[Cite as CitiMortgage, Inc. v. Robson, 2011-Ohio-4617.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
CITIMORTGAGE, INC. : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2011-CA-0017
DONALD SCOTT ROBSON, ET AL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court
of Common Pleas, Case No. 2008-CV-2293
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: September 13, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT V. KISH JAMES L. BLUNT, II.
REMINGER CO., L.P.A. 105 Sturges Avenue
65 East State Street, Ste. 400 Mansfield, OH 44903
Columbus, OH 43215-4227
For M&K General Contracting
GREGORY G. BARAN
3 North Main Street, Ste. 500
Mansfield, OH 44902
[Cite as CitiMortgage, Inc. v. Robson, 2011-Ohio-4617.]
Gwin, P.J.
{¶1} Defendant-appellant Donald Scott Robson appeals a summary judgment
of the Court of Common Pleas of Richland County, Ohio, granted in favor of plaintiff-
appellee CitiMortgage, Inc. on appellant’s counterclaim. Appellant assigns two errors to
the trial court:
{¶2} “I. THE TRIAL COURT ERRED BY SUA SPONTE RULING THAT
PLAINTIFF, CITIMORTGAGE, INC., HAD AUTHORITY PURSUANT TO THE
MORTGAGE TO ENTER DEFENDANT’S REAL PROPERTY.
{¶3} “II. THE TRIAL COURT ERRED BY RULING THAT THE MORTGAGE
PROVISION ALLOWING ENTRY INTO THE REAL PROPERTY WHEN THE
MORTGAGOR BREACHED THE MORTGAGE AGREEMENT WAS VALID AND
ENFORCEABLE.”
{¶4} The case began as a mortgage foreclosure case, and appellant
counterclaimed for trespass and damage to his personal property. The court found the
mortgaged house was unoccupied so appellee hired a contractor to enter and secure
the house and change the locks. Appellant alleged the contractor damaged an alarm
system in the house. The property has since been sold in a foreclosure sale.
{¶5} Both appellee and the contractor moved for summary judgment. The trial
court found appellant did not file any opposing affidavits or point to any specific facts in
the record which created disputed issue of material fact, and found appellee was not
responsible for any acts of the contractor, because it was an independent contractor.
The court also found appellant had not established any damages.
{¶6} The contractor, M&K General Contracting, is not a party to this appeal.
Richland County, Case No. 2011-CA-0017 3
I.
{¶7} In his first assignment of error, appellant argues the trial court erred by
sua sponte ruling that appellee had authority pursuant to the mortgage to enter
appellant’s property.
{¶8} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the
record which demonstrate the absence of a genuine issue of fact on a material element
of the non-moving party’s claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280. Once the
moving party meets its initial burden, the burden shifts to the non-moving party to set
forth specific facts demonstrating a genuine issue of material fact does exist, Id. The
non-moving party may not rest upon the allegations and denials in the pleadings, but
instead must submit some evidentiary material showing a genuine dispute over material
facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732.
{¶9} Appellee’s motion for summary judgment addresses only the issue of
whether the company it hired to perform the work on appellant’s house was an
independent contractor. Appellee argued the company was an independent contractor,
not an employee, and it was not responsible for any damages the independent
contractor caused in performing the work. Because appellant did not respond to the
motion for summary judgment, the court properly found the company was an
independent contractor. However, the court concluded appellee was not liable for the
acts of its independent contractor. This finding is premature.
{¶10} An exception to the rule an employer is not liable for the actions of an
independent contractor is the trespass rule. In Conway v. Calbert (1997), 119 Ohio
Richland County, Case No. 2011-CA-0017 4
App. 3d 288, 695 N.E. 2d 271, the Court of Appeals for the Tenth District quoted 3
Restatement of the Law 2d Torts (1965) 419, Section 427B: “One who employs an
independent contractor to do work which the employer knows or has reason to know to
be likely to involve a trespass upon the lands of another or the creation of the public or
private nuisance is subject to liability for harm resulting to others from such trespass or
nuisance.” Conway at page 293-294. We agree. Appellee hired the independent
contractor specifically to enter onto the property in question, and is liable for any
trespass. The trial court could not find appellee was not liable for the trespass until it
determined whether the independent contractor trespassed on appellant’s property.
Appellee’s motion for summary judgment did not raise the issue of trespass.
{¶11} Nonetheless, the trial court addressed the issue of trespass. We find the
trial court should not have proceeded to determine the mortgage permitted appellee to
enter appellant’s property. This was beyond the scope of the motion for summary
judgment.
{¶12} The court also erred in finding appellant could not prevail because he had
not established damages. A property owner must prove two essential elements to state
a cause of action sounding in trespass: (1) an unauthorized intentional act, (2) resulting
in an intrusion that interferes with the owner’s right of exclusive possession of the
property. Merino v. The Salem Hunting Club, Columbiana App. No. 07CO16, 2008-
Ohio-6366, paragraph 41, citations deleted. If a property owner proves the elements of
trespass, he has a right to nominal damages without proof of actual damages. Id. at
paragraph 42, citations deleted.
Richland County, Case No. 2011-CA-0017 5
{¶13} We agree the court improperly decided issues which were not raised
before it in the motion for summary judgment.
{¶14} The first assignment of error is sustained.
II.
{¶15} In his second assignment of error, appellant argues the trial court erred in
finding the provision in the mortgage which allowed the mortgagee to enter the property
if the mortgagor breached the mortgage agreement was valid and enforcible. Because
we find the issue was not properly before the trial court, we find any discussion on our
part to be premature.
{¶16} The second assignment of error is premature.
{¶17} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is reversed, and the cause is remanded to the court for further
proceedings in accord with law and consistent with this opinion.
By Gwin, P.J., and
Farmer, J., concur;
Edwards, J., concurs
separately
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0816
Richland County, Case No. 2011-CA-0017 6
EDWARDS, J., CONCURRING OPINION
{¶18} I concur with the majority’s decision to remand the matter for further
proceedings. The majority holds that appellee’s motion for summary judgment did not
raise the issue of trespass and that the trial court erred in addressing such issue.
{¶19} However, the issue is whether, having employed an independent
contractor, appellee knew or had reason to know the work to be performed by M & K
General Contracting was likely to involve a trespass, not whether M & K committed a
trespass.
{¶20} I respectfully write separately to clarify such issue.
_______________________________________
Judge Julie A. Edwards
JAE/dr/rmn
Richland County, Case No. 2011-CA-0017 7
[Cite as CitiMortgage, Inc. v. Robson, 2011-Ohio-4617.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITIMORTGAGE, INC. :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DONALD SCOTT ROBSON, ET AL :
:
:
Defendant-Appellant : CASE NO. 2011-CA-0017
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Richland County, Ohio, is reversed, and the cause is
remanded to the court for further proceedings in accord with law and consistent with this
opinion. Costs to appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS