I concur with the majority except on the trespass claim and the limitations it imposes on remand. First, the majority is mistaken when it says that "Misseldine, in his deposition, stated that his property extended all the way to the street." Majority opinion at 12. I do not find any such statement in Misseldine's deposition.² Because clear testimony about this fact is missing, I conclude a genuine issue of material fact remains for trial. This issue of fact precludes disposing of the trespass claim solely on the basis of Misseldine's description of the extent of the property.

{¶ 48} Second, the record reflects contradictory evidence about the location of the garbage. At deposition, Misseldine testified that, typically, he places the garbage "a couple of yards off the roadway on my property." He also stated the property has no curb or public sidewalk. Zalewski's affidavit states the garbage was placed "on the front edge of the lawn and on a public sidewalk." Lantz, on the other hand, says the garbage "was placed at the curb where the Misseldine's concrete driveway meets the road." This testimony, when taken together with the absence of evidence about how far Misseldine's property extends, is ambiguous and contradictory. Therefore, even if the property extended to the road, as the majority claims was established, there is still a genuine issue of material fact as to whether the garbage was taken from public or private property. "Obviously, if it appears that a dispute exists as to any fact material to the issue being litigated, an entry of summary judgment against either party would clearly be erroneous, and constitute a denial of the right to a jury trial on that issue." Houk v. Ross (1973),34 Ohio St.2d 77, 296 N.E.2d 266.

{¶ 49} Finally, I believe the majority has also exceeded its authority in ruling for Misseldine on the trespass claim, because the lower court never received any motion for summary judgment from plaintiff. The Ohio Supreme Court has held that "Civ.R. 56 does not authorize courts to enter summary judgment in favor of a non-moving party." Marshall v. Aaron (1984), 15 Ohio St.3d 48, 472 N.E.2d 335, syllabus. All that came up on appeal to this court was defendant's motion for summary judgment, which the lower court granted. This court can reverse that decision; it cannot go any further. It must remand to proceed on the issue of trespass, on which we reversed.

{¶ 50} The procedure followed by the majority reveals the manifest injustice in limiting what may be addressed on remand to damages. First, the majority declared that it was making a finding of fact based on the rule that the evidence must be construed in favor of the non-moving party. Then using that ruling as a basis-a ruling that can apply solely to a motion for summary judgment-the majority proceeded to rule for that same non-moving party on the claim itself. The final merits of a claim cannot be decided by favoring one side. Considering the obverse makes this point even clearer. If plaintiff had been the party who filed a motion for summary judgment, then in construing the evidence the court would be obliged to favor the defendant, not the plaintiff. In determining the final merits of a claim, the court cannot extend to the plaintiff an advantage based on his failure to file a motion for summary judgment.

{¶ 51} Even if such a favor is not needed, this court cannot proceed to determine an issue which the litigants did not have a full opportunity to litigate. There is no obligation that a moving party present all its evidence in its motion for summary judgment. There is no question of res judicata at this stage. The moving party is not barred from presenting new evidence once its motion is denied. For whatever reasons it may have, it has the right to decide what issues and facts to present and what to hold back. Indeed, a motion for summary judgment is often merely a tactic to force the other side to produce its evidence and arguments before trial.

{¶ 52} Although this court may believe the decision on this issue to be quite clear, it cannot deny the moving party the right to raise upon remand new questions of fact and even new defenses on the issue of trespass. Moving for summary judgment does not waive this right. The record here reveals a dispute over two material facts, namely, the location of Misseldine's property line and whether the garbage was taken from Misseldine's property or public property. The entry of summary judgment in favor of Misseldine, who never made such a motion, denies defendants their right to a jury trial on these issues.

{¶ 53} Thus I would remand to proceed on the issue of trespass, both on the merits and damages.

² {¶ a} In his brief Misseldine claims to have made this statement on pp. 22-23 of his deposition. The statement is not there, nor is it a fair summary of what he said on these pages.

{¶ b} I also have a concern about whether Misseldine is competent to testify about the extent of his property line. See, Evid.R. 701, 702, and 803(19).

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

{¶ 2} We affirm in part, reverse in part and remand. Specifically, we affirm the trial court's grants of summary judgment in favor of the appellees with respect to the invasion of privacy, conversion and civil harassment claims. And we reverse and remand the trial court's grants of summary judgment with respect to the trespassing claim.

{¶ 4} Misseldine contends that both C.I.S. and InPhoto were unresponsive to discovery requests and that InPhoto filed a number of motions meant solely to cause delay and harassment. The record shows that C.I.S. and InPhoto provided Misseldine with the names of individuals who were involved in the investigations, but that neither appellee provided Misseldine with the social security numbers or residential addresses of those individuals. (C.I.S. did give such information about one former employee.)

{¶ 5} InPhoto and C.I.S. separately moved for summary judgment. InPhoto then filed a motion for protective order to stay all discovery pending the court's ruling on the motion for summary judgment. Misseldine responded with a motion to compel and request for sanctions against InPhoto for what Misseldine described as InPhoto and its counsel's "wrongful and dilatory conduct[.]" The trial court denied Misseldine's motion and granted InPhoto's motion for a stay of discovery pending resolution of the motions for summary judgment. Finally, the trial court granted summary judgment in favor of appellees.

{¶ 6} Misseldine timely appealed and raises two assignments of error for this court's review: (1) that the trial court abused its discretion in denying his motion to compel and for sanctions against InPhoto and (2) that the trial court erred in granting summary judgment in favor of InPhoto and C.I.S.

{¶ 9} Misseldine contends that InPhoto's contradictory responses show its attempt to evade discovery. In other words, Misseldine argues that InPhoto (1) improperly implied that Lantz and Zalewski are employees and so could not divulge personal information about them and then (2) explained later that they were not in fact employees and so InPhoto was not responsible for turning over their personal information. InPhoto responds that it "did not represent that Lantz and Zalewski were current employees" in its response to Misseldine's first set of interrogatories and that it later stated unequivocally in the second response that they were former employees. InPhoto contends that Misseldine's confusion is his own fault.

{¶ 10} InPhoto's response was less than accurate. Counsel's statement that InPhoto "did not represent that Lantz and Zalewski were current employees" does not quite square with its response that it would not turn over an "employee's" personal information and that all "employees" may be contacted through counsel. Nonetheless, we do not believe that any prejudice resulted. The activities alleged by Misseldine have largely been admitted by InPhoto and Misseldine was able to bring to light the facts that made up the basis of his claims.

{¶ 12} In his deposition, which was taken after these affidavits were served, Misseldine explains that he has no sidewalk, tree lawn or berm on his property and that his private property extends all the way to the street. Misseldine further stated in that deposition that he left his garbage out about six feet from the street for collection. Finally, Misseldine points out that InPhoto relied on the affidavits of Lantz and Zalewski in support of its motion for summary judgment, in which InPhoto argues that its investigators never trespassed on Misseldine's property.

{¶ 13} InPhoto denies submitting false affidavits and explains that the discrepancies are simply the result of "the recollections of affiants long after the events in question" and that "any mistakes involving details of those events do not prove perjury." (Emphasis sic.)

{¶ 14} Misseldine's argument is unpersuasive. As InPhoto shows, the contradictions were minor and cannot be held to have been knowingly false. And as will be detailed below, none of the discrepancies affects the resolution of the matter.

{¶ 16} This argument is not well taken. As InPhoto points out, its motion in opposition to Misseldine's leave to file his amended complaint was filed because Misseldine did not attach a copy of the proposed amended complaint to his motion. Further, the trial court granted InPhoto's motion for protective order and to stay discovery. Misseldine cannot complain that InPhoto filed frivolous motions when those motions were granted by the court.

{¶ 20} We hold first that there are no genuine issues of material fact. There are, as InPhoto admits, discrepancies between the information provided in the affidavits of Lantz and Zalewski and that from the deposition of Misseldine. The discrepancies, however, relate to the description of Misseldine's property and not to the actions taken by the personnel. And the actions of the personnel form the basis of Misseldine's complaint.

{¶ 21} Specifically, the issues revolve around whether InPhoto and C.I.S.'s agents trespassed, invaded Misseldine's privacy and converted his property. Neither InPhoto nor C.I.S. denies that its agents took Misseldine's garbage. Therefore, whether Misseldine's property does or does not have a sidewalk, does or does not have a concrete berm, is irrelevant in deciding whether he has claims for trespass, invasion of property and conversion.

{¶ 22} Because there are no genuine issues of material fact, the only remaining question then is whether, after construing the evidence most favorably for Misseldine, reasonable minds could reach only one conclusion, which is adverse to him with respect to the torts claimed.

{¶ 24} The evidence shows that on a few occasions, C.I.S. and InPhoto personnel drove up to Misseldine's property where an investigator stepped out of the car and took his garbage. The appellees argue that there is no evidence that Misseldine's property actually extends all the way to the street and that the personnel might not have actually stepped on Misseldine's property. Neither argument is persuasive.

{¶ 25} Misseldine, in his deposition, stated that his property extended all the way to the street. Neither appellee has introduced any evidence to rebut that. Therefore, construing the evidence in Misseldine's favor, we find that his property extends all the way to the street.

{¶ 26} Further, whether any of the appellees' personnel actually stepped onto Misseldine's property is not dispositive. One may commit a trespass by invading the airspace of the property of another. See, Restatement 2d of Torts, Section 159 ("a trespass may be committed on, beneath, or above the surface of the earth.") (Emphasis added.) See, also, Hannabalson v. Sessions (1902), 116 Iowa 457, 90 N.W. 93 (extending one's hand over the fence separating adjoining properties constitutes a trespass).

{¶ 27} Therefore, C.I.S. and InPhoto's personnel did physically invade Misseldine's property without invitation or inducement, nor did any mutuality of interest exist between either C.I.S. or InPhoto and Misseldine.

{¶ 32} Misseldine has shown trespass, but the issue of damages remains unresolved. We therefore reverse and remand for determination of damages, which may be only nominal.

{¶ 34} Misseldine states that "there is more than ample evidence, when viewed in a light most favorable to Misseldine, that Appellees violated Misseldine's right to privacy by intruding into and invading Misseldine's personal life and private affairs." Misseldine Brief at 28. Specifically, Misseldine asserts that InPhoto secured personal information about Misseldine (address, date of birth, physical description and social security number), discovered his past residences, requested information from the Ohio Department of Transportation, discovered his place of employment, made telephone calls to his home and his employer, and took his garbage.

{¶ 35} Misseldine asserts that C.I.S. secured his personal information (address, home telephone number, social security number, date of birth, driver's license number, physical description, vehicle registration information, and information about Misseldine's employer), got information from the Ohio Bureau of Workers' Compensation, obtained a copy of his driver's license abstract, discovered his past residences, telephoned his home and employer, surveilled him, and took his trash.

{¶ 36} Finally, Misseldine asserts that both parties undertook such activities to discover private information about him and to then "publish this information to a third party for profit." Misseldine Brief at 32.

{¶ 39} The information gathered by the personnel was handed over to their employers (C.I.S. and InPhoto) for the purposes of investigating whether Misseldine's claim against Progressive was legitimate. There was no communication "to the public at large, or to so many that the matter must be regarded as substantially certain to become one of public knowledge." Seta at 740. Because of this conclusion, we need not reach whether the information gathered by the appellees constitutes private affairs.

{¶ 41} It is proper to mention here that Misseldine's claim for civil harassment, based on the phone calls, fails since no such claim is recognized in Ohio.

{¶ 43} C.I.S. and InPhoto personnel did "intentional[ly] exercise dominion or control" over Misseldine's garbage. Therefore, the key analysis is whether C.I.S. and InPhoto interfered with Misseldine's "right * * * to control" his garbage. We hold that it does not because Misseldine, once he placed the garbage out for collection, had abandoned his right to control the items of garbage.

{¶ 44} The analysis is well stated by a California appellate court:

{¶ 45} "Documents which have been placed in an outdoor trash barrel no longer retain their character as the personal property of the one who has discarded it. By placing them into the garbage, the owner renounces the key incidents of ownership — title, possession, and the right to control. As the Indiana Court of Appeals stated in reversing an award of damages for conversion based on the defendants' removal of documents from a trash [d]umpster, `there is a widely held and long-standing doctrine that personalty discarded as waste is considered abandoned.'" Ananda Church of Self-Realization v. Massachusetts Bay Ins.Co. (2002), 95 Cal.App.4th 1273, 1282, quoting Long v. Dilling MechanicalContractors (Ind.App. 1999) 705 N.E.2d 1022, 1025.

{¶ 46} Here, there is no dispute that Misseldine intended to relinquish his property rights in the garbage. That he intended to relinquish them only to the garbage collectors is immaterial. He admitted in his deposition that he had no interest in it. The court properly granted summary judgment as to Misseldine's claim for conversion.

¹ The actions taken by the personnel of C.I.S. and InPhoto are substantially similar, though we will describe the differences where relevant. Further, the identities of the individual personnel are irrelevant for all but one of the issues under review. Therefore, for the sake of convenience and when it will not cause confusion, we will generally refer to "the personnel" when describing the actions taken by C.I.S. and InPhoto's employees that make up the substance of Misseldine's case.