Kramer v. Angel's Path, L.L.C., E-07-008.

• Decision Date: 31 December 2007
• Docket Number: No. E-07-008.,E-07-008.
• Citation: 174 Ohio App.3d 359,2007 Ohio 7099,882 N.E.2d 46
• Parties: KRAMER et at., Appellants, v. ANGEL'S PATH, L.L.C., et al., Appellees.
• Court: Ohio Court of Appeals

882 N.E.2d 46

174 Ohio App.3d 359

2007-Ohio-7099

KRAMER et at., Appellants, v. ANGEL'S PATH, L.L.C., et al., Appellees.

No. E-07-008.

Court of Appeals of Ohio, Sixth District, Erie County.

Decided December 31, 2007.

William H. Smith Jr., for appellants.

Kuly Hoty Lynch, for appellee Angel's Path, L.L.C.

Anastasia K. Hanson and Stephen M. Szuch, Toledo, for appellee Fifth Third Bank.

SINGER, Judge.

{¶ 1} This appeal comes to us from a summary judgment issued by the Erie County Court of Common Pleas in a dispute over alleged damage to real estate. Because we conclude that the trial court properly granted summary judgment as to Fifth Third Bank, but erred in granting summary judgment to Angel's Path, we affirm in part and reverse in part.

{¶ 2} Appellants, William and Patricia Kramer, sued appellees Angel's Path, L.L.C., and Fifth Third Bank, alleging that construction in a housing development caused damage to their residence. Appellants' residence was located across from the entrance to the construction site. Appellants alleged the following causes of action: public nuisance from blowing dust and dirt and mud tracked into the street and trespass from a lighted "promotional" sign that allegedly lighted the front of appellants' residence 24 hours per day.

{¶ 3} Angel's Path and Fifth Third Bank filed motions for summary judgment, which were each granted by the trial court.

{¶ 4} Appellants now appeal from those judgments, arguing the following two assignments of error:

{¶ 5} "Assignment of Error No. 1.

{¶ 6} "The trial court did not appropriately apply the provisions of Ohio Rule of Civil Procedure 56(C) in granting summary judgment in favor of Angel's Path.

{¶ 7} "Assignment of Error No. 2.

{¶ 8} "The trial court did not appropriately apply the provisions of Ohio Rule of Civil Procedure 56(C) in granting summary judgment in favor of Fifth Third Bank."

I

{¶ 9} In their first assignment of error, appellants assert that the trial court improperly granted summary judgment in favor of appellee Angel's Path. Appellants essentially argue that the trial court's grant of summary judgment was premature and that the facts presented established viable causes of action, even if misnamed in the complaint.

{¶ 10} The standard of review of a grant or denial of summary judgment is the same for both a trial court and an appellate court. Civ.R. 56(C); Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129, 572 N.E.2d 198. Summary judgment will be granted if "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence [in the pending case,] and written stipulations of facts, if any, * * * show that there is no genuine issue as to any material fact" and, construing the evidence most strongly in favor of the non-moving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C).

{¶ 11} A motion for summary judgment first compels the moving party to inform, the court of the basis of the motion and to identify portions in the record that demonstrate the absence of a genuine issue of material fact. If the moving party satisfies that burden, the nonmoving party must then produce evidence as to any issue for which that party bears the burden of production at trial. Civ.R. 56(C); Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, limiting Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. Finally, an appellate court reviews summary judgments de novo, that is, independently and without deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153.

{¶ 12} Civ.R. 8(A) requires only that a pleading contain a short and plain statement of the circumstances entitling the party to relief and the relief sought. A party is not required to plead the legal theory of recovery or the consequences that naturally flow by operation of law from the legal relationships of the parties. Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, 526, 639 N.E.2d 771. "The purpose of Civ.R. 8(A) is to give the defendant fair notice of the claim and an opportunity to respond." Leichliter v. Natl. City Bank of Columbus (1999), 134 Ohio App.3d 26, 31, 729 N.E.2d 1285.

{¶ 13} Civ.R. 8(F) also provides that "[a]11 pleadings shall be so construed as to do substantial justice." The rules make it clear that a pleader is not "bound by any particular theory of a claim but that the facts of the claim as developed by the proof establish the right to relief." Id., quoting McCormac, Ohio Civil Rules Practice (2d Ed.1992) 102, Section 5.01. See also Fancher v. Fancher (1982), 8 Ohio App.3d 79, 82, 8 OBR 111, 455 N.E.2d 1344. Thus, the labels used in a particular cause of action do not control the nature of the cause of action. Funk v. Rent-All Mart, Inc. (2001), 91 Ohio St.3d 78, 80, 742 N.E.2d 127; Sprouse v. Eisenman, 10th Dist. No. 04AP-416, 2005-Ohio-463, 2005 WL 289460, ¶ 8. The object is not absolute technical conformity, but substantial justice.

{¶ 14} Appellants first argue that the specific designation of "nuisance" or "trespass" should not prevent the assertion of their claims, as long as they have alleged facts that constitute some legal claim. We agree that the factual allegations control whether some legal cause of action has been properly pleaded and supported on summary judgment. Nevertheless, neither the defendants nor the court is required to research or discover every possible legal claim which may be supported by the facts. In this case, appellants' cornplaint included claims designated as nuisance and trespass. We will examine the record to determine whether any set of facts alleged or supported in appellants' response supports either of these claims.

Nuisance Claim

{¶ 15} Nuisance law has been described as the most "impenetrable jungle in the entire law." Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d at 712, 622 N.E.2d 1153, quoting Prosser & Keeton, The Law of Torts (5th Ed.1984) 616, Section 86. "Nuisance" is defined as "the wrongful invasion of a legal right or interest." Taylor v. Cincinnati (1944), 143 Ohio St. 426, 432, 28 O.O. 369, 55 N.E.2d 724. "Wrongful invasion" encompasses the use and enjoyment of property or of personal rights and privileges. Id. Nuisance may be designated as "public" or "private." Brown, 87 Ohio App.3d at 712, 622 N.E.2d 1153. A public nuisance is "an unreasonable interference with a right common to the general public." Id. A public nuisance will not arise because a large number of people are affected; rather, it arises only when a public right has been affected. Id. Certain conduct may be defined by statute or administrative regulation as being a public nuisance. Id.

{¶ 16} A public nuisance provides a basis for recovery of damages by individual plaintiffs only where the injury suffered is a "particular harm * * * that is of a different kind than that suffered by the public in general." Id. at 714, 622 N.E.2d 1153. To recover damages under a claim of public nuisance, the plaintiff must establish (1) an interference with a public right and (2) that the plaintiff has suffered an injury distinct from that suffered by the public at large. Miller v. W. Carrollton (1993), 91 Ohio App.3d 291, 295-296, 632 N.E.2d 582, Thus, the harm suffered by the plaintiff must be different in kind, rather than different in degree, from that suffered by other members of the public exercising the public right. Id. When the plaintiff exercises the public right "extraordinarily more" than the general public and where the plaintiffs reason for doing so "invariably amounts to a different kind of interest in the public right," the plaintiff will satisfy the special-injury rule. Id. at 296, 632 N.E.2d 582.

{¶ 17} In contrast, a "private nuisance" is "a nontrespassory invasion of another's interest in the private use and enjoyment of land." Brown, 87 Ohio App.3d at 712, 622 N.E.2d 1153. Unlike a public nuisance, a private nuisance threatens only one or few persons. Taylor, 143 Ohio St. at 442, 28 O.O. 369, 55 N.E.2d 724, citing. McFarlane v. Niagara Falls (1928), 247 N.Y. 340, 160 N.E. 391. In order for a private nuisance to be actionable, the invasion must be either (a) intentional and unreasonable or (b) unintentional but caused by negligent, reckless, or abnormally dangerous conduct. Brown, 87 Ohio App.3d at 712, 622 N.E.2d 1153. If the conduct is abnormally dangerous, the court must balance the utility and benefit of the alleged nuisance against the invasion and harm caused. Id. at 712-713, 622 N.E.2d 1153.

{¶ 18} A nuisance may be "continuing or permanent." A continuing nuisance arises when the wrongdoer's tortious conduct is ongoing, perpetually generating new violations. Haas v. Sunset Ramblers Motorcycle Club, Inc. (1999), 132 Ohio App.3d 875, 726 N.E.2d 612, citing Frisch v. Monfort Supply Co. (Nov. 21, 1997), 1st Dist. No. C-960522, 1997 WL 722796. 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. Haas.

{¶ 19} "Nuisance" may be further divided into "absolute nuisance" and "qualified nuisance." An absolute nuisance, or nuisance per se, is based on intentional conduct or an abnormally dangerous condition that cannot be maintained without injury to property, no matter what precautions are taken. State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998, ¶ 59; see also Metzger v. Pennsylvania, Ohio & Detriot RR. Co. (1946), 146 Ohio St. 406, 32 O.O. 450, 66 N.E.2d 203, paragraph one of the syllabus (absolute nuisance consists of either a culpable and intentional act resulting in harm, or an act involving culpable and unlawful conduct causing unintentional harm, or a nonculpable...