Gavitt v. Remerowski

[Cite as Gavitt v. Remerowski, 2019-Ohio-3068.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CHRIS GAVITT, : APPEAL NO. C-180349
TRIAL NO. A-1605974
Plaintiff-Appellant, :
O P I N I O N.
vs. :
DAVID REMEROWSKI, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 31, 2019
Law Office of John H. Forg and John H. Forg, III, for Plaintiff-Appellant,
Godbey Law and Edward L. Vardiman, Jr., for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Plaintiff-appellant Chris Gavitt appeals the trial court’s judgment
denying him damages after determining that water runoff from defendant-appellee
David Remerowski’s driveway onto Gavitt’s driveway was a private nuisance and
ordering Remerowski to abate that nuisance.
{¶2} In a single assignment of error, Gavitt argues that the trial court erred
in finding that Remerowski was not liable for damage to Gavitt’s driveway caused by
the private nuisance. Finding no error in the trial court’s determination that Gavitt
failed to prove that the specific damage claimed by Gavitt to his driveway was caused
by the water runoff, we affirm its judgment.
Factual and Procedural Background
{¶3} Gavitt filed suit against Remerowski, alleging that Remerowski had
purposely diverted the flow of water from his own driveway onto Gavitt’s property by
cutting openings into a curb that ran along the driveway, causing damage to Gavitt’s
driveway from the water flow. Gavitt sought both equitable relief, in the form of an
order requiring Remerowski to plug the openings in the curb, and compensatory
damages for the damage caused to Gavitt’s driveway.
{¶4} At a bench trial before a visiting judge, Gavitt testified that he
purchased a home in Amberley Village in June of 2016. Gavitt’s home was next door
to, and downhill from, Remerowski’s home. After purchasing the home, Gavitt
observed that during a rainfall, water poured through openings that had been cut
into the curb along Remerowski’s driveway directly onto his own driveway. Videos
depicting this water runoff were admitted into evidence. Remerowski admitted to
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Gavitt that he had cut openings into the curb, but he denied responsibility for the
water runoff onto Gavitt’s driveway.
{¶5} Gavitt’s driveway was cracked in the area that received the water
runoff, and he testified that he had obtained two estimates to repair the driveway.
These estimates were for $4,600 and $5,815, respectively. But they involved
replacing Gavitt’s entire driveway, not just the portion of the driveway that received
the water runoff.
{¶6} Testimony from Amberley Village zoning and project administrator
Wesley Brown further established that Remerowski had obtained zoning approval in
2001 to replace the curb that ran along his driveway. But in 2002, Remerowski
received a letter from Amberley Village notifying him that the openings cut into his
curb were not a part of the original plans that had been approved and that the
openings needed to be closed and the storm water redirected in an appropriate
direction. Remerowski took no action to fill the openings after receiving this letter.
{¶7} Remerowski testified that the plans he submitted to Amberley Village
in 2001 for construction of the curb depicted the drainage openings in the curb. And
he explained that the installation of the curb had no effect on the water flow from his
property onto Gavitt’s, as the water flowed in the same direction both before and
after the curb was installed. Remerowski further testified that the settlement cracks
on Gavitt’s driveway were not caused by the water runoff, as those cracks were
already on the driveway when Remerowski purchased his home in 1990.
{¶8} Tyler Camerucci, the owner of an asphalt paving company, testified in
rebuttal that he had viewed Gavitt’s driveway and that it was in poor condition.
Camerucci elaborated that excess water flowing from what he described as “slices” in
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the neighbor’s concrete wall had caused a portion of the driveway to become cracked
and broken. He had reviewed the two estimates that Gavitt obtained to repair the
driveway and opined that they were not only reasonable, but were less than he would
charge. Camerucci estimated that it would cost approximately $3,600, plus tax, to
repave only the damaged section of Gavitt’s driveway.
{¶9} The visiting judge issued an entry in which he erroneously treated
Gavitt’s complaint as having raised two separate claims: a claim alleging that he was
entitled to compensation for the damage to his driveway caused by Remerowski’s
negligence, and a claim alleging that he was entitled to relief in equity to abate the
private nuisance caused by Remerowski’s diversion of the water. With respect to the
first claim, the visiting judge found that the continuing flow of water caused damage
to Gavitt’s driveway, but that Gavitt had failed to offer sufficient evidence to prove
causation and related damages. We interpret the trial court’s legal conclusion as a
determination that, while the water flow did cause damage to the driveway, Gavitt
failed to establish that the water flow was the sole cause of the damage or what
portion of the damage was in fact caused by the water flow. But as to the latter
claim, the judge found that Remerowski had intentionally created a private nuisance
by cutting openings into the curb and allowing water to run onto Gavitt’s property,
and he ordered Remerowski to abate the nuisance by sealing the openings in the
curb.
{¶10} Thereafter, the assigned trial court issued a separate judgment finding
that Remerowski’s actions constituted a private nuisance and requiring him to abate
that nuisance. But the court declined to award monetary damages after determining
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OHIO FIRST DISTRICT COURT OF APPEALS
that Gavitt failed to offer sufficient evidence that the damage to his driveway was
caused by the channeling of water from Remerowski’s property.
Damages
{¶11} In his sole assignment of error, Gavitt argues that the trial court erred
by not awarding damages after finding that Remerowski had created a private
nuisance. He contends that the visiting judge applied an incorrect standard by
treating his action for monetary damages as a negligence claim.
{¶12} Gavitt’s complaint raised a single claim alleging that the improper
diversion of water was a private nuisance, and he sought both equitable relief and
monetary damages. As we stated, the visiting judge erroneously found that Gavitt’s
complaint raised two separate claims, one seeking damages for negligence and one
seeking equitable relief for a private nuisance. Despite the visiting judge’s error in
describing Gavitt’s claim as one for negligence, it is clear from the court’s judgment
that it found that Gavitt failed to prove that Remerowski’s diversion of water onto
Gavitt’s driveway caused the specific damage to the driveway claimed by Gavitt.
Further, the separate judgment issued by the assigned trial court correctly
interpreted Gavitt’s complaint as having raised one claim that sought two types of
relief. And it likewise determined that Gavitt failed to prove that the damage to his
driveway was caused by the water runoff from Remerowski’s property.
{¶13} Gavitt’s assignment of error challenges the weight of the evidence
supporting the trial court’s determination that he failed to prove damages. When
reviewing the manifest weight of the evidence in a civil case, “[w]e weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether in resolving conflicts in the evidence, the trial court clearly lost its
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way and created such a manifest miscarriage of justice that its judgment must be
reversed and a new trial ordered.” United States Fire Ins. v. Am. Bonding Co., Inc.,
1st Dist. Hamilton Nos. C-160307 and C-160317, 2016-Ohio-7968, ¶ 16, citing
Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.
{¶14} A trial court’s finding of a private nuisance does not automatically
entitle a plaintiff to an award of monetary damages. Blevins v. Sorrell, 68 Ohio
App.3d 665, 669, 589 N.E.2d 438 (12th Dist.) (holding that “the award of money
damages does not inevitably follow a finding of nuisance”); Myers v. Wild
Wilderness Raceway, L.L.C., 181 Ohio App. 3d 221, 2009-Ohio-874, 908 N.E.2d 950,
¶ 39 (4th Dist.). The award of monetary damages for a private nuisance is
discretionary with the trier of fact, and will not be reversed absent an abuse of
discretion. Blevins at 669; Myers at ¶ 39; Price v. Parker, 10th Dist. Franklin No.
99AP-298, 2000 WL 256176, *5 (Mar. 9, 2000).
{¶15} To prove that the water runoff from Gavitt’s property had caused the
damage to his driveway, Gavitt relied on Camerucci’s testimony. On direct
examination, Camerucci testified that the cracking on Gavitt’s driveway was caused
by excess water runoff. But on cross-examination, he stated that only 50-60 percent
of the damage was caused by the water runoff, and he conceded that his estimation
was just a guess. Gavitt also relied on testimony from Brown, the Amberley Village
zoning and project administrator. Brown testified that water coming from
Remerowski’s curb had cracked the asphalt on Gavitt’s driveway. But he conceded
on cross-examination that while the water appeared to have caused the damage, he
had no actual knowledge of that, and that the driveway could have been damaged in
another manner.
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{¶16} On this record, we cannot find that the trial court abused its discretion
in declining to award damages for the private nuisance. Gavitt failed to present
definitive testimony that the damage to his driveway was caused by the water runoff
from Remerowski’s property, and the trial court’s determination that Gavitt was not
entitled to monetary damages was not against the weight of the evidence.
{¶17} We therefore overrule Gavitt’s assignment of error and affirm the
judgment of the trial court.
Judgment affirmed.
MOCK, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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