[Cite as Olive Oil, L.L.C. v. Cleveland Elec. Illum. Co.,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

OLIVE OIL, L.L.C., :

Plaintiff-Appellant/Cross- : Appellee, : No. 109553 v. : CLEVELAND ELECTRIC ILLUMINATING CO., ET AL., :

: Defendants-Appellees/ Cross-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED RELEASED AND JOURNALIZED: July 8, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-912282

Appearances:

Law Office of Matthew S. Romano, L.L.C., and Matthew S. Romano, for appellant.

Calfee, Halter & Griswold, L.L.P., Lindsey E. Sacher, Anthony Stringer, and Thomas I. Michals for appellee/cross-appellant, The Cleveland Electric Illuminating Co. Weston Hurd L.L.P., and Cornelius J. O’Sullivan, for appellees, Independence Construction L.L.C., Independence Excavating, Inc., and Front Street Group L.L.C.

EILEEN A. GALLAGHER, J.:

Plaintiff-appellant/cross-appellee, Olive Oil, L.L.C., appeals from

judgments rendered against it by the Cuyahoga County Court of Common Pleas.

After the 2017 replacement of power lines over a portion of Olive Oil’s property,

Olive Oil brought various claims against the Cleveland Electric Illuminating

Company (“CEI”), Independence Excavating, Inc. (“IE”), Independence

Construction, L.L.C. (“IC”) and Front Street Group, L.L.C. For the reasons that

follow, we affirm in part, reverse in part and remand.

I. Background

Since 2016, Olive Oil has owned the property located at 130 Front

Street in Berea, Ohio. The property includes storefronts and residential housing. It

also includes a parking lot along the east side of the property. Olive Oil is the

landlord and collects rents from the tenants. Mike Gantous is the sole owner of Olive

Oil. One tenant is Mike’s Bar & Grill, a restaurant that Gantous owns by way of

another company, J.A.M.S., L.L.C. Olive Oil is the only plaintiff in this action,

neither Gantous nor J.A.M.S. are a party to this case.

The parking lot is bordered on the east by West Street and on the

south by School Street. Since at least 1987, and until 2017, CEI ran power lines over the southeast corner of the parking lot, between a pole on West Street and a pole on

the south side of School Street (“old wires”).

In 2017, because of a development project involving the other

defendants, CEI moved the pole from the south side of School Street to the public

right-of-way on the north side of the street. Moving the pole across the street caused

the wires strung between it and the pole on West Street (“new wires”) to occupy a

larger portion of space over Olive Oil’s parking lot. There was expert testimony

presented at trial that the path of the new wires was within 20 feet of the path of the

old wires. Gantous did not consent to having the new wires span over his property

and litigation ensued.

The case proceeded to a jury trial. Olive Oil and all of the defendants

presented their cases. However, the court disposed of all claims through directed

verdicts prior to charging the jury.

Relevant to this appeal, the trial court granted directed verdicts on

Olive Oil’s trespass and civil conspiracy claims as well as its statutory claim pursuant

to R.C. 2307.60 and 2307.61. The trial court also dismissed Olive Oil’s declaratory

judgment claim pursuant to Civ.R. 41(B) for failure to prosecute. This appeal

follows.

Assignments of Error

Olive Oil asserts six assignments of error for review:

1. The Trial Court’s Denial of Plaintiff-Appellant Olive Oil LLC’s (“Olive Oil”) Motion for Partial Summary Judgment is Reversible Error. 2. The Trial Court’s Civ. R. 41(B)(1) Dismissal of Olive Oil’s Declaratory Judgment Claim is Reversible Error.

3. The Trial Court’s Refusal to Permit Olive Oil’s Owner to Testify on the Diminution in Property Value is Reversible Error.

4. The Trial Court’s Directed Verdict Dismissing Olive Oil’s Trespass Claim is Reversible Error.

5. The Trial Court’s Directed Verdict Dismissing Olive Oil’s Claim for Violations of R.C. 2307.60 and 2307.61(A)(1) is Reversible Error.

6. The Trial Court’s Directed Verdict Dismissing Olive Oil’s Civil Conspiracy Claim is Reversible Error.

CEI has cross-appealed and asserted five of its own assignments of

error for review:

1. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s Trespass Claim Because CEI Presented Undisputed Evidence That It Had a Right Relocate the New Wires Over the Property.

2. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s “Civil Theft” Claim and Request for Liquidated Damages Pursuant to R.C. 2307.60 and 2307.61.

3. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s Civil Conspiracy Claim.

4. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s Declaratory Judgment Claim.

5. The Trial Court Should Have Granted Summary Judgment in CEI’s Favor on Olive Oil’s Requests for Punitive Damages and Attorney’s Fees.

We address the assignments of error in an order and manner that aids

our analysis. II. Analysis

A. Directed Verdict for Trespass Claim In its fourth assignment of error, Olive Oil argues that granting a

directed verdict on its trespass claim was reversible error. In this assignment of

error, Olive Oil confines its argument to CEI.

A trial court should grant a motion for directed verdict when “after

construing the evidence most strongly in favor of the party against whom the motion

is directed, finds that upon any determinative issue reasonable minds could come to

but one conclusion upon the evidence submitted and that conclusion is adverse to

such party.” Civ.R. 50(A)(4); Krofta v. Stallard, 8th Dist. Cuyahoga No. 85369,

. A motion for directed verdict does not test witness credibility

or the weight of the evidence.

. The motion instead tests “the legal

sufficiency of the evidence to allow the case to proceed to the jury, and it constitutes

a question of law, not one of fact.”

A trial court properly grants a motion for

directed verdict where the party opposing the motion fails to adduce any evidence

of at least one essential element of the claim. Id. at ¶ 11. We review de novo whether

the trial court properly entered a directed verdict. Id. at ¶ 9.

“Trespass is an unlawful entry upon the property of another.” Chance

v. BP Chems., Inc.,

,

(1996), citing Keesecker v.

G.M. McKelvey Co.,

,

(1943). “Thus, the

elements of trespass are ‘(1) an unauthorized intentional act, and (2) entry upon land

in the possession of another.’” Thomas v. Murry, 8th Dist. Cuyahoga No. 109287,

, quoting Brown v. Scioto Cty. Bd. of Commrs.,

,

(4th Dist. 1993). The plaintiff bears the burden of proving

all elements of a trespass claim.

.

“[A] showing of trespass entitles a plaintiff to at least nominal

damages.” Misseldine v. Corporate Investigative Servs., 8th Dist. Cuyahoga No.

81771,

, ¶ 31, citing Lamberjack v. Gyde, 6th Dist. Ottawa No. 92-

OT-034,

(Nov. 13, 1993); see also Lacey v. Laird,

, 12,

(1956), paragraph two of the syllabus (“‘Nominal

damages’ are those recoverable a legal right is to be vindicated against an invasion

thereof which has produced no actual loss of any kind, or where, from the nature of

the case, some injury has been done, the extent of which the evidence fails to show.”).

In order for a plaintiff to be entitled to actual damages, “‘the plaintiff must prove

that the that the trespass proximately caused that for which compensation is sought

and the amount of those damages.’”

quoting

; see also

(“A trespasser is only liable if his trespass proximately caused the

damages.”).

Here, the trial court granted a directed verdict on Olive Oil’s trespass

claim, explaining that its reason for doing so was that Olive Oil failed to prove

damages:

[T]he plaintiff’s complaint is one of tort. And tort, you must show damages, that is an element of the tort. If you don’t show damages, then unfortunately you cannot prevail. So as to trespass, permanent and temporary, defendants’ Rule 50 motion is hereby granted.

It was error for the trial court to dismiss the trespass claim on the

basis that Olive Oil failed to establish damages. While we agree that Olive Oil failed

to establish that it was actually damaged by the new wires, trespass is established

where a defendant enters onto another’s property without authorization. See

Chance,

,

; see also

(trespass

can be established by the invasion of the airspace above another’s property). Here,

there was evidence presented that CEI trespassed on Olive Oil’s property without

Olive Oil’s permission.

Nevertheless, there was also evidence presented that CEI acquired a

prescriptive easement for the old wires running over Olive Oil’s property. “A party

claiming a prescriptive easement has the burden of proving a use of the property

that is: (1) open; (2) notorious; (3) adverse to the neighbor’s property rights; (4)

continuous; and (5) at least 21 years in duration.” Harris v. Dayton Power & Light

Co.,

,

, ¶ 18 (2d Dist.); see also J. F. Gioia, Inc. v.

Cardinal Am. Corp.,

,

(8th Dist. 1985) (“The

party claiming a prescriptive easement has the burden of proving each of those

elements.”). Moreover, there was evidence presented that that the new wires,

although not tracing the precise path of the old, nevertheless fell within that

prescriptive easement. However, there was no determination whether a prescriptive

easement existed for the old wires and there was no determination of the dimensions

of any such easement. See Kattelman vs. Young Men’s Christian Assn., 1st Dist.

Hamilton No. C-810947,

, 3 (Oct. 27, 1982), citing

Pavey v. Vance,

,

(1897) (“[T]he dimensions of an

easement acquired by prescription are determined by actual use during the

prescriptive period.”). Further, there was no determination whether the path of the

new wires impermissibly exceeded the scope of any existing easement. See

Kattelman at 5, citing Gibbens v. Weisshaupt,

,

(1977)

(“[The] use cannot be so substantially altered or enlarged that the nature, character

and burden thereof create a new and different servitude.”).

We, therefore, sustain the assignment of error and remand for

determinations of whether CEI acquired a prescriptive easement, whether the new

wires impermissibly exceed the scope of any such easement and thereby constitute

a trespass on Olive Oil’s property and if so, the measure of damages that result from

the trespass.

B. Directed Verdict for Civil Conspiracy Claim In its sixth assignment of error, Olive Oil argues that the trial court

erred by granting a directed verdict on its civil conspiracy claim.

“Civil conspiracy is ‘a malicious combination of two or more persons

to injure another in person or property, in a way not competent for one alone,

resulting in actual damages.’” Maddox Defense, Inc. v. GeoData Sys. Mgmt., 2019- Ohio-1778,

, ¶ 47 (8th Dist.), quoting LeFort v. Century 21-Maitland

Realty Co.,

,

(1987). “An action for civil

conspiracy cannot be maintained unless an underlying unlawful act is committed.”

Williams v. United States Bank Shaker Square, 8th Dist. Cuyahoga No. 89760,

, citing Gosden v. Louis,

,

(9th Dist. 1996).

Olive Oil asserts that the trial court concluded that it proved that there

was a “malicious combination” involving “two or more persons,” but that it failed to

prove damages. A review of the record reflects that the trial court made no such

affirmative findings; however, Olive Oil is correct to the extent the court granted a

directed verdict on the conspiracy claim after finding no evidence of damages.

Olive Oil claims that “[t]here was overwhelming evidence presented

at trial and in the record that Independence Construction and CEI conspired to

commit harm to Olive Oil,” but fails to actually identify any such evidence. This does

not satisfy Olive Oil’s obligation under App.R. 16(A)(7). An appellate court is not

obliged to construct or develop arguments in support of an assignment of error

where the appellant has otherwise failed to do so. V.C. v. O.C., 8th Dist. Cuyahoga

No. 109988,

; see also State v. Collins, 8th Dist. Cuyahoga No.

89668,

, quoting State v. Franklin, 9th Dist. Summit No.

22771,

(“‘[I]t is not the duty of this Court to develop an

argument in support of an assignment of error if one exists.’”); App.R. 12(A)(2). “If

an argument exists that can support this assigned error, it is not this court’s duty to root it out.” V.C. at ¶ 89, quoting Strauss v. Strauss, 8th Dist. Cuyahoga No. 95377,

.

More specifically, we observe that Olive Oil makes no argument as to

how the trial court erred by finding no evidence of actual damages. Specifically,

Olive Oil fails to identify any evidence in the record establishing actual damages.1

Accordingly, regardless of whether Olive Oil has a viable trespass

claim and is therefore entitled to nominal damages, its failure to prove actual

damages is fatal to its civil conspiracy. See Gosden,

,

, citing Minarik v. Nagy,

,

(8th Dist. 1963) (“The element of ‘resulting in actual damages’ means that, if a

plaintiff suffers no actual damages from the underlying unlawful act, there can be

no successful civil conspiracy action.”); see also Ogle v. Hocking Cty., 4th Dist.

Hocking No. 14CA3,

(“[T]here must be actual damages

attributable to the conspiracy in addition to those damages caused by the underlying

tort in order for the plaintiff to recover from the conspiracy.”).

Accordingly, we overrule Olive Oil’s sixth assignment of error.

1 We note that Gantous testified that the monetary damage he suffered as the result of the new wires was “[h]ow much I paid for the whole property and all the improvements I put in there.” Although Olive Oil does not cite this as evidence of actual damages, and we agree that it is not, we nevertheless mention it here because that statement is more fully addressed in a subsequent assignment of error. C. Directed Verdict for R.C. 2307.60 and 2307.61 Claim In its fifth assignment of error, Olive Oil argues that the trial court

erred by granting a directed verdict on its R.C. 2307.60 and 2307.61(A)(1) claim.

Olive Oil confines this argument to CEI.

The trial court granted a directed verdict as to Olive Oil’s R.C. 2307.60

and 2307.61 claims based on a finding that there were no damages.

R.C. 2307.60 provides a mechanism for civil recovery following

criminal acts for “[a]nyone injured in person or property by a criminal act.” R.C.

2307.60(A). R.C. 2307.61 is applicable where a property owner brings a civil action

pursuant to R.C. 2307.60(A) to recover from a person who willfully damages the

owner’s property or who commits a theft offense, as defined in section 2913.01 that

involves the owner’s property. R.C. 2307.61(A).

Here, Olive Oil failed to identify any evidence in the record in support

of its R.C. 2307.60 and 2307.61 claims. Olive Oil failed to offer any basis by which

we can conclude that CEI committed a criminal act that injured Olive Oil in person

or property as required by R.C. 2307.60. Similarly, Olive Oil failed to offer any basis

by which we can conclude that CEI willfully damaged its property or committed a

theft offense as required by R.C. 2307.61. Aside from citation to these statutes, as

well as the criminal theft and trespass statutes, Olive Oil has offered no authority

demonstrating it is entitled to judgment on this claim or that that the trial court

erred by granting a directed verdict as to this claim. Instead, Olive Oil offers the unsupported conclusion that “CEI’s

conduct was both a criminal trespass * * * and a criminal theft * * *.” Merely

concluding that conduct was criminal does not make it so. More to the point, it does

not satisfy Olive Oil’s obligation under App.R. 16(A)(7). As stated in the previous

assignment of error, this court will not construct or develop arguments for a party

that has failed to do so itself. See V.C. at 89.

We overrule this assignment of error.

D. Civ.R. 41(B)(1) Dismissal of Declaratory Judgment Claim In its second assignment of error, Olive Oil argues that the trial court’s

dismissal of its declaratory judgment claim pursuant to Civ.R. 41(B) is reversible

error.

Civ.R. 41(B) governs dismissals for failure to prosecute. Civ.R.

41(B)(1) provides:

Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.

“The power to dismiss for lack of prosecution is within the sound

discretion of the trial court.” Pembaur v. Leis,

,

(1982). As a general matter, a trial court abuses its discretion where its decision is

arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore,

,

(1983). Where a case is dismissed with prejudice,

however, appellate courts apply a heightened abuse-of-discretion standard of

review. See, e.g., Jones v. Hartranft,

,

(1997) (“[A]lthough reviewing courts espouse an ordinary “abuse of discretion” standard of

review for dismissals with prejudice, that standard is actually heightened when

reviewing decisions that forever deny a plaintiff a review of a claim’s merits.”);

Simmons v. Narine,

,

, ¶ 7 (8th Dist.), quoting Ocran

v. Richlak, 8th Dist. Cuyahoga No. 99856,

(“Because it is such

a harsh sanction, ‘forever deny[ing] a plaintiff a review of a claim’s merits,’ we review

a trial court’s decision to dismiss a case with prejudice pursuant to Civ.R. 41(B)(1)

under a ‘heightened’ abuse-of-discretion standard.”).

Here, the trial court dismissed Olive Oil’s declaratory judgment claim

for lack of prosecution on the fourth and final day of trial and only after Olive Oil

had rested its case. The court’s stated reason for doing so was that, according to

Olive Oil’s counsel, Gantous “was upset over recent rulings [directed verdicts

granted against Olive Oil], was sick, was tired and would not return to court.”

Irrespective of the fact that Olive Oil’s counsel was present for the entirety of the

trial and regardless of the fact that Gantous was present for Olive Oil’s case-in-chief

including his own direct and cross-examinations, the court dismissed the

declaratory judgment claim for lack of prosecution.

Under the facts of this case, we find that the trial court erred by

dismissing Olive Oil’s declaratory judgment claim. However, the error was harmless

to the extent that the claim, itself, was outside the scope of the Declaratory Judgment

Act. “‘A declaratory judgment action is a creature of statute’” as set forth

under Revised Code Sections 2721.01 through 2721.15. Tabbaa v. Lexpro, L.L.C.,

8th Dist. Cuyahoga Nos. 109690 and 109691,

, quoting

Galloway v. Horkulic, 7th Dist. Jefferson No. 02 JE 52,

, ¶ 21.

“To be proper, a declaratory-judgment action must, among other

things, be within the scope of the Declaratory Judgment Act.” State ex rel. Ford v.

Ruehlman,

,

,

, citing Freedom

Rd. Found. v. Ohio Dept. of Liquor Control,

,

(1997); see also

(“A complaint seeking declaratory relief under

R.C. Chapter 2721 must be dismissed where it does not meet any of those

requirements.”).

In relevant part, R.C. 2721.03 provides:

[A]ny person interested under a deed, will, written contract, or other writing constituting a contract or any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.

Here, Olive Oil sought a declaratory judgment “to quiet title to

Plaintiff’s Property in light of the purported prescriptive easement that CEI claims

to hold on Plaintiff’s Property” and to “declare Plaintiff’s full rights over Plaintiff’s

entire Property and eject CEI from the Property.” As such, and for example, Olive Oil makes no claim that it is an

interested party under “a deed, will, written contract, or other writing constituting a

contract” pursuant to R.C. 2721.03. To the contrary, and to the extent that Olive Oil

refers to the extent that a prescriptive easement exists, it underscores the lack of any

written contract for the court to construe. Moreover, pursuant to R.C. 2721.03, Olive

Oil made no claim that it was “affected by a constitutional provision, statute, rule

* * *, municipal ordinance, township resolution, contract, or franchise” and it did

not seek determination of “any question of construction or validity arising under the

instrument, constitutional provision, statute, rule, ordinance, resolution, contract,

or franchise and obtain a declaration of rights, status, or other legal relations under

it.”

Accordingly, the court’s error in dismissing Olive Oil’s declaratory

judgment claim pursuant to Civ.R. 52(B) was harmless. We overrule the assignment

of error.

E. Gantous’ Diminution in Value Testimony In its third assignment of error, Olive Oil argues that the trial court

erred by granting a motion in limine that prevented its owner from testifying as to

diminution in property value caused by the shifted location of the wires.

Prior to trial, the court granted a motion in limine regarding the

extent to which Gantous could testify about the property value. The court stated:

Regarding the cost to restore the plaintiff’s property, I find the plaintiff could testify to that. The diminished value to that property, this is a little bit different because as a lay person, you really can’t — I mean I can’t look at my property and say oh, this happens, that’s the diminished value of this.

* * * [T]he plaintiff will not be able to talk about what he believes the diminished value is.

The trial court’s order reflects that Gantous was not to testify

“regarding his opinion on the diminished value of the property.”

We review a trial court’s decision to admit or exclude evidence for

abuse of discretion. Wray v. Hiironen, 8th Dist. Cuyahoga No. 107558, 2019-Ohio-

4669, ¶ 15. “The term ‘abuse of discretion’ connotes more than an error of law or

judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable.” Blakemore,

,

, citing Steiner

v. Custer,

,

(1940).

“Owner-opinion testimony is an estimate of the property’s value and

is admissible ‘although the owner’s knowledge on the subject is not such as would

qualify him to testify if he were not the owner.’” Cuyahoga Cty. Bd. of Commrs. v.

McNamara, 8th Dist. Cuyahoga No. 95833,

, quoting Smith v.

Padgett,

,

(1987). This “‘owner-opinion’ rule

follows from the premise that an owner of real or personal property is ‘generally

quite familiar with their property and its value’” and is thus “‘permitted to testify on

value by virtue of their ownership alone.’” Id. at ¶26, quoting Tokles & Son v.

Midwestern Indemn. Co.,

,

(1992).

Moreover, courts have found that the owner-opinion rule extends to

permit an owner to testify as to diminution in the property’s value. See, e.g., id. at ¶ 2, 16, 31 (owner permitted to testify that removal of ten mature trees decreased

property value by $40,000); see, e.g., Gray v. Petronelli, 11th Dist. Trumbull No.

2016-T-0030,

(homeowner permitted to testify as to

property’s diminished value following faulty I-beam placement); see, e.g., Jones v.

Dayton Power & Light Co., 2d Dist. Greene No. 94-CA-49,

, 2-3 (Dec. 14, 1994) (owner testified that power company cutting down

approximately 90 trees diminished property value by $11,000).

Accordingly, the extent to which the trial court prohibited Gantous

from testifying as to any diminution in property value was error. Nevertheless, in

this case we find such error to be harmless because dictates of the motion in limine

notwithstanding, at trial Gantous did testify about diminution in value:

Q. Mike, how did you get damaged by having these wires go across your parking lot?

A. They stole my property.

Q. What would you like done about it, having these wires over your property?

A. Get them off my property or pay the taxes for having them. They literally stole my property.

Q. When you say [“]stole,[”] what monetary damage is caused?

[CEI Counsel]: Objection.

The Court: Overruled.

A. I don’t know, I’m not an expert on that. How much I paid for the whole property and all the improvements I put in there.

The trial court subsequently attempted to clarify Gantous’ position: The Court: So he’s saying he’s been damaged for the entire amount?

[Olive Oil Counsel]: That’s correct. I believe he’s allowed to do that under the law. He’s allowed to testify as to the amount of damage to him as the property owner. That’s what he was doing.

According to Gantous then, the presence of CEI’s wires running over

Olive Oil’s property diminished the value of the property by $615,000, the amount

of money he paid for it, i.e., $450,000, plus the amount of money he spent on

improvements, i.e., $165,000. See McNamara,

, quoting

Smith,

(“‘[T]he weight accorded to such testimony is, of course,

a matter to be determined by the trier of fact.’”).

We overrule this assignment of error.

F. Motions for Summary Judgment and Partial Summary Judgment In Olive Oil’s first assignment of error it argues that the trial court

erred by denying its motion for partial summary judgment. Similarly, in CEI’s five

assignments of error, it argues that the trial court erred by denying its motion for

summary judgment.

In Olive Oil’s motion, it argued it was entitled to summary judgment

on its trespass claim because CEI could not prove it had a prescriptive easement. In

CEI’s motion, it argued it was entitled to summary judgment as to all of Olive Oil’s

claims. The trial court denied both motions, finding “genuine issues of material fact

exist and that no party is entitled to judgment as a matter of law.”

“According to the Supreme Court of Ohio, ‘the denial of a motion for

summary judgment is not a point of consideration in an appeal from a final judgment entered following a trial on the merits.’” 7471 Tyler Blvd., L.L.C., v. Titan

Asphalt & Paving, Inc.,

,

, ¶ 177 (11th Dist.), quoting

Continental Ins. Co. v. Whittington,

,

(1994).

“Any error by a trial court in denying a motion for summary judgment is rendered

moot or harmless if a subsequent trial on the same issues raised in the motion

demonstrates that there were genuine issues of material fact supporting a judgment

in favor of the party against whom the motion was made.” Whittington at syllabus;

see also McNulty v. Pls Acquisition Corp., 8th Dist. Cuyahoga Nos. 79025, 79125

and 79195,

, ¶ 95 (“Even if summary judgment should have been

granted, defendants failed to show any prejudice. Where a litigant still gets his day

in court, the Ohio Supreme Court has held that the principle of harmless error

applies to the improper denial of a motion for summary judgment.”).

Here, there was a trial on the merits. Both Olive Oil and CEI

presented evidence to the jury. We acknowledge that the trial court did ultimately

dispose of each count before the jury could render a verdict. However, regarding

both Olive Oil’s and CEI’s challenges to the denials of summary judgment as it

pertains to the trespass claim, we have already determined that a directed verdict

was inappropriately granted. Olive Oil’s and CEI’s challenges and arguments

regarding summary judgment do not disturb our conclusion.

Finally, as to CEI’s remaining assignments of error, pertaining to the

trial court’s denial of its motion for summary judgment regarding Olive Oil’s claims

for civil conspiracy, declaratory judgment, punitive damages and attorney fees and statutory claims pursuant to R.C. 2307.60 and 2307.61, we note that the trial court

decided these claims in CEI’s favor. Moreover, to the extent that Olive Oil has

challenged these issues on appeal, we have affirmed the trial court judgment in favor

of CEI.

Accordingly, we overrule Olive Oil’s first assignment of error and

CEI’s five assignments of error.

Judgment affirmed in part, reversed in part and remanded.

It is ordered that appellant/cross-appellee recover from appellee/cross-

appellant CEI costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

________________________ EILEEN A. GALLAGHER, JUDGE

ANITA LASTER MAYS, P.J., CONCURS; LISA B. FORBES, J., CONCURRING IN JUDGMENT ONLY IN PART, DISSENTING IN PART LISA B. FORBES, J., CONCURRING IN JUDGMENT ONLY IN PART, AND DISSENTING IN PART:

I concur in judgment only on all aspects of the majority opinion

except the disposition, in part, of assignment of error two. I would sustain Olive

Oil’s second assignment of error to the extent that claim seven of the complaint

brought a quiet title action.