Morlatt v. Johnson
| Decision Date | 17 November 2022 |
| Docket Number | 21CA1142 |
| Citation | 2022 Ohio 4155 |
| Parties | Kenneth Morlatt, II, et al., Plaintiffs-Appellees, v. Steve Johnson, et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Christopher J. Mulvaney, The Mulvaney Firm, LLC, Cincinnati Ohio, for appellants Steve and Denise Johnson.
David E. Grimes, West Union, Ohio, for appellee Kenneth Morlatt II. [1]
DECISION AND JUDGMENT ENTRY
{¶1} Steve and Denise Johnson appeal from a judgment of the Adams County Common Pleas Court in favor of Kenneth Morlatt II and Tasha Morlatt on their claims against the Johnsons for invasion of privacy and absolute nuisance. In their first assignment of error, the Johnsons assert that the judgment on the invasion of privacy claim is against the manifest weight of the evidence. In their second assignment of error, the Johnsons assert that the judgment on the absolute nuisance claim is against the manifest weight of the evidence. And in what we will treat as their third assignment of error, the Johnsons assert that the trial court erred when it awarded attorney fees to the Morlatts. For the reasons that follow, we sustain the assignments of error, reverse the trial court's judgment, and remand for further proceedings consistent with this opinion.
{¶2} The Johnsons and Morlatts own abutting properties in Adams County. The Morlatt property is north of the Johnson property. The boundary between the properties was the subject of Adams County case number 2008CVH0225, which Sharon Rivers, the Morlatts' predecessor-in-interest, initiated against the Johnsons in 2008. Evidently, the Johnsons believed the boundary between the properties was in the same location as a fence north of Stoney Road, a public right-of-way.
{¶3} On April 16, 2009, the trial court issued a judgment entry finding that the Rivers property "is connected to Stoney Road as evidenced by the language of each parties' deed and the existence of a right-of-way," that the Johnsons failed to establish that the fence line was the property line under the doctrine of acquiescence, but that the "remaining fence west of Stoney Road between the parties' properties that does not parallel Stoney Road is the boundary line between the two properties." The court found that Rivers On June 5, 2009, the Morlatts purchased the Rivers property.
{¶4} In September 2019, the Morlatts filed a complaint against the Johnsons, Stephanie Myers (the Johnsons' daughter), and Justin Myers (the Johnsons' son-in-law) which contained the following allegations. In 2007 and 2008, the Johnsons made false statements that they owned land north of Stoney Road and that Rivers's parcel was landlocked. As a result, Rivers filed a lawsuit, and the trial court rejected the Johnsons' claims, including that a fence north of Stoney Road was the boundary between the properties of the Johnsons and Rivers. The Morlatts then bought Rivers's property. In 2019, the Johnsons "renewed" their claims that they owned property north of Stoney Road and drove metal fence posts onto the Morlatt property in the approximate location of the fence line at issue in the prior litigation. The Morlatts removed the posts and tried to return them to the defendants. The defendants "repeatedly threatened and harassed" the Morlatts and their guests.
{¶5} The Morlatts alleged a claim for invasion of privacy against all of the defendants asserting that they wrongfully and intentionally intruded, physically and otherwise, into the private activities, solitude, and seclusion of the Morlatts in a highly offensive manner. The Morlatts alleged a claim for malicious prosecution against Mr. Johnson asserting that he had signed an affidavit alleging that Mr. Morlatt deprived him of 12 "metal t-posts," that the affidavit resulted in criminal mischief charges being filed against Mr. Morlatt, that Mr. Johnson lacked probable cause to institute that criminal prosecution, and that the charges had been dismissed. The Morlatts alleged a claim for trespass against all of the defendants for putting the posts on the Morlatt property without permission. Finally, the Morlatts alleged a claim for absolute nuisance against all of the defendants asserting that they had intentionally and unreasonably made threats to the Morlatts and their guests and made false claims that the Morlatts were trespassing, which caused annoyance and inconvenience to and endangered the comfort, health, and safety of the Morlatts and their guests.
{¶6} The matter proceeded to a bench trial during which the attorneys orally agreed that on an aerial map of the Morlatt and Johnson properties, which we have included as an appendix to this decision, the solid line running roughly west to east represents the boundary between the Morlatt and Johnson properties. Stoney Road is depicted below this property line. On the map, the eastern part of Stoney Road appears to be parallel to the property line but the western part is not because at a certain point, the road curves southwest. Stoney Road is gravel, but there is a grassy area north of the road/gravel which includes a ditch and is part of the public's easement. The Johnsons own the property on which the easement is located. The attorneys orally agreed that the "Stoney Road easement runs up against the boundary line between the Morlatt property and the Johnson property." In response to questioning by the court during opening statements, the defendants' attorney acknowledged the southern edge of the Morlatt property abuts the northern edge of the Stoney Road easement until the road curves, at which point there is space between the Morlatt property and the easement. However, the attorney took the position that under the 2009 entry, the Morlatts could not access their property from Stoney Road because they had to show their property "doesn't just abut to the right-of-way easement, but extends into" it.
{¶7} Mr. Morlatt testified that in 2008, he and his wife were looking for property for a retreat for their family and began to consider the Rivers property. When they went to view the Rivers property, they had a problem entering it because Mr. Johnson accused them of trespassing. Mr. Morlatt told Rivers that he would not buy her property until the issue was resolved. After the court "settled the dispute," the Morlatts bought the Rivers property. Mr. Morlatt testified that they bought the property with the intent of building their "future home" on it, but Mr. Morlatt did not elaborate on how anything Mr. Johnson did after the Morlatts bought the property interfered with the Morlatts plans to build a home for themselves on it.
{¶8} Mr. Morlatt testified that the Morlatts only went to their property two or three times a year, "just enough to bush hog it down when we got high." Mr. Morlatt did not testify about any interactions with the Johnsons between the time the Morlatts bought their property in 2009 until 2018, when the Morlatts began to establish a home on the property for their daughter in order to shorten her commute to Shawnee State University. The Morlatts put a mobile home on the property, and Mr. Morlatt made efforts to get electric service on the property. Mr. Morlatt asked Mr. Johnson if he would let Mr. Morlatt get electricity via one of Mr. Johnson's poles. Mr. Johnson said no. Mr. Morlatt testified that another neighbor agreed to let him "tap off" the neighbor's pole, but Mr. Johnson "restrained" the electric company from accessing the Morlatt property. The trial court admitted into evidence a letter from the company's general manager which states that a crew went to the Morlatt property on November 28, 2018 "to begin the construction of [a] primary line for a new service." Mr. Johnson "confronted" the crew upon their arrival and said "they did not have permission to access the land and that he owned it." The crew removed their equipment and left. The next day, Mr. Johnson told the company's operations manager that he "owned the north side of Stoney Road," and the company "could not access it to construct the lines for the new service for Mr. Morlatt." Mr. Morlatt testified that the electric company had to find an alternate route and that he got electricity to his property, but "it took a long while."[2]
{¶9} Mr. Morlatt testified that on May 8, 2019, he went to his property to pick a location to construct a driveway to Stoney Road. He knew that he could not place the driveway in the area where Stoney Road is not parallel to his property-which is where the gate referenced in the 2009 entry was-so he picked a spot east of where Stoney Road curves, between two oak trees. Evidently he left the property, and when he returned with a group to construct the driveway, Mr. Morlatt discovered that fence posts had been "driven down through the front" of his property. Mr. Morlatt decided to construct the driveway further east from the spot he had originally selected. The group began to clear and prepare the newly selected spot, and Mr. Morlatt directed his father and another man to remove the posts.
{¶10} Mr. Morlatt and another member of the group wore body cameras during the construction, and the Morlatts introduced two videos into evidence. One video depicts Mrs. Myers...
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