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Tinney v. Tite

Court of Appeals of Ohio, Sixth District

July 12, 2013

Michael Tinney, et al. Appellants
v.
Robert M. Tite Appellee

Trial Court No. CVH 2009 0663

Curtis J. Koch, for appellants.

Reese M. Wineman, for appellee.

DECISION AND JUDGMENT

PIETRYKOWSKI, J.

{¶ 1} Appellants, Michael and Melissa Tinney, appeal the Huron County Court of Common Pleas July 6, 2012 judgment, following remand from this court, awarding one dollar for damages to their black walnut tree caused by appellee Robert Tite. For the following reasons, we affirm.

{¶ 2} This case stems from appellee's trespass onto his neighbors' yard while intoxicated and riding a bulldozer. Appellee ran over two crab-apple trees, cut ruts onto the property, and gouged a black walnut tree. On July 13, 2009, appellants commenced an action for damages against appellee. The matter proceeded to a bench trial and on March 31, 2011, the court awarded appellants $3, 410 in damages.

{¶ 3} On appeal, this court found that the trial court failed to apply the proper legal standard for speculative or temporary damages regarding the damage to the black walnut tree. See Tinney v. Tite, 6th Dist. Huron No. H-11-006, 2012-Ohio-2347 (" Tinney I "). We remanded the matter for the court to consider whether the black walnut tree was "reasonably certain to die or decline in the future" and award reasonable restoration costs. If not, the court was instructed to award damages based on the "temporary damage to the tree" and damages resulting from appellee's trespass. Id. at ¶ 24.

{¶ 4} On remand, the court reviewed the testimony presented at the trial relative to the condition of the tree. Expert witness Dean Gierowski, from Liemeister Tree and Crane Service, testified that the gash in the tree would not necessarily kill the tree but that "the structural part of the tree [was] really ruined." He stated that the gash would shorten the life of the tree. After examining the tree in March 2010, Gierowski gave an $1800 estimate for its removal.

{¶ 5} During cross-examination, Gierowski was shown a photo of the tree approximately one year later. He acknowledged that the tree exhibited callous growth around the wound and was healing. Gierowski admitted that the tree may not die from the wound but would weaken over time and become a safety hazard. Gierowski estimated that the weakening could take ten years.

{¶ 6} Next, Robert Barnes, from Barnes Nursery, testified that in July 2009, he observed the damaged tree and believed that the severity of the damage "would probably stress the tree out and eventually, it would succumb to the injury." Barnes reviewed the 2011 photos and stated that the tree would decline a percentage each year over several years. Barnes submitted an estimate to replace the large tree with three smaller trees at a cost of $4, 950 plus tax.

{¶ 7} There was lay testimony from Rita Lockhart, appellee's sister. Lockhart stated that in the year following the incident she had regularly observed the tree and that it looked "healthy, green, alive." Lockhart also testified regarding photos she took on May 24, 2010. The parties also testified regarding their observations of the tree.

{¶ 8} In the trial court's July 6, 2012 judgment entry, it determined that Gierowski's testimony did not provide that the tree would die; rather, that time would tell as to the decay that would set in. As to Barnes, the court noted that he indicated that the decline of the tree would be a long process but he could give no indication of the time frame. Despite testimony to the contrary, the court specifically found that the experts appeared surprised at the recent photos of the tree. The court then concluded that the tree was not likely to die as a result of the injury caused by the bulldozer. The court then proceeded to award a nominal sum based on its finding that no evidence was presented regarding temporary damage to the tree.

{¶ 9} This appeal followed with appellants raising two assignments of error for our review:

Assignment of Error One: The decision of the Common Pleas Court of Huron County, Ohio, on remand that the black walnut tree is not likely to decline or die as a result of the injuries caused by the defendant's bulldozer is against the manifest weight of the evidence and this Court must weigh the evidence in ...

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