COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70881, 71019 and 71040 : LEROY T. CORTRIGHT, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellees : : and -vs- : : OPINION : SUBURBAN EXCAVATORS, INC. ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT MAY 22, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 218892 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee For Defendants-Appellants Leroy T. Cortright: Suburban Excavators, Inc.: DONALD H. POWERS, ESQ. RICHARD C. MCDONALD, ESQ. 2 Berea Commons, Suite 215 Davis & Young P. O. Box 1059 1700 Midland Building Berea, Ohio 44017 Cleveland, Ohio 44115 -2- - i - For City of North Royalton: ROBERT C. MCCLELLAND, ESQ. LYNN R. GRABIAK, ESQ. Rademaker, Matty, McClelland & Greve 55 Public Square, Suite 1775 Cleveland, Ohio 44113 For Ashley Development Corp.: THOMAS W. WRIGHT, ESQ. DENNIS R. FOGARTY, ESQ. Davis & Young 1700 Midland Building Cleveland, Ohio 44115 DAVID B. HENDERSON, ESQ. Dyson, Schmidlin & Foulds 5843 Mayfield Road Mayfield Hts., Ohio 44124 For Cincinnati Insurance Co.: SEAN P. ALLAN, ESQ. 633 Leader Building 526 Superior Avenue N.E. Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, P.J.: This is the second appeal of a case involving easement owner, city of North Royalton ("North Royalton"), defendant-appellant. The jury in this case held for the land-owners, Leroy and Joanne Cortright (collectively the "Cortrights"), plaintiffs-appellees. North Royalton appeals and assigns the following errors for our review: I. THE FINDINGS OF TRESPASS, EJECTMENT, QUIET TITLE, AND NUISANCE WERE NECESSARILY BASED UPON EVIDENCE WHICH WAS IMPROPERLY ADMITTED AT TRIAL CONCERNING THE VALIDITY OF THE 1980 EASEMENT. II. NORTH ROYALTON'S ACTIONS RELATIVE TO THE INSTALLATION OF THE EMERGENCY STORM SEWER SWALE WERE WITHIN THEIR EASEMENT RIGHTS. III. THE TRIAL JUDGE'S JURY INSTRUCTIONS WERE IMPROPER AND UNINTELLIGIBLE. IV. THE AWARD OF PREJUDGMENT INTEREST AGAINST NORTH ROYALTON WAS ARBITRARY, UNCONSCIONABLE, AND UNREASONABLE. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On May 5, 1978, the Cortrights executed an instrument granting an easement over a small area of their property in favor of Continental Properties, Steve Holobinko, and Glenn Carlson "for the purpose of installation and continuing maintenance of a storm sewer line." The easement provided for a $1000.00 payment to the Cortrights. They were paid $100.00 at the time of signing. The easement provided that the Cortrights would receive an additional -3- $900.00, thirty days before the start of excavation. In lieu of the $900.00 payment, the easement contained an alternative provision for the construction of a pond on the Cortrights' property. The 1978 instrument was signed by the Cortrights, Holobinko, and Carlson but was never recorded. The 1978 easement did not have an attached legal description of the property involved. On July 28, 1980, the easement was re-executed with essentially the same language. The July 28, 1980 easement included a description of a small corner of the Cortright property. It was filed with the County Recorder's Office on August 6, 1980. On July 28, 1980, Continental assigned its interests in the easement to North Royalton. The instrument was filed with the County Recorder's Office on August 6, 1990. However, the instrument granted North Royalton "the right and easement to enter upon said premises and to lay, install, repair and maintain therein a storm sewers (sic) and appurtenances ****" Originally filed without a legal description of the land involved, the instrument was refiled on August 28, 1980 with a legal description of a small area of the Cortrights' property [hereinafter called the "duck pond area"]. North Royalton obtained the easement for the development of Windy Hills subdivision, which was never built. However, in 1991, Ashley Development Corporation was planning a residential subdivision known as Ashley Woods II. On April 24, 1991, Sam Petros of Petros Homes sent Cortright and other area residents a -4- letter notifying them that work would begin very shortly. On May 1, 1991 Cortright met with Petros and Holobinko. Petros and Holobinko told Cortright they would be installing an underground sewer pipe on his property. They also told him they would not be constructing a new duck pond and, pursuant to the easement agreement, paid him $900. Cortright asked for blueprints of the proposed work. He received the blueprints approximately two weeks later. On May 15, 1991, Continental assigned their interest in the 1 easement to Ashley. Again, the area described was that of the duck pond area. After reviewing the blueprints, Cortright noticed the plans called for grading of the land and installation of a storm swale along the eastern boundary line of his property. The plans called for the swale's slope to be a maximum of three to one. Cortright called Al Troietto to complain about the swale and the grading changes. Troietto told him that, when the work was completed, he would have the best looking yard in North Royalton. Troietto also told him the work was approved by city council and there was nothing more he could do about it. Workers began installing the underground sewer pipe in early June 1991. During the first part of June, Leroy Cortright was home watching the construction work. He saw Suburban employees load a 30 ton truck with topsoil and drive it off the property. Also present in the truck was a Mr. Lusk, an inspector for North 1 On August 5, 1991, Ashley assigned its interests in the easement to the City of North Royalton [P Exh. 31]. -5- Royalton. Leroy Cortright called Al Troietto and complained about the removal of soil from his land. Troietto told him to call Suburban with his complaint. Cortright called Suburban to voice his objection to the removal of topsoil from his property. He was assured the soil should not have been removed and the matter would be resolved. On June 13 - 15, 1991, Leroy or the Cortrights went out of town for the weekend. When he returned, he noticed the swale had been installed. He saw that it was close to thirty-five feet wide and up to five feet deep in some spots. Cortright called Suburban and complained about the depth and width of the swale. He later met with representatives of Suburban and told them the swale was unacceptable. Jerry Burke suggested they could widen the swale. Cortrights asked them to fill up the bottom of the swale so it would only be eighteen inches deep. As workers stripped off some topsoil, they broke a section of the underground pipe. Suburban returned several weeks later to dig up and replace the broken section of pipe. They removed the biggest pieces of the pipe but left much of it in the ground. They also did some grading of the land. Leroy Cortright repeatedly asked when his topsoil would be replaced and was told it would be done "shortly." In early August, Leroy Cortright called Suburban's Dick Rotundo and said the swale was too deep. Suburban's engineer, Larry Burke, visited the site, checked the swale and concluded it was "up to specs." Thereafter, in late August, workers installed -6- the spillway for the retention basin. Cortright called Suburban again to complain and was told that the swale was "up to specs" and that Suburban did "what we have to do." On September 27, 1991, the Cortrights filed a complaint against Suburban Excavators (Suburban) and Petros Homes, alleging that, at Petros Homes' direction, Suburban dug up the Cortrights' land, laid a huge underground pipe, and created a large swale along the entire eastern line of their property. According to the complaint, Suburban also destroyed trees and fences and ruined the grade of the Cortrights' property, subjecting it to flooding. The Cortrights sought an injunction to prevent the continued trespass upon their property. They also sought compensatory damages, punitive damages, and attorneys fees. On December 12, 1991, Suburban filed a third party complaint for indemnification against Ashley Development, Inc. (Ashley) and a cross-claim against Petros Homes, Inc. Suburban alleged it was acting at Ashley's request and was led to believe it had the right to place the storm sewer through the Cortrights' property. On June 10, 1992, the Cortrights amended their complaint to add North Royalton and Ashley Development, Inc. as defendants. In a document signed June 15, 1992 and recorded June 17, 1992, Continental and Ashley filed a corrective assignment of easement, which included a description of an area of land much larger than the duck pond area [P Exh. 34]. On August 17, 1992, North Royalton filed a cross claim against Ashley and a counterclaim against the Cortrights. -7- North Royalton, Petros, and Ashley all moved for summary judgment. The Cortrights moved for partial summary judgment arguing there was no valid easement over their property. The trial court granted summary judgment in favor of North Royalton, Petros, and Ashley and denied the Cortright's motion for partial summary judgment. The trial court's decision was affirmed in part and reversed in part by this court in Cortright v. Suburban Excavators, Inc. (January 12, 1995), Cuyahoga App. No. 66816, unreported. The fact appellants did not raise an objection at the time the notice of construction was received and that appellants had in fact affirmatively acted in accordance with apparent easement led appellees to believe the 1980 easement was a valid instrument. As such, we find appellants are estopped for denying the existence of the easement rights originally granted in 1978 and later recorded with the Cuyahoga County Records in 1980. Id. Thereafter, this court concluded that genuine issues of material fact existed as to several issues: whether the Cortrights' actions constituted objections to the excavation of the swale; whether the acts of North Royalton, Petros, and Ashley constituted an improper unilateral increase and abuse of the easement over the Cortrights' property; and whether the Cortrights' property was restored to its former condition. We remanded the case to the trial court. At trial, the jury found in favor of the Cortrights, awarding compensatory damages in the amount of $10,000 against Suburban, $130,000 against Ashley and $40,000 against North Royalton. The -8- jury also awarded attorney's fees and $100,000 in punitive damages against Ashley. North Royalton's motion for new trial or for judgment notwithstanding the verdict was denied. Upon the Cortrights' motion, the court awarded them prejudgment interest on the jury verdicts against North Royalton and Ashley at the rate of 10% per annum since September 1, 1991. The court also awarded the Cortrights attorneys fees of $127,331 against Ashley. The judgment against Suburban was paid. North Royalton and Ashley both appealed the trial court's decision. However, Ashley's appeal was dismissed on November 15, 1996. Only North Royalton remains as an appellant in this case. In its first assignment of error, North Royalton argues that since this court in the first appeal had held that an easement existed, the only issue before the trial court was the scope of the easement. Thus, it argues evidence of trespass, ejectment, and quiet title was inadmissible. We disagree. "A 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." Linley v. DeMoss (1992), 83 Ohio App.3d 594, 598. To prove their trespass claim, the Cortrights must show they had a possessory interest in the property, and the offending party entered the property without consent or proper authorization or authority. See Chalker v. Howland Twp. Trustees (1995), 74 Ohio Misc.2d 5, 18. North Royalton had authorization to utilize a twenty foot wide section of property. To the extent they exceeded -9- the scope of the easement, North Royalton was subject to claims of trespass, ejectment, and quiet title. North Royalton argues the trial court erred in instructing the jury on the issue of nuisance because nuisance was not before the court. Earlier in a motion to amend, the trial court had denied the Courtright's motion to amend the complaint to include nuisance. North Royalton cites to several instances of testimony by Cortright on the issue of nuisance. However, a review of the transcript reveals no objection to the testimony. Under Civ.R. 15(B), any issues not raised by the pleadings but tried by the express or implied consent of the parties shall be treated as if they had been raised in the pleadings. Also, North Royalton's counsel acknowledged that nuisance was an issue in the case during his oral motion for directed verdict. MR. MCCLELLAND: On behalf of the City of North Royalton, I make a motion for directed verdict at the close of the case on the issues of trespass, nuisance, ejectment and quiet title. (Tr. 715.) (Emphasis added.) Because the issue of nuisance was raised by the evidence in the case, the trial court properly instructed the jury on nuisance. Although they were not assigned as error, North Royalton also challenges the trial court's denials of its motions for directed verdict, for judgment notwithstanding the verdict, and for a new trial. When evaluating a motion for directed verdict or for judgment notwithstanding the verdict, the same standard applies. Uebelacker v. Cincom Systems, Inc. (1992), 80 Ohio App.3d 97, 106. -10- The trial court must deny the motions if, after construing the evidence most strongly in favor of the non-movant, the court concludes there is substantial evidence to support the non-movant's position upon which reasonable minds may differ. Id. The decision whether to grant a new trial as an alternative to a motion for judgment notwithstanding the verdict is within the discretion of the trial court under Civ.R. 50(B) and Civ.R. 59(A). Highfield v. Liberty Christian Academy (1987), 34 Ohio App.3d 311. A jury's verdict will not be overturned if it is supported by competent, credible evidence. Schneider v. First National Supermarkets (December 5, 1996), Cuyahoga App. No. 70226, unreported. We conclude the Cortrights produced substantial, competent, and credible evidence in support of their claims against North Royalton. The evidence demonstrated that North Royalton had a 20 foot easement across the Cortrights' property for the purpose of installing a storm sewer system. The Cortrights produced evidence to show the swale installed on the Cortrights' property was wider than 20 feet and that it exceeded the scope of the easement. Construing this evidence most strongly in favor of the Cortrights, we conclude that reasonable minds could reach different conclusions as to the Cortrights' claims and that the trial court correctly denied the motions for directed verdict, judgment notwithstanding the verdict, and for new trial. North Royalton's first assignment of error is overruled. In their second assignment of error, North Royalton argues its actions relative to the installation of the emergency storm sewer -11- swale were within their easement rights. Specifically, North Royalton argues the installation of the swale was a necessary and reasonable use incident to the easement. North Royalton also claims the removal of topsoil and trees was incidental to the easement. They also argue the Cortrights are estopped from objecting to the emergency overflow swale because they acquiesced to its installation, thus, they failed to minimize their damages. We disagree. In this case, the Cortrights presented evidence that they repeatedly objected to the installation of the sewer swale. After examining plans of the proposed work submitted by Burke, Cortright went to Al Troietto, city engineer with the city of North Royalton, to complain about the swale and the proposed changes to the grade of his property. He also complained to the city of North Royalton about the removal of topsoil from his property. The work on the swale was commenced while the Cortrights were out of town. When he noticed the swale, Cortright called Suburban and said the swale was too deep and too wide. He reminded them that they had promised 18 inches as the maximum depth. Burke replied, "The best we can do is widen it up." Cortright replied, "If that's what's necessary *** I can't maintain it like this." Leroy Cortright also repeatedly inquired about the replacement of his topsoil but to no avail. Under the circumstances, Cortright cannot reasonably be found to have acquiesced to the installation of the swale. -12- North Royalton argues the removal of the topsoil and trees was necessary and incident to the easement. While it may be true that the trees and soil had to be removed in order to facilitate installation of the swale, the easement instrument called for restoration of the property to its original condition. It is undisputed that topsoil was removed from the property and some of it was sold and used on the Ashley Woods site. Four trees were cut down (one of which was within the 20 foot easement area). Neither the trees nor the topsoil was replaced. Consequently, North Royalton did not meet its duty of restoring the property to its original condition. As a result, they breached the terms of the easement and were subject to liability for the damage done to the property. With respect to the issue of minimization of damages, Leroy Cortright testified that he used his tractor to drag out several large rocks from the bottom of the swale. He also dug two trenches outside his barn to reduce flooding that occurred after the swale was installed. (Tr. 131.) Though he admitted he had not tried to mow the swale, he stated it was "impossible" to mow it. We conclude the above evidence demonstrated Cortright's efforts to minimize his damages. North Royalton's second assignment of error is overruled. In its third assignment of error, North Royalton assigns error in the trial court's failure to give its requested jury instruction -13- 2 on estoppel. North Royalton wanted the court to instruct the jury that the Cortrights were estopped from recovering damages should the jury determine they asked Suburban to change the grading and location of the swale. Though the trial court did not give the requested instruction, it gave the following instructions on the issue of estoppel: [The defendants] contend that by virtue of the actions of the plaintiff with respect to what was done after they discovered the property and the condition, it was by the actions of the defendants in this case, really they acquiesced and consented to the work that was done afterwards and they want to contend under the law that they're estopped, therefore barred, by virtue of really the consent or actions by the plaintiffs with respect to the steps that were taken in connection with this. (Tr. 883.) [I]t is the contention of the plaintiffs that they did not take any step or do anything that did agree to constitute any means by which the plaintiffs should be barred from recovering from damages that they claim that they have established **** So that's an issue apparently that's going to have to be decided by the jury together with other issues that are called upon to decide. (Tr. 885.) We conclude the court's instructions properly explained the issue of estoppel. North Royalton also argues the trial judge's jury instruction on minimization was improper and unintelligible. However, the 2 The file contains a requested jury instruction on the issue of estoppel. However, it does not appear to have been filed with the trial court. -14- record reveals that no objection was raised to the instructions given at trial. Under Civ.R. 51(A), a party may not assign as error the giving or the failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Because North Royalton did not object to the instruc- tion on minimization of damages at trial, it has waived its right to assert error in the instruction. We also reject North Royalton's argument that the trial court improperly instructed the jury on nuisance. As discussed above, evidence on the issue of nuisance was produced at trial without objection. Consequently, the issue was properly before the trial court and the trial court did not err in instructing the jury on the issue of nuisance. North Royalton also argues the jury did not understand the proper formula for awarding damages. The court gave the jury the following instruction on damages. Now, in this case the plaintiffs have made some separate damage claims made to each of the defendants. So, it's the jury obligations, based upon their finding as the evidence in this case, to determine and state what damages, if any, any particular defendant caused to the plaintiffs by virtue of which a verdict should be rendered in favor of the plaintiffs and against the separate defendants in this case. So, you are going to be called upon to give separate and individual consideration on the claims of the plaintiff to each one of the defendants. (Tr. 896.) -15- In addition to seeking compensation for diminution in value or cost of restoration of the land, the Cortrights also sought compensation for personal inconvenience, discomfort, annoyance, anguish, aggravation, pain and suffering. (Tr. 757-758.) In reaching its determination of damages, the jury was free to award damages beyond the diminution in value or the cost of restoring the land to its original condition. There is no evidence the jury misunderstood the trial court's instructions. In their fourth assignment of error, North Royalton argues the trial court's award of prejudgment interest constituted an abuse of discretion. When reviewing an award of prejudgment interest, we must apply an abuse of discretion standard. Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 658. Abuse of discretion has been defined by the Ohio Supreme Court as an attitude that is unreasonable, arbitrary or unconscionable. Castlebrook Ltd. v. Dayton Properties (1992), 78 Ohio App.3d 340, 346 (citing Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87) The Ohio Supreme Court has held that the "prejudgment interest statute is designed to compensate the aggrieved party for the delay encountered by the failure of the tortfeasor to negotiate in good faith," and "ensures that just compensation to the tort victim is not eroded by the dilatory tactics of the tortfeasor." Digital & Analog Design Corp. v. N. Supply Co. (1992), 63 Ohio St.3d 657, 660-661. Under R.C. 1343.03(C), a party is entitled to interest on a judgment if it is shown that the party against whom the judgment in -16- rendered failed to make a good faith effort to settle the case and the prevailing party did not fail to make a good faith effort to settle the case. In Kalain v. Smith (1986), 25 Ohio St.3d 157, 159, the Ohio Supreme Court stated "[a] party has not 'failed to make a good faith effort to settle' under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer." North Royalton argues the Cortrights failed to establish North Royalton's failure to make a good faith effort to settle the case. North Royalton cites LeMaster v. Huntington Natl. Bank (1995), 107 Ohio App.3d 639 for the proposition that the plaintiff's failure to make a written settlement offer precluded an award of prejudgment interest against the defendant. However, the LeMaster case is distinguishable from the case at hand. In LeMaster, the court stated "it is undisputed that during the pendency of the case, i.e., the time that had preceded the trial and verdict, there had been no written or oral settlement demand made upon defendants." In this case, Cortright's trial counsel testified as follows: [W]e never received any offer whatsoever from North Royalton as any possibility of settling this matter. (Tr. 992.) -17- I don't recall ever getting a concrete offer from North Royalton*** (Tr. 995.) North Royalton's trial counsel admitted receiving settlement demands from the Cortrights' trial counsel. Though claiming there was never a solid demand (Tr. 1054), North Royalton admitted there was $200,000 demand made in 1992 (Tr. 1055), a $150,000 demand, a August 2, 1995 demand of $35,000 to $40,000 plus restoration of the swale (Tr. 1056), a January 9, 1996 demand of $100,000 with the ability to fill in the swale. North Royalton's trial counsel stated "as you can see, the demands moved around. And as you know, when demands bounce around that much, it is very difficult to make an evaluation of what the plaintiff really thinks of their own case." (Tr. 1056.) North Royalton's trial counsel admitted he never really considered the filling in of the swale to be an option because of the danger of flooding. (Tr. 1058.) Deciding whether a party exercised good faith with respect to efforts to settle a case is up to the discretion of the trial court. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679. The evidence reveals North Royalton failed to accept any of the Cortrights' settlement demands or extend any offers to settle. Under the circumstances, we cannot say the trial court abused its discretion that the Cortrights were entitled to prejudgment interest. North Royalton's fourth assignment of error is overruled. Judgment affirmed. -18- -19- It is ordered that Appellees recover of Appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PORTER, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .