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Gavitt v. Remerowski

Court of Appeals of Ohio, First District, Hamilton

July 31, 2019

CHRIS GAVITT, Plaintiff-Appellant,
DAVID REMEROWSKI, Defendant-Appellee.

          Civil Appeal From: Hamilton County Court of Common Pleas TRIAL NO. A-1605974

          Law Office of John H. Forg and John H. Forg, III, for Plaintiff-Appellant,

          Godbey Law and Edward L. Vardiman, Jr., for Defendant-Appellee.


          MYERS, JUDGE.

         {¶1} Plaintiff-appellant Chris Gavitt appeals the trial court's judgment denying him damages after determining that water runoff from defendant-appellee David Remerowski's driveway onto Gavitt's driveway was a private nuisance and ordering Remerowski to abate that nuisance.

         {¶2} In a single assignment of error, Gavitt argues that the trial court erred in finding that Remerowski was not liable for damage to Gavitt's driveway caused by the private nuisance. Finding no error in the trial court's determination that Gavitt failed to prove that the specific damage claimed by Gavitt to his driveway was caused by the water runoff, we affirm its judgment.

         Factual and Procedural Background

         {¶3} Gavitt filed suit against Remerowski, alleging that Remerowski had purposely diverted the flow of water from his own driveway onto Gavitt's property by cutting openings into a curb that ran along the driveway, causing damage to Gavitt's driveway from the water flow. Gavitt sought both equitable relief, in the form of an order requiring Remerowski to plug the openings in the curb, and compensatory damages for the damage caused to Gavitt's driveway.

         {¶4} At a bench trial before a visiting judge, Gavitt testified that he purchased a home in Amberley Village in June of 2016. Gavitt's home was next door to, and downhill from, Remerowski's home. After purchasing the home, Gavitt observed that during a rainfall, water poured through openings that had been cut into the curb along Remerowski's driveway directly onto his own driveway. Videos depicting this water runoff were admitted into evidence. Remerowski admitted to Gavitt that he had cut openings into the curb, but he denied responsibility for the water runoff onto Gavitt's driveway.

         {¶5} Gavitt's driveway was cracked in the area that received the water runoff, and he testified that he had obtained two estimates to repair the driveway. These estimates were for $4, 600 and $5, 815, respectively. But they involved replacing Gavitt's entire driveway, not just the portion of the driveway that received the water runoff.

         {¶6} Testimony from Amberley Village zoning and project administrator Wesley Brown further established that Remerowski had obtained zoning approval in 2001 to replace the curb that ran along his driveway. But in 2002, Remerowski received a letter from Amberley Village notifying him that the openings cut into his curb were not a part of the original plans that had been approved and that the openings needed to be closed and the storm water redirected in an appropriate direction. Remerowski took no action to fill the openings after receiving this letter.

         {¶7} Remerowski testified that the plans he submitted to Amberley Village in 2001 for construction of the curb depicted the drainage openings in the curb. And he explained that the installation of the curb had no effect on the water flow from his property onto Gavitt's, as the water flowed in the same direction both before and after the curb was installed. Remerowski further testified that the settlement cracks on Gavitt's driveway were not caused by the water runoff, as those cracks were already on the driveway when Remerowski purchased his home in 1990.

         {¶8} Tyler Camerucci, the owner of an asphalt paving company, testified in rebuttal that he had viewed Gavitt's driveway and that it was in poor condition. Camerucci elaborated that excess water flowing from what he described as "slices" in the neighbor's concrete wall had caused a portion of the driveway to become cracked and broken. He had reviewed the two estimates that Gavitt obtained to repair the driveway and opined that they were not only reasonable, but were less than he would charge. Camerucci estimated that it would cost approximately $3, 600, plus tax, to repave only the damaged section of Gavitt's driveway.

         {¶9} The visiting judge issued an entry in which he erroneously treated Gavitt's complaint as having raised two separate claims: a claim alleging that he was entitled to compensation for the damage to his driveway caused by Remerowski's negligence, and a claim alleging that he was entitled to relief in equity to abate the private nuisance caused by Remerowski's diversion of the water. With respect to the first claim, the visiting judge found that the continuing flow of water caused damage to Gavitt's driveway, but that Gavitt had failed to offer sufficient evidence to prove causation and related damages. We interpret the trial court's legal conclusion as a determination that, while the water flow did cause damage to the driveway, Gavitt failed to establish that the water flow was the sole cause of the damage or what portion of the damage was in fact caused by the water flow. But as to the latter claim, ...

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