[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 44735Delaware 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 Defen dants-Appellees Howard Hillman and Tscapes Outdoor Solutions.

STATEMENT OF FACTS AND THE CASE {¶2} Perini and Hillman reside on adjacent rural p roperties, wi th Perini's property to the north and west of Hillman's property. Perini's north/sou th 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 ne ighboring property where Hillman took up residence in 2016. Perini’s neighbor to the wes t, George Resonivich, also planted similar pine trees on the other side of the shared driv eway to create a symmetrical

look. {¶3} In June 2018, Hillman hired Tscapes Outdoor Solutions to p erform some landscaping tasks on his property i ncluding the removal of bran ches from approximately 60 pine trees that are the subject of this case. Tscapes remove d several branches from the trees, though Hillman and Tsca pes contest the details of th e instructions provided and who was ultimately responsible for the number of branches remov ed. 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 remo ved from around the base of over sixty trees, removing the visual screen between he r residence and Hillman’s. This resulted in the canopy of the trees being raised four to s ix feet from the ground. The branches will not grow back. While some of the branches were de ad as claimed by Appellees, Perini claims that many of the branches were obvious ly alive and submittedDelaware County, Case No. 20 CAE 03 0019 3 photographs to the trial court in support of her contention. Pe rini contacted two landscape

architects for estimates to restore the visual screen between t he properties and discussed a possible resolution of the matter with Hillman. The parties w ere unable to come to an agreement and Perini filed a complaint. {¶5} Perini’s complaint alleged that Appellees "violated R.C. 9 01.51 by intentionally and recklessly cutting down, destroying, and othe rwise injuring the trees that were standing or growing on Plaintiffs' property." In the alter native, 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 the ir 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 a nswer 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 sc heduling order on March 28, 2019. The order contained a provision captioned "Disc losure of Expert Witnesses" which is the source of the report requirement that c ulminated in the grant of summary judgment. {¶7} Perini did not provide any reports from her experts, so th at 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 Sc heduling Order, specifically the failure to provide reports. Perini responded in a memorandu m contra filed on September 9, 2019 claiming that she had "complied in all releva nt aspects with the Court's Scheduling Order." (Plaintiffs' Memorandum In Opposition to Def endant Hillman's MotionDelaware County, Case No. 20 CAE 03 0019 4 To Exclude Plaintiffs' Expert Witness(es), Sep. 9, 2019, p. 1 D ocket No. 22). She did not deny that she did not provide reports as required by the schedu ling 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 dee med true expert testimony -- may be necessary to explain the options to ameliorate the da mages 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 tria l court granted the motion to exclude Perini's expert witnesses. The trial cour t 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 s tand, Plaintiffs have not provided expert reports in compliance with the Scheduling Order and Defendant is correct that these experts' o pinions are properly excluded. (Judgment Entry Granting Defendant's Motion To Exclude Plaintif fs' Expert Witnesses Sep. 18, 2019, Docket No. 24, p 4). {¶9} Hillman and Tscapes filed separate motions for summary jud gment 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 judgm ent 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 a rguing she did not need expert testimony to prove damages, citing to our decis ion 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). Perin i 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 exper t testimony was not needed to prove restoration costs. {¶11} The trial court rejected Perini's arguments and granted s ummary judgment holding that Perini was obligated to present expert testimony t o 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, wheth er the measure of damages was the restoration costs or the diminut ion 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] l andowner may recover the costs of reasonable restoration of his property to its preexist ing condition or to a condition as close as reasonably feasible, without requiring grossly disp roportionate expenditures and with allowance for the natural processes of regeneration wi thin a reasonable period of time" and that "an expert would have the requisite knowled ge to estimate restorationDelaware County, Case No. 20 CAE 03 0019 6 costs," but Perini had been barred from submitting expert testi mony 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 N OT

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 Peri ni 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 e stablish restoration costs

in this case. {¶18} With regard to the first assignment of error, we review c ases 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 d eDelaware 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, vi ewing 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 deferen ce to the trial court's decision and independently review the record to determine wheth er 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 co ntext 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 d id 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 t he 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 restorati on 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 pro vided 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 c ondition

as close as reasonably feasible without requiring grossly disproportionate expenditur es and with allowance for the natural processes of regeneration wi thin 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 affida vits, demonstrating three restoration cost estimates from two landscaping businesse s: 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 p ine trees (approximately 6 to 8 feet tall), near original planting, for a dditional $6,800. Keny/Blackford Addendum Proposal No. 1: a one-year watering, fe rtilizing, and tree staking plan for new trees, for additional $6,510. Keny/Blackford Proposal No. 2: Planting 48 Norway Spruce Tree i n 6 groups of 8 each to re-establish a natural screen in between th e existing mature white pines where lower foliage was removed: $24,000 Hidden Creek Proposal No. 3: Removal of 24 White Pine trees an d installation of unspecified 6-foot evergreens: $68,240 Hidden Creek Addendum to No. 3: a one-year watering and mulchin g plan for new trees: $42,623 {¶22} In reviewing the evidence most favorably to the non-movin g party, we find the type of restoration damages in the case sub judice can be d etermined from theDelaware County, Case No. 20 CAE 03 0019 9 ordinary knowledge and experience of laypersons. “Evid.R. 702 p ermits 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 i ssues 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 common place in landscaping projects and the lands throughout Ohio. Tree planting, water, f ertilizing, 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 necess itate 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 proper ty value. However, this is not case before us. A landscaper’s testimony about the replacin g run-of-the-mill trees would not, as a matter of law, require the use of expert testim ony. The jury is capable of determining the reasonableness of cost and necessity of the pro posed 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 err or, 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 decisio n 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 tha t “ [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 ju ry is capable of determining the reasonableness of cost and necessity of the proposed restor ation project in their role

as trier-of-fact.” {¶28} The landscapers who will testify in this case are the experts w ho 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 an d defended the need to present their testimony. Appellant admitted the landscapers "ma y offer testimony regarding the effects of Defendants' destruction of trees and l imbs, the damages done to Plaintiffs' property, and the costs to repair and/or replace th e property damaged." (Plaintiff's Disclosure of Expert Witnesses, p. 1). Appellant consistently referred to them as experts in her Memorandum In Opposition To Defendant Hillma n's Motion To Exclude Plaintiffs' Expert Witness(es), she conceded that their testimo ny "may be necessary to explain the options to ameliorate the damages Plaintiffs suffer ed" Id. at p. 2 and she concluded that "This explanation of the experts' potential test imony, combined with Hillman's receipt of all cost estimates, satisfies the disclosu re 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 test imony, 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 ex perts to replace the screenDelaware County, Case No. 20 CAE 03 0019 12 allegedly damaged by the appellees is supported by the record a nd her attempt to discount the need for expert testimony is refuted by the propos als she attached to the pleadings. Appellant has submitted restoration estimates that r ange 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 tr ees, 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 p lan for the proposed white pines is estimated to cost over $10,000.00 while the cost of ma intaining six foot evergreens will be $42,623.77. I would find that the complexit y of comparing the options and measuring the reasonableness and necessity of the restorati on costs is emphasized by the wide range of options that are presented by appellant an d would conclude, therefore, that this issue is beyond ordinary knowledge and exp erience of layman. {¶30} I would find that the undisputed facts in this case present que stions regarding the reasonableness and necessity of costs that are fa r beyond the knowledge of a layperson. While the majority characterizes this as repla cement 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 con clusion that a layperson will have the knowledge, training or experience to evaluate the reas onableness 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 req uired to establish the necessity of repairs or the reasonableness of the costs incurred to repairDelaware 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 excus e 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 wa ter 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 dam age 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 rep air the termite damage. *** The Goods did not object at t rial that the evidence was ina dmissible for that purpose because the witnesses were incompetent to offer it and that exp ert testimony was instead required. McCoy supra at ¶ 22-23. {¶32} Appellant has provided no evidence of costs paid or the reasona bleness 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, an d it is evident from that these landscapers must be considered experts who will offer informati on they “acquired eitherDelaware County, Case No. 20 CAE 03 0019 14 by study of recognized authorities on the subject or by practic al 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 undispute d facts, a layperson would not be able to evaluate the necessity and reaso nableness 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 cour t correctly excluded the experts and granted summary judgment because the appellant woul d be unable to prove damages without these experts. {¶35} For those reasons, I respectfully dissent.[Cite as Perini v. Hillman , 2021-Ohio-20.]