IN THE SUPREME COURT OF OHIO

KENNETH J. ADAMS,

V.Appellant,

PITORAK & COENENINVESTMENTS LTD., et aL,

David S. Pennington (0031477)WRIGHT LAW CO. LPA4266 Tuller RoadDublin, Ohio 43017Ph: 614-791-9112Fax: 614-791-9116E-Mail: dpenninat on(a wrieht-law.netAttorney for Appellant Kenneth J. Adams

G. Michael Curtin (0016462)Kimberlee J. Kmetz (0063404)CURTIN & KMETZ, LLP159 South Main Street, Suite 920Akron, Ohio 44308Ph: 330-376-7245Fax: 330-376-8128E-Mail: mcurtingcurtinlawfirm.comE-Mail: kkmetzna curtinlawfinn.comAttorneys for Appellee Pitorak & Coenen Investments Ltd.

David J. Fagnilli (0032930)DAVIS & YOUNG1200 Fifth Third Center600 Superior Avenue EastCleveland, Ohio 44114Ph: 216-348-1700Fax: 216-621-0602E-Mail: dl:aenilli it)davisyoung.comAttorneyfor Appellee Clemson Excavating, Inc.

Appellees.

CASE NO.

On Appeal from GeaugaCounty, Court of Appeals,Eleventh Appellate District

Court of AppealsCase No. 2011-G-3019

APPELLANT'S MEMORANDUM OF JURISDICTION

12m^^490

TABLE OF CONTENTS

TABLE OF CONTENTS ...... .... ..... ...... ...... ........ ....... ...... ...... ......... ........ .............ii

...TABLE OF AUTHORITIES ......... .. .... ......... ........ ................... .....:...... ....... ..... ... ui

1. PROPOSITION OF LAW

A COURT MAY NOT EXERCISE ITS POWER TO DIRECT ORVACATE A JURY VERDICT UNDER OHIO RULE OF CIVILPROCEDURE 50 IN A MANNER THAT DENIES A PARTY'SRIGHT TO TRIAL BY JURY UNDER ARTICLE 1, SECTION 5OF THE OHIO CONSTITUTION ..............................................................1

II. EXPLANATION OF WHY A SUBSTANTIAL CONSTITUTIONALQUESTION IS INVOLVED AND WHY THE CASE IS OF PUBLICOR GREAT GENERAL INTEREST ............................................................:................1

III. STATEMENT OF THE CASE AND FACTS .........:.......................................3

A. PROCEDURAL HISTORY ... .: . :... .. ...... ...... ...:.. ...... ..... . ...... .. ..... .. ......3

B. FACTUAL OVERVIEW ...................................................................5

IV. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW.............................. 9

A. PROPOSITION OF LAW . ................................................................9

B. THE INDIVIDUAL'S RIGHT TO TRIAL BY JURY AND THE"SCINTILLA" RULE ... ...... ............ ...... ...... ...... ...... ... .......................9

C. THE COURT'S POWER TO DIRECT OR VACATE A JURY VERDICT.......12

C.1 By Reversing The Trial Court's Denial Of Defendant Pitorak'sMotion For Directed Verdict And, Thereby, Also ReversingThe Trial Court's Denial Of Defendant Pitorak's Motion ForJudgment NOV, The Court Of Appeals Substituted Its JudgmentFor That Of The Jury On The Qnestion Of Liability And Damages ................13

C.2 At Minimum, The Court Of Appeals Should Have Remanded The CaseFor A New Tria1 ............................................................................14

C.3. By Affirming The Trial Court's Rulings Granting Four Separate

Motions For Directed Verdict, The Court of Appeals DeniedAppellant The Right To Trial By Jury ................................................... 15

ii

V. CONCLUSION .......................................................:............................15

CERTIFICATE OF SERVICE .. . ... ..... .... ...... ......... ......... . ..... ............... ..............16

APPENDIX . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... . . . . .17

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TABLE OF AUTHORITIES

CONSTITUTIONAL CITATIONS

Ohio Constitution, Article 1, Section 5 .......................................1, 2, 3, 9, 10, 11, 12, 14, 15

CASES

Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 474,880 N.E.2d 420, 430 .........................................:............:......................1, 10, 11

Gibbs v. Girard (1913), 88 Ohio St. 34, 47, 102 N.E. 299 ...............................1, 9, 10, 11, 14

Hanna v. Wagner, 39 Ohio St. 2d 64, 66, 313 N.E.2d 842, 843 (1974) ..........................14, 15

McGlashan v. Spade Rockledge Corp., 62 Ohio St. 2d 55 .............:...............................14

Pang v. Minch, 53 Ohio St. 3d 186, 195, 559 N.E.2d 1313, 1322 (1990) .............................13

Posin v. A. B. C. Motor Court Hotel, Inc., 45 Ohio St. 2d 271, 275, 344 N.E.2d 334, 338 (1976).......... 12

OHIOSTATUTES

.......................................................11R.C. §2315.18 ...... ................ ......... ...........

R.C. §2315.21 ........... . ...... .................. ..... . ......... ...... ...... .. .... ...... ............ ..., ......11

OTHER AUTHORITIES

Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), reprinted in15 The Papers of Thomas Jefferson (Boyd Ed. 1958) 269 ......................................1

Ohio Civil Rule 38(A) ........................................................................................9

Ohio Civil Rule 50 .....................................................................................L9,12

Ohio Civil Rule 56 ...........................................................................................12

iv

I. PROPOSITION OF LAW

A COURT MAY NOT EXERCISE ITS POWER TO DIRECT OR VACATE AJURY VERDICT UNDER OHIO RULE OF CIVIL PROCEDURE 50 IN AMANNER THAT DENIES A PARTY'S RIGHT TO TRIAL BY JURY UNDERARTICLE 1, SECTION 5 OF THE OHIO CONSTITUTION.

IL EXPLANATION OF WHY A SUBSTANTIAL CONSTITUTIONAL QUESTIONIS INVOLVED AND WHY THE CASE IS OF PUBLIC OR GREAT GENERALINTEREST

For the average citizen who finds himself a participant in the American legal system,

preservation of the right to a trial by jury is most certainly a matter of "great general interest."

Thomas Jefferson once wrote that the right to trial by jury is "the only anchor, ever yet imagined

by man, by which a government can be held to the principles of it's [sic] constitution."' As a

"constitutional question," the right to a trial by jury is among the most cherished provisions in

the Bill of Rights. In the words of this Court, the right to trial by jury "serves as one of the most

fundamental and long-standing rights in our legal system, having derived originally from the

Magna Carta. (citation omitted) It was `[d]esigned to prevent government oppression and to

promote the fair resolution of factual issues."'z Moreover, "So long as the trial by jury is a part of

our system of jurisprudence, its constitutional integrity and importance should be jealously

safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is

in the wording of our Constitutions."3

Nevertheless, the right to trial by jury is not absolute. In a civil case, the Trial Court has

authority to deny a party a trial by jury under authority of Civil RiaIe 50. When that authority is

I Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), reprinted in 15 The Papers of ThomasJefferson (Boyd Ed.1958) 269, cited in Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d

468, 474, 880 N.E.2d 420, 430.2 See, Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 474, 880 N.E.2d 420, 430.3 See, Gibbs v. Girard (1913), 88 Ohio St. 34, 47, 102 N.E. 299.

1

exercised, there is a natural tension between the individual's right to trial by jury and the Court's

authority to deny that right by way of a directed verdict or Judgment NOV.

In this case, the Trial Court granted four separate Motions for Directed Verdict at the

close of Plaintiffs case but allowed the jury to decide the following issue: "Plaintiffs action

against Defendants Pitorak & Coenen, Ltd., Larry Pitorak, and Loretta Pitorak may proceed as to

any damages claimed to have been suffered by Plaintiff Kenneth Adams for the loss of

enjoyment or use of his real property and for damages for nuisance that occurred subsequent to

2006 and for trespass."4 The jury was given a clear limiting instruction on the damages to be

awarded on this issue. Trial Transcript (Tr.) pp. 1224-1225. The jury returned a verdict on these

claims and awarded Appellant $89,200 in damages against Defendant Pitorak & Coenen, Ltd.

("Defendant Pitorak"). The Trial Court denied Defendant Pitorak's Motion for Judgment NOV.

On appeal, the Eleventh District Court of Appeals vacated the jury's verdict on the

ground "there is insufficient evidence to determine that Pitorak & Coenen maintained the

subdivision in a negligent fashion thereby creating an unreasonable risk of harm." See Opinion at

Para. 73, App. 1, emphasis added. Appellant believes this ruling runs afoul of Article I, Section 5

of the Ohio Constitution (Right to Jury Trial). Notwithstanding the Eleventh District's view of

the evidence, the jury clearly found otherwise and that finding is reflected in the jury's award of

damages. As more fully explained below, the evidence of record is sufficient to sustain the jury's

verdict under Article 1, Section 5 of the Ohio Constitution.

By substituting its judgment on a question of fact for that of the jury, the Court of

Appeals has denied Appellant his constitutional right to have the facts of his case decided by a

jury. Similarly, by directing a verdict in four separate journal entries filed on March 4, 2012, the

° See Judgment Entry (JE) on Motion for Directed Verdict filed by Defendants Pitorak & Coenen, Ltd.,Larry J. Pitorak and Loretta M. Pitorak (Defendant Pitorak), filed March 4, 2011, App. 2.

2

Trial Court denied Appellant his constitutional right to have the facts of his case decided by a

jury•

Finally, it is a relatively rare occasion when a jury verdict is affirrried by the Trial Court

but later vacated by the Court of Appeals, without remand. In such a case, the Ohio Supreme

Court is the only forum available to a party for a determination of whether the Court of Appeals'

ruling runs afoul of Article I, Section 5 of the Ohio Constitution. Appellant believes that the

opinion of the Eleventh District Court of Appeals does, in fact, run afoul of the Constitution and

respectfully asks this Court to accept this case for review.

III. STATEMENT OF THE CASE AND FACTS

A. Procedural History

A Complaint was filed by Plaintiff/Appellant in the Geauga County Court of Conunon

Pleas on August 8, 2008 for damages associated with the construction of the "Heather Hollow"

subdivision in Geauga County. The Complaint alleged nuisance, trespass, unreasonable diversion

of surface water and related claims. The Complaint was amended on November 3, 2008 to add a

party Defendant. Following a summary judgment appeal, the case went to a jury trial from

February 28 to March 4, 2011. At the close of evidence, several motions for directed verdict

were filed.5 The Trial Court granted these motions for the most part but allowed the following

issue to go to the jury: "Plaintiffs action against Defendants Pitorak & Coenen, Ltd., Larry

Pitorak, and Loretta Pitorak may proceed as to any damages claimed to have been suffered by

Plaintiff Kenneth Adams for the loss of enjoyment or use of his real property and for damages

for nuisance that occurred subsequent to 2006 and for trespass." See Judgment Entry (JE),

5 See App 3, 4, 5 and 2: On March 4, 2012 the Trial Court ruled on Motions for Directed Verdict filed onbehalf of Defendant Clemson Excavating, Inc., Defendant s Richard Jaynes and the Jaynes Company,Defendant Pitorak & Coenen Investments LLC, and Defendants Pitorak & Coenen, Ltd., Larry J. Pitorak,

and Lorretta M. Pitorak.

3

March 4, 2011, App. 2. The jury returned a verdict on these claims and awarded Appellant

$89,200 in damages against Defendant Pitorak.

Following the announcement of the jury's verdict, Defendant Pitorak moved for a

Judgment NOV. This motion was denied by the trial court. See JE, April 20, 2011, App. 6.

Defendant Pitorak appealed and asserted six assignments of error. Appellant cross

appealed and asserted two cross-assignments of error. On June 29, 2012 the Eleventh District

Court of Appeals determined that only one assignment of error had merit. All other assignments

of error were either rejected or deemed moot.

The single assignment of error approved by the Court of Appeals was Defendant

Pitorak's Fourth Assignment of Error, which states: "The trial court erred by refusing to grant

Defendant, Pitorak & Coenen's motion for directed verdict," Opinion, Para. 73. This assignment

of error is a little misleading because the Trial Court did grant Defendant Pitorak's Motion for

Directed Verdict, in part. See Judgment Entry, March 4, 2011, attached at App. 2. The Trial

Court did not grant the motion in its entirety, however. As stated above, the Trial Court allowed

the jury to decide the question of liability and damages arising out of "loss of enjoyment or use

of his [Plaintiffs] real property and for damages for nuisance that occurred subsequent to 2006

and for trespass." See Judgment Entry, March 4, 2011, at App. 2.

In its opinion, the Court of Appeals conceded that the jury verdict could be sustained on a

theory of "continuing nuisance" or "continuing trespass" and further found that this crucial issue

had not been resolved at trial. See Opinion, p. 21-22, App. 1. Ordinarily such a fmding would

result in a remand to the Trial Court for further proceedings. However, the Court of Appeals did

not remand. Instead, the Court of Appeals evaluated the evidence for itself and concluded,

"However, even if the trespass and nuisance were to be considered `continuing,' there is

4

insufficient evidence to determine that Pitorak & Coenen maintained the subdivision in a

negligent fashion thereby creating an unreasonable risk of harm." Opinion, Para. 73. Upon this

finding, the Court of Appeals reversed that portion of the Trial Court's order denying Defendant

Pitorak's Motion for Directed Verdict and, thereby, vacated the jury verdict rendered on that

issue. Given the Court's ruling on Defendant Pitorak's Motion for Directed Verdict, the

assignment of error related to the Motion for Judgment NOV was deemed moot. Id., Para. 83, 84.

B. Factual Overview

Kenneth J. Adams (Appellant) owns property located at 9441 Pekin Road, Novelty, Ohio

that once included a pristine, spring-fed pond. In 2004 and 2005, the Heather Hollow subdivision

was constructed in Russell Township, Geauga County, Ohio. This case involves daniages

sui'fered by Appellant during and. after the construction of the Heather Hollow subdivision.

Heatlier Hollow was owned and developed by Defendant/Appellee Pitorak & Coenen

Investments, Ltd. Appellant was a property owner downhill of the Heather Hollow subdivision

and had lived at this property with his wife, Jacqueline Adams, for many years before

construction of Heather Hollow began in 2004. For reasons not relevant to this appeal,

Appellant's property was originally deeded only in the name of Appellant's spouse (Jacqueline)

until May 4, 2006, when she quit-claimed herinterest in the property to her husband, Appellant

Ken Adams. At the time of recording the Quit Claim Deed, Jacqueline Adants also assigned to

her husband all rights and interest in all claims and causes of action for damage to the referenced

real. property. Opinion, Para. 9 to 15. The assignment of rights was never requested by a

Defendant or produced, by Appellant during discovery, nor was it identified as a trial exhibit

before commencement of the jury trial.

5

From. the date the Heather Hollow construction commenced in 2004, an excessive

amount of heavily silted, surface water flowed over the Adams' property and 'nito Appellant's

pond. The heavily silted water flowing from Heather Hollow caused significant damage to

Appellant's pond and property. While the muddy water flowing into the pond and subsequent

fish kills were obvious to a casual observer, the impact of the silt settling to the bottom of the

pond was not visible from the surface. Long before litigation was ever contemplated, Appellant

sought to objectively measure the impact of the silt and sediment accumulating in his pond by

taking regular measurements of the pond's depth. Appellant constructed the pond, so he knew

the original depth of his pond and had measured it in the winter of 2003-2004, before the

construction of the Heather Hollow subdivision began. The depth was nine (9) feet, plus or

minus one-half inch. (Tr. 728-730) In the winter of 2004-2005, after the construction of the

Heather Hollow subdivision, Appellant measured the depth of the water in his pond and found it

to be approximately seven (7) feet. (Tr. 731) Appellant last measured the depth of the water in

his pond in March of 2010, and it measured less than seven (7) feet at that time. (Tr. 779) The

March 2010 measurement is evidence that the depth of the pond continued to diminish between

2005 and 2010.

In addition, at the end of the summer of 2004, Appellant observed that the inlet to his

pond, which had initially been dug to seven (7) feet in depth, was filled to the top with silt. (Tr.

733, 751-754, 761) Whenever a significant rain event occLured, Appellant would walk the

property up to the Heather Hollow subdivision to investigate. There he observed that there were

no sediment traps and no silt fences in place in August of 2004 or September of 2004. There

were no silt fences until the end of September of 2004. (Tr. 764-765)

6

Appellant testified that every time it rains more than a half inch of water, a rain event

including excess flow of surface water filled with sediment comes from the Heather Hollow

subdivision onto the Adams' property and into the Adams' pond. (Tr. 787) Since 2004,

whenever there is a'heavy rainfall or heavy snowfall, Appellant receives a gush of "tan colored

water" conling into the pond. Appellant testified that he observed this event repeatedly before

and after May, 2006. See, e.g., Tr. 787 et seq. (Appellant testified that he observed tan colored

water entering his pond in February 2011 and as recently as "Monday of this week.")

Mrs. Adams explained that "in 2004 and since then" (no end date), the pond has been

continually affected by the loss of trees and fish have died as a result of this ongoing situation.

(Tr. 911). In reference to the pond, Mrs. Adams was then asked the question: "What does it look

like? What do you see?" It is significant that the question was not "What did you see," but

"What do you see?" in the present tense. The exchange is as follows:

Q: What does it look like? What do you see?A: Heavy rainfalls, heavy snowfalls you get a gush of silt coming in. You want toknow how it looks like you're saying also?Q; Yes.A: Okay. A lot of trees have fallen down. A lot of trees have died. Vegetation hasdied. Fish has died. Birds, they used to come like a Blue Heron would come every yearand I guess eat the fish and little frogs, whatever they're called. I haven't seen thatanymore. It's just a total mess. It's heartbreaking.

See, Tr. 911

The continuing nuisance and ongoing loss of enjoyment aspect of this testimony is both.

obvious and sufficient ta sustain the jury's verdict.

Jacqueline Adams quit-claimed her ownership interest in the property at issue in 2006.

(Tr. 917-918) She also assigned all rights and interest in claims that she may have had for

damages to this property in 2006. (Tr. 918) See also, Motion for Leave to Proffer Evidence

7

Concerning Assignment of Rights and Interests in All Claims and Causes ofAetion for Damages

to Real Property filed with the trial court on March 4, 2011.

Doyle Hartman, a professional engineer, testified as an expert on bebalf of Appellant. Mr.

Hartman has a Bachelor's Degree and a Master's Degree in Civil Engineering from The Ohio

State University, with an emphasis in Water Resources Engineering. Mr. Hartman lias worked

with the Ohio Department of Natural Resources and has operated his own company, called

Hartman Engineering, for the last eighteen years. (Tr. 954) Doyle Hartman inspected the

property at issue on July 7, 2009. (Tr. 956-958) Mr. Hartman described the multiple items that

he reviewed before rendering his expert report and expert testinlony, including the Engineer's

plans, the calculations that were developed for the subdivision, inspection reports from the Soil

and Water Conservation District and the Ohio EPA, correspondence, aerial photographs and

some topographical mapping of the area at issue. (Tr. 958-959) and concluded that the sediment

control plan was not implemented as designed and caused "an increase in sediment that was

carried frornthe_ site [construction site at Heather Hollow] on downstream nito Mr. Adams'

pond." (Tr. 995) Mr. Ijartman farther testified that erosion from the Heather Hollows

subdivision eontinued long after the actual construction and continued through the date of his last

inspection of the property on July 7, 2009, albeit at a much reduced rate. (Tr. 997-998). This

expert testimony supports Appellant's claim of a continuing nuisance/trespass/loss of enjoyment

through July 7, 2009 and is alone is sufficient to sustain the Jury's verdict.

As the above summary of the record reveals, Appellant offered ample evidence in support

of his claims.

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IV. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

A. PROPOSITION OF LAW

A court may not exercise its power to direct or vacate a Jury verdict under Ohio Rule of

Civil Procedure 50 in a manner that denies a party's right to trial by Jury under Article 1, Section

5 of the Ohio Constitution.

B. THE INDIVIDUAL'S RIGHT TO TRIAL BY JURY AND THE"SCINTILLA" RULE

The Ohio Constitution, Article I, Sec. 5 states:

The right of trial by jury shall be inviolate, except that, in civil cases, laws may bepassed to authorize the rendering of a verdict by the concurrence of not less than

three-fourths of the jury.

The right to trial by jury is affirmed in Civil Rule 38, which states, "The right to trial by

jury shall be preserved to the parties inviolate." Ohio Civ. R. 38(A).

One hundred years ago, the Ohio Supreme Court had occasion to assess the scope of a

Plaintiffs constitutional right to trial by jury in the context of a "trip-and-fall" case brought

against the Village of Girard. In that case, a pedestrian tripped over an uneven sidewalk and

brought an action against the Village. A jury trial was had and at the close of the Plaintiff's case,

the Village moved for a directed verdict. The Trial Court granted the Motion and the Court of

Appeals affirmed. This Court reversed those rulings because:

The right of trial by jury, being guaranteed to all our citizens by the Constitution ofthe state, cannot be invaded or violated by either legislative act or judicial order or

decree.

A cause of action for damages brought against a village for negligence in the care ofits sidewalks, by reason of which it is claimed plaintiff was injured, presents a jury

issue if there is some evidence tending to prove every essential fact necessary toentitle plaintiff to recover; and an order of the trial judge at the close of the plaintiffscase directing a verdict in favor of defendant over the objection of such plaintiff is adenial and violation of the right of trial by jury, and therefore reversible error.

Gibbs v. Vill. of Girard, 88 Ohio St. 34, 102 N.E. 299 ( 1913) (emphasis added)

9

In the opinion, the Gibbs Court referred to the above ruling as the "scintilla rule.":

Wherever there is any evidence, however slight, tending to prove the facts

essential to make out a case for the plaintiff, a nonsuit cannot be properly ordered;it is in no case a question as to the weight, but as to the relevancy of thetestimony. If the testimony tends to prove a prima facie case for the plaintiff, anonsuit cannot be properly ordered." It is manifest that this doctrine is the one

legally known as the scintilla rule.

See, Gibbs v. Vill. of Girard, 88 Ohio St. 34, 41, 102 N.E. 299, 300 ( 1913) (emphasis added).

Accordingly, if there is a scintilla of evidence in support of the jury's verdict in this case,

a directed verdict or a post-verdict Judgment NOV is a violation of Appellant's right to trial by

jury guaranteed by Art. 1, Sec. 5 of the Ohio Constitution.

In the wake of the Ohio legislature's attempt at tort reform, the Ohio Supreme Court has

had several occasions to consider the statutory erosion of the right to trial by jury. In an eloquent

dissent in the 2007 case of Arbino v. Johnson & Johnson, Justice Pfeiffer expressed the public

interest in the constitutional guarantee of trial by jury as follows:

According to the majority opinion, the Ohio Constitution does little more thanenable the jury to determine facts-what a judge does with those factualdeterminations is of no constitutional consequence. Plainly, the majority doesn'tthink the right to a trial by jury entitles a plaintiff to much protection. Thefounding fathers thought much more highly of the right. Among the "repeatedinjuries and usurpations" that caused them to declare their independence from theKing of England was his refusal to confer "the benefits of Trial by Jury."Declaration of Independence, July 4, 1776. Ignoring factual findings is the

equivalent of changing them. Ignoring factual findings is the equivalent of

rendering those findings impotent (citation omitted) However you characterizeit, a statute that authorizes a judge to ignore or change factual findings depriveslitigants "of the benefits of Trial by Jury" and must be declared unconstitutional.

Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 505-06, 880 N.E.2d 420,

456 (Pfeiffer, J., dissenting) (emphasis added)

To paraphrase the last sentence of Justice Pfeiffer's above quote, a Civil Rule (e.g. Civil

Rule 50) that is facially neutral but applied in a way that allows a Judge to ignore or change

factual findings deprives litigants of the benefits of Trial by Jury.

10

The views of Justice Pfeiffer were echoed by Justice O'Donnell:

In Gibbs v. Girard (1913), 88 Ohio St: 34, 102 N.E. 299, which quotedextensively, with approval and admiration, from Judge Ranney's opinion in Work,

this court reaffirmed the right to have a jury determine every question of disputed

fact in civil cases and stated that "[t]o hold otherwise would not only commit butpermit, in a multitude of cases, a sinister and indirect invasion and usurpation ofthe right of trial by jury. A legislative act impairing it would be clearly

unconstitutional." Id. at 43, 102 N.E. 299. The syllabus in Gibbs summarizes the

case, holding as follows: "The right of trial by jury, being guaranteed to all ourcitizens by the constitution of the state, cannot be invaded or violated by eitherlegislative act or judicial order or decree." Id. at paragraph two of the syllabus.

See, Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 502-03, 880 N.E.2d

420, 453 (O'Donnell, J., dissenting in part).

Even though the majority in Arbino concluded that the provisions of R.C. §2315.18 and

2315.21 do not violate the right to trial by jury, it affirmed the rule that the fact finding function

of the jury may not be subjected to "outside interference:"

This right [to trial by jury] serves as one of the most fundamental and long-standing rights in our legal system, having derived originally from the Magna

Carta. ... It is settled that the right applies to both neeligence and intentional-

tort actions. ... To properly approach this issue, one must define what exactly isguaranteed under this right. We are guided by long-standing precedent in thisregard: "The right thus intended to be secured by the constitution, was the right oftrial by jury as it was recognized by the common law; and within the right thus

secured is the right of either party, in an action for the recovery of money only, to

demand that the issues offact therein be tried by a jury." ... In short, the right to

trial by jury protects a plaintiffs right to have a jury determine all issues of fact

in his or her case. ... Because the extent of damaees suffered by a plaintiff is a

factual issue, it is within the iury's province to determine the amount ofdamages to be awarded. Section 5, Article I of the Ohio Constitution clearlyprotects this fact-finding function from outside interference. Any law thatprevents the jury from completing this task or allows another entity to substituteits own findings of fact is unconstitutional.

Arbino v. Johnson & Johnson, 2007-Ohio-6948, 116 Ohio St. 3d 468, 474-75, 880 N.E.2d 420,

430-31 (citations omitted, emphasis added)

In sum, there are few matters of greater constitutional concern or general public interest

than preservation of the right to trial by jury. Unlike Arbino, however, the instant case does not

11

involve a statutory erosion of the right to jury trial but a judicial erosion of that right by the

misapplication of Civil Rule 50.

C. THE COURT'S POWER TO DIRECT OR VACATE A JURY VERDICT

Notwithstanding the provisions of Art. I, Sec. 5 of the Ohio Constitution, a court may

properly prohibit the jury from deciding an issue by way of a directed verdict. The Trial Court

may also vacate a jury verdict that has already been entered by way of Judgment NOV.6 The test

to be applied is the same for a directed verdict as it is for a Judgment NOV.7 Both Motions are

govemed by Civil Rule 50 which states, in relevant part:

(A) Motion for Directed Verdict. ... (4) When granted on the evidence. When a

motion for a directed verdicf has been properly made, and the trial court, afterconstruing the evidence most strongly in favor of the party against whom themotion is directed, finds that upon any determinative issue reasonable mindscould come to but one conclusion upon the evidence submitted and thatconclusion is adverse to such party, the court shall sustain the motion and direct averdict for the moving party as to that issue.

(B) Motion for judgment notwithstanding the verdictWhether or not a motion to direct a verdict has been made or overruled and notlater than fourteen days after entry of judgment, a party may move to have theverdict and any judgment entered thereon set aside and to have judgment enteredin accordance with his motion; ... A motion for a new trial may be joined with thismotion, or a new trial may be prayed for in the alternative. If a verdict wasreturned, the court may allow the judgment to stand or may reopen the judgment.

If thejudgment is reopened, the court shall either order a new trial or direct the

entry of judgment, but no judgment shall- be rendered by the court on theground that the verdict is against the weight of the evidence. If no verdict was

returned the court may direct the entry of judgment or may order a new trial.

See, Ohio Civ. R. 50 (emphasis added).

In the proper case, a court's exercise of the power granted by Civil Rule 50 will past

constitutional muster. This is not such a case.

6 A Rule 56 summary judgment will also prevent a case from reaching the jury but this case does notinvolve a summary judgment ruling. Therefore, the applicable Rules are not discussed.

7 See, Posin v. A. B. C. Motor Court Hotel, Inc., 45 Ohio St. 2d 271, 275, 344 N.E.2d 334, 338 (1976)

("The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict isthe same test to be applied on a motion for a directed verdict.")

12

C.1 By Reversing The Trial Court's Denial Of Defendant Pitorak's Motion ForDirected Verdict And, Thereby, Also Reversing The Trial Court's Denial OfDefendant Pitorak's Motion For Judgment NOV, The Court Of AppealsSubstituted Its Judgment For That Of The Jury On The Question Of Liability AndDamages.

On March 4, 2011 seven of eight jurors determined that Defendant Pitorak was liable to

Plaintiff in damages for the sum of $89,200. See "Verdict for Plaintiff," attached at App. 7, p. 2.

Although the jury was polled, the trial transcript does not indicate that any party submitted jury

interrogatories to ascertain the theory of liability applied by the jury to determine liability and

damages. See Record, Vol. VI, pp. 1168 - 1175 (discussion of verdict fonns) and, pp. 1236 to

1244 (announcement of verdict). Accordingly, the Court should presume that the verdict was

properly grounded upon the issues submitted to them by the Court in the jury instructions. See,

Pang v. Minch, 53 Ohio St. 3d 186, 195, 559 N.E.2d 1313, 1322 (1990) ("A presumption always

exists that the jury has followed the instructions given to it by the trial court.")

Following the jury's verdict, the sole Defendant found liable by the jury (Defendant

Pitorek) filed a Motion for Judgment NOV. That motion was denied by the Trial Court. See JE,

Apri120, 2011, App. 6.

On appeal, Defendant Pitorak asserted six assignments of error. The fourth assignment of

error claimed that the Trial Court erred by denying its Motion for Directed Verdict at the close of

Plaintiffs case. Opinion, p. 16 at Para. 51, App. 1. Defendant Pitorak also claimed, as its sixth

assignment of error, that the Trial Court erred by denying its Motion for Judgment NOV

following jury's verdict. Id. at Para. 83. In its opinion, the Court of Appeals reversed the Trial

Court's denial of Defendant Pitorak's Motion for Directed Verdict (Opinion, p. 19, Para. 62 and

p. 24, Para. 76, App. 1) and deemed the Motion for Judgment NOV to be moot, given its ruling

on the Motion for Directed Verdict. Id., Para. 84.

13

In rendering its decision, the Court of Appeals violated Article 1, Section 5 of the Ohio

Constitution. Evidence of this can be found in the text of the Opinion. At page 16 of its

Opinion, the Court of Appeals identifies the issues that went to the jury as follows: "The trial

court found that Adams [Appellant] could recover damages for interference with water rights,

trespass, and nuisance occurring after May 2006." See Opinion, Para. 54. Thus, the question of

liability and damages arising out of "interference with water rights, trespass, and nuisance

occurring after May 2006" were for the jury to decide. In its analysis of Appellant's claim for

"interference with surface water," the Court begins by correctly quoting the reasonable use

doctrine established by this Court in the 1980 case of McGlashan v. Spade Rockledge Corp., 62

Ohio St. 2d 55. Opinion, p. 17. The Opinion then goes on to say: "Thus, the principal question is

whether there was sufficient evidence to determine that the increase in the amount of runoff

entering Adams' [Appellant's] pond was unreasonable." (emphasis added). Appellant disagrees.

Under Article 1, Section 5 of the Ohio Constitution, the "principle question" is not whether the

jury's verdict is sustained by "sufficient" evidence but whether it is sustained by a "scintilla" of

evidence. Gibbs v. Vill. of Girard, 88 Ohio St. 34 at 41. While the Opinion goes on to say that

"no evidence" was introduced on certain aspects of the damage claim, the Opinion ignores the

evidence that was introduced and properly considered by the jury. See Section III, supra.

C.2 At Minimum, The Court Of Appeals Should Have Remanded The Case ForA New Trial.

When sufficiency of the evidence is the i ssue, the Court of Appeals may not substitute its

own judgment for that of the jury. In such cases, the Court of Appeals must remand the case for

to the Trial Court. As this Court stated in the 1974 case of Hanna v. YVagner:

Koykka, Ohio Appellate Process 39, Section 4-19(b), deftly phrases appellateprocedure in a jury case, as follows:`In a jury case the Court of Appeals:

14

•*^^`(b) May not enter final judgment on the weight of the evidence but must remandthe cause for a new trial.'It is obvious that to do otherwise would be the denial of the fundamental rightto a jury trial.

See, Id., Hanna v. Wagner, 39 Ohio St. 2d 64, 66, 313 N.E.2d 842, 843 (1974) (emphasis added).

C.3. By Affirming The Trial Court's Rulings Granting Four Separate Motions ForDirected Verdict, The Court Of Appeals Denied Appellant The Right To Trial ByJury

On March 4, 2011, the Trial Court entered Judgment Entries granting four separate

Motions for Directed Verdict. These were grounded on the Trial Court's finding that Plaintiff

had presented "no evidence" in support of his claims. Appellant respectfully disagrees. Due to

page limitations, Appellant will not attempt to present the evidence in support of each claim the

Trial Court dismissed, as that is not the purpose of this Memorandum. Instead, Appellant will

merely state that the issues involved in the Trial Court's directed verdicts at Apps. 2, 3, 4 and 5

present the same substantial constitutional question and matters of public or great general interest

as are presented in the Court of Appeals ruling discussed above.

V. CONCLUSION

Upon the foregoing points and authorities, Appellant respectfully requests that the Court

accept this case for review and reverse the decision of Eleventh District Court of Appeals.

Respectfully submitted,

WRIGHT LAW CO. LPA

uid S. Pennington (0031477)4266 Tuller RoadDublin, Ohio 43017-5027Ph: 614-791-9112Fax: 614-791-9116E-mail: dpenninatonna wri¢ht-law.netAttorney for Appellant

15

CERTIFICATE OF SERVICE

This certifies that a true copy of the foregoing document was served via Ordinary U.S.

Mail this e day of August, 2012, upon the following:

G. Michael Curtin David J. FagnilliKimberlee J. Kmetz DAVIS & YOUNGCURTIN & KMETZ, LLP 1500 Fifth.Third Center159 South Main Street, Suite 920 600 Superior Avenue EastAkron, Ohio 44308 Cleveland, Ohio 44114

Da,rTTS. Pennington (0031477)

16

APPENDIX

17

ArrFNDIx 1

STATE OF OHIO frv co F r^ Zw u- IN THE COURT OF APPfALS

COUNTY OF GEAUGA Arp% 2012

l

ELEVENTH DISTRICTENf7'9,6!`F7 ^ pg

^

Ys^w

4Yf^f^^^^\^

KENNETH J. ADAMS, cc+ch;;y JUDGMENT ENTRY

Plaintiff-Appeliee/Cross-Appellant, CASE NO. 2011-G-3019

-vs-

PITORAK & COENEN INVESTMENTS,LTD., et al.,

Defendant-Appellant/Cross-Appellee,

CLEMSON EXCAVATING, INC.,

Defendant-Appellee.

For the reasons stated in the opinion of this court, it is the judgment and

order of this court that the judgment of the Geauga County Court of Common

Pleas is affirmed in part and reversed in part, and judgment is entered for

defendant-appellant/cross-appel lee,

Costs to be taxed against plaintiff-appelleefcross-appellant.

PR E TIMOTHY P. CANNON

FOR THE COURT

^

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

G t^ ^ ^NTY, OHIO

iN CouRr aF ap^c sKENNETH J. ADAMS, ^^^^ ^ O P I N 10 N

3 zQizPlaihtiff-Appellee/ oEtvIse^ KAMINsKlCross-Appellant, CC^R6.copCouPTs CASE NO. 2011-G-3019

GEAUGA CooNTY- vs -

PITORAK & COENEN INVESTMENTS,LTD., et al.,

Defendant-Appellant/Cross-Appellee,

CLEMSON EXCAVATING, INC.,

Defendant-Appellee.

Civil Appeal from the Court of Common Pleas, Case No. 08 M 000868.

Judgment: Affirmed in part and reversed in part.

James A. Sennett, Cowden & Humphrey Co., L.P,A., 4600 Euclid Avenue, Suite 400,Cleveland, OH 44103 ( For Plaintiff-AppelleelCross-Appellant).

G. Michael Curfrn and Kimberlee J. Kmetz, Curtin & Kmetz, LLP, 159 South Main St.,Suite 920, Akron, OH 44308 ( For Defendant-Appellant/Cross-Appellee).

David J. Fagnilli, Davis & Young, 1200 Fifth Third Center, 600 Superior Avenue, East,Cleveland, OH 44114-2654 (For Defendant-Appellee).

TIMOTHY P. CANNON, P.J.

{q1} Defendant-appellant/a,oss-appellee, Pitorak & Coenen Investments, Ltd.

("Pitorak & Coenen"), appeals the judgment of the Geauga County Court of Common

Pleas, after trial by jury, entered in favor ofplaintiff-appellee/cross-appellant, Kenneth J.

Adams. By its verdict, the jury found for Adams for the loss of enjoyment of his real

property, awarding damages for trespass; nuisance, and interference with surface water

that occurred due to the runoff of a neighboring uphill subdivision project, owned and

developed by Pitorak & Coenen. For the reasons that follow, the judgment is affirmed in

part and reversed in part.

{q2} Adams. has resided at a five-acre country lot in Novelty, Ohio, since the

1 970s. The property contains a small pond, fed by natural springs and precipitation

runotf, In 1992, Adams modified the pond, increasing its depth from one foot to

approximately ten feet. Soon thereafter, Adams stocked the pond with several species

of fish.

{¶3} In 2003, plans were initiated to develop a neighboring upland parcel into a

residential subdivision known as "Heather Hollow." Defendant-appellee, Clemson

Excavating, Inc., was hired as the general contractor for work on the subdivision project,

Clemson Excavating performed the bulk of its work in 2004, removing trees,

demc>lishing existing structures, constructing a sub-base for roadways, installing culvert

pipes, laying catch basins, trenching for electrical lines, and digging ditches,

{¶4} Clemson Excavating constructed a retention pond on the Heather Hollow

property. It dug out the pond and built an earthen dam to form a barrier at the

downstream side of this pond, Clemson Excavating also installed an overflow structure

at the edge of the pond. At times of high volume, water enters the overflow structure, is

piped about 60 feet away from the pond, and is permitted to run off the property,

Eventually, however, this water entered Adams' property and allegedly caused damage.

2

{¶5} Clemson Excavating, acting on the directives of the Geauga County Soil

and Water Conservation District ("Geauga Soi( and Water") and the Ohio Environmental

Protection Agency ("Ohio EPA"), installed barriers and additional standpipe in an effort

to control erosion and sedimentation from the development's property. Notwithstanding

these efforts, Adams continually reported erosion and runoff problems as a result of the

development throughout the construction phase of the project. He further claimed that

dirty "scum colored" sediment in the runoff had increased since construction, resulting in

damage to his pond.

{¶6} In August 2008, Adams filed a complaint alleging interference with surface

water, nuisance, and trespass against several defendants, including Pitorak & Coenen,

the developer and owner of the property, and Clemson Excavating, the contractor who

installed the infrastructure for the development. The complaint indicated the action was

a refiling of a prior lawsuit, which was voluntarily dismissed without prejudice by Adams

in 2007. The complaint alleged that, in July 2004 and intermittently since that date,

runoff from the Heather Hollows subdivision had crossed Adams' property; polluted his

freshwater pond and its natural stream; killed the various species of fish in the pond;

and caused other, permanent damage to the property. An amended complaint followed

which similarly alleged Adams to be the owner of the real property in 2004. Pitorak &

Coenen and Clemson Excavating filed answers denying all pertinent allegations set

forth in the complaint.

{¶7} After discovery concluded, the trial court entered summary judgment in

favor of Clemson Excavating. However, this court reversed and remanded that

judgment in Adams v. Pitorak & Coenen Invests., Ltd., 11th Dist. Nos. 2009-G-2931 and

3

2009-G-2940, 2010-Ohio-3359. In Adams, we concluded that Clemson Excavating did

not nieet its burden in the summary judgment exercise as to whether it caused damage

to Aciams' property during the construction of the project. Id. at ¶52. As to any post-

construction runoff, we determined that Clemson Excavating supplied sufficient

evidentiary material to shift the burden to Adams, who ultimately failed to demonstrate

that a genuine issue of material fact remained to be litigated as it pertained to the time

period after construction. Id. at ¶64. The court's entry of summary judgment was

therefore affirmed on Clemson Excavating's liability after the end of the construction. Id.

at ¶71. Thus, we determined Clemson Excavating's potential liability was from April

2004, when construction started, to October 2005, when construction ceased. /d. at

¶49-51. The decision in Adams pertained exclusively to Clemson Excavating's motion

for summary judgment and did not involve the claims against Pitorak & Coenen. Id. at

¶10, fn, 3.

{¶8} The matter was set for trial. In anticipation of trial, several motions in

limine to seek or limit expert testimony were filed. Specifically relevant to this appeal,

the trial court overruled Pitorak & Coenen's motion in limine regarding damages

estimates prepared by restoration contractors with OCI Construction, Inc. and Clean

Harbors, Inc.

(¶9) A five-day jury trial commenced, On March 3, 2011, during the fourth day

of trial, it was discovered that Adams did not own the property in question during the

time of development and construction of Heather Hollows. Instead, it was discovered

that Adams' wife, who was not a party to the suit, quitclaim deeded the property to

Adams in May 2006. Prior to May 2006, Adams did not own the property and was not

4

listed on the title. Based on the record before us, this is the first time the ownership

issue was revealed. The matter surfaced out of the court's own curiosity, after

discovering that the real property in question had been transferred to Adams:

{¶10} The Court: Curiosity issue I have, because we have been

referencing Geauga Access I have been looking at it. I note that in

2006 there appears to have been a transfer of the real property in

question from Jacqueline Adams to Ken Adams. Mr. Adams, did

you own the property in 2004? Were you on the title?

{¶11} Adams: No, sir.

{112} The Court: When did you first become on the title in the property?

{¶13} Adams: It was May 2006,

{¶14} The Court: We'll take our recess,

{¶i5} Back in the presence of the jury, Adams' wife, Jacqueline Adams, took the

stanci and was questioned on the ownership issue. She affirmed quitclaiming the

property to her husband in 2006. She was then questioned on whether she also

assigned all her rights and interest in all claims and causes of action for damages to the

real property to her husband in 2006. This was the first time during the trial that any

assignment instrument was mentioned. Over objections, Mrs, Adams affirmed that she

did, in fact, assign her rights to her husband on the same day as the quitclaim deed.

The assignment instrument was presented to the court while Mrs. Ada,ms was still on

the stand, but was not admitted into evidence. Ultimately, the court denied admission of

the assignrnent instrument because Adams had never listed it as an exhibit at any time

prior to the trial and failed to explain why it was not listed or attached to any pre-trial

5

pleadings, including the complaint. Leave was subsequently requested to proffer the

exhibit, which the trial court granted.

{q16} At the close of Adams' case, both Pitorak & Coenen and Clemson

Excavating moved for a directed verdict. The parties discussed the basis for their

respective directed verdicts at sidebar. The defense explained to the court that Adams

affirmatively maintained throughout the entire pre-trial process that he was the owner of

the subject parcel. The defense pointed to (1) the complaint which alleged Adams was

the owner in 2004, (2) the amended complaint which again alleged Adams was the

owner in 2004, (3) the deposition of Adams where he stated that he acquired ownership

of the subject parcel in 1973, and (4) the trial testimony of Adams wherein he referred to

"his" property back in 2004. While the defense stated it was aware of a quitclaim deed

between Mrs. Adams and Adams, it was led to believe that the purpose of the deed was

merely to quitclaim Mrs, Adams' interest in the property to Adams. According to the

deferise, there was no mention of any assignment or that Adams was not on the deed at

the time.

{¶17} The trial court granted Pitorak & Coenen's motion for directed verdict in

part, First, as to punitive damages, the court explained that Adams did not offer any

evidence that Pitorak & Coenen's acts or failures to act demonstrated actual malice

such that punitive damages would be warranted. Second, as to compensatory

damages, the court explained that Adams' evidence in regards to the cost of repair or

remediation of the damage alleged to have been caused by Pitorak & Coenen was, "at

best, speculative and remote." Finally, as to the ownership issue, the court held that

Adams may maintain claims for nuisance, trespass, and interference with the surface

6

flow of water during the time he owned the property, but that he cannot maintain them

for the period of time his wife owned the property. Thus, the court held that Adams'

action against Pitorak & Coenen could still proceed as to any damages claimed for

nuisance, trespass, and the loss of enjoyment of his real property occurring after May

2006. As a result, because there was no evidence that any defendant did anything

necessitating repair of Adams' property prior to May 2006, the jury was not permitted to

consider punitive or compensatory damages for property repair for any time period. In

addition, the jury was not permitted to consider damages for nuisance, trespass, or the

loss of enjoyment for the time period prior to May 2006.

{¶1II} The trial court granted Clemson Excavating's motion for directed verdict in

its eritirety, relying on this court's previous decision in Adams, supra, which determined

that Clemson Excavating may only be held liable for those acts beginning with the

construction in April 2004 and ending in October 2005 when construction ceased, As

Clemson Excavating's motion was granted, it did not present a case and did not make a

closing argument.

{¶19} The jury entered a verdict in favor of Adams and against Pitorak & Coenen

in the sum of $89,200.00. Shortly thereafter, Pitorak & Coenen filed a motion for

"remittitur, judgment notwithstanding the verdict, and/or a new trial," The trial court

denied all requested relief,

{¶20} Several other post-trial pleadings were filed, including a motion for

sanctions against Adams and a motion to tax costs against Pitorak & Coenen.

However, these matters are not part of the instant appeal and are currently being held in

abeyance in the trial court pending disposition of the appeal.

7

{¶21} Pitorak & Coenen timely appeals and assert six assignments of error.

Adams has filed a cross-appeal with two assignments of error. Clemson Excavating

has filed briefs in opposition to both Pitorak & Coenen and Adams, defending the trial

court's granting of its directed verdict motion and seeking to preserve its judgment.

{¶22} As Adams' cross-appeal involves issues dispositive of the entire appeal, it

will be addressed first.

{¶23} Adams' first assignment of error in his cross-appeal states:

{¶24} "The trial court erred when it directed a verdict on the cost of repair or

remediation of the real property owned by Plaintiff/Cross-Appellant."

{¶25} The trial court granted both Pitorak & Coenen's and Clemson Excavating's

directed verdict motions as they pertained to compensatory damages on the cost of

repair or remediation. Adams claims this was error because there was sufficient

evidence as to the existence of damages from repairs needed to restore the pond.

{¶26} Pursuant to Civ.R. 50(A)(4), a motion for directed verdict should be

granted when, after construing the evidence most strongly in favor of the party against

whoni the motion is directed, "reasonable minds could come to but one conclusion upon

the evidence submitted and that conclusion is adverse to such party[.]"

{¶27} When a trial court determines whether to grant a motion for directed

verdict, it is testing the legal sufficiency of the evidence by examining the materiality of

the evidence rather than the conclusions which can be drawn from such evidence.

Eldridge v. Firestone Tire & Rubber Co., 24 Ohio App.3d 94, 96 (10th Dist.1985). It is

therefore a legal determination which gauges whether only one result can be reached

under the theories of law set forth by the opposing party. Id. The trial court must give

8

the opposing party the b:nefit of all reasonable inferences from the evidence and must

not independently weigh the evidence or determine the credibility of the witnesses. Id.

As the motion for directed verdict presents questions of law and not factual issues, this

court employs a de novo standard of review.. Nationwide Mut. Fire Ins. Co. v. Guman

Bros, Farm, 73 Ohio St,3d 107, 108 (1995).

{128} In order to recover damages, the injury and resulting damage must be

ascertained with reasonable certainty and not left to conjecture and speculation. D.A.N.

Joint Venture lll, L.P. v. Med-XS Solutions, Inc., 11th Dist, No, 2011 -L-056, 2012-Ohio-

980, ¶35, quoting Barker v. Sundberg, 11th Dist. No. 92-A-01756, 1993 Ohio App.

LEXIS 5112, *4 (Oct. 25, 1993). A plaintiff bears the burden of "proving the nature and

exterit of damages whether an action sounds in tort or contract." Countywide Home

Loans, Inc, v. Huff, 11th Dist, No. 2009-T-0044, 2010-Ohio-1164, ¶47, citing Cleveland

Builders Supply Co. v. F=armers Ins. Group of Companies, 102 Ohio App.3d 708, 714

(8th Dist.1995).

{¶29} Here, the existence of damages for repair or remediation was never

established. Damages testimony from two restoration contractors, Thomas Zahler and

Robert Battisti, though iriitially permitted, was ultimately stricken from the record by the

trial court. Mr. Zahier was dismissed from the stand because the trial court ruled it

would not hear any testimony on repair or remediation without first hearing testimony on

how much sediment came from the construction and, of that amount, how much was

unreasonable. Later in the trial, Mr. Zahler returned to the witness stand and testified

over objections that the total cost of remediation was $208,120. Mr. Battisti testified in a

similar fashion; his estimate was $80,170 plus "some [unknown] operator expenses." At

9

the conclusion of the testimony, the trial court struck from the record the damages

testimony of both witnesses, as it concluded their calculations were based on the

removal of an unproven amount ofsilt. The trial court explained that "there is absolutely

no basis for either witness to assume that there are 1,000 tons of silt that should be

removed."

{¶30} Adams suggested the court erred in striking the testimony of Mr. Zahler

and Mr: Battfsti, though this is not an assignment of error in his cross-appeal and will not

be considered.

{¶31} An increase in the amount of surface water onto an adjoining property is

not, in and of itself, actionable. However, an unreasonable increase in the amount of

surface water runoff may result in liability. That is, one may make reasonable usage of

his surface water, incurring liability only when his harmful interference with the flow of

that surface water is unreasonable. Guarino v. Farinacci, 11th Dist. No. 2001-L-158,

2003-Ohio-5980, ¶36, quoting McGlashan v. Spade Rockledge Corp., 62 Ohio St2d 55

(1980), syllabus,

{¶32} With the testimony of Mr. Zahler and Mr. Battisti stricken, the only

damages testimony on the cost of repair or remediation due to silt caused by Clemson

Excavating and/or Pitorak & Coenen came from Adams and one Doyle Hartman,

However, this testimony was not substantiated. The figures introduced were predicated

on an estimated amount of silt to be removed; yet there is no testimony about (1) the

amount of silt that resulted from an unreasonabfe increase in surface water flow nor (2)

the amount of silt that accumulated in the pond subsequent to May 2006. The trial court

therefore properly dismissed this testimony as speculative at best. As noted above, the

*

10

injury (the level of unreasonable silt) and resulting damage must be determined with a

reasonable degree of certainty and not left to conjecture. As there was no competent

testirnony to this point, in particular as to the relevant time period, compensatory

damages for the cost of repairing the pond were properly dismissed by the trial court.

{¶33} Adams' first assignment of error in his cross-appeal is therefore without

merit.

{¶34} Adams' second assignment of error in his cross-appeal states:

{¶35} "The trial court erred when it directed a verdict on damages for nuisance

and interference with surface flow of water, which occurred prior to deed ownership of

the property by Plaintiff/Cross-Appellant, and when it excluded the instrument assigning

all rights and claims involving the property to Plaintiff/Cross-Appellant."

{¶36} In his brief in support of this portion of the second assignment of error in

his cross-appeal, Adams fails to refer to a single authority in support of this argument.

App.R. 16(A)(7) requires citations to authority on which an appellant relies. This alone

justifies finding the assignment of error to be without merit. However, we will proceed to

consider the merits of the assignment of error.

{¶37} The trial court granted Pitorak & Coenen's and Clemson Excavating's

directed verdict motions as to damages for nuisance, trespass, and the loss of

enjoyment for any time period prior to May 2006. Adams claims this was error because

Mrs. Adanis, the property owner prior to May 2006, assigned all rights and interests to

the property to Adams. Adams argues that he attempted to introduce the assignment

instrument at trial, but the trial court denied admissibility of the document. Adams

claims this evidentiary ruling was in error, and had the assignment instrument been

11

admitted, the court would not have directed a verdict in favor of Pitorak & Coenen for

pre-2006 claims.

{¶38} Conversely, Pitorak & Coenen claims the assignment instrument was not

properly proffered, and even if it were, the trial court properly excluded it because

Adarris misrepresented his ownership status and, for the first time in the long history of

this litigation, attempted to introduce the assignment instrument near the conclusion of

trial, even though it was riot listed on the exhibit list.

{¶39} Thus, two issues need to be addressed, as they pertain to the trial court's

ruling on the ownership issue: (1) whether Adams properly proffered the assignment

instrument thereby preserving any error, and (2) whether the court properly excluded

the admission of the assignment instrument.

{140} First, Adanis properly proffered the assignment instrument after the trial

court denied its admission as an exhibit. The assignment instrument was moved to be

entered as an exhibit during the testimony of Mrs. Adams on March 3, 2011, the same

day the ownership issue first came to light. The trial court denied admission of the

instrument. Later that same day, the trial court made a ruling that Adams could not

proffer the instrument. He therefore did not proffer the exhibit. However, the trial court

later allowed Adams to proffer the evidence. The proffer was made on the last day of

trial, on March 4, 2011, via "motion for leave to proffer evidence." The assignment

instrument was attached to the motion, The instrument, dated May 24, 2006, was

signed by Mrs. Adams and notarized. By proffering the evidence itself, Adams made

the assignment instrument part of the record and available to this reviewing court,

Thus, Adams has preserved the issue for review.

12

{¶41} Second, evidentiary rulings fall within the trial court's sound discretion.

Kent v. Atkinson, 11th Dist. No. 2010-P-0084, 2011-Ohio-6204, ¶42, citing Peters v.

Ohio State Lottery Comm., 63 Ohio St.3d 296, 299 (1992). As a result, the decision to

inclu(Je or exclude certain evidence will not be disturbed absent an abuse of discretion.

Id. An abuse of discretion is the trial court's "`failure to exercise sound, reasonable, and

legal decision making."' State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62,

quoting Black's Law Dictionary 11 (8th Ed.2004). Here, we cannot determine that the

trial court abused its discretion in excluding the assignment instrument.

{¶42} Adams was not the real party in interest and lacked standing to assert any

claims prior to the time when he received the quitclaim deed to the property in May

2006. See Wash Mut. Bank v. Novak, 8th Dist. No. 88121, 2007-Ohio-996; 715. ("If a

claim is asserted by one who is not the real party in interest, then the party lacks

stanciing to prosecute the action.") Adams was not an owner of the land prior to this

period of time. Moreover, there was no joinder or substitution of Mrs. Adams, the

property owner, prior to May 2006. Mrs. Adams was not a party to the suit in any

capacity. Adams essentially concedes this point because he argues that relief could

have nonetheless been granted via the assignment instrument of claims and rights.

Thus, he argues his claims can be brought by way of the assignment.

(143} However, a review of the record reveals that the assignment instrument

was never filed with the trial court prior to trial in any manner. It was not attached to the

complaint or the amended complaint. It was not mentioned or referred to in any pre-trial

pleaciings, including Adams' trial brief. It was not included on an exhibit list, It was not

mentioned at trial until the trial court discovered that Adams did not own the property

13

prior to May 2006. According to Pitorak & Coenen, it was not included in discovery.

Rather, the record is replete with affirmative representations throughout the pleading

stage that Adams was, in fact, the owner of the subject parcel in 2004, 2005, and part of

2006. These representations continued throughout Adams' deposition and even during

his trial testimony,

{¶44} The trial court's ruling was not a result of "failure to exercise sound,

reasonable, and legal decision making." Rather, the parties were four days into trial

when it was discovered the subject parcel was not owned by the plaintiff seeking to

recover damages for much of the time the purported damage occurred. Adams' theory

of recovery changed on 'the fourth day of trial from landowner to assignee, As a result,

the defense did not havE: an opportunity to conduct discovery on this issue, which they

were entitled to do. The defense was unable to depose Mrs. Adams on the assignment,

inspect the assignment instrument, and research the applicable law on assigning claims

and rights to property. If there were questions regarding the validity of the assignment

and the actual date it was executed, the defense was denied the opportunity to

investigate those potential defenses.

{¶45} Adams claims the quitclaim deed was served to the opposing parties more

than two years prior to trial in response to a request for production of documents. The

purpose of discovery rules is to prevent surprise and the "secreting of evidence."

Lakewood v. Papadelis, 32 Ohio St.3d 1, 3(1987), "The overall purpose is to produce a

fair trial." /d. The opposing parties were actually misled as to the real party in interest

and to a potential issue in the litigation. Adams cannot argue that the defense should

have been aware of this assignment when his theory of recovery was premised on him

14

being an owner, not an assignee. At the very least, days of testimony concerning

alleged damage done to the pond in 2004 and 2005 may have been excluded before it

reached the jury's ears. Instead, the jury was exposed to significant testimony of

damage that happened in 2004 and 2005, when Adams did not own the property.

{q46} Moreover, Civ.R. 10(D) explains, "[w]hen any claim or defense is founded

on an account or other written instrument, a copy of the account or written instrument

must be attached to the pleading. If the account or written instrument is not attached,

the reasori for the omission must be stated in the pleading." Thus, "(a]n assignee of a

claim, bringing an actiori upon the claim in his own name, must allege and prove the

assignment of the claim sued upon." Zwick & Zwick v. Suburban Constr. Co., 103 Ohio

App. 83 (8th Dist.1956), paragraph one of the syllabus, "In other words, in order to

prevail, the assignee must prove that it is the real party in interest for purposes of

bringing the action. An assignee cannot prevail on the claims assigned by another

holder without proving the existence of a valid assignment agreement." Hudson &

Keyse, LLC v. Yarnevic-Rudolph, 7th Dist. No, 09 JE 4, 2010-Ohio-5938, ¶21, citing

Natl. Check Bur,, Inc, v. Cody, 8th Dist. No, 84208, 2005-Ohio-283. If Adams was to

recover by virtue of his status as an assignee, at a minimum, the assignment instrument

should have been referenced in the complaint and a copy provided to the defense.

{q47} Thus, we cannot conclude the court abused its discretion in excluding the

assignment instrument. Without the instrument, the only evidence to support Adams'

position as an assignee was Mrs. Adams' affirmation that she recalled assigning her

rights and interests to the property to her husband sometime in 2006. This testimony is

insufficient to establish Adams' pre-2006 rights.

15

{148} Adams' second assignment of error in his cross-appeal is without merit.

{¶49} Pitorak & Coenen in its appeal raise assignments of error concerning the

remainder of the court's directed verdict.

{¶50} Pitorak & Coenen's fourth assignment of error in its appeal states:

{¶51} "The trial court erred by refusing to grant Defendant, Pitorak & Coenen's

motion for directed verdict."

{¶52} The trial court denied the remainder of Pitorak & Coenen's directed verdict

motion, allowing the action to proceed as to damages claimed for nuisance, trespass,

and the loss of enjoyment of Adams' real property occurring after May 2006. Pitorak &

Coenen argues that there was no evidence as to any damage for these claims after

May 2006, when Adams took ownership of the property.

{¶53} Before we assess the damage claims advanced by Adams for the relevant

period, we must first address Adams' claim that Pitorak & Coenen waived the ownership

issue by not presenting it to the trial court in its oral motion for a directed verdict.

Factually, there is no indication that Pitorak & Coenen waived this argument while

seeking a directed verdict. Even if Pitorak & Coenen had not argued this ownership

issue when requesting a directed verdict, upon a defendant's motion, the trial court has

a duty to direct a verclict when no evidence is produced substantiating a material

allegation of the action. Zafires v. Peters, 160 Ohio St. 267 (1953), paragraph two of

the syllabus.

{¶54} The trial court found that Adams could recover damages for interference

with water rights, trespass, and nuisance occurring after May 2006, Adams argues that

the trial court's ruling allowed him to recover damages for trespass for any period of

16

surface water flow from the time prior to development of the upstream property. It must

then be determined if that increase, if any, was unreasonable.

{q58} After a review of the complete transcript, it is apparent there was no

evidence presented as to a quantification of the increase in the amount of runoff

entering Adams' pond after he acquired title in May 2006 and, likewise, that any such

increase was unreasonable; and if it was, what was the resulting damage.

{¶59} There was no evidence as to the increase in the level of silt caused by the

development (versus organic silt that would have accumulated regardless of the

construction). Each expert acknowledged that silt accumulation is part of organic pond

life. Dariiel Bogoevski of the Ohio EPA explained that, even if there were no

construction, there would still be silt collecting in the pond and periodic maintenance

would be required. That is, without Adams taking certain action, silt would continue to

accumulate irrespective of any construction site or surface flow issues. Doyle Hartman

opined that the runoff was caused by the Heather Hollows subdivision, but neither he

nor any other witness was able to quantify the level of silt which came from the site. No

expert performed independent calculations in an effort to distinguish how much

sedimentation came from the runoff.

{160} Second, as there was no evidence as to how much, if any, silt was due to

the amount of runoff frorn the site, it was naturally impossible to determine how much of

that (unknown amount of) silt coming from the site was unreasonable. While Doyle

Narfman opined that he considered the runoff to be "unreasonable," his entire opinion

was predicated on Adams' estimations. Specifically, Adains would periodically venture

into his pond, "if not every year, than every two years," with a rope tied to a bucket. He

74^

18

would then lower the bucket and mark the water line of the rope. Alternatively, Adams

would use a pole to similarly make measurements. However, neither one of these

techniques employed measure the silt level. nor do they designate what silt was

produced from the pond and what silt was carried into the pond by the runoff.

{161} Third, even if, resolving all doubt in favor of Adams, there was evidence

supporting an "unreasonable" finding, there was no evidence which illustrates this

unreasonable, harmful runoff occurred after Adams took title in May 2006. No witness

was able to differentiate between the level of silt that entered the pond in 2004 and

2005, versus the level oT silt that entered after May 2006. This is, of course, critical to

the cause of action because Adams can only recover for damages that occurred while

he owned the property. As repair measures to restore the pond had yet to be

implemented, any silt entering Adams' pond had been accumulating for years.

{¶62} Based on the foregoing, the court erred in not directing a verdict in favor of

Pitorak & Coenen on Adams' claim of interference with surface water.

{¶63}. As to the trespass claim, it is well founded that "`common-law tort in

trespass upon real property 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 (1998), quoting Linley v.

DeMoss, 83 Ohio App.3d 594, 598 (10th Dist.1992), and citing Chance v, BP

Chemicals, Inc., 77 Ohio St.3d 17, 24 (1996).

{¶64} Regarding trespass in the context of surface water interference, there are

generally two categories of trespass-permanent and continuing. Sexton v. Mason,

117 Ohio St.3d 275, 2008-Ohio-858, ¶28. "A permanent trespass occurs when the

44

19

defendant's torfious act has been fulfy accomplished, but injury to the plaintiff's estate

from that act persists in the absence of further conduct by the defendant." Reith v.

McGill Smith Punshon, Inc., 163 Ohio App.3d 709, 2005-Ohio-4852, ¶49 (1st Dist.). "In

contrast, a continuing trespass results when the defendant's tortious activity is ongoing,

perpetually creating fresh violations of the plaintiff's property rights." Id.

{¶65} The First Appellate District in Weir v. E. Ohio Gas Co., 7th Dist. No. 01 CA

207, 2003-Ohio-1229, highlighted the paramount distinction between permanent and

continuing trespass: parties are deemed liable for a continuous trespass when they

retairr control over the source of the trespass. Id. at ¶27. The court, citing its previous

line of cases, illustrated the differences. Id.

{¶66} Findings of continuing trespass included a case where the defendant had

control over a pile of debris that created numerous landslides and another case where

the defenciant had control over loose, heavy debris that was causing property damage.

Id. Conversely, findings of permanent trespass included a case where the defendant

had no control over a se;wage-treatment system it had previously installed and another

case where the defendant retained no control over the dredge it placed on the plaintiff's

property. Id. These findings are similar to the First Appellate District's finding of

permanent trespass in Reith, where the court concluded that "the allegedly tortious act

by [the defendant] was the design of a drainage system that did not account for the

eventual outfall of surface water. It is undisputed that [the] deslgn of the system,

including even the installation of the system, was completed by 1994, at the latest." Id,

at ¶50.

20

{q67} Here, whether Pitorak & Coenen's alleged trespass is permanent or

continuing is important. If the trespass is permanent, then Adams lacks standing to

bring the claim because the trespass was caused by systems installed prior to when he

took ownership that did not control the outfall of surface water. If, however, the trespass

is continuous, Adams tias standing to bring the claim because damage allegedly_^.__._.. - ---•--'_- ---__---.w.-_.^.____continued throughout the weeks before triaf and Pitorak & Coenen retained control over^-----....__-...-_.------ - ------- ----- --.^

the problem._...._--•---,

{¶68} Unfortunately, this pivotal question must remain unanswered because the^.-- ____ _-----•--- - ^..._.

extent of Pitorak & Coenen's over the subdivision is not established on this^_.----- -_.---.record. Though construction and development on the project has been completed, it is

not clear whether the lots have sold and whether Pitorak & Coenen has any continuing

involvement, If Pitorak & Coenen had sold all the lots; it is not clear when such transfer

occurred. The record indicates that Pitorak & Coenen owned a spec house at the end

of the cul de sac, but it is unclear whether it retained ownership. As this court is

reviewing a directed verdict claim, it must resolve all doubt in favor of the nonmoving

party-Adams. In so doing, though it is likely Pitorak & Coenen has sold the lots and

retains no ownership or control over the subdivision, such an important consideration

cannot merely be assumed.

{¶69} Similarly, as to the nuisance claim, Adams contends that Pitorak &

Coenen interfered with the use and enjoyment of his land; thus, he is asserting a

private, rather than a public, nuisance. Guarino v. Farinacci, 11th Dist. No, 2001-L-158,

2003-Ohio-5980, ¶14. There are two types of private nuisance-a qualified nuisance

and an absolute nuisance. Id, at ¶15. This court has held that actions affecting the

21

natural drainage of water as a result of regrading or excavation generally fall into the

category of a qualified nuisance, Id, at ¶17-18.

{q70} "A qualified nuisance is essentially a tort of negligent maintenance of a

condition that creates an unreasonable risk of harm, ultimately resulting in injury." State

ex rel. R.1'.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, ¶59. The Ohio Supreme

Court has held that, "in order to establish a cause of action for negligence, the plaintiff

must show (1) the existence of a duty, (2) a breach of duty, and (3) an injury proximately

resulting therefrom." Armstrong v. Best Buy Co., Inc., 99 Ohio St,3d 79, 2003-Ohio-

2573, ¶8, citing Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77 (1984),

{¶71} Much like a continuous trespass, a continuing nuisance arises

when the wrongdoer's tortious conduct is ongoing, perpetually

generating new violations. Conversely, a permanent nuisance

occurs when the wrongdoer's tortious act has been completed, but

the plaintiff continues to experience injury in the absence of any

further activity by the defendant. Weir v. E. Ohio Gas Co., 2003-

Ohio-1229, ¶30. See also Creech v. Brock & Assocs. Constr., 183

Ohio App.3d 711, 2009-Ohio-3930, ¶17-18 (12th Dist.).

(t72) For the reasons explained above, it is not clear whether the nuisance

claim in this case would gualiv_ac.p^t nr ntinuing.

{¶73} However, even if the trespass or nuisance were to be considered

"continuing," there is insufficient evidence to determine that Pitorak & Coenen

maintained the subdivision in a negligent fashion thereby creating an unreasonable risk

of harm. Adams presented no evidence that the harm caused was proximately caused--^

22

by any negligent operation of the subdivision's containment efforts. In fact, the ^.^..._..._..._..._._....,___ .

evidence supports a claim to the contrary. Initially, the site did not comply with

regulations and there were several concerns from Geauga Soil and Water about the

efforts taken by the site to control sedimentation and runoff in general. However, this

evidence all pertains to site conditions in 2004 and 2005. When Adams took title to the

property iri May 2006, the evidence indicates the retention areas passed all inspections

and were in accordance with state and locat environmental protection policies.

Witnesses from Geauga Soil and Water testified that by the final inspection on October

5, 2005, the subdivision was in full compliance with all requirements. A witness from

the Ohio EPA testified that the site was in general compliance with all state regulations.

A civil erigineer and land surveyor testified the detention basins were acting as.^.._,r_..^_

designed. Notdence was produced o suggest any negligence such that a trespass

or nuisance claim could be properly maintained.

{q74} In his response brief, Adams does not point to any evidence in the record

at trial that supports his claims after May 2006. However, at oral argument, he

highlighted several pieces of evidence as sufficient to support claims for trespass and

nuisance after May 2006. First, Adams noted his testimony that every time there is a

rain event, he sees dirty water entering his pond. Photos were admitted as evidence to

support this claim. As to Adams' testimony, the existence of dirty water entering his

pond during rain events does not provide support for the claim that Pitorak & Coenen's

action (or inaction) proximately caused this to occur. As to the photographs entered into

evidence, only one photograph was confirmed to have been taken after May 2006.

Other photographs were taken in August 2004, November 2004, April 2005, and

23

sumrner 2005. There were also three photographs admitted from spring 2006. Even

assuming "spring" to be after May 2006, the photographs merely show muddy water

flowing in a stream.

{q75} Next, Adams pointed to his testimony whereby he details the fish in the

pond continually dying after May 2006. Review of this claim was especially difficult

because Adams did not refer to any transcript page numbers indicating where this

testimony could be found, as required by App.R. 16(A)(7). Nonetheless, a detailed

review of the transcript indicates that Adams only testified to the number and type of fish

he found dead in 2005. A photograph was entered into evidence showing two dead fish

floating in the pond, but again, Adams stated he took that photograph in April 2005.

Adams also pointed to his testimony where he discussed trees around the pond

continually dying after May 2006. Review of this claim was again difficult because

Adams did not refer to the transcript in support of this proposition. Ultimately, after a

review of the complete transcript, it is clear this testimony does not exist with regard to

the time period after May 2006,

{¶76} Thus, the court likewise erred in not directing a verdict in favor of Pitorak &<Z^ . _._.._._.,....__._....._._...._.__

Coerien on Adams' claim of trespass and nuisance.

{¶77} Based on the law of each respective claim and the evidence presented,

the trial court erred in failing to grant Pitorak and Coenen's request for a directed

verdict, Pitorak & Coenen's fourth assignment of error is with merit. In so holding, we

express no opinion regarding the misrepresentations of ownership as they may apply to

the pending sanctions hearings.

{q78} Pitorak & Coenen's remaining assignments of error are:

24

{¶79} [1.] The verdict of the jury was against the manifest weight of the

evidence and should be reversed where Plaintiff-[Appellee's]

recovery was limited, repair and restoration damages were

excluded and Defendant-Appellant passed all government

inspections,

{¶80} [2.] The trial court erred by permitting testimony from Thomas

Zahler and Robert Battisti and the trial court's decision to later

strike the testimony did not cure the error inasmuch as the

evidence had gone to the jury.

{¶8Il} [3] Plaintiff, Kenneth Adams, perpetuated a deception upon the

court because he did not own the property which is the subject

matter of the litigation yet falsely represented that he did which

should have resulted in a directed verdict which the court failed to

grant on the issue of ownership of the property.

{¶82} [5] The lower court erred by refusing to give an instruction on

independent contractor status between Clemson Excavating and

Defendant-Appellant and committed prejudicial error by virtue of the

agency instruction given to the jury thus necessitating a defense

verdict or new trial.

{¶83} [6.] The trial court erred by overruling Defendant's motion for

remittitur, judgment notwithstanding the verdict and/or motion for

new trial.

25

{¶84} Based onthe disposition of the above assignments of error, Pitorak &

Coenen's remaining assignments of error are moot,

{¶85} The judgment of the Geauga County Court of Common Pleas is hereby

affirmed in part and reversed in part, and final judgment is rendered in favor of

defendant-appellant/cross-appellee, Pitorak & Coenen, in accordance with this opinion.

CYNTHIA WESTCOTT RICE, J,,

MARY JANE TRAPP, J,,

concur.

26

MAR 0 4 2011! / ,' i f /9 .,-. 4--,/

IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO

KENNETH J ADAMS

-vs-

CASE NO. 08M000868

Plaintiff(s) . JUDGE FORREST W. BURT

JUDGMENT ENTRY

PITORAK & COENENINVESTMENTS LTD, et al.

Defendant(s)

This matter came on for consideration upon the Motion for Directed Verdict of Defendants

Pitorak & Coenen, Ltd, Larry J. Pitorak, and Loretta M. Pitorak at the close of Plaintiffs case.

After construing the evidence presented most strongly in favor of Plaintiff the Court finds that

reasonable minds can come to but one conclusion and that conclusion is adverse to Plaintiff Kenneth

Adams on the following issues:

l. Punitive Damages: Plaintiff has offered no evidence, much less clear and convincing evidence,

that these Defendants' acts or failures to act demonstrated malice, aggravated or egregious

fraud, oppression, or insult. Any evidence presented that Defendant Clemson failed to install

or correct adequate water flow and erosion control devices was accompanied by evidence that

upon being advised of such failure, immediate action was taken to correct any inadequacies.

2. Compensatory Damages:

The evidence presented by Plaintiff in regards to cost of repair or remediation of the damage

alleged to have been proximately caused by these Defendants' conduct is, at best, speculative and

remote. The estimates submitted as evidence of the claimed damages are unsupported by any

evidence presented. Although Plaintiff testified as to measurements of water depths he conducted

over a period of years, assuming arguendo the accuracy of those measurements, there is no basis

^ ^

for the contractors providing estimates that assume that 1000 tons of silt are required to be removed

in order to return the property to the condition it was prior to the alleged diversion of surface

waters caused by this Defendant. While the Court agrees that estimates by their very nature require

some approximation, there must be an evidentiary basis for that approximation. The record of this

case is completely devoid of any evidence regarding how the amount of 1000 tons was determined

as the amount of silt required to be removed in order to return the property to its previous

condition. Again, assuming arguendo that Mr. Adams measurements were accurate, he measured

in feet and inches, not in tons. No one testified or presented any evidence that would support the

contention that X inches or feet of silt equals Y tons of silt to be removed.

The Court cannot simply subtract any amount sought for removal of the 1000 tons of silt and

allow the jury to consider the other components of the claimed repairs because the various

elements are all interrelated,

3. Plaintiff in this action is Kenneth Adams, the current owner of the real property alleged to have

been damaged by Defendants' actions. The evidence presented to the Court is that Mr. Adams did not

become owner of the real property until 2006. Testimony was also presented that from 1973 until

2006, Jacqueline Adams owned the real property which she quit-claimed to Mr. Adams in 2006.

Testimony was also presented that in 2006 she assigned all claims she had to Mr. Adams. Because

Plaintiff had never listed the assignment instrument as an exhibit at any time prior to the trial and

because the Court heard no reasonable excuse or reason for the failure to list the assignment as an

exhibit, the Court denied admission of the assignment instrument as an exhibit.

This Court is of the opinion that claims for nuisance or interference with the surface flow of

water cannot be assigned. While Mr. Adams may maintain actions for nuisance or interference with

surface flow of water occurring during the time that he has owned the real property, he cannot maintain

those actions for the period of time that Jacqueline Adams owned the property.

The Motion for Directed Verdict of Defendants Pitorak & Coenen, Ltd, Larry J. Pitorak, and

Loretta M. Pitorak is sustained as to the issues of punitive damages and compensatory damages for

the costs of repair or remediation of the real property owned by Plaintiff. The Motion for Directed

Verdict is also sustained as to any claim for damages alleged to have occurred prior to 2006.

Plaintiffs action against Defendants Pitorak & Coenen, Ltd., Larry J. Pitorak, and Loretta

Pitorak may proceed as to any damages claimed to have been suffered by Plaintiff Kenneth Adams

for the loss of enjoyment or use of his real property and for damages for nuisance that occurred

subsequent to 2006 and for trespass.

ORREST W. BURT, JUDGE

James A. Sennett, Esq.Kimberlee J. Kmetz, Esq.David J. Fagnilli, Esq.

COMMON yLF-?-^3 C(3flC`S'I

Vi,4R 0 4 2011//,/ C roh. '2--,.

E?ca-:.:; F r; _+.['-;P.4`s tIv i4icje:L

IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO

KENNETH J ADAMS

-vs-

CASE NO. 08M000868

Plaintiff(s) JUDGE FORREST W. BURT

JUDGMENT ENTRY

PITORAK & COENENINVESTMENTS LT'D, et al.

Defendant(s)

This matter came on for consideration upon the Motion for Directed Verdict of Defendant

Clemson Excavating, Inc., at the close of Plaintiffs case.

After construing the evidence presented most strongly in favor of Plaintiff the Court finds that

reasonable minds can come to but one conclusion and that conclusion is adverse to Plaintiff Kenneth

Adams on the following issues: -

1. Punitive Damages: Plaintiff has offered no evidence, much less clear and convincing evidence,

that the Defendant Clemson Excavating's acts or failures to act demonstrated malice,

aggravated or egregious fraud, oppression, or insult. Any evidence presented that Defendant

Clemson failed to install or correct adequate water flow and erosion control devices was

accompanied by evidence that upon being advised of such failure, immediate action was taken

to correct any inadequacies.

2. Compensatory Damages:

The evidence presented by Plaintiff in regards to cost of repair or remediation of the damage

alleged to have been. proximately caused by Defendant Clemson Excavating's conduct is, at best,

speculative and remote. The estimates submitted as evidence of the claimed damages are

unsupported by any evidence presented. Although Plaintiff testified as to measurements of

depths he conducted over a period of years, assuming arguendo the accuracy of those

measurements, there is no basis for the contractors providing estimates that assume that 1000 tons

of silt are required to be removed in order to return the property to the condition it was prior to the

alleged diversion of surface waters caused by this Defendant. While the Court agrees that

estimates by their very nature require some approximation, there must be an evidentiary basis for

that approximation. The record of this case is completely devoid of any evidence regarding how

the amount of 1000 tons was determined as the amount of silt required to be removed in order to

return the property to its previous condition. Again, assuming arguendo that Mr. Adams'

measurements were accurate, he measured in feet and inches, not in tons. No one testified or

presented any evidence that would support the contention that X inches or feet of silt equals Y tons

of silt to be removed.

The Court cannot simply subtract any amount sought for removal of the 1000 tons of silt and

allow the jury to consider the other components of the claimed repairs because the various

elements are all interrelated.

The Court of Appeals has determined that Defendant Clemson Excavating may only be held liable

for those damages arising from Clemson's acts beginning in April, 2004, and ending in October, 2005.

Plaintiff has provided the Court with no probative evidence that would enable the jury to calculate how

much or what percentage of the claimed costs of repair or remediation are based upon improper

diversion of surface waters that occurred between the aforementioned dates.

3. Ownership of 9441 Pelcin Rd., Russell Township, Ohio, and Assignment of Rights and Claims:

As noted above, The Court of Appeals has determined that Defendant Clemson Excavating may

only be held liable for those damages arising from Clemson's acts beginning in April, 2004, and ending

in October, 2005. Plaintiff in this action is Kenneth Adams, the current owner of the real property

alleged to have been damaged by Defendant Clemson's actions. The evidence presented to the Court is

that Mr. Adams did not become owner of the real property until 2006. Testimony was also presented

that from 1973 until 2006, Jacqueline Adams owned the real property which she quit-claimed to Mr.

Adams in 2006. Testimony was also presented that in 2006 she assigned all claims she had to Mr.

Adams. Because Plaintiff had never listed the assignment instrument as an exhibit at any time prior to

the trial and because the Court heard no reasonable excuse or reason for the failure to list the

assignment as an exhibit, the Court denied admission of the assignment instrument as an exhibit.

This Court is of the opinion that claims for nuisance or interference with the surface flow of

water cannot be assigned. While Mr. Adams may maintain actions for nuisance or interference with

surface flow of water occurring during the time that he has owned the real property, he cannot maintain

those actions for the period of tiine that Jacqueline Adams owned the property.

Although the Court has determined that Defendant Clemson Excavating, Inc., cannot be held

liable for the costs of repair or remediation of the real property, arguably, Defendant could be liable for

nominal damages resulting from trespass; however, there is no evidence that any trespass or nuisance

occurred subsequent to October, 2005, or subsequent to Mr. Adams assumption of ownership of the

real property.

The Motion for Directed Verdict of Defendant Clemson Excavating, Inc., is sustained.

Judgment is entered in favor of Defendant Clemson Excavating, Inc., and against Plaintiff Kenneth

Adams..

James A. Sennatt, Esq.Kimberlee J. Kmetz; Esq.David J. Fagnilli, Esq. ^

BA1 C:f.19:9r°hS4?N! P%-:GE:A:` C:C3tPf81

MAR 0 4 7011l/%ia'/im s^

Dc:Pw:aE' N.CCiO1K Mi ..`.e.Yl.i.''N

- 17

IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO

KENNETH J ADAMS

-vs-

CASE NO. 08M000868 ,

Plaintiff(s) JUDGE FORREST W. BURT

.IUDGMENT ENTRY

PITORAK & COENENINVESTMENTS LTD, et al.

Defendant(s)

This matter came on for consideration upon the Motion for Directed Verdict submitted by

Defendants Richard Jaynes and The Jaynes Company at the close of Plaintiff's case.

After construing the evidence presented most strongly in favor of Plaintiff the Court finds that

reasonable minds can come to but one conclusion and that conclusion is adverse to Plaintiff Kenneth

Adams on the following issues:

1. Individual liability of Richard Jaynes: Absolutely no evidence was presented that Mr.

Jaynes acted in an individual capacity during the construction and development of the

Heather Hollow Subdivision. Any actions of Mr. Jaynes were as an employee or officer of

The Jaynes Company.

2. Wrongful Acts of The Jaynes Company:

The Jaynes Company served as project or construction manager; it's duties were to oversee and

supervise the construction of the road and improvements within the Heather Hollow Subdivision. No

evidence was presented that actions or inactions of The Jaynes Company proximately caused any

injury to Plaintiff or his real property. At best, it can be argued that since it supervised the project, The

Jaynes Company is responsible for any deviation from plans or any construction that went awry.

There is no testimony or evidence that Mr. Jaynes directed or approved any construction that resulted

a f70Lo

in injury to Plaintiff or that The Jaynes Company failed to correct any deficiencies brought to the

attention of Richard Jaynes.

3. Punitive Damages: Plaintiff has offered no evidence, much less clear and convincing

evidence, that the Defendants Richard Jaynes or The Jaynes Company's acts or failures to

act demonstrated malice, aggravated or egregious fraud, oppression, or insult. Any

evidence presented that Defendant Richard Jaynes failed to install or correct adequate water

flow and erosion control devices was accompanied by evidence that upon being advised of

such failure, inunediate action was taken to correct any inadequacies.

4. Ownership of 9441 Pekin Rd., Russell Township, Ohio, and Assignment of Rights and

Claims:

The Court of Appeals has deternuned that Defendant Clemson Excavating may only be held liable

for those damages arising from Clemson's acts beginning in April, 2004, and ending in October, 2005.

The same rationale applies to Richard Jaynes and The Jaynes Company. Plaintiff in this action is

Kenneth Adams, the current owner of the real property alleged to have been damaged by Defendant

Clemson's actions. The evidence presented to the Court is that Mr. Adams did not become owner of

the real property until 2006. Testimony was also presented that from 1973 until 2006, Jacqueline

Adams owned the real property which she quit-claimed to Mr. Adams in 2006. Testimony was also

presented that in 2006 she assigned all claims she had to Mr. Adams. Because Plaintiff had never

listed the assignment instrument as an exhibit at any time prior to the trial and because the Court heard

no reasonable excuse or reason for the failure to list the assignment as an exhibit, the Court denied

admission of the assignment instrument as an exhibit.

This Court is of the opinion that claims for nuisance or interference with the surface flow of

water cannot be assigned. While Mr. Adams may maintain actions for nuisance or interference with

surface flow of water occurring during the time that he has owned the real property, he cannot maintain

those actions for the period of time that Jacqueline Adams owned the property.

The Motion for Directed Verdict subnvtted by Defendants Richard Jaynes and The Jaynes

Company is sustained.

I^ ^f?!".,-{rr , ; .Tit:{t

MAR042011F.s. 6ARRrNA3K!

CIerK of CaurlsGeauAq Cm:ttt'j

IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO

KENNETH J ADAMS

-vs-

CASE NO. 08M000868

Plaintiff(s) JUDGE FORREST W. BURT

JUDGMENT ENTRY

PITORAK & COENENINVESTMENTS LTD, et al.

Defendant(s)

This matter came on for consideration upon the Motion for Directed Verdict of Defendant

Pitorak & Coenen Investments, LLC, at the close of Plaintiffs case.

Plaintiff presented no evidence that Pitorak & Coenen Investments, LLC, had or have any

ownership interest in the real property known as Heather Hollow Subdivision, or any other real

property adjacent to or near Plaintiff's real property. Additionally, Plaintiff has presented no evidence

that this Defendant has anything to do with any of the actions, inactions, or claims within this action.

The Motion for Directed Verdict of Pitorak & Coenen Investments, LLC, is sustained.

Judgment is entered in favor of Defendant Pitorak & Coenent Investments, LLC, and against Plaintiff

Kenneth Adams.

James A. Sennett, Esq.Kimberlee J. Kmetz, Esq.David J. Fagnilli, Esq.

RECEIVEDAPR222011

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CURTIN & IQMEI'Z, IyP

IN THE COURT OF COMNFON PLEASGEAUGA COUNTY, OHIO

KENNETH J ADAMS

-vs-

CASE NO. 08M000868

Plaintiff(s) JUDGE FORREST W. BURT

JUDGMENT ENTRY

PITORAK & COENENINVESTMENTS LTD

Defendant(s)

This matter came on for consideration upon the motions of Defendant Pitorak & Coenen

Investments, Ltd, for Remittitur, Judgment Notwithstanding the Verdict and/or New Trial. Also before

the Court is Plaintiffs Motion to Strike. Exhibits.

Plaintiffs Motion to Strike Exhibits is overruled.

The motions of Defendant Pitorak & Coenen Investments, Ltd, for Remittitur, Judgment

Notwithstanding the Verdict and/or New Trial are overruled. This Court cannot agree that the jury's

verdict was so excessive that it demonstrates that the jury "lost its way" or was unduly influenced by

sympathy or prejudice. The Court also does not agree that the jury ignored the Court's admonition to

disregard evidence of estimates submitted by Plaintiff. To the contrary, the verdict demonstrates that

the jury did, indeed, disregard the stricken evidence.

F RREST W. BURT, JUDG

cc: James A. Sennett, Esq. 3'

G. Michael Curtin, Esq. VZ

`';''-t^`' COURT,^ :^3MM4N Ptf AS

2911 l4^R -$ PM ^ ^

©f^tct ;.KC ^TSICO11 U THE COURT OF COMMON PLEAS

GEAUGA COUNTY, OffiO

KENNETH J. ADAMS,

PLAINTIFF

vs.

PITORAK & COENEN INVESTMENTS,

LTD., et at,

DEFENDANTS

0Q ;•5#33

CASE NO. 08M868

JUDGE FORREST W. BURT

l ^

JiTDGMENT

This matter came on to be tried before a jury from February 28 through March 4, 2011,

and in confotmity to the verdict of the jury rendered herein, judgment is entered in favor of

Plaintiff Kenneth J. Adams and against Defendant Pitorak & Coenen Investments, Ltd., in the

sum of $89,200.00. Judgment is entered in favor of Defendants Larry Pitorak and Loretta

Pitorak and against Plaintiff Kenneth J. Adams on Plaintiffs Complaint.

At the conclusion of Plaintiff's case, this Court entered judgment in favor of Defendants

Clemson Excavating, Inc., Richard Jaynes, The Jaynes Company, and Pitorak & Coenen

Investments, LLC.

Plaintiff Kenneth J. Adams and Defendant Pitorak & Coenen Investments, Ltd., shall

equally pay the costs of these roceedings for which judgment is entered and execution may

issue.

pEP1ISE_SA. YQWAd:CsitcalIrcietftGeakwomEty

cc: James A. Sennett, Esq.

Kimberlee J. Kmetz, Esq.

David J. Fagnilli, Esq.

FOOEST W. BURT, J?

THIS IS TO CERTIFY THAT THE FOliEG006 ISA TRUE ANDZM€CT CffPY?^T4fE DOGliME .ON FILE-1P,ki:HiS OFFiCE.ENTE§Et7 . -.$ ,WfTNESS MY HAND A:vD SEAL DF AID CQl1RTFNtS DAY ^ 20DENIS€ A4. KAb11NSKi, f( ERK OF COURTSBY ?d- DEPUlYCLERK

i

IN THE COURT OF COMMON PLEASGEAUGA COUNTY, OHIO

I^NNE'^7 ADAlYIS CASE NO. o83vFO00868

Plaintiff(s) JUDGE FORREST W. BURT

-vs- VERDICT FOR PLAINTIFF

PTTORAK & COENENINVESTIviENTS LTD, et al.

Defendant(s)

We, the jury, find in favor of Plaintiff Kenneth J. Adams and against:

J<'Defendant Pitorak & Coenen, Ltd.,

Defendant Larry Pitorak

Defendant Loretta Pitorak

(P3^^h Yx

awa^g ^ab°es); awazd d to Plaintiff Kenneth J. Adams^^ ^°f ^^^

We the j . ,.

I \

u- U

(All jurors in agreement shall sign in ink)