[Cite as Olive Oil, L.L.C. v. Cleveland Elec. Illum. Co., 2021-Ohio-2309.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

OLIVE OIL, L.L.C., : 

 Plaintiff-Appellant/Cross- : 

 Appellee, 

 : No. 109553 

 v. 

 : 

CLEVELAND ELECTRIC 

ILLUMINATING CO., ET AL., : 

 

 : 

 Defendants-Appellees/ 

 Cross-Appellants. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED IN PART; REVERSED 

 IN PART; REMANDED 

RELEASED AND JOURNALIZED: July 8, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-19-912282 

 

Appearances: 

Law Office of Matthew S. Romano, L.L.C., and Matthew S. 

Romano, for appellant. 

Calfee, Halter & Griswold, L.L.P., Lindsey E. Sacher, 

Anthony Stringer, and Thomas I. Michals for 

appellee/cross-appellant, The Cleveland Electric 

Illuminating Co. 
Weston Hurd L.L.P., and Cornelius J. O’Sullivan, for 

appellees, Independence Construction L.L.C., 

Independence Excavating, Inc., and Front Street Group 

L.L.C. 

EILEEN A. GALLAGHER, J.: 

Plaintiff-appellant/cross-appellee, Olive Oil, L.L.C., appeals from 

judgments rendered against it by the Cuyahoga County Court of Common Pleas. 

After the 2017 replacement of power lines over a portion of Olive Oil’s property, 

Olive Oil brought various claims against the Cleveland Electric Illuminating 

Company (“CEI”), Independence Excavating, Inc. (“IE”), Independence 

Construction, L.L.C. (“IC”) and Front Street Group, L.L.C. For the reasons that 

follow, we affirm in part, reverse in part and remand. 

I. Background 

Since 2016, Olive Oil has owned the property located at 130 Front 

Street in Berea, Ohio. The property includes storefronts and residential housing. It 

also includes a parking lot along the east side of the property. Olive Oil is the 

landlord and collects rents from the tenants. Mike Gantous is the sole owner of Olive 

Oil. One tenant is Mike’s Bar & Grill, a restaurant that Gantous owns by way of 

another company, J.A.M.S., L.L.C. Olive Oil is the only plaintiff in this action, 

neither Gantous nor J.A.M.S. are a party to this case. 

The parking lot is bordered on the east by West Street and on the 

south by School Street. Since at least 1987, and until 2017, CEI ran power lines over 
the southeast corner of the parking lot, between a pole on West Street and a pole on 

the south side of School Street (“old wires”). 

In 2017, because of a development project involving the other 

defendants, CEI moved the pole from the south side of School Street to the public 

right-of-way on the north side of the street. Moving the pole across the street caused 

the wires strung between it and the pole on West Street (“new wires”) to occupy a 

larger portion of space over Olive Oil’s parking lot. There was expert testimony 

presented at trial that the path of the new wires was within 20 feet of the path of the 

old wires. Gantous did not consent to having the new wires span over his property 

and litigation ensued. 

The case proceeded to a jury trial. Olive Oil and all of the defendants 

presented their cases. However, the court disposed of all claims through directed 

verdicts prior to charging the jury. 

Relevant to this appeal, the trial court granted directed verdicts on 

Olive Oil’s trespass and civil conspiracy claims as well as its statutory claim pursuant 

to R.C. 2307.60 and 2307.61. The trial court also dismissed Olive Oil’s declaratory 

judgment claim pursuant to Civ.R. 41(B) for failure to prosecute. This appeal 

follows. 

Assignments of Error 

Olive Oil asserts six assignments of error for review: 

1. The Trial Court’s Denial of Plaintiff-Appellant Olive Oil LLC’s (“Olive 

Oil”) Motion for Partial Summary Judgment is Reversible Error. 
2. The Trial Court’s Civ. R. 41(B)(1) Dismissal of Olive Oil’s Declaratory 

Judgment Claim is Reversible Error. 

3. The Trial Court’s Refusal to Permit Olive Oil’s Owner to Testify on 

the Diminution in Property Value is Reversible Error. 

4. The Trial Court’s Directed Verdict Dismissing Olive Oil’s Trespass 

Claim is Reversible Error. 

5. The Trial Court’s Directed Verdict Dismissing Olive Oil’s Claim for 

Violations of R.C. 2307.60 and 2307.61(A)(1) is Reversible Error. 

6. The Trial Court’s Directed Verdict Dismissing Olive Oil’s Civil 

Conspiracy Claim is Reversible Error. 

CEI has cross-appealed and asserted five of its own assignments of 

error for review: 

1. The Trial Court Should Have Granted Summary Judgment in CEI’s 

Favor on Olive Oil’s Trespass Claim Because CEI Presented Undisputed 

Evidence That It Had a Right Relocate the New Wires Over the 

Property. 

2. The Trial Court Should Have Granted Summary Judgment in CEI’s 

Favor on Olive Oil’s “Civil Theft” Claim and Request for Liquidated 

Damages Pursuant to R.C. 2307.60 and 2307.61. 

3. The Trial Court Should Have Granted Summary Judgment in CEI’s 

Favor on Olive Oil’s Civil Conspiracy Claim. 

4. The Trial Court Should Have Granted Summary Judgment in CEI’s 

Favor on Olive Oil’s Declaratory Judgment Claim. 

5. The Trial Court Should Have Granted Summary Judgment in CEI’s 

Favor on Olive Oil’s Requests for Punitive Damages and Attorney’s 

Fees. 

We address the assignments of error in an order and manner that aids 

our analysis. 
II. Analysis 

A. Directed Verdict for Trespass Claim 

In its fourth assignment of error, Olive Oil argues that granting a 

directed verdict on its trespass claim was reversible error. In this assignment of 

error, Olive Oil confines its argument to CEI. 

A trial court should grant a motion for directed verdict when “after 

construing the evidence most strongly in favor of the party against whom the motion 

is directed, finds that upon any determinative issue reasonable minds could come to 

but one conclusion upon the evidence submitted and that conclusion is adverse to 

such party.” Civ.R. 50(A)(4); Krofta v. Stallard, 8th Dist. Cuyahoga No. 85369, 

2005-Ohio-3720, ¶ 10. A motion for directed verdict does not test witness credibility 

or the weight of the evidence. Krofta at ¶ 10. The motion instead tests “the legal 

sufficiency of the evidence to allow the case to proceed to the jury, and it constitutes 

a question of law, not one of fact.” Id. A trial court properly grants a motion for 

directed verdict where the party opposing the motion fails to adduce any evidence 

of at least one essential element of the claim. Id. at ¶ 11. We review de novo whether 

the trial court properly entered a directed verdict. Id. at ¶ 9. 

“Trespass is an unlawful entry upon the property of another.” Chance 

v. BP Chems., Inc., 77 Ohio St.3d 17, 24, 670 N.E.2d 985 (1996), citing Keesecker v. 

G.M. McKelvey Co., 141 Ohio St. 162, 166, 47 N.E.2d 211, 214 (1943). “Thus, the 

elements of trespass are ‘(1) an unauthorized intentional act, and (2) entry upon land 

in the possession of another.’” Thomas v. Murry, 8th Dist. Cuyahoga No. 109287, 
2021-Ohio-206, ¶ 69, quoting Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 

704, 716, 622 N.E.2d 1153 (4th Dist.1993). The plaintiff bears the burden of proving 

all elements of a trespass claim. Chance at 23. 

“[A] showing of trespass entitles a plaintiff to at least nominal 

damages.” Misseldine v. Corporate Investigative Servs., 8th Dist. Cuyahoga No. 

81771, 2003-Ohio-2740, ¶ 31, citing Lamberjack v. Gyde, 6th Dist. Ottawa No. 92-

OT-034, 1993 Ohio App. LEXIS 5528 (Nov. 13, 1993); see also Lacey v. Laird, 166 

Ohio St. 12, 12, 139 N.E.2d 25 (1956), paragraph two of the syllabus (“‘Nominal 

damages’ are those recoverable a legal right is to be vindicated against an invasion 

thereof which has produced no actual loss of any kind, or where, from the nature of 

the case, some injury has been done, the extent of which the evidence fails to show.”). 

In order for a plaintiff to be entitled to actual damages, “‘the plaintiff must prove 

that the that the trespass proximately caused that for which compensation is sought 

and the amount of those damages.’” Id., quoting Lamberjack at 19-20; see also 

Krofta at ¶12 (“A trespasser is only liable if his trespass proximately caused the 

damages.”). 

Here, the trial court granted a directed verdict on Olive Oil’s trespass 

claim, explaining that its reason for doing so was that Olive Oil failed to prove 

damages: 

[T]he plaintiff’s complaint is one of tort. And tort, you must show 

damages, that is an element of the tort. If you don’t show damages, 

then unfortunately you cannot prevail. 
So as to trespass, permanent and temporary, defendants’ Rule 50 

motion is hereby granted. 

It was error for the trial court to dismiss the trespass claim on the 

basis that Olive Oil failed to establish damages. While we agree that Olive Oil failed 

to establish that it was actually damaged by the new wires, trespass is established 

where a defendant enters onto another’s property without authorization. See 

Chance, 77 Ohio St.3d at 24, 670 N.E.2d 985; see also Misseldine at ¶ 26 (trespass 

can be established by the invasion of the airspace above another’s property). Here, 

there was evidence presented that CEI trespassed on Olive Oil’s property without 

Olive Oil’s permission. 

Nevertheless, there was also evidence presented that CEI acquired a 

prescriptive easement for the old wires running over Olive Oil’s property. “A party 

claiming a prescriptive easement has the burden of proving a use of the property 

that is: (1) open; (2) notorious; (3) adverse to the neighbor’s property rights; (4) 

continuous; and (5) at least 21 years in duration.” Harris v. Dayton Power & Light 

Co., 2016-Ohio-517, 56 N.E.3d 399, ¶ 18 (2d Dist.); see also J. F. Gioia, Inc. v. 

Cardinal Am. Corp., 23 Ohio App.3d 33, 37, 491 N.E.2d 325 (8th Dist.1985) (“The 

party claiming a prescriptive easement has the burden of proving each of those 

elements.”). Moreover, there was evidence presented that that the new wires, 

although not tracing the precise path of the old, nevertheless fell within that 

prescriptive easement. 
However, there was no determination whether a prescriptive 

easement existed for the old wires and there was no determination of the dimensions 

of any such easement. See Kattelman vs. Young Men’s Christian Assn., 1st Dist. 

Hamilton No. C-810947, 1982 Ohio App. LEXIS 13005, 3 (Oct. 27, 1982), citing 

Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898 (1897) (“[T]he dimensions of an 

easement acquired by prescription are determined by actual use during the 

prescriptive period.”). Further, there was no determination whether the path of the 

new wires impermissibly exceeded the scope of any existing easement. See 

Kattelman at 5, citing Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870 (1977) 

(“[The] use cannot be so substantially altered or enlarged that the nature, character 

and burden thereof create a new and different servitude.”). 

We, therefore, sustain the assignment of error and remand for 

determinations of whether CEI acquired a prescriptive easement, whether the new 

wires impermissibly exceed the scope of any such easement and thereby constitute 

a trespass on Olive Oil’s property and if so, the measure of damages that result from 

the trespass. 

B. Directed Verdict for Civil Conspiracy Claim 

In its sixth assignment of error, Olive Oil argues that the trial court 

erred by granting a directed verdict on its civil conspiracy claim. 

“Civil conspiracy is ‘a malicious combination of two or more persons 

to injure another in person or property, in a way not competent for one alone, 

resulting in actual damages.’” Maddox Defense, Inc. v. GeoData Sys. Mgmt., 2019-
Ohio-1778, 135 N.E.3d 1212, ¶ 47 (8th Dist.), quoting LeFort v. Century 21-Maitland 

Realty Co., 32 Ohio St.3d 121, 126, 512 N.E.2d 640 (1987). “An action for civil 

conspiracy cannot be maintained unless an underlying unlawful act is committed.” 

Williams v. United States Bank Shaker Square, 8th Dist. Cuyahoga No. 89760, 

2008-Ohio-1414, ¶ 16, citing Gosden v. Louis, 116 Ohio App.3d 195, 219, 687 N.E.2d 

481 (9th Dist.1996). 

Olive Oil asserts that the trial court concluded that it proved that there 

was a “malicious combination” involving “two or more persons,” but that it failed to 

prove damages. A review of the record reflects that the trial court made no such 

affirmative findings; however, Olive Oil is correct to the extent the court granted a 

directed verdict on the conspiracy claim after finding no evidence of damages. 

Olive Oil claims that “[t]here was overwhelming evidence presented 

at trial and in the record that Independence Construction and CEI conspired to 

commit harm to Olive Oil,” but fails to actually identify any such evidence. This does 

not satisfy Olive Oil’s obligation under App.R. 16(A)(7). An appellate court is not 

obliged to construct or develop arguments in support of an assignment of error 

where the appellant has otherwise failed to do so. V.C. v. O.C., 8th Dist. Cuyahoga 

No. 109988, 2021-Ohio-1491, ¶ 89; see also State v. Collins, 8th Dist. Cuyahoga No. 

89668, 2008-Ohio-2363, ¶ 91, quoting State v. Franklin, 9th Dist. Summit No. 

22771, 2006-Ohio-4569, ¶ 19 (“‘[I]t is not the duty of this Court to develop an 

argument in support of an assignment of error if one exists.’”); App.R. 12(A)(2). “If 

an argument exists that can support this assigned error, it is not this court’s duty to 
root it out.” V.C. at ¶ 89, quoting Strauss v. Strauss, 8th Dist. Cuyahoga No. 95377, 

2011-Ohio-3831, ¶ 72. 

More specifically, we observe that Olive Oil makes no argument as to 

how the trial court erred by finding no evidence of actual damages. Specifically, 

Olive Oil fails to identify any evidence in the record establishing actual damages.1 

Accordingly, regardless of whether Olive Oil has a viable trespass 

claim and is therefore entitled to nominal damages, its failure to prove actual 

damages is fatal to its civil conspiracy. See Gosden, 116 Ohio App.3d at 220, 687 

N.E.2d 481, citing Minarik v. Nagy, 8 Ohio App.2d 194, 195-96, 193 N.E.2d 280 

(8th Dist.1963) (“The element of ‘resulting in actual damages’ means that, if a 

plaintiff suffers no actual damages from the underlying unlawful act, there can be 

no successful civil conspiracy action.”); see also Ogle v. Hocking Cty., 4th Dist. 

Hocking No. 14CA3, 2014-Ohio-5422, ¶ 39 (“[T]here must be actual damages 

attributable to the conspiracy in addition to those damages caused by the underlying 

tort in order for the plaintiff to recover from the conspiracy.”).

Accordingly, we overrule Olive Oil’s sixth assignment of error. 

1 We note that Gantous testified that the monetary damage he suffered as the result 

of the new wires was “[h]ow much I paid for the whole property and all the improvements 

I put in there.” Although Olive Oil does not cite this as evidence of actual damages, and we 

agree that it is not, we nevertheless mention it here because that statement is more fully 

addressed in a subsequent assignment of error.
C. Directed Verdict for R.C. 2307.60 and 2307.61 Claim 

In its fifth assignment of error, Olive Oil argues that the trial court 

erred by granting a directed verdict on its R.C. 2307.60 and 2307.61(A)(1) claim. 

Olive Oil confines this argument to CEI. 

The trial court granted a directed verdict as to Olive Oil’s R.C. 2307.60 

and 2307.61 claims based on a finding that there were no damages. 

R.C. 2307.60 provides a mechanism for civil recovery following 

criminal acts for “[a]nyone injured in person or property by a criminal act.” R.C. 

2307.60(A). R.C. 2307.61 is applicable where a property owner brings a civil action 

pursuant to R.C. 2307.60(A) to recover from a person who willfully damages the 

owner’s property or who commits a theft offense, as defined in section 2913.01 that 

involves the owner’s property. R.C. 2307.61(A). 

Here, Olive Oil failed to identify any evidence in the record in support 

of its R.C. 2307.60 and 2307.61 claims. Olive Oil failed to offer any basis by which 

we can conclude that CEI committed a criminal act that injured Olive Oil in person 

or property as required by R.C. 2307.60. Similarly, Olive Oil failed to offer any basis 

by which we can conclude that CEI willfully damaged its property or committed a 

theft offense as required by R.C. 2307.61. Aside from citation to these statutes, as 

well as the criminal theft and trespass statutes, Olive Oil has offered no authority 

demonstrating it is entitled to judgment on this claim or that that the trial court 

erred by granting a directed verdict as to this claim. 
Instead, Olive Oil offers the unsupported conclusion that “CEI’s 

conduct was both a criminal trespass * * * and a criminal theft * * *.” Merely 

concluding that conduct was criminal does not make it so. More to the point, it does 

not satisfy Olive Oil’s obligation under App.R. 16(A)(7). As stated in the previous 

assignment of error, this court will not construct or develop arguments for a party 

that has failed to do so itself. See V.C. at 89.

We overrule this assignment of error. 

D. Civ.R. 41(B)(1) Dismissal of Declaratory Judgment Claim 

In its second assignment of error, Olive Oil argues that the trial court’s 

dismissal of its declaratory judgment claim pursuant to Civ.R. 41(B) is reversible 

error. 

Civ.R. 41(B) governs dismissals for failure to prosecute. Civ.R. 

41(B)(1) provides: 

Where the plaintiff fails to prosecute, or comply with these rules or any 

court order, the court upon motion of a defendant or on its own motion 

may, after notice to the plaintiff’s counsel, dismiss an action or claim. 

“The power to dismiss for lack of prosecution is within the sound 

discretion of the trial court.” Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 1199 

(1982). As a general matter, a trial court abuses its discretion where its decision is 

arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 

217, 219, 450 N.E.2d 1140 (1983). Where a case is dismissed with prejudice, 

however, appellate courts apply a heightened abuse-of-discretion standard of 

review. See, e.g., Jones v. Hartranft, 78 Ohio St.3d 368, 372, 678 N.E.2d 530 (1997) 
(“[A]lthough reviewing courts espouse an ordinary “abuse of discretion” standard of 

review for dismissals with prejudice, that standard is actually heightened when 

reviewing decisions that forever deny a plaintiff a review of a claim’s merits.”); 

Simmons v. Narine, 2014-Ohio-2771, 15 N.E.3d 1206, ¶ 7 (8th Dist.), quoting Ocran 

v. Richlak, 8th Dist. Cuyahoga No. 99856, 2013-Ohio-4603, ¶ 12 (“Because it is such 

a harsh sanction, ‘forever deny[ing] a plaintiff a review of a claim’s merits,’ we review 

a trial court’s decision to dismiss a case with prejudice pursuant to Civ.R. 41(B)(1) 

under a ‘heightened’ abuse-of-discretion standard.”). 

Here, the trial court dismissed Olive Oil’s declaratory judgment claim 

for lack of prosecution on the fourth and final day of trial and only after Olive Oil 

had rested its case. The court’s stated reason for doing so was that, according to 

Olive Oil’s counsel, Gantous “was upset over recent rulings [directed verdicts 

granted against Olive Oil], was sick, was tired and would not return to court.” 

Irrespective of the fact that Olive Oil’s counsel was present for the entirety of the 

trial and regardless of the fact that Gantous was present for Olive Oil’s case-in-chief 

including his own direct and cross-examinations, the court dismissed the 

declaratory judgment claim for lack of prosecution. 

Under the facts of this case, we find that the trial court erred by 

dismissing Olive Oil’s declaratory judgment claim. However, the error was harmless 

to the extent that the claim, itself, was outside the scope of the Declaratory Judgment 

Act. 
“‘A declaratory judgment action is a creature of statute’” as set forth 

under Revised Code Sections 2721.01 through 2721.15. Tabbaa v. Lexpro, L.L.C., 

8th Dist. Cuyahoga Nos. 109690 and 109691, 2020-Ohio-5514, ¶ 5, quoting 

Galloway v. Horkulic, 7th Dist. Jefferson No. 02 JE 52, 2003-Ohio-5145, ¶ 21. 

“To be proper, a declaratory-judgment action must, among other 

things, be within the scope of the Declaratory Judgment Act.” State ex rel. Ford v. 

Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396, ¶ 76, citing Freedom 

Rd. Found. v. Ohio Dept. of Liquor Control, 80 Ohio St.3d 202, 204, 685 N.E.2d 

522 (1997); see also Tabbaa at ¶ 5 (“A complaint seeking declaratory relief under 

R.C. Chapter 2721 must be dismissed where it does not meet any of those 

requirements.”). 

In relevant part, R.C. 2721.03 provides: 

[A]ny person interested under a deed, will, written contract, or other 

writing constituting a contract or any person whose rights, status, or 

other legal relations are affected by a constitutional provision, statute, 

rule as defined in section 119.01 of the Revised Code, municipal 

ordinance, township resolution, contract, or franchise may have 

determined any question of construction or validity arising under the 

instrument, constitutional provision, statute, rule, ordinance, 

resolution, contract, or franchise and obtain a declaration of rights, 

status, or other legal relations under it. 

Here, Olive Oil sought a declaratory judgment “to quiet title to 

Plaintiff’s Property in light of the purported prescriptive easement that CEI claims 

to hold on Plaintiff’s Property” and to “declare Plaintiff’s full rights over Plaintiff’s 

entire Property and eject CEI from the Property.” 
As such, and for example, Olive Oil makes no claim that it is an 

interested party under “a deed, will, written contract, or other writing constituting a 

contract” pursuant to R.C. 2721.03. To the contrary, and to the extent that Olive Oil 

refers to the extent that a prescriptive easement exists, it underscores the lack of any 

written contract for the court to construe. Moreover, pursuant to R.C. 2721.03, Olive 

Oil made no claim that it was “affected by a constitutional provision, statute, rule 

* * *, municipal ordinance, township resolution, contract, or franchise” and it did 

not seek determination of “any question of construction or validity arising under the 

instrument, constitutional provision, statute, rule, ordinance, resolution, contract, 

or franchise and obtain a declaration of rights, status, or other legal relations under 

it.” 

Accordingly, the court’s error in dismissing Olive Oil’s declaratory 

judgment claim pursuant to Civ.R. 52(B) was harmless. We overrule the assignment 

of error. 

E. Gantous’ Diminution in Value Testimony 

In its third assignment of error, Olive Oil argues that the trial court 

erred by granting a motion in limine that prevented its owner from testifying as to 

diminution in property value caused by the shifted location of the wires. 

Prior to trial, the court granted a motion in limine regarding the 

extent to which Gantous could testify about the property value. The court stated: 

Regarding the cost to restore the plaintiff’s property, I find the plaintiff 

could testify to that. 
The diminished value to that property, this is a little bit different 

because as a lay person, you really can’t — I mean I can’t look at my 

property and say oh, this happens, that’s the diminished value of this. 

* * * [T]he plaintiff will not be able to talk about what he believes the 

diminished value is. 

The trial court’s order reflects that Gantous was not to testify 

“regarding his opinion on the diminished value of the property.” 

We review a trial court’s decision to admit or exclude evidence for 

abuse of discretion. Wray v. Hiironen, 8th Dist. Cuyahoga No. 107558, 2019-Ohio4669, ¶ 15. “The term ‘abuse of discretion’ connotes more than an error of law or 

judgment; it implies that the court's attitude is unreasonable, arbitrary or 

unconscionable.” Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140, citing Steiner 

v. Custer, 137 Ohio St. 448, 31 N.E.2d 855 (1940). 

“Owner-opinion testimony is an estimate of the property’s value and 

is admissible ‘although the owner’s knowledge on the subject is not such as would 

qualify him to testify if he were not the owner.’” Cuyahoga Cty. Bd. of Commrs. v. 

McNamara, 8th Dist. Cuyahoga No. 95833, 2011-Ohio-3066, ¶ 27, quoting Smith v. 

Padgett, 32 Ohio St.3d 344, 348, 513 N.E.2d 737 (1987). This “‘owner-opinion’ rule 

follows from the premise that an owner of real or personal property is ‘generally 

quite familiar with their property and its value’” and is thus “‘permitted to testify on 

value by virtue of their ownership alone.’” Id. at ¶26, quoting Tokles & Son v. 

Midwestern Indemn. Co., 65 Ohio St.3d 621, 605 N.E.2d 936 (1992). 

Moreover, courts have found that the owner-opinion rule extends to 

permit an owner to testify as to diminution in the property’s value. See, e.g., id. at 
¶ 2, 16, 31 (owner permitted to testify that removal of ten mature trees decreased 

property value by $40,000); see, e.g., Gray v. Petronelli, 11th Dist. Trumbull No. 

2016-T-0030, 2017-Ohio-2601, ¶ 42 (homeowner permitted to testify as to 

property’s diminished value following faulty I-beam placement); see, e.g., Jones v. 

Dayton Power & Light Co., 2d Dist. Greene No. 94-CA-49, 1994 Ohio App. LEXIS 

5608, 2-3 (Dec. 14, 1994) (owner testified that power company cutting down 

approximately 90 trees diminished property value by $11,000). 

Accordingly, the extent to which the trial court prohibited Gantous 

from testifying as to any diminution in property value was error. Nevertheless, in 

this case we find such error to be harmless because dictates of the motion in limine 

notwithstanding, at trial Gantous did testify about diminution in value: 

Q. Mike, how did you get damaged by having these wires go across your 

parking lot? 

A. They stole my property. 

Q. What would you like done about it, having these wires over your 

property? 

A. Get them off my property or pay the taxes for having them. They 

literally stole my property. 

Q. When you say [“]stole,[”] what monetary damage is caused? 

[CEI Counsel]: Objection. 

The Court: Overruled. 

A. I don’t know, I’m not an expert on that. How much I paid for the 

whole property and all the improvements I put in there. 

The trial court subsequently attempted to clarify Gantous’ position: 
The Court: So he’s saying he’s been damaged for the entire amount? 

[Olive Oil Counsel]: That’s correct. I believe he’s allowed to do that 

under the law. He’s allowed to testify as to the amount of damage to 

him as the property owner. That’s what he was doing. 

According to Gantous then, the presence of CEI’s wires running over 

Olive Oil’s property diminished the value of the property by $615,000, the amount 

of money he paid for it, i.e., $450,000, plus the amount of money he spent on 

improvements, i.e., $165,000. See McNamara, 2011-Ohio-3066, at ¶ 27, quoting 

Smith, 32 Ohio St.3d at 348 (“‘[T]he weight accorded to such testimony is, of course, 

a matter to be determined by the trier of fact.’”). 

We overrule this assignment of error. 

F. Motions for Summary Judgment and Partial Summary Judgment 

In Olive Oil’s first assignment of error it argues that the trial court 

erred by denying its motion for partial summary judgment. Similarly, in CEI’s five 

assignments of error, it argues that the trial court erred by denying its motion for 

summary judgment. 

In Olive Oil’s motion, it argued it was entitled to summary judgment 

on its trespass claim because CEI could not prove it had a prescriptive easement. In 

CEI’s motion, it argued it was entitled to summary judgment as to all of Olive Oil’s 

claims. The trial court denied both motions, finding “genuine issues of material fact 

exist and that no party is entitled to judgment as a matter of law.” 

“According to the Supreme Court of Ohio, ‘the denial of a motion for 

summary judgment is not a point of consideration in an appeal from a final 
judgment entered following a trial on the merits.’” 7471 Tyler Blvd., L.L.C., v. Titan 

Asphalt & Paving, Inc., 2020-Ohio-5304, 162 N.E.3d 851, ¶ 177 (11th Dist.), quoting 

Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 156, 642 N.E.2d 615 (1994). 

“Any error by a trial court in denying a motion for summary judgment is rendered 

moot or harmless if a subsequent trial on the same issues raised in the motion 

demonstrates that there were genuine issues of material fact supporting a judgment 

in favor of the party against whom the motion was made.” Whittington at syllabus; 

see also McNulty v. Pls Acquisition Corp., 8th Dist. Cuyahoga Nos. 79025, 79125 

and 79195, 2002-Ohio-7220, ¶ 95 (“Even if summary judgment should have been 

granted, defendants failed to show any prejudice. Where a litigant still gets his day 

in court, the Ohio Supreme Court has held that the principle of harmless error 

applies to the improper denial of a motion for summary judgment.”). 

Here, there was a trial on the merits. Both Olive Oil and CEI 

presented evidence to the jury. We acknowledge that the trial court did ultimately 

dispose of each count before the jury could render a verdict. However, regarding 

both Olive Oil’s and CEI’s challenges to the denials of summary judgment as it 

pertains to the trespass claim, we have already determined that a directed verdict 

was inappropriately granted. Olive Oil’s and CEI’s challenges and arguments 

regarding summary judgment do not disturb our conclusion. 

Finally, as to CEI’s remaining assignments of error, pertaining to the 

trial court’s denial of its motion for summary judgment regarding Olive Oil’s claims 

for civil conspiracy, declaratory judgment, punitive damages and attorney fees and 
statutory claims pursuant to R.C. 2307.60 and 2307.61, we note that the trial court 

decided these claims in CEI’s favor. Moreover, to the extent that Olive Oil has 

challenged these issues on appeal, we have affirmed the trial court judgment in favor 

of CEI. 

Accordingly, we overrule Olive Oil’s first assignment of error and 

CEI’s five assignments of error. 

Judgment affirmed in part, reversed in part and remanded. 

It is ordered that appellant/cross-appellee recover from appellee/crossappellant CEI costs herein taxed. 

 The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. 

________________________ 

EILEEN A. GALLAGHER, JUDGE 

ANITA LASTER MAYS, P.J., CONCURS; 

LISA B. FORBES, J., CONCURRING IN JUDGMENT ONLY IN PART, 

DISSENTING IN PART 
LISA B. FORBES, J., CONCURRING IN JUDGMENT ONLY IN PART, AND 

DISSENTING IN PART: 

I concur in judgment only on all aspects of the majority opinion 

except the disposition, in part, of assignment of error two. I would sustain Olive 

Oil’s second assignment of error to the extent that claim seven of the complaint 

brought a quiet title action.