[Cite as Wallace v. Ferguson, 2012-Ohio-4839.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

LOIS W. WALLACE : JUDGES: 

 : 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellant : Hon. Sheila G. Farmer, J. 

 : Hon. John W. Wise, J. 

-vs- : 

 : Case No. 12-CA-5 

CRAIG AND LISA FERGUSON : 

 : 

 : 

 Defendants-Appellees : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Municipal 

Court, Case No. 11-CVI-2381 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: October 15, 2012 

APPEARANCES: 

For Appellant: For Appellees: 

 

L. JACKSON HENNIGER CHARLES M. ELSEA 

150 N. Market St. 109 N. Broad St., Suite 200 

Logan, OH 43138 P.O. Box 130 

 Lancaster, OH 43130 

 

Delaney, P.J. 
{¶1} Plaintiff-Appellant Lois W. Wallace appeals the January 3, 2012 

judgment entry of the Fairfield County Municipal Court approving and adopting the 

November 18, 2011 magistrate’s decision. Defendants-Appellees are Craig and Lisa 

Ferguson. 

FACTS AND PROCEDURAL HISTORY 

{¶2} Plaintiff-Appellant Lois W. Wallace and Defendants-Appellees Craig and 

Lisa Ferguson are next-door neighbors in a residential neighborhood located in 

Pickerington, Ohio. Located on the property of the Fergusons are several full-grown 

cottonwood trees. Cottonwood trees are known to be messy trees, with falling 

branches and cotton-like seeds. A few cottonwood trees grow directly on the property 

line between Wallace and the Fergusons. The trees are very tall and the branches 

hang over Wallace’s property. Wallace alleges the branches of the trees touch her 

roof and have caused damage to her skylight. She states the roots of the cottonwood 

trees have grown into her foundation, causing the basement walls to crack. She 

complains the cottony seeds that fall from the tree are so pervasive they prevent her 

from enjoying the outside of her property. 

{¶3} Wallace and the Fergusons have had numerous disputes about the 

alleged damage the cottonwood trees caused to Wallace’s property. Wallace asked 

the Fergusons to trim or cut down the cottonwood trees. The Fergusons declined to 

cut down the trees. Without the permission of the Fergusons, Wallace hired tree 

trimmers to cut down the cottonwood branches hanging over her property, but the tree 

trimmers also went onto the Fergusons’s property to cut the trees. A deputy from the 

Fairfield County Sheriff’s Department was contacted because of this incident. 
{¶4} On August 23, 2011, Wallace filed a complaint against the Fergusons 

with the Small Claims Division of the Fairfield County Municipal Court. Wallace 

alleged in her complaint she suffered $1,927.00 in damages based on the damages to 

her property and the loss of use and enjoyment of her property due to the cottonwood 

trees. 

{¶5} Wallace filed an amended complaint on September 6, 2011. In her 

amended complaint, she alleged damages of $2,627.00. Her damages included the 

costs of trimming two cottonwood trees, root grinding, trenching, repair of skylight, 

temporary skylight repair, removal of roots from drain tile, survey, and loss of use of 

upper level of house. 

{¶6} The matter came on for a bench trial before the magistrate. Both parties 

appeared pro se. At the hearing, Wallace introduced a brief with attachments in 

support of her case. The magistrate accepted the brief and stated he would consider 

the brief in making his determination. The parties testified, as well as the Fairfield 

County Sheriff’s Deputy called to the scene of the parties’ dispute over tree trimming. 

There were multiple photographs of the property line, the cottonwood trees, and the 

cracks in Wallace’s basement wall. 

{¶7} On November 18, 2011, the magistrate issued findings of fact and 

conclusions of law. The magistrate found based on Wallace’s brief and the evidence 

presented at the hearing, Wallace failed to prove by a preponderance of the evidence 

that Wallace suffered damages and if there were damages, Wallace failed to prove 

those damages were caused by the Fergusons. 

{¶8} Wallace filed objections to the magistrate’s decision. 
{¶9} On January 3, 2012, the trial court overruled Wallace’s objections. The 

trial court approved the decision of the magistrate and dismissed Wallace’s complaint. 

{¶10} It is from this decision Wallace now appeals. 

ASSIGNMENTS OF ERROR 

{¶11} Wallace raises three Assignments of Error: 

{¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND 

THAT APPELLANT LACKED CREDIBILITY. 

{¶13} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO 

ALLOW THE PLAINTIFF-APPELLANT TO FULLY PRESENT HER CASE AND THE 

CONTENTS OF HER BRIEF. 

{¶14} “III. THE TRIAL COURT’S FINDING THAT PLAINTIFF-APPELLANT 

FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THE DAMAGES 

TO HER PROPERTY AND THE CAUSE OF THOSE DAMAGES IS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE.” 

ANALYSIS 

I. and III. 

{¶15} We consider Wallace’s first and third Assignments of Error together 

because the standard of review is interrelated. Wallace argues in her first Assignment 

of Error that the trial court erred when it found Wallace was not credible. She argues 

in her third Assignment of Error the trial court’s conclusion that Wallace failed to prove 

her case was against the manifest weight of the evidence. 

{¶16} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 

517, the Ohio Supreme Court recently clarified the standard of review appellate courts 
should apply when assessing the manifest weight of the evidence in a civil case. The 

Ohio Supreme Court held the standard of review for manifest weight of the evidence 

for criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 

(1997), is also applicable in civil cases. Eastley, at ¶ 17-19. A reviewing court is to 

examine the entire record, weigh the evidence and all reasonable inferences, consider 

the credibility of witnesses, and determine “whether in resolving conflicts in the 

evidence, the finder 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.” 

Eastley, at ¶ 20 quoting Twearson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 

176 (9th Dist. 2001); See also Sheet Metal Workers Local Union No. 33 v. Sutton, 5th 

Dist No. 2011CA00262, 2012-Ohio-3549 citing State v. Martin, 20 Ohio App.3d 172, 

175, 485 N.E.2d 717 (1st Dist.1983). 

{¶17} While we utilize the manifest weight of the evidence standard of review 

to consider the trial court’s judgment, we remain cognizant of the trial court judge’s 

role as the fact finder. In a bench trial, it remains that “the trial judge is best able to 

view the witnesses and observe their demeanor, gestures and voice inflections, and 

use these observations in weighing the credibility of the proffered testimony.” 

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). 

{¶18} “In a civil case, in which the burden of persuasion is only by a 

preponderance of the evidence, rather than beyond a reasonable doubt, evidence 

must still exist on each element (sufficiency) and the evidence on each element must 

satisfy the burden of persuasion (weight).” Eastley, at ¶ 19. In her complaint, Wallace 
alleged real property damage, private nuisance, and loss of enjoyment of use of 

property. 

{¶19} 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: 

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

interest. Banford v. Aldrich Chem. Co. Inc., 126 Ohio St.3d 210, 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, 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 (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–Ohio1469, ¶ 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, 2002–Ohio–6716, ¶ 59. On the other hand, a 

qualified nuisance is the “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 (1992). Therefore, a plaintiff must aver and prove 

negligence in order to prevail. Id. at 276. 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, 

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 (1973); Kramer v. Angel's Path, L.L.C., 174 Ohio 

App.3d 359, 2007–Ohio–7099, ¶ 23 (6th Dist.). 

Hamilton, at ¶ 15-17. 

{¶20} Upon our review of the transcript, photographs, and documentary 

evidence, we cannot find the trial court clearly lost its way and created a manifest 
miscarriage of justice in ruling against Wallace. In order to prevail on her claim for 

nuisance, Wallace must show the Fergusons’ negligence. Wallace did not meet her 

burden to demonstrate it was the Fergusons’ cottonwood trees that cause the alleged 

damage to her home. There are cottonwood trees on the Fergusons’ property. The 

Fergusons testified there are also large locust trees on Wallace’s property that are 

near Wallace’s home. The photographic evidence supports this. There was no 

evidence that the damage to the skylight or crack in the basement wall was caused by 

the cottonwood trees. 

{¶21} As the fact finder, it is within the trial court’s purview to rule on the 

credibility of the witnesses. The magistrate’s decision found Wallace’s credibility as to 

the evidence of nuisance to be “questionable” based on the caustic interactions 

between the parties. At one point, Wallace posted a sign on her property with an 

arrow pointing to “Lois’s Yard” and an arrow pointing to the Fergusons’ yard labeled 

“Idiots Yard.” 

{¶22} Based on our review, we find the decision of the trial court to grant 

judgment in favor of the Fergusons and to dismiss Wallace’s complaint was supported 

by the manifest weight of the evidence. 

{¶23} Our decision to overrule Wallace’s first and third Assignments of Error 

remains the same when reviewing the matter under an abuse of discretion standard. 

When reviewing an appeal from the trial court's ruling on objections to a magistrate's 

decision, this Court must determine whether the trial court abused its discretion in 

reaching its decision. Wade v. Wade, 113 Ohio App.3d 414, 419, 680 N.E.2d 1305 

(11th Dist.1996). An abuse of discretion is defined as “more than an error of law or 
judgment; it implies that the court's attitude is unreasonable, arbitrary or 

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983). An abuse of discretion demonstrates “perversity of will, passion, prejudice, 

partiality, or moral delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 

621, 614 N.E.2d 748 (1993). When applying the abuse of discretion standard, this 

Court may not substitute its judgment for that of the trial court. Id.

{¶24} Upon review of the record, we find no error in the trial court’s adoption of 

the magistrate’s decision. 

{¶25} Wallace’s first and third Assignments of Error are overruled. 

II. 

{¶26} Wallace argues in her second Assignment of Error the trial court abused 

its discretion in failing to allow Wallace to argue the contents of her brief presented to 

the magistrate at the small claims hearing. We disagree. 

{¶27} At the hearing, Wallace introduced to the trial court her written brief she 

intended to present at the hearing. The magistrate accepted the brief and stated he 

would read the brief in addition to considering the evidence presented at the hearing. 

(T. 36.) The magistrate stated he would allow Wallace to present additional evidence 

at the hearing. (T. 47.) The magistrate assured Wallace he was going to read the 

entire record before rendering his decision. (T. 51.) 

{¶28} The record demonstrates Wallace was able to fully argue her case. The 

magistrate explicitly stated he would consider all the evidence presented in the 

complaint, brief, and testimony before rendering his decision. 

{¶29} Wallace’s second Assignment of Error is overruled. 
CONCLUSION 

{¶30} The three Assignments of Error raised by Plaintiff-Appellant Lois W. 

Wallace are overruled. 

{¶31} The judgment of the Fairfield County Municipal Court is affirmed. 

By: Delaney, P.J. 

Farmer, J. and 

Wise, J. concur. 

HON. PATRICIA A. DELANEY 

HON. SHEILA G. FARMER 

HON. JOHN W. WISE 

PAD:kgb 

 IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

LOIS W. WALLACE 

 

 Plaintiff - Appellant 

 

-vsCRAIG AND LISA FERGUSON 

 Defendants-Appellees 

 

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 JUDGMENT ENTRY 

 Case No. 12-CA-5 
 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Fairfield County Municipal Court is affirmed. Costs assessed to Appellant. 

HON. PATRICIA A. DELANEY 

HON. SHEILA G. FARMER 

HON. JOHN W. WISE