judgment on these
claims based upon the evidence that the Organization acted both within the scope of
the easements and within the scope of the Lawrence Soil and Water Conservation
District permit to perform stream clean up. The trial court concluded that Viars had the
burden to produce evidence to support his claims that the Organization violated its duty
of care and that it acted with actual malice; however Viars failed to meet this burden to
produce any evidence to support these claims.
{¶47} The Director of Stream Maintenance for the Organization provided
affidavit testimony that the fallen tree was lying in the stream and required removal to
prevent jams and future flooding. Due to the size of the stump and root ball, immediate
removal was not possible, thus temporary placement of it on the Mootzes’ stream bank
was necessary for the safety of the employees. Administrative findings made by the
Floodplain Administrator for the Lawrence Soil and Water Conservation District
concluded that the Organization had not violated the permit by removing the fallen tree
from the creek.
{¶48} Viars argued that a letter from the Lawrence County Commissioners to the
Organization raised material facts about whether the Organization “did no wrong” under
the permit. In the letter the Commissioners asked the Organization to re-evaluate
Lawrence App. No. 16CA8 19
Viars’s request to have the tree stump placed back into its prior location, add materials
to stabilize the bank, pay for the cost of the removed fallen tree, and reimburse Viars for
any damages, and to report the conclusion of the re-evaluation back to them within two
weeks.
{¶49} The letter contains no statements of fact about the work performed under
the permit or any other possible wrongdoing on the part of the Organization. We can
find no evidence in the record that the Organization’s removal of the fallen tree or stump
placement violated the permit, was reckless, was done with intentional malice, or
otherwise violated a duty of care. And, as noted previously, Viars failed to establish that
the Organization’s actions caused any injury to his property. The trial court correctly
granted the Organization’s summary judgment motion on Counts 5 and 6 of Viars’s
amended complaint.
{¶50} We overrule Viars’s seventh and tenth assignments of error.
4. Eighth Assignment of Error
{¶51} Viars argues in his eighth assignment of error that the trial court did not
construe the evidence most strongly in his favor. In support he states that the trial court
“turned a blind eye” to his evidence, but he cites to no specific evidence in the record to
support this assignment of error. Under App.R. 12(A)(2), we may disregard an
assignment of error presented for review if the party raising it fails to identify in the
record the error on which the assignment of error is based. In its decision and judgment
entry the trial court correctly stated the legal standard that “the nonmoving party is
entitled to have the evidence most strongly construed in their favor.” In our de novo
Lawrence App. No. 16CA8 20
review of the record, we find nothing to indicate the trial court failed to apply this
standard. We overrule Viars’s eighth assignment of error.
5. Ninth Assignment of Error
{¶52} In his ninth assignment of error Viars claims the trial court erred when it
failed to hold an evidentiary hearing. A trial court is not required to hold an evidentiary
hearing or oral argument on motions for summary judgment. See Civ.R. 56. “Although
Civ.R. 56 makes reference to a hearing, the rule does not require an oral hearing on
every motion for summary judgment. Rather, the hearing contemplated by Civ.R. 56
may involve as little as the submission of memoranda and evidentiary materials for the
court's consideration.” (Citations omitted.) Barstow v. Waller, 4th Dist. Hocking No.
04CA5, 2004-Ohio-5746, ¶ 51; “Ohio appellate courts ‘uniformly agree that a trial court
is not required to schedule an oral hearing on every motion for summary judgment.’”
U.S. Bank Natl. Assn. v. Wigle, 7th Dist. Mahoning No. 13 MA 32, 2015-Ohio-2324, ¶
13. Therefore, we overrule Viars’s ninth assignment of error.
B. Right to a Trial by Jury
(Assignments of Error One and Two)
{¶53} Viars’s first and second assignments of error are meritless as a result of
our disposition of the third, seventh and tenth assignments of error, so we summarily
overrule them. See App.R.12(A)(1)(c). Because summary judgment was appropriate, he
had no right to a jury trial:
[T]he right to a jury trial is only enforceable where there are factual issues
to be tried. Accordingly, the proper granting of a motion for summary
judgment does not abridge an individual's constitutional right to a jury trial.
Since we have found that the granting of the defendants' motions for
summary judgment was proper, we conclude that appellants were not
deprived of their right to a trial by jury. (Citations omitted.)
Lawrence App. No. 16CA8 21
Barstow at ¶ 53.
C. Errors in Denying Viars’s Partial Motion for Summary Judgment
(Assignments of Error Four and Five)
{¶54} In his fourth and fifth assignments of error Viars argues that the trial court
erred in denying his partial motion for summary judgment on counts 3 and 4. Because
we find that the trial court correctly granted the Organization summary judgment in its
favor on counts 3 and 4 it follows that Viars was not entitled to summary judgment on
those counts. Viars’s fourth and fifth assignments of error are meritless and overrruled.
See App.R.12(A)(1)(c).
D. The Case Reassignment and Alleged Favoritism
(Assignments of Error Six and Eleven)
{¶55} In his sixth assignment of error Viars claims that the trial court erred when
it assigned the case to another judge with a “friendship” to the Organization. In his
eleventh assignment of error, Viars claims “irregularities” in the record and “showing
favor” towards the Organization.
{¶56} To the extent Viars argues that there was an error based upon the case
reassignment, his argument fails. A case can be transferred to another judge due to
docket congestion. Silverman v. American Income Life Ins. Co. of Indianapolis, 10th
Dist. Franklin App. Nos. 01AP338, 01AP339, 2001-Ohio-8890, *14 (“Appropriate
reasons for reassignment include absence of the assigned judge or docket congestion
for the assigned judge”). The transcript from the status conference held on October 27,
2015, shows that the trial court advised the parties that the trial docket for the upcoming
months was full and he may request to have another judge take over the case. Viars did
not object.
Lawrence App. No. 16CA8 22
{¶57} To the extent Viars argues that the trial judge should be disqualified
because of judicial bias or favoritism, we have no jurisdiction to consider his claim.
Cooke v. Bowen, 4th Dist. Scioto No. 12CA3497, 2013-Ohio-4771, ¶ 9-11. “Judicial bias
is ‘a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the
litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of
the judge, as contradistinguished from an open state of mind which will be governed by
law and the facts.’ ” Id. quoting State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128, 767
N.E.2d 166, ¶ 34. R.C. 2701.03 provides the exclusive means by which a litigant can
assert that a common pleas judge is biased or prejudiced and requires an affidavit of
prejudice to be filed with the Supreme Court of Ohio. A court of appeals lacks “authority
to pass upon disqualification or to void the judgment of the trial court upon that basis.”
Beer v. Griffith, 54 Ohio St. 2d 440, 441–442, 377 N.E.2d 775 (1978).
{¶58} To the extent Viars argues that the judge acted unfairly or with a prejudice
against him, he fails to cite to any evidence in the record. “Trial judges are ‘presumed
not to be biased or prejudiced, and the party alleging bias or prejudice must set forth
evidence to overcome the presumption of integrity.’” Rick’s Foreign Exchange Co. v.
Greenlee, 2d Dist. Montgomery No. 26096, 2014-Ohio-4505, ¶ 28. “The appearance of
bias or prejudice must be compelling to overcome these presumptions.” Id.; In re
Jorgensen, 5th Dist. No. 07-CA-96, 2008-Ohio-2967, ¶ 245-246; see generally State v.
Dean, 127 Ohio St. 3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 2 (If the record indicates
that the trial was affected by judicial bias, the remedy is a new trial). Viars argues that
“the court was either maneuvered by trickery . . . or tried to hide the issues from being
adjudicated showing favor for Defendant-Appellee,” but he does not cite any evidence in
Lawrence App. No. 16CA8 23
the record to support his claim. Upon reviewing the record we find no evidence of any
judicial bias or prejudice to overcome the presumption of judicial integrity.
{¶59} We overrule Viars’s sixth and eleventh assignments of error.
IV. CONCLUSION
{¶60} The trial court properly entered summary judgment for the Organization on
all the claims in Viars’s amended complaint because there was no genuine issue of
material fact and the Organization was entitled to judgment as a matter of law. Because
the trial court properly granted summary judgment in the Organization’s favor on all of
Viars’s claims, Viars’s right to a jury trial was not violated, nor was he entitled to
summary judgment in his favor on any of the claims. There was no evidence that the
reassignment of the case to another judge was irregular; we do not have jurisdiction to
review any claims of judicial bias.
JUDGMENT AFFIRMED.
Lawrence App. No. 16CA8 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas 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.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, 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.