Amore v. Ohio Turnpike Comm.

[Cite as Amore v. Ohio Turnpike Comm., 194 Ohio App.3d 182, 2011-Ohio-1903.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
AMORE et al., C.A. No. 25227
Appellees,
v. APPEAL FROM JUDGMENT
ENTERED IN THE
THE OHIO TURNPIKE COMMISSION, COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant. CASE No. CV 06 12 8215
APPEARANCES:
Michael A. Malyik and Scott Kolligian, for appellees.
Anthony J. Coyne, Bruce G. Rinker, and Jennifer E. Horn; and Noelle Tsevdos, General
Counsel, for appellant.
R. Todd Hunt and Charles T. Riehl, for amici curiae.
DECISION AND JOURNAL ENTRY
Dated: April 20, 2011
MOORE, Judge.
{¶1} Appellant, the Ohio Turnpike Commission, appeals the judgment of the Summit
County Court of Common Pleas, General Division. This court affirms.
I
{¶2} In 1984, Christopher and Patricia Amore purchased the property located at 1600
Woodland Drive in Peninsula, Ohio. In 1997, the Ohio Turnpike Commission began a
maintenance and construction project involving a portion of the turnpike adjacent to the Amores’
2
property. The construction increased the number of travel lanes eastbound and westbound. This
involved removing several trees that stood between the Amores’ home and the turnpike. It also
brought the travel lane approximately 65 feet closer to their home. A steep hill was constructed
next to the Amore residence in order to build the additional lanes. As a result of the project,
there was an increase in traffic noise from the turnpike, and the Amores complained that they
lost the enjoyment and use of their home.
{¶3} The Amores filed a complaint on January 4, 2007, alleging that maintenance and
improvements to the Ohio Turnpike, created entirely within the right of way of the commission,
created a permanent nuisance. The Amores also alleged that the maintenance and improvements
of the turnpike constituted an illegal taking of their property without compensation. In an
amended complaint, the Amores included a count for mandamus and taking. The commission
moved for summary judgment on October 12, 2007, which the trial court denied on July 17,
2008. The action proceeded to a jury trial, which began on June 15, 2009.
{¶4} On the first day of trial, the Amores abandoned their mandamus claim. Several
days later, they attempted to orally dismiss their takings claim. The court denied the attempted
dismissal. The commission orally moved for a directed verdict at the close of the Amores’
evidence, and renewed its motion for a directed verdict at the close of trial. The court denied
both motions. The jury then retired to deliberate on both the takings claim and the nuisance
claim. It reached a jury verdict of $115,000 for the Amores on the takings claim and $115,000
for the Amores on the nuisance claim. The court filed a judgment entry in the amount of
$115,000 for the Amores. After trial, the commission filed motions for judgment
notwithstanding the verdict and for a new trial. The court denied these motions.
3
{¶5} The commission appealed to this court, and we remanded the case to the trial
court because the judgment entry did not resolve all issues. Upon resolution of the issues, the
trial court filed another judgment entry and thereafter denied refiled motions for judgment
notwithstanding the verdict and for a new trial.
{¶6} The commission timely filed a notice of appeal. It raises six assignments of error
for our review. We have rearranged and consolidated some of the assignments of error to
facilitate our review.
II
Assignment of Error III
The trial court erred when it allowed [the Amores’] nuisance claim
to go to the jury because it was substantively deficient.
{¶7} The commission contends that the trial court erred when it allowed the Amores’
nuisance claim to go to the jury, because it was substantively deficient. Essentially, it argues that
the trial court erred when it denied the commission’s motion for directed verdict. We do not
agree.
{¶8} As an appellate court, we review the trial court’s ruling on a motion for a directed
verdict de novo to the extent that it presents a question of law. Jarvis v. Stone, 9th Dist. No.
23904, 2008-Ohio-3313, at ¶ 7. The focus of a motion for a directed verdict is on the sufficiency
of the evidence as opposed to the weight of the evidence or the credibility of witnesses. Id.{¶9} After a court enters judgment on a jury’s verdict, a party may file a motion for
judgment notwithstanding the verdict in order to have the judgment set aside on grounds other
than the weight of the evidence. Civ.R. 50(B). As with an appeal from a court’s ruling on a
directed verdict, this court reviews a trial court’s grant or denial of a judgment notwithstanding
the verdict de novo. Williams v. Spitzer Auto World Amherst, Inc., 9th Dist. No. 07CA009098,
4
2008-Ohio-1467, at ¶ 9, citing Osler v. Lorain (1986), 28 Ohio St.3d 345, 347. “[A judgment
notwithstanding the verdict] is proper if upon viewing the evidence in a light most favorable to
the nonmoving party and presuming any doubt to favor the nonmoving party reasonable minds
could come to but one conclusion, that being in favor of the moving party.” Williams at
¶ 9, citing Civ.R. 50(B)
{¶10} “‘Nuisance’ is a term used to designate the wrongful invasion of a legal right or
interest. It comprehends not only the wrongful invasion of the use and enjoyment of property,
but also the wrongful invasion of personal legal rights and privileges generally.” Taylor v.
Cincinnati (1944), 143 Ohio St. 426, 431-432.
{¶11} A nuisance can be private or public. A private nuisance is “a nontrespassory
invasion of another’s interest in the private use and enjoyment of land.” Ogle v. Ohio Power
Co., 180 Ohio App.3d 44, 2008-Ohio-7042, at ¶ 7, citing Brown v. Scioto Cty. Commrs. (1993),
87 Ohio App.3d 704, 712. For a private nuisance to be actionable, the invasion must be either
(1) intentional and unreasonable or (2) unintentional but caused by negligent, reckless, or
abnormally dangerous conduct. Brown at 712-713.
{¶12} A private nuisance can be either qualified or absolute. Strict liability is imposed
on an absolute nuisance. Kramer v. Angel’s Path, L.L.C., 174 Ohio App.3d 359, 2007-Ohio-
7099, at ¶ 20, citing Taylor, 143 Ohio St. 426, at paragraph two of the syllabus. The Ohio
Supreme Court has explained that an absolute nuisance “consists of either a culpable and
intentional act resulting in harm, or an act involving culpable and unlawful conduct causing
unintentional harm.” Metzger v. Pennsylvania, Ohio & Detroit RR. Co. (1946), 146 Ohio St.
406, paragraph one of the syllabus.
[T]he distinction between absolute and qualified nuisance depends upon
the conduct of the defendant. * * * [A]n absolute nuisance requires
5
intentional conduct on the part of the defendant[.] * * * Intentional, in this
context, means not that a wrong or the existence of a nuisance was
intended but that the creator of [it] intended to bring about the conditions
which are in fact found to be a nuisance.
Angerman v. Burick, 9th Dist. No. 02CA0028, 2003-Ohio-1469, at ¶ 10.
{¶13} In 1984, the Amores bought the home at 1600 Woodland Drive for $51,000. Mrs.
Amore testified that the couple purchased the home in 1984 when there was significant
vegetation that blocked the majority of the view and noise from the turnpike. Plaintiff’s Exhibit
1 was a picture of the back of the home around 1986 to 1987. The significant and hearty
vegetation can be seen, and the turnpike is not visible through the trees. Plaintiff’s Exhibit 2 was
a picture taken from the same vantage point after construction was completed. It shows much
less vegetation, the turnpike guardrail is visible, as well as a truck passing on the turnpike.
{¶14} Mrs. Amore further testified about the family’s enjoyment of the property prior to
the construction. The Amores enjoyed a garden and a strawberry patch. They would often have
family picnics and spend significant amounts of time outside with family, friends, and pets. The
traffic noise from the turnpike was not an issue prior to construction. She explained that when
she purchased the home she did not have any concerns about the turnpike because it was not
visible and there was minimal sound, only a periodic “swish.” Between 1995 and 1996, the
Amores made extensive improvements to the property, investing about $120,000. They had
planned to stay there for retirement and for the rest of their lives.
{¶15} The Amores received a letter around 1997 from the Turnpike Commission
informing them of meetings that would take place to advise residents of the upcoming
construction project. Prior to construction beginning, Mr. Amore attended two community
meetings with commission representatives. At one meeting, a gentleman from the commission
indicated to Mr. Amore, referring to his property that, “we intend to purchase that property. We
6
need that for the construction of the new lanes.” The commission told Mr. Amore that he would
be contacted, but that never occurred. Later, the Amores were told that their property would not
be needed and that there would be an embankment built with attractive vegetation between the
turnpike and their property.
{¶16} At some point, the Amores contacted the commission to inquire about the noise
levels that would result from construction. Plaintiff’s Exhibit 5 was a letter from the
commission, dated May 26, 1998, with the subject line “Cuyahoga River Bridge Replacement –
Noise levels.” Mrs. Amore testified that this letter was in response to the Amores’ concern
about the noise level from the construction. In it, the commission explained that the projected
change in noise levels would be four to five decibels. Because a human ear can barely
distinguish a three-decibel change, the commission projected that the change would be
noticeable but not significant. Therefore, the commission concluded that it would not provide
noise abatement, such as a sound wall.
{¶17} When construction began, many trees located between the Amores’ property and
the turnpike, including those shown in Plaintiff’s Exhibit 1, were cut down. These trees were not
on property belonging to the Amores. The majority of the remaining trees that were located on
the Amores’ property subsequently died following construction. Construction was completed in
October 2003. It included the addition of two lanes, increasing the total number from four to six
lanes. It also moved the lanes 65 feet closer to the Amores’ property. The speed limit, after the
project was completed, was increased from 55 miles per hour to 65 miles per hour.
{¶18} William Fleischman, assistant chief engineer for the commission, testified about
the construction project. A steep hill, referred to as a “barrow,” was constructed next to the
7
Amore residence. The hill was necessary to build the additional lanes. The Amores testified that
this hill has created an increase in noise due to engine-braking by semi trucks.
{¶19} Mrs. Amore explained that following completion of the construction project, it is
difficult to sit outside and hold a conversation. If there is additional noise from truck engine-
braking, the conversation has to be put on hold until the truck passes. In addition, Mrs. Amore
no longer keeps a garden because she does not enjoy spending as much time outside. The
Amores no longer keep their windows open due to the increased noise level. Mr. Amore
similarly testified that you can “hardly talk to each other unless you are right on top of each
other.” He further testified that he awoke at night because of the noise from trucks and the
engine-braking.
{¶20} Mrs. Amore testified to the property value of her home. In 2004, the tax appraisal
stated that the property had a total value of $189,170. In 2005, following the addition of a
$50,000 pool, the property was valued at $264,300. The Amores requested an adjusted
appraisal, and it was adjusted to $211,020. In 2007, after the addition of a pole barn, the
property was appraised at $215,800. In 2008, there was a proposed increase to $227,940. The
Amores contested again due to the previous adjustment and because of the proximity to the
turnpike. The property was then given an appraisal of $198,420. Mrs. Amore testified, as a
homeowner, that with the addition of the pool she believes the home would have been worth
$300,000. However, following the construction, she testified that she would “be surprised if
[they] could sell it for $200,000.”
{¶21} Kimberly Burton testified as a sound expert for the commission. She explained
that 70 decibels would be a number that would prompt looking at installing a sound barrier wall.
She further explained that the human ear would perceive an increase of 10 decibels as a doubling
8
in sound. When she conducted testing at the Amores’ property after construction, and prior to
the lawsuit, she had a reading of 80.2 decibels. She agreed that it was noisy and would annoy
people. Another reading registered at 74.2 decibels. There was a maximum reading near the
house of 83.1 decibels. She agreed that it was “a little too noisy.”
{¶22} There is no doubt that the commission intentionally carried out the construction
project adjacent to the Amores’ property. The testimony above indicates that there was an
increase in the noise level. The commission’s letter acknowledges that it anticipated an increase
in the noise level. In addition, the jury had the opportunity to view the property and to observe
the noise level firsthand. “Even if they did not intend to generate noise, it apparently was an
unavoidable byproduct of their intentional activity.” Angerman, 2003-Ohio-1469, at ¶ 11. In
Angerman, this court was “persuaded by Ohio appellate opinions that have analyzed the problem
of intentionally created excessive noise as an absolute nuisance.” Id. at ¶ 15, citing Zang v.
Engle (Sept. 19, 2000), 10th Dist. No. 00AP-290; Coe v. Pennington (Apr. 6, 1983), 12th Dist.
No. 470. “‘[I]f one does any other act, in itself lawful, which yet be done in that place
necessarily tends to the damage of another’s property, it is a nuisance: for it is incumbent on him
to find some other place to do that act, where it will be less offensive.’ ” Angerman at ¶ 10,
quoting 3 Blackstone, Commentaries on the Laws of England (1768) 217-218.
{¶23} This court concludes, after viewing the evidence in a light most favorable to the
Amores, that the evidence of record was sufficient to support the claim of nuisance, and that
denial of the judgment notwithstanding the verdict was proper. Williams, 2008-Ohio-1467, at
¶ 9, citing Civ.R. 50(B). The commission’s third assignment of error is overruled.
Assignment of Error IV
The trial court erred by permitting Patricia Amore to testify as to
the value of her home, because it was based upon inadmissible hearsay.
9
{¶24} The commission contends that the trial court erred when it permitted Patricia
Amore to testify as to the value of her home, because it was based upon inadmissible hearsay.
We do not agree.
{¶25} The owner-opinion rule in Ohio is expressed in Cincinnati v. Banks, (2001), 143
Ohio App.3d 272, 291. It provides that the owner of real property is competent to testify as to its
fair market value based upon his ownership of the property alone, without regard to any
particular expertise in the area. Id. The basis of the rule is that the homeowner is presumed to be
well enough acquainted with his or her own property to estimate its value without any expert
training. Id.{¶26} The commission contends that the Amores never established a before or after
valuation of the property because they never presented an expert opinion. In Banks, the court
held that one does not need to be qualified as an expert to testify as to the value of his own
property. Thus, the commission’s fourth assignment of error is overruled.
Assignment of Error I
The trial court erred when it allowed [the Amores’] takings claim
to go to the jury, both because the claim was deficient, as a matter of
procedure, and because the jury was the improper body to decide the
claim, as a matter of law.
Assignment of Error II
The trial court erred when it allowed [the Amores’] takings claim
to go to the jury because the takings claim was also substantively
deficient.
{¶27} The commission contends that the trial court erred when it allowed the Amores’
takings claim to go to the jury because the jury was an improper body to decide the claim and
because the claim was substantively deficient. Based upon our disposition of the commission’s
third assignment of error, we decline to address these assignments of error.
10
{¶28} The jury returned a verdict of $115,000 for the Amores on the takings claim and
$115,000 for the Amores on the nuisance claim. The court found that these awards were not
cumulative because the jury provided identical relief under two different theories of law. The
court entered a judgment in the amount of $115,000 for the Amores. Assuming for the purposes
of argument that the takings claim was deficient, the judgment for $115,000 would nonetheless
be upheld based upon the jury’s verdict on the nuisance claim.
{¶29} This court has previously stated that “[w]e are nevertheless required to affirm the
trial court’s judgment if any valid grounds are found on appeal to support it.” McKay v. Cutlip
(1992), 80 Ohio App.3d 487, 491, citing Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93,
96. In addition, “ ‘[r]eviewing courts are not authorized to reverse a correct judgment on the
basis that some or all of the lower court’s reasons are erroneous.’” Goudlock v. Voorhies, 119
Ohio St.3d 398, 2008-Ohio-4787, at ¶ 12, quoting State ex rel. McGrath v. Ohio Adult Parole
Auth., 100 Ohio St.3d 72, 2003-Ohio-5062, at ¶ 8.
{¶30} Here, our disposition of the third assignment of error concludes that there are
valid grounds to support the trial court’s judgment entry in favor of the Amores. Thus, we
decline to address the commission’s first and second assignments of error.
Assignment of Error V
The trial court erred when it denied [the commission’s] motion for
summary judgment because there were no genuine issues of material fact.
{¶31} The commission contends that the trial court erred when it denied the
commission’s motion for summary judgment. We do not agree.
{¶32} The Ohio Supreme Court has held that an error by the trial court in denying a
motion for summary judgment is rendered harmless if a later trial on the merits involving the
same issues demonstrates that there were genuine issues of material fact and results in a
11
judgment in favor of the party against whom the motion was made. Continental Ins. Co. v.
Whittington (1994), 71 Ohio St.3d 150, 156.
{¶33} The Supreme Court added:
“We need not evaluate the evidentiary materials supporting and opposing
the [party’s] summary judgment motion on [the] issue. Any error in
denying that motion is moot or harmless, even if it had merit when the
court denied it. * * *.” We are also persuaded by the fact that courts
throughout this country generally hold that the denial of a motion for
summary judgment is not a point of consideration in an appeal from a final
judgment entered following a trial on the merits. See, generally,
Annotation, Reviewability of Order Denying Motion for Summary
Judgment (1967), 15 A.L.R.3d 899, 922-925, and 1994 Supplement at 72-
76.
Id., quoting Sanders v. Mt. Sinai Hosp. (1985), 21 Ohio App.3d 249, 256, 21 OBR 292,
487 N.E.2d 588. See also Bies v. Huntington Natl. Bank, 9th Dist. No. 22660, 2005-
Ohio-6981, at ¶ 11.
{¶34} “This Court, without determining whether the trial court committed any error in
denying appellant’s motion for summary judgment, need only determine whether genuine issues
of fact were raised at trial.” First Merit Bank, N.A. v. Wilson, 9th Dist. No. 23363, 2007-Ohio-
3239, at ¶ 24. We conclude that there were.
{¶35} This court determined in the commission’s third assignment of error that the trial
court properly found in favor of the Amores. Accordingly, any error in denying the
commission’s motion for summary judgment was harmless. The commission’s fifth assignment
of error is therefore overruled.
Assignment of Error VI
The trial court erred when it denied [the commission’s] motion for
directed verdict despite the absence of evidence proving the Amores’
claims.
{¶36} The commission contends that the trial court erred when it denied the
commission’s motion for directed verdict. Our disposition of the commission’s first, second, and
12
third assignments of error renders this assignment of error moot. App.R. 12(A)(1)(c).
Consequently, we decline to address the commission’s sixth assignment of error.
III
{¶37} The commission’s third, fourth, and fifth assignments of error are overruled. We
decline to address the first, second, and sixth assignments of error. The judgment of the Summit
County Court of Common Pleas, General Division, is affirmed.
Judgment affirmed.
WHITMORE, P. J., and DICKINSON, J., concur.
APPEARANCES:
Michael A. Malyik, and Scott Kolligian, for appellees.
Anthony J. Coyne, Bruce G. Rinker, and Jennifer E. Horn; and Noelle Tsevdos, General
Counsel, for appellant.
R. Todd Hunt and Charles T. Riehl, for amici curiae.