JOURNAL ENTRY AND OPINION *Page 4 {¶ 1} Plaintiffs-appellants, L.A.D.S. Development Co. and Anthony Whitmore, appeal from common pleas court orders (1) granting summary judgment in favor of defendant-appellee Dominion Gas Company, (2) granting judgment to defendants-appellees Donald and Addie McCrary following a jury trial, and (3) denying appellants' motion for judgment notwithstanding the verdict or for a new trial. They raise five assignments of error which we quote here in their entirety:
First Assignment of Error
THE ASSIGNED JUDGE HOLLIE L GALLAGHER ERRED IN GRANTING A MOTION IN LIMINE, CONTRARY TO LAW AND VIOLATED THE FAIRNESS AND INTEGRITY OF THE TRIAL PROCESS.
Second Assignment of Error
THE VISITING TRIAL JUDGE JAMES D. SWEENEY ABUSED HIS DISCRETION BY INTEMPERATE COMMENT, DENIAL OF PROPER CROSS-EXAMINATION OF WITNESSES, REFUSED TO ALLOW TESTIMONY PROVIDING PHOTOGRAPHIC PROOF OF DEFENDANT McCRARY'S FALSE TESTIMONY, REFUSED TO ALLOW THE TESTIMONY OF PLAINTIFF/APPELLANTS' WITNESSES BILL BELOMA, LARRY JONES, DOMINION EMPLOYEES AS FACT WITNESSES OR OTHERWISE AND/OR WRONGFULLY DENIED PLAINTIFF/APPELLANTS' REQUEST FOR DECLARATION OF MISTRIAL.
THE ASSIGNED JUDGE HOLLIE GALLAGHER ABUSED HER DISCRETION INCLUDING GRANTING SUMMARY JUDGMENT FOR DEFENDANT DOMINION STATING THAT AN EASEMENT EXISTED WHEN NONE WAS IN EVIDENCE, DETERMINED THAT THERE WAS NO TRESPASS BY DOMINION BECAUSE THEY HAD "NEVER DUG ON PLAINTIFFS' PROPERTY" CONTRARY TO PHOTOGRAPHIC EVIDENCE PRESENTED TO HER, PROHIBITED THE TESTIMONY OF DOMINION EMPLOYEES AND/OR DOMINION *Page 5 EMPLOYEE FACT WITNESSES AND/OR REFUSED TO EVEN WAIT FOR THE TRANSCRIPT OF THE DEPOSITIONS TO BE FILED OR [SIC] GRANTING SUMMARY JUDGMENT FOR THE DEFENDANTS.
THE ASSIGNED JUDGE HOLLIE L. GALLAGHER ABUSED HER DISCRETION BY DENIAL OF THE JUDICIAL NOTICE REQUEST BY PLAINTIFF/APPELLANT, AND FURTHER DENIAL OF SANCTIONS TO PLAINTIFF/APPELLANTS, FOR DEFENDANT DANIELS FOR FAILURE TO MAKE PAYMENT OF SETTLEMENT AS AGREED AND/OR IN TIMELY FASHION AND BY THE DENIAL OF SUMMARY JUDGMENT PRAYED FOR BY PLAINTIFF/APPELLANTS.
Third Assignment of Error
THE VISITING TRIAL JUDGE JAMES D. SWEENEY ERRED IN OVERRULING THE PLAINTIFF/APPELLANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND/OR IN THE ALTERNATIVE MOTION FOR NEW TRIAL STATING "HOWEVER PLAINTIFFS DO NOT SITE [SIC] ANY PORTION OF THE TRANSCRIPT, AND THERE IS NO INDICATION IN THE APPLICABLE MOTION THAT EITHER PLAINTIFF OBJECTED TO THIS JURY INSTRUCTION AT TRIAL" IN ERROR AND CONTRARY TO THE RECORD. THE VISITING TRIAL JUDGE JAMES D. SWEENEY ABUSED HIS DISCRETION IN FINDING THAT "AS THE PLAINTIFFS FAILED TO OBJECT THIS CLAIMED ERROR LACKS MERIT."
Fourth Assignment of Error
THE VISITING JUDGE JAMES D. SWEENEY ERRED IN FAILING TO ALLOW THE CROSS-EXAMINATION OF DONALD McCRARY ON HIS PRIOR FELONY CONVICTION FOR A CRIME OF MORAL TURPITUDE (SEE ATTACHED EXHIBIT "K").
Fifth Assignment of Error
THE VISITING TRIAL JUDGE JAMES D. SWEENEY ERRED IN REFUSING TO ALLOW THE NEGLIGENCE PER SE JURY INSTRUCTION CONTRARY TO LAW AND RULE. *Page 6
{¶ 2} We find the trial court erred by instructing the jury on easements by necessity, and abused its discretion by denying appellants' motion for a new trial was based on the erroneous instruction. Therefore, we will reverse and remand for a new