[Cite as Perini v. Hillman, 2021-Ohio-20.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CARRIE PERINI, : JUDGES: 

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

 Plaintiff - Appellant : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

HOWARD HILLMAN, ET AL., : Case No. 20 CAE 03 0019 

 : 

 Defendants- Appellees : O P I N I O N 

 

CHARACTER OF PROCEEDING: Appeal from the Delaware County 

Court of Common Pleas, Case No. 

18 CVH 110638 

 

JUDGMENT: REVERSED AND REMANDED 

DATE OF JUDGMENT: January 8, 2021 

APPEARANCES: 

 

For Plaintiff-Appellant For Defendant-Appellee Howard Hillman

 

JASON H. BEEHLER GREGORY D. RANKIN 

Kegler Brown Hill + Ritter LPA ERIC S. BRAVO 

65 East State Street, Suite 1800 LANE ALTON 

Columbus, Ohio 43215-4294 2 Minanova Place, Suite 220 

 Columbus, Ohio 43215-7052 

For Defendant-Appellee 

Tscapes Outdoor Solutions 

 

 MICHAEL L. MORGAN 

 Law Offices of Jerry S. Eisenberg 

 P.O. Box 36538 

 Canton, Ohio 44735 
Delaware County, Case No. 20 CAE 03 0019 2 

Delaney, J.

{¶1} Plaintiff-Appellant Carrie Perini appeals the decision of the Delaware 

County Court of Common Pleas granting summary judgment to Defendants-Appellees 

Howard Hillman and Tscapes Outdoor Solutions. 

STATEMENT OF FACTS AND THE CASE 

{¶2} Perini and Hillman reside on adjacent rural properties, with Perini's property 

to the north and west of Hillman's property. Perini's north/south driveway runs along the 

property line. In the 1990s, Perini planted over 70 white pine trees along the east side of 

the driveway to act as a screen between her property and the neighboring property where 

Hillman took up residence in 2016. Perini’s neighbor to the west, George Resonivich, also 

planted similar pine trees on the other side of the shared driveway to create a symmetrical 

look. 

{¶3} In June 2018, Hillman hired Tscapes Outdoor Solutions to perform some 

landscaping tasks on his property including the removal of branches from approximately 

60 pine trees that are the subject of this case. Tscapes removed several branches from 

the trees, though Hillman and Tscapes contest the details of the instructions provided and 

who was ultimately responsible for the number of branches removed. We need not 

resolve that issue in the context of this appeal. 

{¶4} Perini states she was away when the trees were trimmed and that she was 

devastated to see that approximately 800 branches had been removed from around the 

base of over sixty trees, removing the visual screen between her residence and Hillman’s. 

This resulted in the canopy of the trees being raised four to six feet from the ground. The 

branches will not grow back. While some of the branches were dead as claimed by 

Appellees, Perini claims that many of the branches were obviously alive and submitted 
Delaware County, Case No. 20 CAE 03 0019 3 

photographs to the trial court in support of her contention. Perini contacted two landscape 

architects for estimates to restore the visual screen between the properties and discussed 

a possible resolution of the matter with Hillman. The parties were unable to come to an 

agreement and Perini filed a complaint. 

{¶5} Perini’s complaint alleged that Appellees "violated R.C. 901.51 by 

intentionally and recklessly cutting down, destroying, and otherwise injuring the trees that 

were standing or growing on Plaintiffs' property." In the alternative, Perini claimed that the 

Appellees negligently cut trees and trespassed on her property. She asked for "damages 

in excess of $15,000 for the damage to their property, the loss of the peaceful and quiet 

enjoyment of their property, and the diminution in value of their property" (Complaint, 

Paragraphs 26-27). Hillman filed an answer and counterclaim as well as a crossclaim 

against Tscapes. Tscapes filed an answer to the complaint, an answer to Hillman's 

crossclaim, and a crossclaim against Hillman. Hillman filed an answer to Tscapes 

crossclaim, closing the pleadings. 

{¶6} At the close of the pleadings, the trial court issued a scheduling order on 

March 28, 2019. The order contained a provision captioned "Disclosure of Expert 

Witnesses" which is the source of the report requirement that culminated in the grant of 

summary judgment. 

{¶7} Perini did not provide any reports from her experts, so that portion of the 

Scheduling Order was not fulfilled. On August 23, 2019 Hillman moved to exclude the 

Perini’s named experts citing the failure to comply with the Scheduling Order, specifically 

the failure to provide reports. Perini responded in a memorandum contra filed on 

September 9, 2019 claiming that she had "complied in all relevant aspects with the Court's 

Scheduling Order." (Plaintiffs' Memorandum In Opposition to Defendant Hillman's Motion 
Delaware County, Case No. 20 CAE 03 0019 4 

To Exclude Plaintiffs' Expert Witness(es), Sep. 9, 2019, p. 1 Docket No. 22). She did not 

deny that she did not provide reports as required by the scheduling order, but explained 

that none were provided "because no such reports exist." Id. Perini conceded that "[t]he 

testimony of arborists and landscapers -- if it can even be deemed true expert testimony 

-- may be necessary to explain the options to ameliorate the damages Plaintiffs suffered" 

and but stated that "this is not the typical expert engagement, which is why no reports 

have been produced." Id. at 2. 

{¶8} Hillman filed a Reply and, on September 19, 2019, the trial court granted 

the motion to exclude Perini's expert witnesses. The trial court concluded: 

There may be circumstances in which an expert report is 

unnecessary. However, that conclusion only should be reached by this 

Court after consideration of a timely and well-supported motion for an 

exemption from the Scheduling Order's requirement. As matters stand, 

Plaintiffs have not provided expert reports in compliance with the 

Scheduling Order and Defendant is correct that these experts' opinions are 

properly excluded. 

(Judgment Entry Granting Defendant's Motion To Exclude Plaintiffs' Expert Witnesses 

Sep. 18, 2019, Docket No. 24, p 4). 

{¶9} Hillman and Tscapes filed separate motions for summary judgment on 

October 11, 2019 listing several bases for the motion, but for purposes of this appeal we 

limit our review to the Appellees' assertion that summary judgment was appropriate 

because Perini could not prove damages without expert testimony and, because the trial 

court excluded Perini's expert witnesses, the complaint must be dismissed. 
Delaware County, Case No. 20 CAE 03 0019 5 

{¶10} Perini responded to the motions for summary judgment by arguing she did 

not need expert testimony to prove damages, citing to our decision in Telle v. Pasley, 5th 

Dist. Delaware No. 12 CAE 08 0048, 2013-Ohio-2407, ¶ 34 and by expressly stating 

"Plaintiffs are not required by Ohio law to seek damages based on diminution in value, 

and that is not what they are seeking." (Appellant's Memorandum Contra Hillman Motion 

for Summary Judgment, Nov. 7, 2019, Docket No. 35, p.11). Perini argued that Telle 

supported her plan to rely on the introduction of estimates to restore and repair the 

property. Perini also referred to the decision in Reynolds v. Bauer, 2nd Dist. Montgomery 

No. 21179, 2006-Ohio-2912, to support her contention that expert testimony was not 

needed to prove restoration costs. 

{¶11} The trial court rejected Perini's arguments and granted summary judgment 

holding that Perini was obligated to present expert testimony to prove damages. The court 

rejected Perini's reliance on our decision in Telle noting "the plaintiffs [in Telle] actually 

presented testimony and cost estimates from tree experts during the trial" and that "[t]he 

issue in Telle v. Pasley was not whether expert testimony was needed but, rather, whether 

the measure of damages was the restoration costs or the diminution of the property's 

value as a result of the tree cutting.” (Judgment Entry Ruling On Defendants' Summary 

Judgment Motions, Jan, 30, 2020, Docket No. 39, p. 8). 

{¶12} The trial court also relied upon the decision in Denoyer v. Lamb, 22 Ohio 

App.3d 136, 490 N.E.2d 615 (1st Dist.1984), to hold that "[a] landowner may recover the 

costs of reasonable restoration of his property to its preexisting condition or to a condition 

as close as reasonably feasible, without requiring grossly disproportionate expenditures 

and with allowance for the natural processes of regeneration within a reasonable period 

of time" and that "an expert would have the requisite knowledge to estimate restoration 
Delaware County, Case No. 20 CAE 03 0019 6 

costs," but Perini had been barred from submitting expert testimony for her failure to 

comply with the court’s scheduling order. Id. at pp. 8-9. The trial court concluded that 

Perini's evidence did not support a damage award and therefore, Hillman and Tscapes 

were entitled to judgment as a matter of law. 

{¶13} It is from that judgment Perini now appeals. 

ASSIGNMENTS OF ERROR 

{¶14} Perini raises two assignments of error: 

{¶15} “I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT 

IN FAVOR OF APPELLEES ON THE GROUNDS THAT CARRIE PERINI COULD NOT 

PRESENT EXPERT TESTIMONY. 

{¶16} “II. THE TRIAL COURT ERRED IN EXCLUDING CARRIE PERINI'S 

PROFFERED EXPERTS BECAUSE PERINI'S EXPERT DISCLOSURE DID NOT 

INCLUDE ANY WRITTEN REPORTS.” 

ANALYSIS 

I. Summary Judgment 

{¶17} Perini asserts in her first assignment of error that the trial court erred by 

granting the motion for summary judgment because she could not present expert 

testimony. Her argument is that "Ohio law makes clear that Perini does not need an expert 

witness to prove her damages in this case." (Appellant's Brief, p. 12). Based upon the 

record before us, we do not believe an expert is necessary to establish restoration costs 

in this case. 

{¶18} With regard to the first assignment of error, we review cases involving a 

grant of summary judgment using a de novo standard of review. Bonacorsi v. Wheeling 

& Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24. A de 
Delaware County, Case No. 20 CAE 03 0019 7 

novo review requires an independent review of the trial court's decision without any 

deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio 

App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993) as quoted in State v. Standen, 173 

Ohio App.3d 324, 2007-Ohio-5477, 878 N.E.2d 657, ¶ 7. “Thus, viewing the pleadings in 

the light most favorable to the [appellant], we must determine whether [appellee] was 

entitled to judgment as a matter of law.” Civ.R. 56(C). Troyer v. Janis, 132 Ohio St.3d 

229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6. “We afford no deference to the trial court's 

decision and independently review the record to determine whether summary judgment 

is appropriate.” Tornado Techs., Inc. v. Quality Control Inspection, Inc., 8th Dist. 

Cuyahoga No. 97514, 2012-Ohio-3451, ¶ 13. 

{¶19} Perini claims our decision in Telle, supra supports her conclusion that expert 

testimony is unnecessary to prove restoration damages in the context of this case. She 

relies upon our finding in Telle that the parties "presented evidenced that they obtained 

an estimate" to support their claim for damages. Telle involved similar facts involving a 

pine tree branch cutting in a residential setting. In Telle, however, the need to present 

expert testimony to prove damages was not at issue, though we did note that both parties 

"presented expert testimony as to the value of the trees before the cutting." Id. at ¶ 34. 

The discussion regarding expert testimony in Telle occurred in regard to diminution of 

property value as a result of the tree cutting or restoration costs, not to the issue of 

restoration of costs themselves. We agree expert testimony may be necessary to prove 

diminution of value damages, however, we have not found nor did the parties or trial court 

cite Ohio case law, which holds as matter of law that restoration damages in these types 

of cases must be determined solely be expert testimony. 
Delaware County, Case No. 20 CAE 03 0019 8 

{¶20} Perini presents a claim for restoration of the screen provided by the trees 

she planted at the boundary of her property. In this context, "the measure of damage is 

the cost of reasonable restoration of property to the pre-existing condition or to a condition 

as close as reasonably feasible without requiring grossly disproportionate expenditures 

and with allowance for the natural processes of regeneration within a reasonable period 

of time. (Emphasis added.) Telle, supra at ¶ 31, quoting Denoyer v. Lamb, 22 Ohio 

App.3d 136, 490 N.E.2d 615, 616 (1st Dist.1984). 

{¶21} Perini properly presented Civ. R. 56 evidence, via affidavits, demonstrating 

three restoration cost estimates from two landscaping businesses: Keny/Blackford and 

Hidden Creek, as follows: 

Keny/Blackford Proposal No. 1: Removal of 24 white pine trees, 24 stumps 

and repair lawn damage: $23,500, plus re-planting of 24 white pine trees 

(approximately 6 to 8 feet tall), near original planting, for additional $6,800. 

Keny/Blackford Addendum Proposal No. 1: a one-year watering, fertilizing, 

and tree staking plan for new trees, for additional $6,510. 

Keny/Blackford Proposal No. 2: Planting 48 Norway Spruce Tree in 6 

groups of 8 each to re-establish a natural screen in between the existing 

mature white pines where lower foliage was removed: $24,000 

Hidden Creek Proposal No. 3: Removal of 24 White Pine trees and 

installation of unspecified 6-foot evergreens: $68,240 

Hidden Creek Addendum to No. 3: a one-year watering and mulching plan 

for new trees: $42,623 

{¶22} In reviewing the evidence most favorably to the non-moving party, we find 

the type of restoration damages in the case sub judice can be determined from the 
Delaware County, Case No. 20 CAE 03 0019 9 

ordinary knowledge and experience of laypersons. “Evid.R. 702 permits expert testimony 

where the subject matter is outside the realm of a layperson's common knowledge or 

experience. Ohio law does not require expert testimony on all issues of cost-to-repair 

damages.” Evans Landscaping, Inc. v. Stenger, 2011-Ohio-6033, 969 N.E.2d 1264, ¶ 24 

(1st Dist.). Pine trees of these varieties are extremely commonplace in landscaping 

projects and the lands throughout Ohio. Tree planting, water, fertilizing, and other tree 

maintenance like mulching are also activities that most adults, particularly homeowners, 

typically engaged in. 

{¶23} Although litigation over improper tree cutting may necessitate expert 

testimony depending on the damages sought, such as timber value for commercial 

purposes, valuation of cut trees particularly of an ornamental or rare species suitable for 

an arboretum, or if damages are sought for diminution in property value. However, this is 

not case before us. A landscaper’s testimony about the replacing run-of-the-mill trees 

would not, as a matter of law, require the use of expert testimony. The jury is capable of 

determining the reasonableness of cost and necessity of the proposed restoration project 

in their role as trier-of-fact. 

{¶24} The first assignment of error is sustained. 

II. Expert Reports 

{¶25} Based upon our disposition of the first assignment of error, the second 

assignment of error is rendered moot.

 
Delaware County, Case No. 20 CAE 03 0019 10 

CONCLUSION

{¶26} Perini’s first assignment of error is sustained and the decision of the 

Delaware County Court of Common Pleas granting summary judgment is reversed. This 

matter is remanded for further proceedings consistent with this opinion.

By: Delaney, J. and 

Hoffman, P.J. concur; and 

Baldwin, J. dissents. 

 
Delaware County, Case No. 20 CAE 03 0019 11 

Baldwin, J., dissenting 

{¶27} I must respectfully dissent from the majority’s conclusions that “ [a] 

landscaper’s testimony about the replacing run-of-the-mill trees would not, as a matter 

of law, require the use of expert testimony” and that “[t]he jury is capable of determining 

the reasonableness of cost and necessity of the proposed restoration project in their role 

as trier-of-fact.” 

{¶28} The landscapers who will testify in this case are the experts who were 

named by the appellant and excluded by the trial court. At the trial court level, appellant 

offered the names of the landscapers as her expert witnesses and defended the need to 

present their testimony. Appellant admitted the landscapers "may offer testimony 

regarding the effects of Defendants' destruction of trees and limbs, the damages done to 

Plaintiffs' property, and the costs to repair and/or replace the property damaged." 

(Plaintiff's Disclosure of Expert Witnesses, p. 1). Appellant consistently referred to them 

as experts in her Memorandum In Opposition To Defendant Hillman's Motion To Exclude 

Plaintiffs' Expert Witness(es), she conceded that their testimony "may be necessary to 

explain the options to ameliorate the damages Plaintiffs suffered" Id. at p. 2 and she 

concluded that "This explanation of the experts' potential testimony, combined with 

Hillman's receipt of all cost estimates, satisfies the disclosure requirements of Local Rule 

26.03" regarding disclosure of experts and their opinions. Id. at p. 3. She argued that 

"justice requires the Court to permit Plaintiffs to call expert witnesses at trial" and that 

"[p]resuming that the testimony at issue is in fact expert testimony, such testimony will be 

crucial for the jury at trial." Id. at p. 4. 

{¶29} I would find that appellant's argument that these experts would be crucial 

for the jury's understanding of the options presented by the experts to replace the screen 
Delaware County, Case No. 20 CAE 03 0019 12 

allegedly damaged by the appellees is supported by the record and her attempt to 

discount the need for expert testimony is refuted by the proposals she attached to the 

pleadings. Appellant has submitted restoration estimates that range from $24,000.00 to 

over $100,000.00. One proposal involves the removal of twenty-four existing trees 

without explanation, and one proposal describes planting new trees, but does not address 

removal of existing trees. The plans also differ regarding the type of tree used, one 

suggesting white pine, another Norway spruce and another simply "evergreen" without 

any indication as to the reasons for the differences. A care plan for the proposed white 

pines is estimated to cost over $10,000.00 while the cost of maintaining six foot 

evergreens will be $42,623.77. I would find that the complexity of comparing the options 

and measuring the reasonableness and necessity of the restoration costs is emphasized 

by the wide range of options that are presented by appellant and would conclude, 

therefore, that this issue is beyond ordinary knowledge and experience of layman. 

{¶30} I would find that the undisputed facts in this case present questions 

regarding the reasonableness and necessity of costs that are far beyond the knowledge 

of a layperson. While the majority characterizes this as replacement of common trees, 

the estimates include several options and different costs that will require explanation of 

an expert arborist before the jury can understand and evaluate the reasonableness of the 

proposal. I must respectfully disagree with the majority’s conclusion that a layperson will 

have the knowledge, training or experience to evaluate the reasonableness of the 

necessity and cost of removing some or all of the current trees, then planting and 

maintaining seventy evergreen, White Pines or Norway Spruce. 

{¶31} While I acknowledge that "“[e]xpert testimony is not always required to 

establish the necessity of repairs or the reasonableness of the costs incurred to repair 
Delaware County, Case No. 20 CAE 03 0019 13 

such” McCoy v. Good, 2d Dist. No. 06–CA–34, 2007-Ohio-327, 2007 WL 196551, ¶ 21 

as quoted in Evans Landscaping, Inc. v. Stenger, 1st Dist. No. C-110104, 2011-Ohio6033, 969 N.E.2d 1264, ¶ 24, the courts in the cases that excuse the presentation of 

expert witnesses do so only after concluding that the plaintiff had presented other 

evidence of the reasonableness of the claimed damages. Reynolds v. Bauer, 2nd Dist. 

Montgomery No. 21179, 2006-Ohio-2912 and Evans Landscaping, supra, consider the 

evidence that the repairs were completed, costs paid and other evidence that the costs 

were reasonable. “[T]he amount the Stengers spent to repair the pond, $24,990, is not 

out of proportion to the $20,000–to–$25,000 estimate that Evans gave to the Stengers 

initially to construct the pond." Evans, supra at ¶ 27. “Reynolds testified regarding the 

value of her personal and real property before and after the water damage. She also 

submitted invoices reciting the costs incurred in repairing her house, and testified that she 

could not complete the restoration because she ran out of money." Reynolds, supra at 

¶ 13; "The realtor for the Goods testified that the termite damage was severe. *** Lynn 

McCoy testified that approximately $35,000 was spent over five years to repair the termite 

damage. *** Terry McCoy testified that $36,000 was spent to repair the termite damage. 

*** The Goods did not object at trial that the evidence was inadmissible for that purpose 

because the witnesses were incompetent to offer it and that expert testimony was instead 

required. McCoy supra at ¶ 22-23. 

{¶32} Appellant has provided no evidence of costs paid or the reasonableness of 

the amount of damages she has claimed. 

{¶33} Appellant submitted the names of the landscapers as her experts in 

recognition of need to present this information to the jury, and it is evident from that these 

landscapers must be considered experts who will offer information they “acquired either 
Delaware County, Case No. 20 CAE 03 0019 14 

by study of recognized authorities on the subject or by practical experience that he or she 

can impart to the trier of fact.” Vermett v. Fred Christen & Sons Co., 138 Ohio App.3d 

586, 606, 741 N.E.2d 954, 968 (6th Dist.2000). 

{¶34} I would hold that in the context of this case and the undisputed facts, a 

layperson would not be able to evaluate the necessity and reasonableness of the costs 

of the restoration of the screen between the properties without expert assistance. I would 

also hold that the landscapers are experts, that the trial court correctly excluded the 

experts and granted summary judgment because the appellant would be unable to prove 

damages without these experts.

{¶35} For those reasons, I respectfully dissent.
[Cite as Perini v. Hillman, 2021-Ohio-20.]