Pahoundis Family Group, Ltd. v. Schonauer

[Cite as Pahoundis Family Group, Ltd. v. Schonauer, 2019-Ohio-5303.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PAHOUNDIS FAMILY GROUP, LTD. : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JERRY SCHONAUER, ET AL. : Case No. 2019 CA 002
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 17 CV 009
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 20, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
MARIO GAITANOS THOMAS J. MULVEY
PETER GAITANOS 30 Northwoods Boulevard
437 Market Avenue North Suite 300
Canton, OH 44702 Columbus, OH 43235
CRAIG G. PELINI
PAUL B. RICARD
8040 Cleveland Avenue, NW
Suite 400
North Canton, OH 44720
Holmes County, Case No. 2019 CA 002 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, Pahoundis Family Group, Ltd., appeals the January 23,
2019 journal entry and the February 4, 2019 judgment entry on verdict form and
interrogatories of the Court of Common Pleas of Holmes County, Ohio, accepting a jury's
verdict and entering judgment for Defendants-Appellees, Jerry Schonauer and Sweet
Breeze Farms & Excavating, LLC.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant is a real estate group that owns real property in Holmes and
Coshocton counties. The properties are leased to farmers who use the land for
agricultural purposes.
{¶ 3} On February 21, 2017, appellant filed a complaint against adjacent property
owner Jerry Schonauer and John Does alleging trespass, conversion, a violation of R.C.
901.51, and negligence in reference to one of its properties located in Holmes County.
Appellant claimed the defendants trespassed on its property and intentionally and/or
recklessly and/or negligently removed trees, a cement wall, and a fence, and placed a
pole barn on part of its property. On July 24, 2017, appellant filed a first amended
complaint to include Sweet Breeze Farms as a party defendant and dropped its claim
regarding the pole barn.
{¶ 4} The parties were referred to mediation, but mediation was unsuccessful. A
jury trial commenced on December 12, 2018. The jury found in favor of appellees on all
claims. The trial court journalized the decision via a journal entry filed January 23, 2019,
and a judgment entry on verdict form and interrogatories filed February 4, 2019.
Holmes County, Case No. 2019 CA 002 3
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 6} "THE TRIAL COURT ERRED IN NOT GRANTING A DIRECTED VERDICT
IN FAVOR OF APPELLANT AS IT ESTABLISHED A PRIMA FACIE CASE OF
TRESPASS TO LAND AND APPELLEES FAILED TO PRODUCE EVIDENCE
REBUTTING THE TRESPASS TO LAND."
II
{¶ 7} "THE TRIAL COURT ERRED IN NOT ISSUING A JUDGMENT
NOTWITHSTANDING THE VERDICT AS THE JURY'S VERDICT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE."
I
{¶ 8} In its first assignment of error, appellant claims the trial court erred in not
granting it a directed verdict as it established a trespass to land. We disagree.
{¶ 9} First, we note appellant never made a motion for a directed verdict and did
not bring any arguments to the trial court's attention in that regard. While this court has
held that a trial court may "grant a directed verdict sua sponte," it is certainly not required
to do so. Parrot v. Spring Industries, Inc., 5th Dist. Tuscarawas No. 90AP050039, 1991
WL 64871, *5 (Apr. 24, 1991), citing Gibbons v. Price, 33 Ohio App.3d 4, 514 N.E.2d 127(8th Dist.1986), paragraph two of the syllabus. A trial court does not err as a matter of
course in failing to grant a motion that was never made.
{¶ 10} Civ.R. 50(A) governs motion for a directed verdict and states a trial court
shall grant the motion if, "after construing the evidence most strongly in favor of the party
Holmes County, Case No. 2019 CA 002 4
against whom the motion is directed, finds that upon any determinative issue reasonable
minds could come to but one conclusion upon the evidence submitted and that conclusion
is adverse to such party." Our standard of review of the trial court's decision presents a
question of law and therefore our review is de novo. Shadle v. Morris, 5th Dist. Stark No.
2012CA00073, 2013-Ohio-906. In this case, there is no trial court decision to review. We
are reviewing the absence of a decision.
{¶ 11} As more fully discussed in Assignment of Error II, a review of the evidence
submitted establishes reasonable minds could differ on the issue of whether there was
an actual trespass. Each side presented evidence that they owned the property in
question that contained the trees removed by appellees. A directed verdict sua sponte
would not have been proper.
{¶ 12} Upon review, we find the trial court did not err in failing to sua sponte grant
a directed verdict to appellant on its trespass claim.
{¶ 13} Assignment of Error I is denied.
II
{¶ 14} In its second assignment of error, appellant claims the trial court erred in
not issuing a judgment notwithstanding the verdict ("JNOV") as the jury's verdict was
against the manifest weight of the evidence. We disagree.
{¶ 15} First, as in the motion for a directed verdict, appellant never filed a motion
for JNOV. In Pariseau v. Wedge Products, Inc., 36 Ohio St.3d 124, 127, 522 N.E.2d 511(1988), the Supreme Court of Ohio discussed the standard of review on a motion for
JNOV as follows:
Holmes County, Case No. 2019 CA 002 5
"The test to be applied by a trial court in ruling on a motion for
judgment notwithstanding the verdict is the same test to be applied on a
motion for a directed verdict. The evidence adduced at trial and the facts
established by admissions in the pleadings and in the record must be
construed most strongly in favor of the party against whom the motion is
made, and, where there is substantial evidence to support his side of the
case, upon which reasonable minds may reach different conclusions, the
motion must be denied. Neither the weight of the evidence nor the
credibility of the witnesses is for the court's determination in ruling upon
either of the above motions." Posin v. A.B.C. Motor Court Hotel (1976), 46
Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338. (Additional
citations omitted.)
{¶ 16} Appellate review of a ruling on a motion for JNOV is de novo. Midwest
Energy Consultants, L.L.C. v. Utility Pipeline, Ltd., 5th Dist. Stark No. 2006CA00048,
2006-Ohio-6232.
{¶ 17} Under a directed verdict standard, we found reasonable minds could differ
on the issue of whether there was an actual trespass. Because our analysis is the same
under a JNOV standard, we find the granting of a JNOV would have been improper.
{¶ 18} Appellant argues the trial court should have issued a JNOV because the
jury lost its way and the verdict was against the manifest weight of the evidence. A
challenge to the weight of the evidence is not via a JNOV which goes to sufficiency, but
a motion for new trial pursuant to Civ.R. 59(A)(6). Appellant never filed a motion for new
Holmes County, Case No. 2019 CA 002 6
trial; however, "a motion for a new trial [is not] a prerequisite for appellate review of the
weight of the evidence" as long as " 'such evidence to be considered appears as a part
of the record filed in the appellate court.' " Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 28, quoting in part R.C. 2321.01. The record in this case
contains the trial transcript and exhibits for our review.
{¶ 19} On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). Accord State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52, 678 N.E.2d 541; Eastley, supra. Our role is to determine whether
there is relevant, competent and credible evidence upon which the fact finder could base
its judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (Feb.
10, 1982).
{¶ 20} Appellant alleged in part a civil trespass. A civil trespass " 'occurs when a
person, without authority or privilege, physically invades or unlawfully enters the private
premises of another whereby damages directly ensue.' " Apel v. Katz, 83 Ohio St.3d 11,
19, 697 N.E.2d 600 (1998), quoting Linley v. DeMoss, 83 Ohio App.3d 594, 598, 615
N.E.2d 631, 633 (10th Dist.1992). Naturally, "[t]o prevail on a claim of trespass, the
claimant must prove he had possession of the subject premises at the time of the
Holmes County, Case No. 2019 CA 002 7
trespass." Northfield Park Associates v. Northeast Ohio Harness, 36 Ohio App.3d 14, 18
(8th Dist.1987).
{¶ 21} Appellant presented six witnesses. Charles Pahoundis testified to living on
the family farm back in the 1970s. T. at 52. Appellant leases out the land to another
farmer. T. at 54-55. In early 2015, Mr. Pahoundis went to the property and discovered a
whole row of trees missing and laying in the adjacent field, property owned by Mr.
Schonauer. T. at 55-56. Only one lone cherry tree remained near a bridge. T. at 65. Mr.
Pahoundis testified not only were the trees removed, but the bank of a stream was
disturbed and "rip rap" cement to hold up the bank was removed. T. at 56. An old broken
fence had also been removed. T. at 57-58. Mr. Pahoundis claimed these items were on
appellant's property and no one gave Mr. Schonauer permission to enter on the land and
remove the items. T. at 58-59. After the discovery, Mr. Pahoundis caused a survey to
be done by Donald C. Baker. T. at 59; Plaintiff's Exhibit 5. Mr. Pahoundis took
photographs during this 2015 survey and testified to his interpretation of the pictures. T.
at 60-62; Plaintiff's Exhibit 6. Another survey was conducted three years later in 2018 to
verify the 2015 survey. T. at 62-63; Plaintiff's Exhibit 8. During the 2018 survey, an
arborist was present, William Hahn. T. at 64. Again, Mr. Pahoundis took photographs
and testified to his interpretation of the pictures. T. at 64-71; Plaintiff's Exhibits 9 and 11.
During the 2018 survey, Mr. Pahoundis did not see any orange flags or any indications of
the 2015 survey. T. at 71.
{¶ 22} The next witness was Jerry Schonauer on cross-examination. He lived on
his property for over thirty years. T. at 86. Mr. Schonauer had two surveys done, one in
1997 and one in 2017. T. at 87; Plaintiff's Exhibit 7. The 1997 survey was done so Mr.
Holmes County, Case No. 2019 CA 002 8
Schonauer could build a fence between the two properties. T. at 91-92. This survey
included stakes with red flags on them and a pin in the ground, as well as a cornerstone.
T. at 92. Mr. Schonauer built the fence based on the survey report. Id. At some point,
Mr. Schonauer contacted Jim Martin from Sweet Breeze Farms & Excavating to remove
the trees. T. at 93. Mr. Schonauer wanted the trees removed because the trees sucked
up water which he wanted for his crops, birds would roost in the trees, and the trees would
scrap against his vehicle when he drove down the driveway. Id. Mr. Schonauer trimmed
the trees and maintained them. T. at 94. Mr. Schonauer admitted he never received
permission from appellant to remove the trees, alter the bank, or remove the fence. T. at
102-103. He testified he never asked Sweet Breeze Farms to remove any of the rip rap.
T. at 105-106. The invoice from Sweet Breeze Farms does not indicate any work done
to remove the rip rap. T. at 105; Plaintiff's Exhibit 4.
{¶ 23} Charles's brother, Louis Pahoundis, testified. He also lived on the family
farm in the 1970s. T. at 113. He testified to having counted twenty-eight trees at one
time before they were removed. T. at 115. He had counted the trees because his hobby
was making maple syrup. Id. The trees were basically in a straight line. T. at 118. He
stated the trees were on appellant's property. T. at 118-119. He never gave Mr.
Schonauer permission to enter the land and remove the items. T. at 119-120.
{¶ 24} Aaron Gerber conducted the 2015 survey. T. at 141; Plaintiff's Exhibit 5.
He testified to the cornerstone being placed when the properties were first laid out; it's a
permanent fixture. T. at 141-142. There was a pin located in the road that was found
with a metal detector and then dug up. T. at 142. He placed a dozen stakes with pink
ribbons. Id. Prior to conducting the survey, Mr. Gerber reviewed records related to the
Holmes County, Case No. 2019 CA 002 9
subject property at the Recorder's Office and the Tax Map Department, as well as the
online records of the Auditor's Office. T. at 145. Mr. Gerber also conducted the 2017 and
2018 surveys. T. at 146. The cornerstone, pin, and stakes were in their same relative
locations for all three surveys. T. at 146-147. In the 2018 survey, he placed about 15
stakes. T. at 153. In his professional opinion, he opined the lone remaining tree was on
appellant's property. T. at 154-155. On cross-examination, Mr. Gerber acknowledged in
all of the three surveys he conducted, he never located the cut down trees as to where
they were in relation to the remaining lone tree. T. at 162. He "never located any trees
in relation to the property line." Id. He was never hired to determine the location of the
removed trees in relation to the property line and he did not have an opinion on their
location. Id.{¶ 25} The next witness was James Martin on cross-examination. Mr. Martin is
the owner of Sweet Breeze Farms. T. at 166. He removed the trees Mr. Schonauer
asked him to remove. T. at 175, 186. There were a couple sizable trees and a bunch of
scrub brush. T. at 179, 187-188. He believed the work he performed was on Mr.
Schonauer's property, but based on a photograph he reviewed, "[n]ot by the looks of the
survey marker on that end of the bridge." T. at 176; Plaintiff's Exhibit 6. Mr. Martin did
not cause a survey to be done. T. at 173. Mr. Schonauer told him to stay off of appellant's
property and he did, except on two occasions when he backed his excavator over the
property line. T. at 177. Mr. Martin did not remove any rip rap, "that stuff was long gone."
T. at 182.
Holmes County, Case No. 2019 CA 002 10
{¶ 26} Charles's brother, John Pahoundis testified. He also lived on the family
farm in the 1970s. T. at 193. His testimony basically mirrored the testimony of his two
brothers.
{¶ 27} William Hahn, a professional arborist, was hired by appellant in late 2017 to
appraise the value of the removed trees. T. at 235. He was unable to measure any
stumps as they had been removed, so he "measured the roadway and got a distance"
and worked off of pictures to determine the size of the tree heads and found trees in the
area that had similar head sizes. T. at 236. He then measured the trunks of those trees
and ascertained that some of the removed trees were in excess of twenty-three inches in
diameter "by the size of the heads and extrapolating two (2) other trees in the vicinity."
Id. He determined at least twenty-eight trees had been removed. T. at 240. He stated
based on his inspection, the removed trees did not look like they had been on Mr.
Schonauer's property. T. at 248. He observed regrowth occurring where the trees had
been removed and black locust trees seeding in the area. T. at 249. The black locust
trees "appear when soil is disturbed if there are those trees in the area" and they were
located on appellant's property. Id. There was no question in his mind that the trees had
been removed from appellant's property. T. at 250, 254. He based his opinion on the
"property line and the existing relationship to the existing cherry tree that was in line with
that group of trees." T. at 255. On cross-examination, Mr. Hahn acknowledged that he
did not speak with Mr. Schonauer about the removed trees before forming his opinions
and "it could have been" helpful in his evaluation. T. at 263. He admitted he could not
be sure from the aerial photographs where the trunks were located. T. at 269. From the
aerial photograph, there was the potential for twenty-eight trees either two or three feet in
Holmes County, Case No. 2019 CA 002 11
diameter to have been in the removed tree line, but he could not corroborate that. T. at
269-270.
{¶ 28} Appellees presented two witnesses. Mary Uhl, Mr. Schonauer's wife,
testified she has lived on the property for approximately the past twenty-seven years. T.
at 291. Over the years, Ms. Uhl passed the tree line several times a day, and disagreed
with the claim that it contained twenty-eight trees ranging from two to three feet in
diameter. T. at 294. She testified to a hickory tree, three maple trees, some saplings,
and shrubs. T. at 293-294. She and her husband maintained the trees. T. at 294. She
believed the trees were on their property. T. at 296.
{¶ 29} Mr. Schonauer testified to having lived on his property for over thirty years.
T. at 309. In 1997, Mr. Schonauer caused a survey of his property to be done and based
on this survey and the placement of the stakes, believed the trees were on his property.
T. at 310, 319. He removed some trees from the tree line at that time, as the tree line
had extended out to the road. T. at 310-311. The trees that remained that he
subsequently removed shaded his crops, took water from the crops, damaged passing
vehicles, and roosted birds that would damage his hay bales. T. at 311. He maintained
and trimmed the trees. Id. He did not ask anyone's permission to remove the trees
because from the 1997 survey, he believed the trees belonged to him. T. at 311-312. He
hired Sweet Breeze Farms to shore up the bank of the stream, and never asked Mr.
Martin to pull out any rip rap. T. at 312-313. Mr. Schonauer would have never removed
the trees if he believed them to be on appellant's property. T. at 314.
{¶ 30} The jury was presented with testimony and exhibits and determined
appellant did not prove by a preponderance of the evidence that the trees and the fence
Holmes County, Case No. 2019 CA 002 12
were on its property and that appellees damaged the bank. Judgment Entry on Verdict
Form and Interrogatories filed February 4, 2019. As mentioned by plaintiff's counsel
during closing argument, credibility is paramount in this case, it is "going to determine this
case of the witnesses." T. at 336.
{¶ 31} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180(1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page."
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
{¶ 32} Each side offered opposing opinions on the tree line relative to the property
line, and there was no clear testimony as to the trees' location following their removal.
The jury could have determined that appellant's evidence did not outweigh or overbalance
appellees' evidence or the evidence presented was equally balanced therefore appellant
did not meets its burden of proof. T. at 328.
{¶ 33} Upon review, we cannot say the jury lost its way. We do not find a manifest
miscarriage of justice.
{¶ 34} Assignment of Error II is denied.
{¶ 35} The judgment of the Court of Common Pleas of Holmes County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Wise, John, P.J. and
Baldwin, J. concur.
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