Novy v. Ferrera

[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]
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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
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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
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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.
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{¶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
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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.
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{¶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,
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(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
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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.
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{¶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
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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
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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
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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
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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.
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{¶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
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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
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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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