Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2016 CV 00423.
C. Nader, Nader & Nader, (For Plaintiff-Appellant).
J. Habowski, pro se, (Defendant-Appellee).
COLLEEN MARY OTOOLE, J.
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.
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:
"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.
"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.
"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.
"Joseph Gregory, a certified arborist for Davey Tree,
testified regarding damages, which he placed at $62, 500.
"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
Lake Ski claims it filed a judgment lien on or about January
5, 2015. 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
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.
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 ...