[Cite as Hays v. Young, 2024-Ohio-3149.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY

LARRY HAYS, et al.,

Plaintiffs-Appellants,

- vs -

TRUSTEE GLENN D. YOUNG ON

BEHALF OF THE JOINT LIVING 

TRUST OF GLEN D. YOUNG AND 

NAOMI J. YOUNG, et al.,

Defendants-Appellees.

CASE NO. 2024-P-0007

Civil Appeal from the

Court of Common Pleas

Trial Court No. 2019 CV 01018

O P I N I O N

Decided: August 19, 2024

Judgment: Affirmed

Oliver T. Koo, 250 South Chestnut Street, Suite 23, Ravenna, OH 44266 (For PlaintiffsAppellants).

William D. Lentz, Lentz, Noble & Heavner, LLC, 228 West Main Street, Ravenna, OH 

44266; and John A. Rubis, Ritzler, Coughlin, & Paglia, Ltd., 1360 East Ninth Street, 500 

IMG Center, Cleveland, OH 44114 (For Defendants-Appellees).

MARY JANE TRAPP, J.

{¶1} Plaintiffs-appellants, Larry Hays and Margaret Hays (collectively, “the 

Hays”), appeal from the judgment of the Portage County Court of Common Pleas that 

adopted the magistrate’s decision and entered judgment in favor of defendants-appellees, 

Glenn D. Young and Naomi J. Young, as trustees of their joint living trust and individually 

(collectively, “the Youngs”).

{¶2} This matter involves a longstanding dispute between adjoining property 

owners in Ravenna, Ohio. Most recently, the Hays filed a civil complaint against the 
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Youngs for damages allegedly resulting from adverse conditions on the Youngs’ property, 

including fallen dead trees and encroaching roots.

{¶3} The Hays raise five assignments of error, contending the trial court erred 

(1) by ignoring or overlooking certain trial evidence in rendering its judgment; (2) by 

requiring them to mitigate their damages without addressing whether mitigation was 

reasonable under the circumstances; and (3) by failing to conduct a sufficient independent 

review of the magistrate’s decision.

{¶4} After a careful review of the record and pertinent law, we find as follows:

{¶5} (1) We construe the Hays’ first, second, and third assignments of error as 

challenging the weight of the evidence. Upon review of the record, the trial court’s 

judgment is not against the manifest weight of the evidence.

{¶6} (2) The Hays did not object to the portion of the magistrate’s decision 

concerning mitigation of damages, and they have not claimed plain error on appeal. Thus, 

their argument is waived.

{¶7} (3) The Hays have not cited anything in the record that rebuts the 

presumption of regularity, i.e., that the trial court complied with its duty under Civ.R. 53 to 

conduct an independent, de novo review of the magistrate’s decision.

{¶8} Thus, the Hays’ assignments of error are without merit, and we affirm the 

judgment of the Portage County Court of Common Pleas. 

Substantive and Procedural History

{¶9} The parties have owned adjacent property on Peck Road in Ravenna since 

1978. A line fence separates the properties. 
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{¶10} In 1980, the Hays filed a civil complaint against the Youngs in Portage 

County Court of Common Pleas concerning a boundary dispute. In 1982, the parties 

reached a settlement that was reduced to judgment. The parties agreed, among other 

things, that the Youngs would replace a portion of the line fence at their cost and, 

thereafter, that the parties would equally maintain it. The Hays filed motions to enforce 

the settlement entry in 1988 and 1995. 

{¶11} The Hays began raising cattle on their property. In 2016 and 2018, the 

Hays’ attorney sent certified letters requesting that the Youngs remedy several conditions 

on their property, including dead or diseased trees hanging over the line fence, a ditch, a 

rock pile, and encroaching roots and canopies.

{¶12} In 2018, Mr. Hays filed a civil complaint against Mr. Young in the Portage 

County Municipal Court, alleging that in August 2018, a fallen tree from Mr. Young’s 

property damaged the line fence. On May 31, 2019, Mr. Hays voluntarily dismissed his 

complaint. On the same day, the Hays filed a small claims complaint against the Youngs 

in the municipal court, alleging that in July 2018, a fallen tree from the Youngs’ property 

damaged the line fence. The matter was tried to the bench. The municipal court found

that the Hays failed to prove their allegations by a preponderance of the evidence and 

entered judgment in favor of the Youngs.

{¶13} In December 2019, the Hays filed the underlying action against the Youngs, 

asserting claims for trespass, conversion, negligence, nuisance per se, private nuisance, 

tortious interference, and civil conspiracy and sought compensatory and punitive 

damages. The Hays alleged, among other things, that two fallen trees from the Youngs’ 

property damaged the line fence in July and August 2018 and that “as of” October 29, 
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2019, exposed roots encroached on their property. The Youngs filed an answer and 

counterclaim. The Hays filed a response to the counterclaim.

{¶14} After discovery and unsuccessful mediation, the Youngs filed a motion for 

summary judgment on the basis of res judicata. The trial court granted the Youngs’ 

motion as to “all claims justiciable prior to May 31, 2019” and denied it as to “all claims[] 

which have arisen since May 31, 2019.”

{¶15} The remaining claims were tried to the magistrate. The Youngs voluntarily 

dismissed their counterclaim. Following the Hays’ opening statement, the magistrate 

granted the Youngs’ motion for a directed verdict on the claims of civil conspiracy and 

conversion. Mr. Hays testified and presented a video, photos, and correspondence. The 

Youngs did not testify or present any evidence.

{¶16} The magistrate filed a decision recommending judgment in favor of the 

Youngs. On the same day, the trial court filed a judgment entry that adopted the 

magistrate’s decision and entered judgment in favor of the Youngs.

{¶17} The Hays filed a request for findings of fact and conclusions of law, multiple 

objections to the magistrate’s decision, a request for the trial transcript, and a motion for 

leave to supplement their objections. The trial court granted the motion for leave, and the 

magistrate filed findings of fact and conclusions of law.

{¶18} After the transcript was filed, the Hays filed multiple supplemental objections 

to the magistrate’s decision. The trial court filed a judgment entry that overruled the Hays’ 

objections. 

{¶19} The Hays appealed and raise the following five assignments of error:
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{¶20} “[1.] The trial court committed prejudicial error by ignoring or overlooking 

evidence that the acts or occurrences in question occurred after May 31, 2019.

{¶21} “[2.] The trial court committed prejudicial error by demanding or requiring 

Appellants’ evidence to be in documentary form instead of oral testimony, there was no 

evidence rebuttal or otherwise from Appellees.

{¶22} “[3.] The trial court committed prejudicial error by requiring Appellants to 

give additional notice of property issues after May 2019.

{¶23} “[4.] The trial court committed prejudicial error by requiring Appellants [to] 

mitigate their damages in order to find liability without analyzing whether it was 

reasonable under the circumstances to do so.

{¶24} “[5.] The trial court committed prejudicial error by failing to conduct sufficient 

independent review of the Magistrate’s Decision.”

Standard of Review

{¶25} We review the trial court’s adoption of the magistrate’s decision for an abuse 

of discretion. Thomas v. Thomas, 2023-Ohio-3941, ¶ 24 (11th Dist.). An abuse of 

discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decisionmaking.’” State v. Beechler, 2010-Ohio-1900, ¶ 62 (2d Dist.), quoting Black’s Law 

Dictionary (8th Ed. 2004). “When a pure issue of law is involved in appellate review, the 

mere fact that the reviewing court would decide the issue differently is enough to find 

error.” Id. at ¶ 67. “By contrast, where the issue on review has been confided to the 

discretion of the trial court, the mere fact that the reviewing court would have reached a 

different result is not enough, without more, to find error.” Id.
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{¶26} For ease of discussion, we review the Hays’ assignments of error out of 

order and, at times, collectively.

Independent Review

{¶27} In their fifth assignment of error, the Hays contend the trial court erred by 

failing to conduct a “sufficient” independent review of the magistrate’s decision in ruling 

on their objections. According to the Hays, the trial court “summarily dismissed” their 

objections without specifically addressing many of them. 

{¶28} Civ.R. 53 outlines the requirements and procedures for objections to a 

magistrate’s decision. Civ.R. 53(D)(4)(d) provides, in relevant part, “If one or more 

objections to a magistrate’s decision are timely filed, the court shall rule on those 

objections. In ruling on objections, the court shall undertake an independent review as to 

the objected matters to ascertain that the magistrate has properly determined the factual 

issues and appropriately applied the law.” 

{¶29} The Supreme Court of Ohio has held that “‘Civ.R. 53 places upon the court 

the ultimate authority and responsibility over the [magistrate’s] findings and rulings.’” 

(Emphasis in original.) Shelly Materials, Inc. v. Streetsboro Planning & Zoning Comm., 

2019-Ohio-4499, ¶ 24, quoting Hartt v. Munobe, 67 Ohio St.3d 3, 5 (1993). “Thus, . . . a 

trial court ‘has the responsibility to critically review and verify to its own satisfaction the 

correctness of [a magistrate’s decision].’” Id., quoting Normandy Place Assocs. v. Beyer, 

2 Ohio St.3d 102, 105 (1982).

{¶30} The Supreme Court has further held that “[a]n appellate court reviewing a 

lower court’s judgment indulges in a presumption of regularity of the proceedings below. 

. . . A party asserting error in the trial court bears the burden to demonstrate error by 
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reference to matters made part of the record in the court of appeals.” Hartt at 7. Thus, 

unless there is something contradictory in the record, this court will presume the trial court 

complied with its duty under Civ.R. 53 to conduct an independent, de novo review of the 

magistrate’s decision. Singer Steel Co. v. H & J Tool & Die Co., Inc., 2004-Ohio-5007, ¶ 

18 (11th Dist.).

{¶31} The trial court stated in its judgment entry that it had considered the Hays’ 

objections and the trial evidence. The trial court was not required to explicitly state that it 

had “independently reviewed” the objections. See In re K.R.J.C., 2024-Ohio-632, ¶ 9 

(11th Dist.) (“we are not aware of any requirement that the trial court specifically state that 

it has independently reviewed the objected matters”). Although the court addressed the 

Hays’ multiple objections in a consolidated fashion, Civ.R. 53(D)(4)(d) does not prohibit 

that approach, nor does it require specificity. In fact, the concurring opinion in Batty v. 

Batty, 2018-Ohio-4934 (12th Dist.), which the Hays cite in support of their argument, 

acknowledges as much: “While Civ.R. 53(D)(4)(d) requires the trial court to rule on all 

objections after an independent review, it does not necessarily require a separate listing 

or explanation as to the trial court’s decision on the objections.” Id. at ¶ 26 (Piper, J., 

concurring). The Hays have not presented anything in the record that rebuts the 

presumption of regularity. Therefore, we find no error. 

{¶32} The Hays’ fifth assignment of error is without merit.

Manifest Weight of the Evidence

{¶33} In their first, second, and third assignments of error, the Hays contend the 

trial court overlooked or ignored certain evidence in rendering its judgment. We construe 

these assignments of error as challenging the weight of the evidence.
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{¶34} “Weight of the evidence concerns ‘the inclination of the greater amount of 

credible evidence, offered in a trial, to support one side of the issue rather than the other. 

It indicates clearly to the [trier of fact] that the party having the burden of proof will be 

entitled to [its] verdict, if, on weighing the evidence . . . , [the trier of fact] shall find the 

greater amount of credible evidence sustains the issue which is to be established . . . . 

Weight is not a question of mathematics, but depends on its effect in inducing belief.’” 

(Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Black’s 

Law Dictionary (6th Ed. 1990). 

{¶35} When determining whether a judgment is against the manifest weight of the 

evidence, “‘[t]he [appellate] court, reviewing the entire record, weighs the evidence and 

all reasonable inferences, considers the credibility of witnesses and determines whether 

in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such 

a manifest miscarriage of justice that the [judgment] must be reversed and a new trial 

ordered.’” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). 

“Judgments supported by some competent, credible evidence going to all the essential 

elements of the case will not be reversed by a reviewing court as being against the 

manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 

279 (1978), syllabus. 

{¶36} “‘[I]n determining whether the judgment below is manifestly against the 

weight of the evidence, every reasonable intendment and every reasonable presumption 

must be made in favor of the judgment and the finding of facts. . . . If the evidence is 

susceptible of more than one construction, the reviewing court is bound to give it that 

interpretation which is consistent with the verdict and judgment, most favorable to 
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sustaining the verdict and judgment.’” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 

77, 80, fn. 3 (1984), quoting 5 Ohio Jurisprudence 3d, Appellate Review, § 603, at 191-

192 (1978). 

Dates of Events

{¶37} In their first assignment of error, the Hays contend the trial court ignored or 

overlooked trial evidence indicating that “acts or occurrences” took place after May 2019. 

Specifically, they cite Mr. Hays’ testimony that one tree fell on February 21, 2022, and 

that five trees fell after May 2019 as well as his dated photos.

{¶38} The trial court found as follows:

{¶39} “[T]he instant case, as a matter of law, can only involve any acts of 

negligence or intentional acts on the part of [the Youngs] occurring after May 31, 2019, 

which are proven to proximately cause damages to Plaintiffs. As such, the trial was 

limited to events taking place after May 31, 2019. A review of the evidence demonstrates 

that [the Hays] have failed to prove that such acts took place. 

{¶40} “At no point does any evidence presented by [the Hays] show when falling 

trees or other events actually occurred. While the photos presented by [the Hays] have 

dates on them demonstrating when the photos were taken, no evidence was presented 

indicating when the conditions purported to be represented by said photos actually took 

place. The establishment of the dates of actual occurrence is necessary in order for [the 

Hays] to demonstrate that the damages alleged did not occur prior to the Municipal 

Court’s finding. The failure of [the Hays] to present evidence as to dates of damage 

makes it impossible for this Court to find in their favor.” (Emphasis added.)
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{¶41} Upon review, we find no reversible error. The trial court’s statement 

regarding the photos is factually accurate. Mr. Hays testified that he took the photos on 

a particular date; he did not testify as to when the conditions depicted in the photos first 

arose.

{¶42} With respect to Mr. Hays’ testimony, we construe the trial court’s finding as 

a determination that he did not credibly establish that the Youngs engaged in tortious 

conduct. The Supreme Court of Ohio has held “the weight to be given the evidence and 

the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 

Ohio St.2d 230 (1967), paragraph one of the syllabus. “The choice between credible 

witnesses and their conflicting testimony rests solely with the finder of fact and an 

appellate court may not substitute its own judgment for that of the finder of fact.” State v. 

Awan, 22 Ohio St.3d 120, 123 (1986). “A fact finder is free to believe all, some, or none 

of the testimony of each witness appearing before it.” State v. Fetty, 2012-Ohio-6127, ¶ 

58 (11th Dist.). We see no compelling basis to disturb the trial court’s credibility 

determination. 

Notice

{¶43} In their third assignment of error, the Hays contend that the trial court 

ignored or overlooked trial evidence indicating that the Youngs had actual or constructive 

notice of property conditions that arose after May 2019.

{¶44} The trial court found that “[n]otwithstanding [the Hays’] complaints regarding 

conditions alleged to give rise to this matter, including complaints concerning trees, rock 

piles, ditches, or other conditions, no evidence was offered demonstrating any effort on 
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the part of [the Hays] to advise [the Youngs] of any such conditions which may have 

arisen after May 31, 2019.”

{¶45} The Hays argue that the Youngs had actual notice of the property conditions 

that were alleged in the complaint filed in December 2019. However, the complaint did 

not specifically allege that any conditions arose after May 2019. For instance, the 

complaint alleged that two trees fell prior that date, i.e., in July and August 2018. In 

addition, while the complaint alleged the existence of encroaching roots “as of” October 

29, 2019, it did not allege when that condition first arose. 

{¶46} The Hays next argue that since the Youngs own their property, one could 

reasonably presume they were aware of its condition from May 2019 until the present. 

The Youngs’ property is titled in the name of their trust. In addition, Mr. Hays testified 

that the Youngs’ son lives on the property, not the Youngs themselves. Thus, the trial 

evidence does not compel the conclusion that the Youngs were aware of the post-May 

2019 property conditions.

Repairs

{¶47} In their second assignment, the Hays contend that the trial court ignored or 

overlooked Mr. Hays’ trial testimony regarding the cost of labor and materials for line 

fence repairs. According to the Hays, the trial court effectively required them to submit 

documentary evidence.

{¶48} The trial court determined that “[e]ven if [the Hays] had been able to 

demonstrate liability on the part of [the Youngs], no receipts or invoices for materials or 

services required to make repairs sought by [the Hays] were produced. [The Hays’] only 
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claims for damages were their own estimates and claims for some repair products, which 

have not been used and may be used for other non-related repairs.” 

{¶49} The trial court’s finding was hypothetical. In other words, the trial court 

found that even if the Hays could prove the Youngs’ liability, they could not prove the 

amount of their damages. Since the Hays have not established reversible error 

concerning the issue of liability, their damages argument is moot. In any event, the trial 

court did not state that documentary evidence was required. Rather, the court found that 

Mr. Hays’ testimony, by itself, did not credibly establish the amount of the Hays’ alleged 

damages.

{¶50} In sum, the trial court’s judgment is not against the manifest weight of the 

evidence. Accordingly, the Hays’ first, second, and third assignments of error are without 

merit.

Mitigation of Damages

{¶51} In their fourth assignment of error, the Hays contend that the trial erred by 

requiring them to mitigate their damages without addressing whether mitigation was 

reasonable under the circumstances. In support of their argument, the Hays cite Chicago 

Title Ins. Co. v. Huntington Natl. Bank, 87 Ohio St.3d 270 (1999), where the Supreme 

Court of Ohio stated, “The general rule is that an injured party has a duty to mitigate and 

may not recover for damages that could reasonably have been avoided. However, the 

obligation to mitigate does not require the party to incur extraordinary expense and risk.” 

Id. at 276.

{¶52} The trial court found as follows:
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{¶53} “[The Hays] allege damages due to branches from [the Youngs’] trees 

overhanging onto their property and roots from [the Youngs’] trees that encroach upon 

their property. The law is clear that [the Hays] have the right to cut the overhanging 

branches back and dig out the intruding roots that encroach upon their land provided that 

they act with reasonable care. Schoenberger v. Davis, 8[th] Dist., Cuyahoga No. 45611, 

1983 WL 5501, Al[]h Properties, P.L.L. v. Procare Automotive Serv. Sol[ution]s[], L.L.C., 

9[th] Dist. Summit No[.] 20991, 2002-Ohio-4246. [The Youngs] cannot be held liable for 

any alleged damages caused by [the Hays’] failure to mitigate said damages.”

{¶54} The magistrate reached the same legal conclusion and cited the same 

cases; however, the Hays did not object to that portion of the magistrate’s decision. Civ.R. 

53(D)(3)(b)(iv) provides, in relevant part, “Except for a claim of plain error, a party shall 

not assign as error on appeal the court’s adoption of any factual finding or legal conclusion 

. . . unless the party has objected to that finding or conclusion . . . .” The Hays have not 

claimed plain error on appeal, and this court has no obligation to construct a plain-error 

argument on their behalf. 

{¶55} The Hays’ fourth assignment of error is without merit.

{¶56} For the foregoing reasons, the judgment of the Portage County Court of 

Common Pleas is affirmed.

JOHN J. EKLUND, J.,

ROBERT J. PATTON, J.,

concur.