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Inc. v. Habowski

Court of Appeals of Ohio, Eleventh District, Trumbull

March 30, 2018

THE LAKE SKI I-80, INC., Plaintiff-Appellant,

          Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CV 00423.

          Thomas C. Nader, Nader & Nader, (For Plaintiff-Appellant).

          Ronald J. Habowski, pro se, (Defendant-Appellee).



         {¶1} The Lake Ski I-80, Inc. ("Lake Ski") appeals from the grant of summary judgment by the Trumbull County Court of Common Pleas to Ronald J. Habowski, administrator of the estate of his late father, Walter Habowski, in Lake Ski's action for trespass and conversion against the estate. Lake Ski contends the trial court erred in finding the action time-barred pursuant to R.C. 2117.06 and R.C. 2117.12. Mr. Habowski files cross assignments of error, contending the trial court erred by deciding the case on the statutes of limitations applicable, rather than on the merits. Finding no reversible error, we affirm.

         {¶2} In The Lake Ski I-80, Inc. v. Habowski, 11th Dist. Trumbull No. 2015-T-0002, 2015-Ohio-5535, ¶2-6 ("Habowski I"), we described the facts providing the background to this case:

         {¶3} "Lake Ski owns some 38 acres of land in Trumbull County, Ohio. Most of the land is occupied by a lake. The owners of Lake Ski use the property solely for recreational purposes, especially water skiing.

         {¶4} "Walter Habowski owned a timber property abutting the Lake Ski property. In 2009, he asked his friend Steve Hemberger to find someone to cut the trees along the border of his property bordering that of Lake Ski. Eventually, Mr. Hemberger suggested Mr. Habowski use Ray Hershberger for the work. In the autumn of 2009, Mr. Hemberger and Mr. Hershberger drove out to the area to be timbered. As it was raining heavily, the men did not leave Mr. Hemberger's truck. Mr. Hemberger indicated the location of the Habowski property's northern and southern line markers, but did not show them to Mr. Hershberger. Mr. Hershberger was not provided with a survey prior to commencing and completing the work in the autumn of 2009.

         {¶5} "Unfortunately, Mr. Hershberger cut down 21 trees on Lake Ski's property, and 19 straddling the property line. At trial, Mark Sterling, one of Lake Ski's shareholders, testified the trees lost were large, and provided a wind screen for the lake. He testified that minimizing wind is important in providing a quality waterskiing experience. He also testified Lake Ski intended to put in new camping sites along the edge of the lake, and could not, because the trees were not available for shade.

         {¶6} "Joseph Gregory, a certified arborist for Davey Tree, testified regarding damages, which he placed at $62, 500.

         {¶7} "Lake Ski filed an action sounding in trespass and conversion against Mr. Habowski. Trial was had before the magistrate August 4, 2014. She filed her decision, finding Mr. Habowski liable in trespass for $62, 500, September 30, 2014. Sadly, Mr. Habowski died October 4, 2014, at the age of 89. His counsel filed a suggestion of death, Civ.R. 25(E), with the trial court October 9, 2014. Objections to the magistrate's decision were filed by each side. December 18, 2014, without any substitution of parties having been made regarding Mr. Habowski, the trial court adopted the magistrate's decision."

         {¶8} Lake Ski claims it filed a judgment lien on or about January 5, 2015.[1] Appeal was filed by Ronald Habowski in Habowski I January 15, 2015. Habowski I at ¶7. On or about February 18, 2015, Lake Ski entered a settlement and release of any claims it had against Mr. Hershberger. Eventually, Ronald Habowski was appointed administrator of his father's estate. April 21, 2015, Lake Ski's counsel presented its written claim to the attorney for the Habowski estate, pursuant to R.C. 2117.06. April 30, 2015, the estate rejected the claim pursuant to R.C. 2117.12.

         {¶9} Our decision in Habowski I was filed December 31, 2015. In relevant part, we held the trial court lacked personal jurisdiction to enter judgment against Mr. Habowski as administrator of his father's estate, since he had not been substituted as a party when the trial court adopted its magistrate's decision. Habowski I at ¶8-16. We vacated the grant of summary judgment, and remanded the matter to the trial court to dismiss it without prejudice. Id. at ¶23. That court did so January 7, 2016.

         {¶10} Lake Ski filed its complaint sounding in trespass and conversion March 10, 2016, Mr. Habowski answered, and moved for summary judgment, which Lake Ski opposed. By a judgment entry filed October 20, 2016, the trial court granted Mr. Habowski summary judgment, on two bases. First, the trial court noted that Walter Habowski died October 4, 2014, and the Lake Ski claim was not presented to Mr. Habowski's attorney until April 21, 2015, a period of approximately six and one-half months. R.C. 2117.06(B) mandates that claims be presented within six months. Second, the trial court cited to R.C. 2117.12, which mandates that a party whose claim is rejected by an estate, must file an action within two months of the rejection. The Habowski ...

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