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Paul Wojcik, et al. v. Edward Pratt

September 30, 2011

PAUL WOJCIK, ET AL. APPELLANTS
v.
EDWARD PRATT, ET AL. APPELLEES



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2006-07-4434

The opinion of the court was delivered by: Moore, Judge.

Cite as Wojcik v. Pratt,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Appellants, Paul and Heidi Wojcik, appeal from the judgment of the Summit County Court of Common Pleas. This Court affirms.

I.

{¶2} The Wojciks own property next to a parcel on which appellees Joseph and Angelo Butano reside. In 2004, the Butanos purchased their home from appellee, Edward Pratt. In 1988, Pratt expanded a pond that had previously existed on the property. In 1998, The Wojciks purchased their property and later began to construct a new home. They believe that their land, situated at an elevation slightly lower than the Butanos' property, suffers from water traveling above and below ground from the pond on the Butanos' property. The Wojciks filed suit in 2005 but voluntarily dismissed that complaint. In 2006, they re-filed the suit. Pratt and the Butanos ("pond owners") eventually moved for summary judgment on the basis that any trespass was a permanent trespass for which the statute of limitations had expired. The trial court agreed and granted summary judgment in favor of the pond owners. The Wojciks appealed. In Wojcik v. Pratt ("Wojcik I"), 9th Dist. No. 24583, 2009-Ohio-5147, this Court reversed the trial court's grant of summary judgment in favor of the pond owners. In that case, we determined that any trespass was a continuous trespass due to the pond owners' retention of ownership and control over the pond. Id. at ¶22. Therefore, the four-year statute of limitations served to limit rather than completely bar the Wojciks' potential recovery. Id. at ¶26. We remanded the matter to the trial court.

{¶3} Upon remand of Wojcik I, the trial court held a jury trial on all of the Wojciks' claims, including the existence of trespass. The jury found in favor of the pond owners on all causes of action. In response to Interrogatory A, which directly addressed trespass and asked, "[d]id defendants' actions alter or change the natural flow of water on their property?" the jury circled "No."

{¶4} The Wojciks timely filed a notice of appeal. They raise a single assignment of error for our review.

II.

ASSIGNMENT OF ERROR

"THE TRIAL COURT EXCEEDED THE MANDATE OF THE COURT OF APPEALS BY ALLOWING A REEXAMINATION OF THE LEGAL CONCLUSION THAT EXPANSION OF THE POND AT ISSUE CREATED A CONTINUOUS TRESPASS ON [THE WOJCIKS'] PROPERTY, WHEN THAT ISSUE HAD ALREADY BEEN DECIDED BY THE TRIAL COURT AND AFFIRMED ON APPEAL."

{¶5} In the Wojciks' assignment of error, they contend that the trial court exceeded the mandate of the court of appeals by allowing the reexamination of the legal conclusion that the expansion of the pond at issue created a continuous trespass on their property, an issue they contend was previously decided by this Court on appeal. Essentially, the Wojciks contend that the law of the case barred the pond owners from relitigating the existence of a trespass from the pond. They further contend that the existence of a trespass is a legal issue and that once the trespass was established they were entitled at least to nominal damages. We do not agree for two reasons. First, the only issue this Court actually decided in Wojcik I was the statute of limitations. Any discussion of the existence of trespass was in the context of whether any trespass, assuming it existed, was permanent or continuous. Neither this Court nor the trial court decided that the elements of trespass had been established. Second, to the extent that any claimed error was committed by the trial court allowing the jury to consider whether trespass was committed, the Wojciks failed to object and in fact invited the error by submitting jury instructions on trespass, arguing the existence of trespass in closing arguments, and failing to object to the trespass instruction given to the jury by the judge.

{ΒΆ6} The Wojciks cite Nolan v. Nolan (1984), 11 Ohio St.3d 1, for the proposition that the trial court exceeded the scope of its authority on remand. In Nolan, the Supreme Court of Ohio discussed the law-of-the-case doctrine. Law of the case "provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for ...


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