[Cite as Alt v. Bauer, 2019-Ohio-2731.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JANICE ALT, : JUDGES: 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff - Appellant : Hon. Craig R. Baldwin, J. 

 : Hon. Earle E. Wise, J. 

-vs- : 

 : 

ROGER L. BAUER, ET AL., : Case No. 18CA123 

 : 

 Defendants - Appellees : O P I N I O N 

 

CHARACTER OF PROCEEDING: Appeal from the Richland County 

Court of Common Pleas, Case No. 

2015CV1531 

 

JUDGMENT: Afffirmed in part, Reversed and 

Remanded in part 

DATE OF JUDGMENT: July 2, 2019 

APPEARANCES: 

For Plaintiff-Appellant For Defendants-Appellees 

J. JEFFREY HECK ANDREW J. BURTON 

The Heck Law Offices, Ltd. Renwick, Welsh & Burton LLC 

One Marion Avenue, Suite 104 9 N. Mullberry Street 

Mansfield, Ohio 44903 Mansfield, Ohio 44902 
Richland County, Case No. 18CA123 2 

Baldwin, J. 

 Plaintiff-appellant Janice Alt appeals from the October 25, 2017 Order of the 

Richland County Court of Common Pleas granting summary judgment in favor of 

defendants-appellees. 

STATEMENT OF THE FACTS AND CASE 

{¶1} Appellant is the owner of real properly located at 2953 Plymouth-Springmill 

Road in Shelby, Ohio. Appellees are neighbors. Appellant and appellees have lived on 

adjoining parcels for approximately twenty-two (22) years. 

{¶2} According to appellant, on or about July 16, 2013, appellee Roger Bauer 

and another family member entered onto her property without her permission while 

carrying a can of spray paint, a piece of rebar, a metal detector and a sledge hammer. 

Appellant, in her affidavit, alleged that she told them repeatedly to get off of her property 

and that the property was hers, but appellee Roger Bauer claimed that it was his property 

and proceeded to pound the rebar into the ground and spray paint a large “X” with orange 

paint on the grass. 

{¶3} On or about May 19, 2014, appellee Roger Bauer submitted an Application 

for Zoning Certificate to Craig Stover as the Jackson Township Zoning Inspector, for the 

construction of a six foot high fence at appellees' property. The application indicated that 

the fence was to consist of four sections as follows: 24 feet, 24 feet, 80 feet and 120 feet 

for a total of 248 feet. No sketch or plan of the proposed fence was attached to the 

application which was approved on May 21, 2014 by Stover. Several weeks later, the plan 

and sketch of the fence were delivered to the township. The fence was completed in June 

of 2014. It was 275 feet. 
Richland County, Case No. 18CA123 3 

{¶4} The Richland County Regional Planning Commission Staff, in September 

of 2014, recommended revocation of the fence permit on the basis that it had been 

improperly filed and approved, among other reasons. 

{¶5} In December of 2015, appellant filed a complaint against appellees, alleging 

nuisance and trespass. Appellant, in her complaint, sought injunctive relief and money 

damages. Appellant, in her complaint, alleged in support of her nuisance claim that the 

person who appellees submitted their application to for a fence permit was not the lawful 

Zoning Inspector of Jackson Township at the time and that appellees “knew or should 

have known” this; that the application was incomplete and improper and that appellees 

knew this, and that the fence was completed in a manner inconsistent with the application. 

Appellant further alleged in her complaint, in relevant part, as follows, at paragraphs 15-

16: 

{¶6} “Further, since the erection of the fencing, defendants have failed and 

refused to maintain the grass, noxious weeds and other plant materials along their fencing 

and between that fencing and plaintiff's property line. This grass, noxious weeds and other 

plant material are unsightly and have grown to the point that they violate provisions of the 

Ohio Revised Code and also constitutes a nuisance. 

{¶7} Further, defendants have cemented in place a six foot (6′) high permanent 

post in the ground only 3 inches from the plaintiff's southern property line. Such post is 

not any portion of any fencing and violates known an (sic) existing Jackson Township 

setback regulations and requirements.” 

{¶8} In support of her trespass action, appellant alleged that, before the fence 

was constructed, appellees and their agents had entered onto her property without her 
Richland County, Case No. 18CA123 4 

permission and remained thereon, refusing to leave despite being informed that they were 

improperly on her real property. 

{¶9} On February 22, 2016, appellees filed an answer and counterclaims for 

trespass, nuisance and an injunction. In their counterclaims, they alleged that appellant 

and/or her agent trespassed on their property and removed their survey stakes, that 

appellant's chain link fence encroached on their property and that the portion of such 

fence not encroaching on their property was not in compliance with applicable zoning 

regulations, and that appellant's wooden fence was constructed in violation of applicable 

zoning regulations, and was either too close to appellees' property or encroaching on it 

and that appellant knew or should have known that construction and maintenance of the 

fences was in violation of the zoning regulations. Appellees sought both injunctive relief 

and damages. 

{¶10} On March 7, 2016, appellees filed a Third Party Complaint against Richard 

Gorsuch, appellant's fiancé at all times complained of in the complaint and counterclaim, 

alleging trespass. On March 22, 2016, appellant filed a reply to the counterclaim and 

Gorsuch filed an answer to the Third Party Complaint. 

{¶11} Thereafter, on August 14, 2017, appellees filed a Motion for Summary 

Judgment and a Notice of Dismissal of their counterclaim for nuisance pursuant to Civ.R. 

41(A). Appellant and Gorsuch filed a memorandum in opposition to the Motion for 

Summary Judgment on September 18, 2017 and appellees filed a reply on October 2, 

2017. 

{¶12} Pursuant to an Order filed on October 25, 2017, the trial court granted 

appellees' Motion for Summary Judgment and dismissed the case with prejudice. 
Richland County, Case No. 18CA123 5 

Appellant and Third Party Defendant Richard Gorsuch, on November 1, 2017, filed a 

Motion for Findings of Fact and Conclusions of Law. Via an Order filed on November 3, 

2017, the trial court overruled the motion. 

{¶13} Appellant filed a Notice of Appeal on November 22, 2017, appealing from 

the trial court's October 25, 2017 Order. On February 23, 2018, the trial court filed an 

Amended Order overruling Appellant's Motion or Findings of Fact and Conclusions of 

Law. On the same date, the trial court filed an Amended Order granting the Motion for 

Summary Judgment to add language stating that “There is no just cause for delay.” 

{¶14} Pursuant to an Opinion filed on October 19, 2018 in Janice Alt v. Roger L. 

Bauer, 5th Dist. Richland No. 17CA97, 2018 -Ohio- 4264, this Court dismissed the appeal 

for want of jurisdiction, finding that the order appealed from was not a final, appealable 

order. 

{¶15} Appellees and Third-Party Plaintiffs, on November 21, 2018, filed a Notice 

of Dismissal pursuant to Civ.R. 41(A) of their remaining counterclaims and Third-Party 

Complaint. 

{¶16} Appellant then appealed from the trial court’s October 25, 2017 Order 

granting appellees’’ Motion for Summary Judgment, raising the following assignment of 

error on appeal: 

{¶17} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

TO APPELLEES.” 

I 

{¶18} Appellant, in her sole assignment of error, argues that the trial court erred 

in granting summary judgment in favor of appellees. 
Richland County, Case No. 18CA123 6 

{¶19} Summary Judgment motions are to be resolved in light of the dictates of 

Civ.R. 56. Said Civ.R. 56 was reaffirmed by the Supreme Court of Ohio in State ex rel. 

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211, 663 N.E.2d 639: 

Civ.R. 56(C) provides that before summary judgment may be 

granted, it must be determined that (1) no genuine issue as to any material 

fact remains to be litigated, (2) the moving party is entitled to judgment as 

a matter of law, and (3) it appears from the evidence that reasonable minds 

can come to but one conclusion, and viewing such evidence most strongly 

in favor of the nonmoving party, that conclusion is adverse to the party 

against whom the motion for summary judgment is made. State ex rel. 

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, 

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 

466, 472, 364 N.E.2d 267, 274. 

{¶20} As an appellate court reviewing summary judgment motions, we must stand 

in the shoes of the trial court and review summary judgments on the same standard and 

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 

N.E.2d 212 (1987). 

{¶21} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No. 

15CA56, 2015-Ohio-4444, ¶ 13: 

It is well established the party seeking summary judgment bears the 

burden of demonstrating that no issues of material fact exist for trial. Celotex 

Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 

265(1986). The standard for granting summary judgment is delineated in 
Richland County, Case No. 18CA123 7 

Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: “* * * a party seeking 

summary judgment, on the ground that the nonmoving party cannot prove 

its case, bears the initial burden of informing the trial court of the basis for 

the motion, and identifying those portions of the record that demonstrate the 

absence of a genuine issue of material fact on the essential element(s) of 

the nonmoving party's claims. The moving party cannot discharge its initial 

burden under Civ.R. 56 simply by making a conclusory assertion the 

nonmoving party has no evidence to prove its case. Rather, the moving 

party must be able to specifically point to some evidence of the type listed 

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has 

no evidence to support the nonmoving party's claims. If the moving party 

fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the 

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to 

set forth specific facts showing there is a genuine issue for trial and, if the 

nonmovant does not so respond, summary judgment, if appropriate, shall 

be entered against the nonmoving party.” The record on summary judgment 

must be viewed in the light most favorable to the opposing party. Williams 

v. First United Church of Christ (1974), 37 Ohio St.2d 150. 

{¶22} Appellees, in the case sub judice, sought summary judgment on appellant’s 

nuisance and trespass claims. 

{¶23} The Tenth District Court of Appeals recently summarized the tort of 

“nuisance” in Hamilton v. Hibbs L.L.C., 10th Dist. No. 11AP–1107, 2012–Ohio–4074: 
Richland County, Case No. 18CA123 8 

A “nuisance” is a wrongful invasion of a legal right ord [sic] interest. 

Banford v. Aldrich Chem. Co. Inc., 126 Ohio St.3d 210, 932 N.E.2d 313, 

2010–Ohio–2470, ¶ 17. A plaintiff asserting a suit for nuisance may recover 

for a public nuisance, i.e., an unreasonable interference with a right 

common to the general public. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio 

St.3d 416, 768 N.E.2d 1136, 2002–Ohio–2480, ¶ 8; Hurier v. Ohio Dept. of 

Transp., 10th Dist. No. 01AP1362, 2002–Ohio–4499, ¶ 9. Alternatively, 

such a plaintiff may recover for a private nuisance, i.e., the wrongful 

invasion of the use and enjoyment of property. Beretta U.S.A. Corp. at ¶ 8; 

Arkes v. Gregg, 10th Dist. No. 05AP–202, 2005–Ohio–6369, ¶ 43; see also 

Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 714, 622 N.E.2d 

1153 (4th Dist.1993) (when a particular nuisance qualifies as both a public 

and private nuisance, a plaintiff “may recover either on the basis of the 

particular harm to her resulting from the public nuisance or on the basis of 

private nuisance”). * * *

A nuisance may be further categorized as either an absolute or 

qualified nuisance. The distinction between absolute and qualified nuisance 

depends on the conduct of the defendant. Angerman v. Burick, 9th Dist. No. 

02CA0028, 2003–Ohio-1469, ¶ 10; Hurier at ¶ 10. “An absolute nuisance is 

based on either intentional conduct or an abnormally dangerous condition 

that cannot be maintained without injury to property, no matter what care is 

taken.” State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 780 N.E.2d 998, 

2002–Ohio–6716, ¶ 59. On the other hand, a qualified nuisance is the 
Richland County, Case No. 18CA123 9 

“negligent maintenance of a condition that creates an unreasonable risk of 

harm, ultimately resulting in injury.” Id. * * * 

An action for damages due to a qualified nuisance is premised on a 

defendant's negligence in allowing a dangerous or bothersome condition to 

exist. Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio St.3d 274, 275, 

595 N.E.2d 855 (1992). Therefore, a plaintiff must aver and prove 

negligence in order to prevail. Id. at 276, 595 N.E.2d 855. To succeed on a 

claim for negligence, a plaintiff must establish that the defendant breached 

an applicable duty of care and that the breach proximately caused the 

plaintiff injury. Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 913 

N.E.2d 426, 2009–Ohio–3718, ¶ 36. The standard of care is that care a 

reasonable person would exercise in preventing or correcting the 

dangerous or bothersome condition. Rothfuss v. Hamilton Masonic Temple 

Co., 34 Ohio St.2d 176, 180, 297 N.E.2d 105 (1973); Kramer v. Angel's 

Path, LLC, 174 Ohio App.3d 359, 882 N.E.2d 46, 2007–Ohio–7099, ¶ 23 

(6th Dist.). 

Hamilton, at ¶ 15–17, 297 N.E.2d 105. 

{¶24} Appellant specifically maintains that appellee Roger Bauer clearly 

and intentionally failed to comply with the Jackson Township Zoning Regulations 

before constructing the fence and that, as a result of his intentional conduct, he 

created an absolute nuisance. Appellant contends that the application did not contain 

the required plot plan and sketch of the structure to be built and that the fence, as 

constructed, exceeded the dimensions of the fence contained on appellee’s original 
Richland County, Case No. 18CA123 10 

Application which had been approved by Craig Stover. Appellant also asserts that 

Craig Stover was no longer acting as the Zoning Inspector for Jackson Township and 

had no authority to approve appellee’s Application. In short, appellant contends that 

the zoning permit obtained by appellees to build the fence was invalid and that the 

fence, therefore, constituted a nuisance per se.

{¶25} R.C. 519.17 states as follows: 

No person shall locate, erect, construct, reconstruct, enlarge, or 

structurally alter any building or structure within the territory included in a 

zoning resolution without obtaining a zoning certificate, if required under 

section 519.16 of the Revised Code, and no such zoning certificate shall be 

issued unless the plans for the proposed building or structure fully comply 

with the zoning regulations then in effect. 

{¶26} Section 1200 of the Jackson Township Zoning Regulations, which is 

captioned Public Nuisance” states as follows: 

Buildings erected, moved, razed, or converted, or any use of land or 

premises carried on in violation of any provision of this Resolution are 

declared to be a nuisance per se. Any building or land use activities 

considered possible violations of the provision of this Resolution, which are 

observed by any Township Official, shall be reported to the Zoning 

Inspector. 

{¶27} We concur with appellee that: 

As is very clear from reading the rest of Section 1200 and the rest of 

Article XII, the Zoning Inspector alone is authorized by the Resolution to 
Richland County, Case No. 18CA123 11 

investigate and enforce any zoning violations. The use of the phrase 

“nuisance per se” has no relevance to the law regarding nuisance claims 

between adjoining property owners and is a phrase used within the context 

of the Zoning Resolution because possible violations must first be 

investigated by the Zoning Inspector. Section 1200.1 directs the Zoning 

Inspector to inspect each alleged violation and to enforce the Zoning 

Resolution if the violation exists. This section certainly cannot be relied 

upon as authority of one landowner to sue another for nuisance per se. The 

Township Zoning Inspector alone is responsible for enforcing Section 1200 

and has never found a zoning violation in this matter. 

{¶28} We note that Section 1200 is captioned. “Public Nuisance” and that such 

section has no relevance with respect to a private nuisance as is alleged here. Moreover, 

appellant does not allege that the fence encroaches on her land in any way or interferes 

with her enjoyment of her property as is required for a private nuisance. 

{¶29} Based on the foregoing, we find that the trial court did not err in granting 

summary judgment in favor of appellee on appellant’s nuisance claim. 

{¶30} Appellant also alleges that the trial court erred in granting summary 

judgment in favor of appellee on her trespass claim. To prevail on a claim of civil trespass, 

appellant must establish that appellee “engaged in (1) an unauthorized intentional act and 

(2) entry upon land in the possession of another.” Henderson v. Glancy, 9th Dist. Wayne 

No. 10CA0017, 2011–Ohio–1152, ¶ 6, quoting DiPasquale v. Costas, 186 Ohio App.3d 

121, 2010–Ohio–832, 926 N.E.2d 682 ¶ 102.
Richland County, Case No. 18CA123 12 

{¶31} Appellant, in her complaint, alleged that “shortly before beginning the 

erection of the [fence]... defendants and their agents entered into and upon the real 

property of plaintiff without right, without permission and remain (sic) thereon despite 

being notified that they were improperly on plaintiff’s real property. Defendants’’ actions 

and that of their agents in this regard constitute a trespass.” Appellant, in the affidavit 

attached to her memorandum in opposition to the Motion for Summary Judgment, further 

alleged, in relevant part, as follows: 

{¶32} “Prior to all of this, on or about July 16, 2013, defendant Roger Bauer and 

another family member (his brother-in-law) entered upon my property without permission. 

They carried a can of spray paint, a piece of rebar, a metal detector and a sledge hammer. 

I told defendant Roger Bauer and his brother-in-law repeatedly to get off my property and 

that the property was mines (sic). Bauer responded by yelling at me “no, it’s not. It’s my 

property!” Defendant Roger Bauer then proceeded to pound the rebar into the ground on 

my property and spray paint a large “X” with orange paint on the grass. See photographs 

attached hereto as “Exhibits P and Q.” Defendant Bauer claims that he had a survey 

completed at that time but I have confirmed that, in fact, no such survey was completed 

until April 2014.”

{¶33} We find that there is a genuine issue of material fact as to whether not 

appelless’ actions constituted a trespass and that the trial court erred in granting summary 

judgment on appellant’s trespass claim. 

{¶34} Appellant’s sole assignment of error is, therefore, overruled in part and 

sustained in part. 

 
Richland County, Case No. 18CA123 13 

{¶35} Accordingly, the judgment of the Richland County Court of Common Pleas 

is affirmed in part and reversed in part. This matter is remanded to the trial court for further 

proceedings consistent with this Opinion. 

By: Baldwin, J. 

Hoffman, P.J. and 

Wise, Earle, J. concur.