Hayes v. Carrigan

[Cite as Hayes v. Carrigan, 2017-Ohio-5867.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JEFFREY D. HAYES, : APPEAL NOS. C-160554
C-160630
Plaintiff-Appellee/Cross- : C-160641
Appellant, TRIAL NO. A-1404459
:
vs.
:
PAMELA M. CARRIGAN, O P I N I O N.
:
Defendant-Appellant/Cross-
Appellee. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Judgment
Entered
Date of Judgment Entry on Appeal: July 19, 2017
Dinsmore & Shohl, L.L.P., and Sarah Cameron, for Plaintiff-Appellee/Cross-
Appellant,
The Bonecutter Firm, L.L.C., Brenda L. Bonecutter and Scott A. Crisler for
Defendant-Appellant/Cross-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
DETERS, Judge.
{¶1} These appeals deal with a dispute between two adjoining property
owners in Indian Hill over some bamboo, loud music, and mowing. We determine
that the trial court erred in finding that each property owner had committed a
trespass. Thus, we reverse that portion of the trial court’s judgment awarding each
party $11,000 on their respective trespass claims.
I. Facts and Procedural History
{¶2} The dispute between these parties seems to have started several years
ago, although it is not entirely clear from the record where the source of the parties’
problems lie. Relevant to these appeals, at some time in 2014, plaintiff-
appellee/cross-appellant Jeffrey Hayes noticed dead or dying bamboo, grass, and
shrubs along a portion of his property line abutting defendant-appellant/cross-
appellee Pamela Carrigan’s property. Hayes believed Carrigan had applied toxic
herbicide, and he reported the matter to the Indian Hill police department, which
investigated. Hayes then filed a civil complaint in the Hamilton County Court of
Common Pleas, alleging that Carrigan had applied herbicide to Hayes’s property,
constituting trespass, nuisance, and willful destruction of property. Hayes requested
compensatory damages in excess of $15,000, punitive damages, treble damages, as
well as costs and attorney’s fees.
{¶3} Carrigan filed a counterclaim, alleging that Hayes’s invasive bamboo
constituted a trespass and nuisance. Carrigan also filed a cause of action for willful
destruction of property, claiming that Hayes had left honeysuckle tree branches on
her property, and he had allowed his livestock and horses to damage her property
“with their hooves and by leaving manure piles.” Carrigan further alleged that Hayes
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OHIO FIRST DISTRICT COURT OF APPEALS
had played loud music, had mowed his grass in the early-morning hours, and had
thrown limbs and animal carcasses on her property, all of which constituted
nuisance and/or trespass. Carrigan also alleged that Hayes’s continual complaints to
the Indian Hill rangers constituted intentional infliction of emotional distress.
Carrigan requested compensatory damages, punitive damages, injunctive relief, and
a restraining order.
{¶4} The matter proceeded to a bench trial. Hayes, as well as his personal
gardener, two Indian Hill rangers, and the former Indian Hill manager testified that
in May of 2014, they had witnessed areas along Hayes’s property line where bamboo,
shrubs, and grass had turned brown and had appeared as though they had been
poisoned. Hayes offered pictures, which he testified showed the damage. One of the
Indian Hill rangers, Officer Bob Walters, testified that he had spoken to Carrigan in
May of 2014, after responding to a call from Hayes regarding the bamboo. According
to Officer Walters, Carrigan told him that she had “put something down” because she
had not been able to get her lawnmower on part of her property, and that bamboo
had been entering her property. A couple days later, Officer Walters called Carrigan,
and he asked her what she had used on her property. Carrigan responded that she
did not want to “incriminate herself.” Over Carrigan’s objection, Hayes offered an
estimate from Evans Landscaping for $8,657.43, which, according to Hayes,
represented the value to replace the damaged grass and shrubs.
{¶5} At the close of Hayes’s case-in-chief, Carrigan moved for a “directed
verdict” on Hayes’s trespass claim, arguing that Hayes failed to prove Carrigan had
caused the bamboo and other shrubs to die. The trial court overruled Carrigan’s
motion, and Carrigan then proceeded with her case on her counterclaims.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Carrigan testified that she had bamboo entering her property, and that
she believed her property value diminished as a result. When cross-examined by
Hayes’s counsel regarding her statements to Officer Walters, Carrigan testified that
she had sprayed “weed & feed” on her entire property, and that she had put down salt
pellets from her water softener on her flower bed. Carrigan also called two witnesses
from separate landscaping companies who testified as to the cost of removing
bamboo roots in Carrigan’s yard and placing a chemical “barrier” in Carrigan’s
property to stop the spread of bamboo.
{¶7} Carrigan also testified that she had been subjected to Hayes’s loud
music, dogs barking, and mowing at inconvenient hours, which she claimed
interfered with the use and enjoyment of her property. Carrigan logged the
occasions where Hayes mowed prior to 7:30 a.m., which included ten days in the
summer of 2014, and each time Carrigan contacted the Indian Hill rangers. Carrigan
also testified that Hayes’s dog “consistently goes up and down the fence row trying to
infuriate my dogs and barks a lot.” Finally, Carrigan testified that Hayes played
Jimmy Buffet music at a high volume, and that she had to wear earplugs when she
gardened outside. On one occasion, Carrigan contacted the Indian Hill rangers
because “Margaritaville” had been playing on repeat.
{¶8} After trial, the trial court took the matter under submission, and
entered an order in March 2016, which awarded each party $11,000. Carrigan
requested findings of fact and conclusions of law. In May 2016, the trial court
entered its findings of fact and conclusions of law, determining that each party had
committed a trespass. The trial court never specifically ruled on the other claims in
the complaint. Carrigan filed two appeals and Hayes filed a cross-appeal. The trial
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OHIO FIRST DISTRICT COURT OF APPEALS
court then issued an entry in October 2016, clarifying that each party received an
$11,000 award for trespass, and dismissing all other claims. We now turn to the
parties’ appeals from the trial court’s final order. We will address Hayes’s cross-
appeal first.
II. Analysis
A. Hayes’s Cross-Appeal
{¶9} Carrigan’s Trespass Claim. In Hayes’s first assignment of error, he
argues that the trial court erred in entering judgment in favor of Carrigan on her
trespass claim for $11,000. Specifically, Hayes argues that the trial court erred in
finding that bamboo roots, loud music, and mowing constitute trespass.
{¶10} A trespass occurs “when a person, without authority or privilege,
physically invades or unlawfully enters the private premises of another whereby
damages directly ensue.” R&R Family Invests. v. Plastic Moldings Corp., 1st Dist.
Hamilton No. C-160382, 2016-Ohio-8125, ¶ 22.
{¶11} With regard to the encroachment of bamboo on Carrigan’s property,
Hayes argues that vegetation growth cannot constitute a trespass as a matter of law,
and he relies on a case from the Eighth Appellate District, Rababy v. Metter, 2015-
Ohio-1449, 30 N.E.3d 1018 (8th Dist.). In Rababy, a tree on the defendant’s
property extended over the plaintiff’s property and dropped debris. The court held
that the tree did not constitute a trespass, because no intentional act existed.
Although the Rababy court did not go so far as to hold that vegetation growth can
never constitute a trespass, it is clear that “[i]ntentional conduct is an essential
element of trespass.” Merino v. Salem Hunting Club, 7th Dist. Columbiana No. 07
CO 16, 2008-Ohio-6366, ¶ 44, citing Restatement of the Law 2d, Torts, Section 158
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OHIO FIRST DISTRICT COURT OF APPEALS
(1965). “ ‘An intentional tort occurs when the actor desires to cause consequences of
his act, or believes that the consequences are substantially certain to result from it.’ ”
Robinson v. Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 12,
quoting Harasyn v. Normandy Metals, Inc., 49 Ohio St. 3d 173, 175, 551 N.E.2d 962
(1990).
{¶12} Carrigan testified that she believed bamboo qualifies as an invasive
and noxious weed, and one of Carrigan’s landscapers testified, over Hayes’s
objection, that bamboo can overpower plants. Carrigan’s evidence, without more, is
insufficient to establish the intentional conduct on the part of Hayes. Therefore,
Carrigan presented insufficient evidence that Hayes acted intentionally with regard
to the bamboo encroachment.
{¶13} In defending her claim that the bamboo growth constitutes a trespass,
Carrigan relies on a Connecticut case, Rickel v. Komaromi, 144 Conn.App. 775, 73
A.3d 851 (2013). In Rickel, the plaintiff alleged that the defendant’s conduct in
planting bamboo and failing to control its growth constituted a continuing trespass.
According to the Rickel court, the trial court ignored the continuing nature of the
wrong alleged by the plaintiff when the trial court granted summary judgment to the
defendant on statute-of-limitations grounds. Id. at 792. The Rickel court did not
consider whether planting bamboo and its subsequent growth constituted an
intentional act sufficient for trespass.
{¶14} With regard to the noise from Hayes’s occasional loud music, dogs
barking, and early-morning mowing, Carrigan agrees that this conduct is not
sufficient to constitute a trespass. Instead, Carrigan argues that Hayes’s actions in
this regard constituted a nuisance. But, the trial court’s October 2016 entry
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OHIO FIRST DISTRICT COURT OF APPEALS
dismissed Carrigan’s nuisance claim, so the trial court’s decision cannot be defended
on this basis. Moreover, in order to recover damages for annoyance and discomfort
in nuisance, a plaintiff’s damages must establish that the nuisance created “physical
discomfort” and the damages must be “real, material, and substantial.” Banford v.
Aldrich Chem. Co., 126 Ohio St. 3d 210, 2010-Ohio-2470, 932 N.E.2d 313, ¶ 28, 30.
Carrigan testified that Hayes’s actions caused her annoyance and discomfort, but
these cannot be characterized as substantial.
{¶15} We determine that the trial court erred in finding in favor of Carrigan
on her trespass claim. Thus, we sustain Hayes’s first assignment of error.
{¶16} Treble Damages under R.C. 901.51. In his second assignment of error,
Hayes argues that the trial court erred in failing to award treble damages under R.C.
901.51. R.C. 901.51 provides, “[n]o 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.” A violation
under R.C. 901.51 constitutes a fourth-degree misdemeanor. See R.C. 901.99(A). In
addition to the criminal penalty, a violator of R.C. 901.51 can be held liable for treble
damages for injury caused. See R.C. 901.51.
{¶17} With regard to Hayes’s claim under R.C. 901.51, Hayes offered no legal
or factual support for the proposition that bamboo constitutes a “vine, bush, shrub,
sapling, tree, or crop.” So, it is unclear whether R.C. 901.51 applies to injured
bamboo. Moreover, a violation of R.C. 901.51 requires a violator to have acted
recklessly, meaning that the violator “disregards a substantial and unjustifiable risk
that the person’s conduct is likely to cause a certain result or is likely to be of a
certain nature.” See R.C. 2901.22(C) (defining when a person acts recklessly for
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OHIO FIRST DISTRICT COURT OF APPEALS
criminal statutory purposes); Wooten v. Knisley, 79 Ohio St. 3d 282, 290, 680 N.E.2d
1245 (1997).
{¶18} Hayes’s theory at trial with regard to his dying bamboo was that
Carrigan put down weed killer on the property line, knowing that the downward
slope of the property would cause run-off onto Hayes’s property. The main piece of
evidence Hayes offered at trial in this regard came from Officer Walters, who
testified that Carrigan had told him that she put “something down” because she
could not get her mower behind the “stuff on her property.” When Walters had
called Carrigan again to ask her what she had put on her yard, she said she did not
want to “incriminate herself.” Carrigan contested Hayes’s version of the facts, and
defended that she had placed a general “weed & feed” on her entire property and
posited that an abnormally cold winter had killed Hayes’s bamboo. The trial court
found that Carrigan “applied weed killer near the same property line that spilled over
the line and damaged [Hayes’s] property.” The trial court’s findings of fact and
conclusions of law made no mention that Carrigan acted recklessly when she applied
the weed killer.
{¶19} In reviewing the record, we cannot say that the trial court’s decision to
dismiss Hayes’s claim under R.C. 901.51 was erroneous. Therefore, we overrule
Hayes’s second assignment of error.
B. Carrigan’s Appeal
{¶20} Hayes’s Claim for Trespass. In her first assignment of error, Carrigan
argues that the trial court erred in failing to grant her motion for a directed verdict
on Hayes’s trespass claim, and that the trial court erred in awarding $11,000 to
Hayes.
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{¶21} Civ.R. 50(A)(4) governs a motion for a directed verdict. “A motion for
directed verdict tests whether the evidence is sufficient to warrant a jury’s
consideration * * *.” Jarupan v. Hanna, 173 Ohio App. 3d 284, 2007-Ohio-5081, 878
N.E.2d 66, ¶ 8 (10th Dist.). Therefore, directed verdicts are inapplicable in bench
trials, where no jury exists. Id. at ¶ 7; Canter v. Wolfe, 2016-Ohio-5300, 69 N.E.3d
1061, ¶ 18 (5th Dist.); Apple v. Water World, Inc., 8th Dist. Cuyahoga No. 80823,
2002-Ohio-6326, ¶ 10; Bank One, Dayton, N.A. v. Doughman, 59 Ohio App. 3d 60,
571 N.E.2d 442 (1st Dist.1988). Instead, a defendant in a nonjury action must move
for an involuntary dismissal under Civ.R. 41(B)(2) at the close of the plaintiff’s
evidence. Doughman at 63. Therefore, this court will treat Carrigan’s assignment of
error as one challenging the trial court’s failure to grant a dismissal under Civ.R.
41(B)(2). See Parrish v. Machlan, 131 Ohio App. 3d 291, 722 N.E.2d 529, 531 (1st
Dist.1997).
{¶22} Civ.R. 41(B)(2) expressly allows the trial court sitting as the trier of
fact to “decline to render any judgment until the close of all the evidence.” Thus, we
cannot determine that the trial court erred in denying Carrigan’s motion at the close
of Hayes’s case and hearing additional evidence on his trespass claim. See Tillman v.
Watson, 2d Dist. Champaign No. 06-CA-10, 2007-Ohio-2429, ¶ 12-14 (determining
that the trial court’s initial decision to deny the defendant’s motion under Civ.R.
41(B)(2) at the close of the plaintiff’s evidence was not erroneous because the rule
expressly allows the trial court to proceed with further evidence). Neverthless, we
determine that Hayes failed to provide sufficient evidence of damages.
{¶23} As to Hayes’s claim for trespass against her, Carrigan argues that
Hayes failed to prove damages. In Hayes’s proposed findings of fact and conclusions
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OHIO FIRST DISTRICT COURT OF APPEALS
of law, Hayes requested $8,657.43 in economic loss, as represented by an estimate
from Evans Landscaping. According to Hayes, the estimate represented the
replacement cost of the damage on the property line. Carrigan’s counsel objected to
admission of the estimate at trial, arguing that Hayes had not laid a proper
foundation for its admission.
{¶24} Hearsay is inadmissible, unless an exception applies. See Evid.R. 802.
Evid.R. 803(6) provides an exception to the hearsay rule for business records.
Before a record can be admitted under Evid.R. 803(6), three elements must be met:
“(i) the record must be one regularly made in a regularly conducted activity; (ii) the
contents of the record must have been entered or transmitted by a person with
knowledge of the act, event, or condition recorded therein; and (iii) the act, event, or
condition must have been recorded at or near the time of the transaction.” Great
Seneca Fin. v. Felty, 170 Ohio App. 3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 10 (1st
Dist.). “A trial court abuses its discretion when it admits a business record in the
absence of an adequate foundation to establish admissibility under Evid.R. 803(6).”
State Farm Mut. Auto. Ins. Co. v. Anders, 197 Ohio App. 3d 22, 2012-Ohio-824, 965
N.E.2d 1056, ¶ 12 (10th Dist.).
{¶25} Here, Hayes did not offer any witness from Evans Landscaping to
vouch for the creation of the business estimate. Therefore, the trial court erred in
admitting the estimate.
{¶26} Hayes’s proposed findings of fact and conclusions of law also
requested $2,342.57 in “noneconomic loss” for his trespass claim, thus requesting
$11,000 in total damages. As this court has held, Ohio law requires that a landowner
in an indirect-trespass action prove substantial damage. See Colegrove v. Fred A.
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OHIO FIRST DISTRICT COURT OF APPEALS
Nemann Co., 1st Dist. Hamilton No. C-140171, 2015-Ohio-533, ¶ 36. Hayes’s theory
at trial was that Carrigan had indirectly trespassed by way of weed killer on her
property. Hayes did not offer any evidence of substantial, noneconomic loss
resulting from Carrigan’s alleged trespass.
{¶27} In the absence of any admissible evidence as to damages, Hayes failed
to prove his damages with reasonable certainty. See Jayashree Restaurants, L.L.C.
v. DDR PTC Outparcel, L.L.C., 10th Dist. Franklin No. 16AP-186, 2016-Ohio-5498, ¶
13 (“Damages that result from an alleged wrong must be shown with reasonable
certainty, and a party cannot base them on mere speculation or conjecture,
regardless of whether the action is in contract or tort.”). Therefore, we sustain
Carrigan’s first assignment of error, and hold that the trial court erred in finding in
favor of Hayes on his trespass claim.
{¶28} Admission of Irrelevant Evidence. In Carrigan’s second assignment of
error, she argues that the trial court abused its discretion in admitting irrelevant
testimony regarding events prior to 2014. Carrigan points to several portions of the
trial where Hayes’s witnesses offered “prejudicial” evidence regarding interactions of
the parties in 2007 and 2009. This argument is meritless. Both parties offered
evidence of interactions prior to 2014. For instance, Carrigan presented her ex-
husband as a witness, who had moved from the property in 2002, some 12 years
prior to this action. Any error in the admission of the evidence of prior interactions
was harmless error, because it had no effect on the outcome of the trial. See Civ.R.
61. Therefore, we overrule Carrigan’s second assignment of error.
{¶29} Damages Award. In Carrigan’s third assignment of error, she argues
that the trial court erred in awarding damages to Hayes, and that the trial court erred
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OHIO FIRST DISTRICT COURT OF APPEALS
by failing to award greater monetary damages to her on her claims. As we held in
our disposition of Carrigan’s first assignment of error, the trial court erred in finding
in favor of Hayes on his trespass claim. Moreover, as we held in the disposition of
Hayes’s cross-appeal, Carrigan failed to prove her trespass claim against Hayes, and
the trial court correctly dismissed her nuisance claim. Therefore, we overrule this
assignment of error.
III. Conclusion
{¶30} In conclusion, we hold that the trial court erred in finding in favor of
Hayes and Carrigan on their respective trespass claims, and we reverse that portion
of the trial court’s judgment awarding damages to each of the parties. We enter the
judgment the trial court should have entered, which is to find against each party on
their respective trespass claims. We affirm the remainder of the trial court’s
judgment dismissing any of the parties’ remaining claims and requests for relief.
Judgment accordingly.
CUNNINGHAM, P.J., concurs.
ZAYAS, J., concurs in judgment only.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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