[Cite as Majesky v. Lawrence,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

WILLIAM MAJESKY, JR. C.A. No. 13CA010405

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE THOMAS H. LAWRENCE, SR., et al. COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellees CASE No. 10 CV 170480

DECISION AND JOURNAL ENTRY

Dated: January 12, 2015

CARR, Judge.

{¶1} Appellant William Majesky, Jr., appeals the judgment of the Lorain County Court

of Common Pleas that granted summary judgment in favor of appellees Thomas and Bonnie

Lawrence. This Court affirms in part, reverses in part, and remands.

I.

{¶2} In 1992, the Lawrences bought a ranch-style house with an attached garage in

Elyria, Ohio. In 1999, they replaced their driveway, which included adding a concrete pad along

the side of the garage. In 2004, Mr. Majesky bought the house next door on the side with the

garage and additional concrete pad. Soon after moving in, Mr. Majesky noticed that water was

infiltrating his basement along the wall closest to the Lawrences’ property. Suspecting that

water was draining from the Lawrences’ driveway toward his house, he erected a barrier along

the property line to redirect the surface water. According to Mr. Majesky, he has not had any

problems with water in his basement since installing the barrier. 2

{¶3} In 2005, the Lawrences expanded their driveway toward the center of their lot by

adding another concrete pad. In December 2010, Mr. Majesky sued the Lawrences, alleging that

they had constructed their driveway negligently and that the surface water flowing off of it had

created problems with his property. Mr. Majesky pleaded four claims, to wit: negligence,

continuing trespass, nuisance, and a claim for punitive damages. The Lawrences moved for

summary judgment, arguing that his claims were barred by the statute of limitations. They also

argued that there was no evidence that they had increased the amount of surface water flowing

onto his property. The trial court granted their motion on both grounds. Mr. Majesky filed a

timely appeal in which he raises two assignments of error for review. This Court consolidates

the assignments of error to facilitate review.

II.

ASSIGNMENT OF ERROR I

TRIAL COURT ERRED WHEN IT FOUND THAT [MR. MAJESKY’S] CASE IS TIME BARRED BY THE STATUTE OF LIMITATIONS.

ASSIGNMENT OF ERROR II

TRIAL COURT ERRED WHEN IT FOUND THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT FOR TRIAL AND GRANTED [THE LAWRENCES’] MOTION FOR SUMMARY JUDGMENT.

{¶4} Mr. Majesky argues that the trial court erred by granting the Lawrences’ motion

for summary judgment. This Court agrees.

{¶5} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co.,

(1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co.,

(6th Dist. 1983). 3

{¶6} Pursuant to Civ.R. 56(C), summary judgment is proper if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc.,

(1977).

{¶7} To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that show that there is no genuine issue

as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Dresher v. Burt,

(1996). Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins,

(1996).

{¶8} The non-moving party’s reciprocal burden does not arise until after the moving

party has met its initial evidentiary burden. To do so, the moving party must set forth evidence

of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact[.]” Civ.R. 56(C) further provides that “[n]o evidence or stipulation may be

considered except as stated in this rule.” 4

Statute of limitations

{¶9} Mr. Majesky argues that the trial court incorrectly found that his claims are barred

by the statute of limitations. The court determined that, because Mr. Majesky alleged damage to

real property, his claims are subject to a four-year limitations period under R.C. 2305.09(A). It

concluded that, because the Lawrences last altered their driveway in 2005, but Mr. Majesky did

not file his complaint until 2010, his claims were time-barred.

{¶10} “The application of a statute of limitations presents a mixed question of law and

fact. Determination of when a plaintiff’s cause of action accrues is to be decided by the

factfinder. But, in the absence of such factual issues, the application of the limitation is a

question of law.” Wojcik v. Pratt, 9th Dist. Summit No. 24583,

, ¶ 23, quoting

Cyrus v. Henes,

(9th Dist. 1993).

{¶11} In his complaint, Mr. Majesky asserted multiple causes of action. In the first, he

alleged that the Lawrences negligently constructed the 2005 addition to their driveway. In the

second, he alleged that surface water runoff from the Lawrences’ driveway is physically

invading his property, constituting a continuing trespass. In the third, he alleged that the

alterations the Lawrences made to their driveway are a nuisance. He further alleged that,

because the Lawrences intentionally disregarded their duty of care to him, he is entitled to

punitive damages.

{¶12} Mr. Majesky argues that it does not matter when the Lawrences constructed the

additions to their driveway because the problem they created is a continuing trespass, which tolls

the limitations period. The Ohio Supreme Court has held that, “if a trespass is continuing rather

than a single completed act, the limitations period is tolled.” State ex rel. Doner v. Zody,

,

. According to the Supreme Court, 5

When a man commits an act of trespass upon another’s land, and thereby injures such other at once and to the full extent that such act will ever injure him, he is liable at once for this one act and all its effects; and the time of the statute of limitations runs from the time of such act of trespass. * * * But where the act of trespass * * * may be said to be a continuing trespass or nuisance, * * * a cause of action accrues [which] may be brought at any time * * *.

Valley Ry. Co. v. Franz,

, 625-626 (1885);

(explaining that a

continuous trespass perpetually creates fresh violations of a plaintiff’s property rights). “[T]he

‘defendant’s ongoing conduct or retention of control is the key’ to distinguishing a continuing

trespass, which tolls a statute of limitations, from a permanent trespass, which does not.”

, quoting Sexton v. Mason,

,

, ¶ 45. “[A] continuing

trespass * * * occurs when there is some continuing or ongoing allegedly tortious activity

attributable to the defendant. A permanent trespass occurs when the defendant’s allegedly

tortious act has been fully accomplished.” Sexton at ¶ 45.

{¶13} In its decision, the trial court did not analyze whether Mr. Majesky alleged a

continuous trespass. According to Mr. Majesky, even though the Lawrences expanded their

driveway in 1999 and 2005, the trespass is continuous because a fresh violation occurs every

time it rains and the slope of the Lawrences’ driveway directs water onto his property. We agree

that, viewing the evidence in a light most favorable to Mr. Majesky, because the nature of the

alleged trespass is a continuing course of conduct that is under the control of the Lawrences, it

constitutes a continuing trespass or nuisance. See id. at ¶ 49; Franz, 43 Ohio St. at 628

(concluding that statute of limitation did not bar claim against company that diverted a stream

and remained in control of it); State v. Swartz,

(2000) (“[If] one creates a

nuisance * * * and permits it to remain, so long as it remains, and is within the control of the

actor, the nuisance constitutes a continuing course of conduct tolling the limitations period * * 6

*.”); Wojcik,

at ¶ 22. The trial court, therefore, incorrectly concluded that Mr.

Majesky’s trespass and nuisance claims are barred by the statute of limitations.

{¶14} To the extent that Mr. Majesky alleged negligent construction by the Lawrences

of their driveway in 1999 and 2005, those claims are barred by the statute of limitations. The

claims for continuing trespass, nuisance, and punitive damages, however, are not so barred.

Accordingly, Mr. Majesky’s first assignment of error is overruled in part, and sustained in part.

Genuine issue of material fact

{¶15} Mr. Majesky has alleged alternate theories to recover for surface water runoff

from the Lawrences’ property onto his. Specifically, he alleged that the Lawrences both

negligently and intentionally constructed the driveway in a manner to allow water to run off onto

his neighboring property. In addition, he alleged that the excessive runoff is ongoing so as to

create a continuing trespass and nuisance on his property. Based on our resolution of the first

assignment of error, only the claims for continuing trespass and nuisance remain viable and will

be addressed.

{¶16} The Lawrences alleged in their motion for summary judgment that there is no

evidence that their driveway or any addition thereto causes excess water to run onto Mr.

Majesky’s property. The Lawrences appended the report of a consultant who inspected their

driveway and concluded that the driveway “would not cause an increase of water runoff on the

Majesky property.” Mr. Majesky opposed the motion and argued that, due to the improper slope

of the Lawrences’ driveway, a slope that the Lawrences instructed the contractor to create, he

experienced water runoff from the Lawrences’ property onto his own every time it rained. Mr.

Majesky appended his affidavit and photographs to his brief in opposition. Also included in the

record are Mr. Majesky’s sworn responses to the Lawrences’ interrogatories. 7

{¶17} The trial court found no genuine issues of material fact existed because the

Lawrences’ consultant reported that the Lawrences’ driveway sloped towards the street and

because Mr. Majesky’s photographs show water running from a downspout on the Lawrences’

garage onto their driveway and into grass on property belonging solely to the Lawrences.

{¶18} With regard to the remaining claims for trespass and nuisance, the same standard

applies to both of them because they concern the diversion of surface water. The Ohio Supreme

Court has held:

In resolving surface water disputes, courts of this state will apply a reasonable-use rule under which a possessor of land is not unqualifiedly privileged to deal with surface water as he pleases, nor absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, and the possessor incurs liability only when his harmful interference with the flow of surface water is unreasonable.

McGlashan v. Spade Rockledge Terrace Condo Dev. Corp.,

(1980), syllabus.

In determining the reasonableness of the harmful interference, courts are guided by the rules set

forth in the Restatement of Torts.

at 60 (citing 4 Restatement of the Law 2d, Torts, Sections

822-831, at 108-142).

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor’s conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

4 Restatement of the Law 2d, Torts, Section 826. “The unreasonableness of an intentional

invasion is determined from an objective point of view.”

at cmt. c. “The question is not

whether the plaintiff or the defendant would regard the invasion as unreasonable, but whether

reasonable persons generally, looking at the whole situation impartially and objectively, would

consider it unreasonable.”

8

{¶19} The Lawrences submitted a report by Timothy Calvey of Calvey Consulting,

L.L.C. Although the report indicates that Mr. Calvey’s “CV” (presumably, a curriculum vitae) is

attached, there are no documents in the record which establish Mr. Calvey’s expertise in the field

of engineering or areas related to water runoff. Mr. Calvey rendered an opinion that the

Lawrences’ driveway sloped toward the street and “would not cause an increase of water runoff

on the Majesky property.” Photographs attached to the report indicate that the Lawrences’

driveway slopes towards the street. There is nothing attached to the report to indicate that Mr.

Calvey measured the slope of the driveway to either side. Nevertheless, based on this evidence,

the Lawrences met their initial burden of demonstrating that there was no unreasonable invasion

of water from their property onto Mr. Majesky’s. See Dresher,

.

{¶20} Mr. Majesky, however, countered with evidence demonstrating harmful

interference from surface water runoff onto his property from the Lawrences’ property. Mr.

Majesky averred in his affidavit that Mr. Lawrence told him on two occasions that he told the

contractor to slope his driveway downwards towards the property Mr. Majesky subsequently

acquired, in order to keep water out of his own garage on the opposite side. Mr. Majesky further

appended photographs he took which showed that the Lawrences’ driveway sloped noticeably

towards the Majesky property. Another photograph showed water flowing from a drainpipe on

the Lawrences’ garage, onto the Lawrences’ driveway, and into the grassy area between the two

houses. Mr. Majesky testified during his deposition that the Lawrences’ property only extends

beyond their driveway for 15-18 inches. Additional photographs show that a chain link fence

separates the two properties, with grass on both sides of the fence. Therefore, there is no

physical barrier that would prevent the water running off of the Lawrences’ driveway into their

grass from continuing to run into Mr. Majesky’s grass. Mr. Majesky testified that he no longer 9

experiences water in his basement as a result of runoff from the Lawrence property because he

erected physical barriers, including lumber and foliage, next to his house. However, he averred

in his answers to interrogatories that he experiences a “saturation of lands,” as well as an

ongoing trespass and nuisance as a result of water runoff from the Lawrences’ property onto his

own.

{¶21} Under these circumstances, Mr. Majesky met his reciprocal burden under

Tompkins to show that the surface water runoff from the Lawrences’ property was unreasonable

in that it unreasonably impacted Mr. Majesky’s use and enjoyment of his property. Mr. Majesky

presented evidence to show: The Lawrences’ drainpipe is directed off their garage onto their

driveway which slopes toward the Majesky property. Water enters the grassy area between the

two homes and there is no physical barrier preventing the water from continuing to run onto Mr.

Majesky’s property. The lumber barrier and foliage against the Majesky home only prevent

water seepage into his basement, not upon his land. There is evidence to suggest that the utility

of the Lawrences’ redirection of water surface water is outweighed by the harm caused by

saturation on the Majesky property, particularly as there is evidence that the Lawrences

intentionally directed the water from their property to the neighboring property. Therefore, a

genuine issue of material fact exists and the Lawrences are not entitled to judgment as a matter

of law. Accordingly, the trial court erred by granting summary judgment in favor of the

Lawrences. Mr. Majesky’s second assignment of error is sustained.

III.

{¶22} Mr. Majesky’s first assignment of error is sustained as it relates to his claims for

continuing trespass, nuisance, and punitive damages. The first assignment of error is overruled

as to the negligence claim. His second assignment of error is sustained. The judgment of the 10

Lorain County Court of Common Pleas is affirmed in part, reversed in part, and the cause

remanded for further proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally.

DONNA J. CARR FOR THE COURT

BELFANCE, P. J. CONCURS. 11

HENSAL, J. CONCURRING IN PART, AND DISSENTING IN PART.

{¶23} Although I agree that the statute of limitations does not bar Mr. Majesky’s

continuing trespass and nuisance claims, the trial court correctly granted summary judgment to

the Lawrences. While Mr. Majesky’s affidavit and photographs indicate that the driveway on the

side of the Lawrences’ house slopes toward his property, the photographs show that any runoff

from the driveway flows into a grassy area that is still part of the Lawrences’ property. Mr.

Majesky did not present any evidence that the water that runs off the Lawrences’ driveway flows

through the grass on to his property. He, therefore, did not demonstrate that there is a genuine

issue regarding whether the Lawrences unreasonably altered the flow of surface water from their

property. See McGlashan v. Spade Rockledge Terrace Condo Dev. Corp.,

(1980), syllabus. Accordingly, the trial court did not err when it granted summary judgment to

the Lawrences.

APPEARANCES:

WILLIAM MAJESKY, JR., pro se, Appellant.

ROBERT J. KOETH and ANN E. LEO, Attorneys at Law, for Appellees.