Morlatt v. Johnson

[Cite as Morlatt v. Johnson, 2022-Ohio-4155.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

ADAMS COUNTY

Kenneth Morlatt, II, et al., : Case No. 21CA1142

Plaintiffs-Appellees, :

v. : DECISION AND

JUDGMENT ENTRY

Steve Johnson, et al., :

Defendants-Appellants. : RELEASED 11/17/2022

______________________________________________________________________

APPEARANCES:

Christopher J. Mulvaney, The Mulvaney Firm, LLC, Cincinnati, Ohio, for appellants Steve

and Denise Johnson.

David E. Grimes, West Union, Ohio, for appellee Kenneth Morlatt II.1

______________________________________________________________________

Hess, J.

{¶1} Steve and Denise Johnson appeal from a judgment of the Adams County

Common Pleas Court in favor of Kenneth Morlatt II and Tasha Morlatt on their claims

against the Johnsons for invasion of privacy and absolute nuisance. In their first

assignment of error, the Johnsons assert that the judgment on the invasion of privacy

claim is against the manifest weight of the evidence. In their second assignment of error,

the Johnsons assert that the judgment on the absolute nuisance claim is against the

manifest weight of the evidence. And in what we will treat as their third assignment of

error, the Johnsons assert that the trial court erred when it awarded attorney fees to the

1Attorney Grimes represented Kenneth Morlatt II and Tasha Morlatt at the trial level. On appeal, Attorney

Grimes filed, on behalf of Mr. Morlatt, a notice of intent not to file an appellee’s brief. Attorney Grimes did

not file a similar notice on behalf of Mrs. Morlatt, and she did not file an appellee’s brief.

Adams App. No. 21CA1142 2

Morlatts. For the reasons that follow, we sustain the assignments of error, reverse the

trial court’s judgment, and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

{¶2} The Johnsons and Morlatts own abutting properties in Adams County. The

Morlatt property is north of the Johnson property. The boundary between the properties

was the subject of Adams County case number 2008CVH0225, which Sharon Rivers, the

Morlatts’ predecessor-in-interest, initiated against the Johnsons in 2008. Evidently, the

Johnsons believed the boundary between the properties was in the same location as a

fence north of Stoney Road, a public right-of-way.

{¶3} On April 16, 2009, the trial court issued a judgment entry finding that the

Rivers property “is connected to Stoney Road as evidenced by the language of each

parties’ deed and the existence of a right-of-way,” that the Johnsons failed to establish

that the fence line was the property line under the doctrine of acquiescence, but that the

“remaining fence west of Stoney Road between the parties’ properties that does not

parallel Stoney Road is the boundary line between the two properties.” The court found

that Rivers “shall not enter her property at any location where the road right-of-way does

not extend beyond the survey pins. Specifically, [Rivers] shall not access her property at

the gate located closest to the [Johnsons’] residence.” On June 5, 2009, the Morlatts

purchased the Rivers property.

{¶4} In September 2019, the Morlatts filed a complaint against the Johnsons,

Stephanie Myers (the Johnsons’ daughter), and Justin Myers (the Johnsons’ son-in-law)

which contained the following allegations. In 2007 and 2008, the Johnsons made false

statements that they owned land north of Stoney Road and that Rivers’s parcel was

Adams App. No. 21CA1142 3

landlocked. As a result, Rivers filed a lawsuit, and the trial court rejected the Johnsons’

claims, including that a fence north of Stoney Road was the boundary between the

properties of the Johnsons and Rivers. The Morlatts then bought Rivers’s property. In

2019, the Johnsons “renewed” their claims that they owned property north of Stoney Road

and drove metal fence posts onto the Morlatt property in the approximate location of the

fence line at issue in the prior litigation. The Morlatts removed the posts and tried to

return them to the defendants. The defendants “repeatedly threatened and harassed” the

Morlatts and their guests.

{¶5} The Morlatts alleged a claim for invasion of privacy against all of the

defendants asserting that they wrongfully and intentionally intruded, physically and

otherwise, into the private activities, solitude, and seclusion of the Morlatts in a highly

offensive manner. The Morlatts alleged a claim for malicious prosecution against Mr.

Johnson asserting that he had signed an affidavit alleging that Mr. Morlatt deprived him

of 12 “metal t-posts,” that the affidavit resulted in criminal mischief charges being filed

against Mr. Morlatt, that Mr. Johnson lacked probable cause to institute that criminal

prosecution, and that the charges had been dismissed. The Morlatts alleged a claim for

trespass against all of the defendants for putting the posts on the Morlatt property without

permission. Finally, the Morlatts alleged a claim for absolute nuisance against all of the

defendants asserting that they had intentionally and unreasonably made threats to the

Morlatts and their guests and made false claims that the Morlatts were trespassing, which

caused annoyance and inconvenience to and endangered the comfort, health, and safety

of the Morlatts and their guests.

Adams App. No. 21CA1142 4

A. Bench Trial and Judgment

{¶6} The matter proceeded to a bench trial during which the attorneys orally

agreed that on an aerial map of the Morlatt and Johnson properties, which we have

included as an appendix to this decision, the solid line running roughly west to east

represents the boundary between the Morlatt and Johnson properties. Stoney Road is

depicted below this property line. On the map, the eastern part of Stoney Road appears

to be parallel to the property line but the western part is not because at a certain point,

the road curves southwest. Stoney Road is gravel, but there is a grassy area north of the

road/gravel which includes a ditch and is part of the public’s easement. The Johnsons

own the property on which the easement is located. The attorneys orally agreed that the

“Stoney Road easement runs up against the boundary line between the Morlatt property

and the Johnson property.” In response to questioning by the court during opening

statements, the defendants’ attorney acknowledged the southern edge of the Morlatt

property abuts the northern edge of the Stoney Road easement until the road curves, at

which point there is space between the Morlatt property and the easement. However, the

attorney took the position that under the 2009 entry, the Morlatts could not access their

property from Stoney Road because they had to show their property “doesn’t just abut to

the right-of-way easement, but extends into” it.

{¶7} Mr. Morlatt testified that in 2008, he and his wife were looking for property

for a retreat for their family and began to consider the Rivers property. When they went

to view the Rivers property, they had a problem entering it because Mr. Johnson accused

them of trespassing. Mr. Morlatt told Rivers that he would not buy her property until the

issue was resolved. After the court “settled the dispute,” the Morlatts bought the Rivers

Adams App. No. 21CA1142 5

property. Mr. Morlatt testified that they bought the property with the intent of building their

“future home” on it, but “that was all stopped when Mr. Johnson said he owns the property.

And going through court with Sharon Rivers we wanted to build a home. Well, we didn’t

get to build our forever home there so we had a problem with this, so we had to build out

in Bethel.” Mr. Morlatt did not elaborate on how anything Mr. Johnson did after the

Morlatts bought the property interfered with the Morlatts plans to build a home for

themselves on it.

{¶8} Mr. Morlatt testified that the Morlatts only went to their property two or three

times a year, “just enough to bush hog it down when we got high.” Mr. Morlatt did not

testify about any interactions with the Johnsons between the time the Morlatts bought

their property in 2009 until 2018, when the Morlatts began to establish a home on the

property for their daughter in order to shorten her commute to Shawnee State University.

The Morlatts put a mobile home on the property, and Mr. Morlatt made efforts to get

electric service on the property. Mr. Morlatt asked Mr. Johnson if he would let Mr. Morlatt

get electricity via one of Mr. Johnson’s poles. Mr. Johnson said no. Mr. Morlatt testified

that another neighbor agreed to let him “tap off” the neighbor’s pole, but Mr. Johnson

“restrained” the electric company from accessing the Morlatt property. The trial court

admitted into evidence a letter from the company’s general manager which states that a

crew went to the Morlatt property on November 28, 2018 “to begin the construction of [a]

primary line for a new service.” Mr. Johnson “confronted” the crew upon their arrival and

said “they did not have permission to access the land and that he owned it.” The crew

removed their equipment and left. The next day, Mr. Johnson told the company’s

operations manager that he “owned the north side of Stoney Road,” and the company

Adams App. No. 21CA1142 6

“could not access it to construct the lines for the new service for Mr. Morlatt.” Mr. Morlatt

testified that the electric company had to find an alternate route and that he got electricity

to his property, but “it took a long while.”2

{¶9} Mr. Morlatt testified that on May 8, 2019, he went to his property to pick a

location to construct a driveway to Stoney Road. He knew that he could not place the

driveway in the area where Stoney Road is not parallel to his property—which is where

the gate referenced in the 2009 entry was—so he picked a spot east of where Stoney

Road curves, between two oak trees. Evidently he left the property, and when he returned

with a group to construct the driveway, Mr. Morlatt discovered that fence posts had been

“driven down through the front” of his property. Mr. Morlatt decided to construct the

driveway further east from the spot he had originally selected. The group began to clear

and prepare the newly selected spot, and Mr. Morlatt directed his father and another man

to remove the posts.

{¶10} Mr. Morlatt and another member of the group wore body cameras during

the construction, and the Morlatts introduced two videos into evidence. One video depicts

Mrs. Myers standing on the road while having a disagreement with members of the group

about her belief that there is no access to the Morlatt property from Stoney Road and that

the group is trespassing on her father’s property. After that video was taken, Mrs. Myers

left the road and contacted law enforcement at the request of Mr. Johnson.

2 Some of the testimony about the incident with the electric company is confusing. However, it appears

that the electric company was trying to use the Stoney Road easement to access the Morlatt property to

set up electric service to the property from the unnamed neighbor’s pole and was not trying to set up electric

service from a pole on the Johnsons’ property or install equipment on the Johnsons’ property without their

permission.

Adams App. No. 21CA1142 7

{¶11} In the second video, Mrs. Myers has returned to Stoney Road and is yelling

at Mr. Morlatt’s father, who is carrying about five posts down the road, and Mrs. Myers

says they are “not his property to remove.” Mr. Myers asks for the posts. Mr. Morlatt’s

father hands the posts to Mr. Myers, who throws them in the middle of the road and yells

at Mr. Morlatt. Mr. Johnson walks down the road and accuses the group of pulling the

fence posts out of his property line. A deputy arrives and has a discussion with Mr.

Johnson and Mr. and Mrs. Myers. The deputy reviews a document, and Mr. Johnson can

be heard saying the “road right-of-way is the property line.” The deputy tells Mr. Morlatt’s

group, which is in the process of dumping gravel, to halt the driveway construction until

the matter is resolved and says they are going to wait “about 30 minutes.” There is further

discussion about whether Mr. Morlatt can access his property in the vicinity of the

driveway construction. The video ends before the deputy leaves, but Mr. Morlatt testified

that law enforcement concluded the dispute was a civil matter and allowed the

construction to recommence, and the driveway was completed. Mr. Morlatt testified that

he also had footage of Mrs. Johnson from the driveway incident, which was not introduced

at trial, and that she said “if anybody put one shovel in the dirt it would be a big mistake.”

{¶12} On May 20, 2019, Mr. Morlatt was charged with criminal mischief based on

an affidavit in which Mr. Johnson alleged that “Kenneth Morlatt” had taken 12 metal t-

posts which belonged to Mr. Johnson. According to Mr. Morlatt, the only posts his group

removed were the ones in the video footage, and they were not exactly on the property

line but were rather “going in and out” of it. Evidently the Johnsons did not retrieve the

posts from where Mr. Myers threw them on the road. Pursuant to an officer’s instruction,

Mr. Morlatt put them in the ditch, but he later moved them to his truck so “the county”

Adams App. No. 21CA1142 8

would not “run over them and bush hog and tear their equipment up.” The criminal

mischief charge was dismissed on the ground that the case involved “a property line

dispute which is a civil matter.”

{¶13} Mr. Morlatt testified that the Johnsons and Myerses had made it impossible

for him to enjoy his property. Mr. Morlatt had not been there “in a long time” because he

did not want problems with the Johnsons and feared additional criminal charges, which

could jeopardize the Morlatts’ license to be foster parents. There was still a mobile home

on the Morlatt property, but no one was living in it. Mr. Morlatt did not want his daughter

living there “with all the problems.” He feared she would be treated like he was during

the driveway incident. At one point, Mr. Morlatt implied that the decision to not let his

daughter live on the Morlatt property resulted in her discontinuing her education at

Shawnee State University. Mr. Morlatt testified that the issues with the Johnsons and

Myerses impacted him financially because he has had to pay court costs and attorney

fees.

{¶14} Mr. Johnson testified that the 2009 entry prohibits the Morlatts from using

Stoney Road to access their property because they do “not own property into the right-

of-way,” so they must use State Route 73 to access their property. Mr. Johnson admitted

that he made contact with an electric crew around November 28, 2018. Mr. Johnson

testified that “[i]t was all muddy and they had the place all tore up. The ditch line tore up,

the property line, getting those trucks in and out of there [sic].” He pointed the survey

pins out to the crew. Stevie Hook, the crew leader, asked Mr. Johnson, “You own to

Adams App. No. 21CA1142 9

there?” and Johnson evidently responded, “Yes, I do.”3 Hook told the crew, “Shut it down.

Get them trucks out of there [sic].” Hook asked Mr. Johnson whether he cared if the crew

left via Stoney Road. Mr. Johnson said, “Absolutely not. I don’t care if you boys bring

those trucks back out here.” Later, someone from the electric company told Mr. Johnson

they were not going to cross his property line anymore and would “go down to the old

man in the trailer below.” On December 28, 2018, an attorney sent Mr. Morlatt a letter on

behalf of the Johnsons stating that he was violating a court order by entering his property

via Stoney Road and asking him to refrain from doing so. The letter led to further

correspondence between the Johnsons’ and Morlatts’ attorneys which is not in evidence.

{¶15} Mr. Johnson testified that on the day of the driveway incident, he saw a

group bringing in equipment and asked Mrs. Myers to investigate. The Johnsons went to

Stoney Road when they saw the group dumping gravel. Mr. Johnson denied initiating a

criminal charge against Mr. Morlatt. Mr. Johnson believed the affidavit he signed about

the fence posts related to Mr. Morlatt’s father, who has the same name as Mr. Morlatt but

does not use the name suffix “II.” Mr. Morlatt’s father is the person Mr. Johnson saw

removing his fence posts from the property line. The Johnsons introduced into evidence

photographs of a metal post. Mr. Johnson testified that the post was in the same spot

one of the removed posts had been, which was one or two inches south of a pin which

marks the northern boundary of the easement and the Johnson property. Mr. Johnson

testified that the fence at issue in the litigation with Rivers was about a foot and a half

north of the pin. Mr. and Mrs. Myers also testified.

3While testifying about the conversation with Hook, Mr. Johnson stated: “And he says: ‘You own to there?’

And he said: ‘Yes, I do.’ ” The testimony suggests Hook answered his own question even though that does

not make sense under the circumstances. Thus, it appears there was either an error in the transcript or

Mr. Johnson made a misstatement.

Adams App. No. 21CA1142 10

{¶16} On August 5, 2020, the trial court issued a judgment entry finding that the

“Plaintiff’s [sic] have a legal right to access the easement in question where Plaintiff’s [sic]

land meets/adjoins the easement boundary.” The court ruled in favor of the Morlatts on

their claims against the Johnsons for invasion of privacy and absolute nuisance. The

court ruled against the Morlatts on their remaining claims. The court ordered the Johnsons

to pay the Morlatts $5,265.00, i.e., the amount of attorney fees which the court orally told

the parties it planned to award at the end of the trial. The court also ordered the Johnsons

to pay all court costs.

B. Post-Judgment Proceedings

{¶17} The docket contains a notation of the following event on August 7, 2020:

“COPY OF JUDGMENT ENTRY MAILED TO THE FOLLOWING BY REGULAR U.S.

MAIL: R AARON MAUS,” i.e., the defendants’ attorney. However, on July 27, 2021, an

affidavit of the clerk of courts was filed in which the clerk averred that “[t]he Adams County

Clerk of Courts office [p]rocessed the [August 5, 2020 judgment] entry on August 7th, 2020

and same was noted in the docket,” but “a Deputy Clerk held the mailing and it was not

issued from this office until August 17th, 2020.” The trial court scheduled a hearing “in

regards to the appropriateness of reopening the appeal period.”

{¶18} On August 25, 2021, the court issued an entry stating that it had conducted

the hearing, that “[t]here were concerns that the parties were not afforded all appellate

rights due to questions about timeliness of mailing an appealable entry from the Clerk of

Courts to the parties and counsel involved,” and that the clerk of courts had acknowledged

“the inordinate delay in service of notice of the [August 5, 2020] judgment entry.” The

court ordered that the appeal period “be renewed for thirty (30) days upon the filing of” its

Adams App. No. 21CA1142 11

entry ordering the renewal. The Johnsons filed their notice of appeal from the August 5,

2020 entry on September 24, 2021.

II. ASSIGNMENTS OF ERROR

{¶19} The Johnsons present two assignments of error:

I. The Trial Court’s Decision granting Judgment in favor of Plaintiffs

and against Defendants Steve and Denise Johnson on Count I,

Invasion of Privacy, was against the manifest weight of the evidence.

II. The Trial Court’s Decision Granting Judgment in Favor of Plaintiffs

and against Defendants Steve and Denise Johnson on Count 4—

Absolute Nuisance, was against the manifest weight of the evidence.

{¶20} Under the second assignment, the Johnsons state that one of the issues

presented for review is: “The Trial Court Erred in awarding attorney’s fees to

Plaintiffs/Appellees.” This issue is beyond the scope of the topic specified in the second

assignment of error. Therefore, it should have been characterized as a separate

assignment of error, and we will treat it as the Johnsons’ third assignment of error. See

Chase Bank, USA v. Curren, 191 Ohio App.3d 507, 2010-Ohio-6596, 946 N.E.2d 810, ¶

8 (4th Dist.) (treating issue within one of appellant’s two assignments of error which bore

“no relation to any of the topics specified in that assignment” and “should have been

characterized as a separate assignment of error” as the appellant’s third assignment of

error).

III. TIMELINESS OF THE APPEAL

{¶21} Initially, we consider the timeliness of this appeal. “App.R. 4 governs the

timing of appeals and must be carefully followed because failure to file a timely notice of

appeal under App.R 4(A) is a jurisdictional defect.” In re H.F., 120 Ohio St.3d 499, 2008-

Ohio-6810, 900 N.E.2d 607, ¶ 17. App.R. 4(A)(1) states: “Subject to the provisions of

Adams App. No. 21CA1142 12

App.R. 4(A)(3), a party who wishes to appeal from an order that is final upon its entry

shall file the notice of appeal required by App.R. 3 within 30 days of that entry.” The

Johnsons filed their notice of appeal from the August 5, 2020 entry on September 24,

2021, i.e., more than 30 days after the entry.

{¶22} Nothing in the appellate rules authorizes a trial court to enlarge the time for

appeal in App.R. 4 based on a delay of clerk’s service; however, App.R. 4(A)(1) is subject

to App.R. 4(A)(3), which states: “In a civil case, if the clerk has not completed service of

notice of the judgment within the three-day period prescribed in Civ.R. 58(B), the 30-day

periods referenced in App.R. 4(A)(1) and 4(A)(2) begin to run on the date when the clerk

actually completes service.” Civ.R. 58(B) states:

When the court signs a judgment, the court shall endorse thereon a

direction to the clerk to serve upon all parties not in default for failure to

appear notice of the judgment and its date of entry upon the journal. Within

three days of entering the judgment upon the journal, the clerk shall serve

the parties in a manner prescribed by Civ.R. 5(B) and note the service in

the appearance docket. Upon serving the notice and notation of the service

in the appearance docket, the service is complete. The failure of the clerk

to serve notice does not affect the validity of the judgment or the running of

the time for appeal except as provided in App.R. 4(A).

(Emphasis added.) “ ‘Pursuant to Civ.R. 58(B), the clerk must * * * indicate on the

docket the names and addresses of the parties it is serving the judgment upon, the

method of service, and the costs associated with the service. When these steps are

followed, there is no question whether service was perfected according to rule.’ ”

(Emphasis sic.) In re E.S., 4th Dist. Pickaway Nos. 17CA16, 17CA17, 2018-Ohio-1902,

¶ 20, quoting Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C., 141 Ohio

St.3d 542, 2015-Ohio-241, 26 N.E.3d 806, ¶ 3. “[T]he thirty-day time to appeal does not

Adams App. No. 21CA1142 13

begin to run until the clerk serves notice and notes service in the appearance docket in

accordance with Civ.R. 58(B), as interpreted in Gator Milford.” Id. at ¶ 21.

{¶23} In this case, there is a notation in the docket that the clerk sent a copy of a

judgment entry—presumably the August 5, 2020 judgment entry—to the Johnsons’

attorney by regular U.S. mail on August 7, 2020. The notation is incomplete because it

does not include counsel’s address or the costs associated with the service, and it is false

because the clerk averred that a deputy clerk inexplicably “held the mailing,” so the clerk’s

office did not in fact mail the August 5, 2020 entry until August 17, 2020. Because the

clerk did not complete service of notice of the August 5, 2020 judgment within the three-

day period prescribed in Civ.R. 58(B), App.R. 4(A)(3) applies, and the 30-day period in

App.R. 4(A)(1) begins to run on the date the clerk actually completes service.

{¶24} The clerk has not yet completed service of the August 5, 2020 entry in

accordance with Civ.R. 58(B). Although the clerk averred that the entry was mailed on

August 17, 2020, the clerk made no notation of service on that date in the docket.

Therefore, the 30-day period in App.R. 4(A)(1) has not yet begun to run, and we consider

the Johnsons’ appeal to be timely.

IV. MANIFEST WEIGHT OF THE EVIDENCE

A. Standard of Review

{¶25} In reviewing whether a trial court’s decision is against the manifest weight

of the evidence, an appellate court

weighs the evidence and all reasonable inferences, considers the credibility

of the witnesses and determines whether in resolving conflicts in the

evidence, the finder of fact clearly lost its way and created such a manifest

miscarriage of justice that the judgment must be reversed.

Adams App. No. 21CA1142 14

Moreover, when reviewing the evidence under this standard, we are

aware that the weight and credibility of the evidence are to be determined

by the trier of fact; we thus defer to the trier of fact on these issues because

it is in the best position to gauge the witnesses’ demeanor, gestures, and

voice inflections, and to use these observations to weigh their credibility.

The trier of fact is free [to] believe all, part, or none of any witness's

testimony.

Ultimately, a reviewing court should find a trial court’s decision is

against the manifest weight of the evidence only in the exceptional case in

which the evidence weighs heavily against the decision.

(Citations omitted.) Wootten v. Culp, 2017-Ohio-665, 85 N.E.3d 198, ¶ 19-21 (4th Dist.).

{¶26} App.R. 12(C)(1) provides that when a civil action is tried to the trial court

and a majority of judges hearing the appeal

find that the judgment or final order rendered by the trial court is against the

manifest weight of the evidence and have not found any other prejudicial

error of the trial court in any of the particulars assigned and argued in the

appellant’s brief, and have not found that the appellee is entitled to judgment

or final order as a matter of law, the court of appeals shall reverse the

judgment or final order of the trial court and either weigh the evidence in the

record and render the judgment or final order that the trial court should have

rendered on that evidence or remand the case to the trial court for further

proceedings.

B. Invasion of Privacy

{¶27} In their first assignment of error, the Johnsons contend that the judgment

against them on the invasion of privacy claim is against the manifest weight of the

evidence. The Johnsons assert the Morlatts “failed to establish the necessary legal

predicates for any of their claims” because “the core of each claim centered upon three

key allegations that are either false, or unproven: 1) that the Defendants/Appellants

Johnsons do not own the land upon which the entirety of Johnson/Stoney Road is located,

2) that the Morlatts have proven a road right of way to Stoney Road that abuts the entire

southern border of their property, and that 3) via the right of way, they have unrestricted

Adams App. No. 21CA1142 15

ability to construct any improvement in the right of way that they choose to do.” [Id.] The

Johnsons claim that the Morlatts “made no attempt to establish * * * where their property

actually ends and whether they in fact have access to any road right of way that may

exist.” [Id. at 14] The Johnsons also claim that the Morlatts presented no evidence “that

they ever sought or obtained a permit to make the improvements they started May 8,

2019.”

{¶28} In addition, the Johnsons contend that the denial of an electricity easement

and the driveway incident do not support an invasion of privacy claim because “[e]very

aspect of the matters testified to [was] in the public domain—and in fact occurred in actual

public.” The Johnsons also claim they were “entirely within their rights” to question the

removal of the posts and driveway construction. They assert that the Morlatts removed

posts within the Johnsons’ property line without permission and that the Morlatts did not

conduct “a survey to ensure their right of way abutted their property at the location where

they placed the driveway,” obtain a permit, or advise the Johnsons of their plan. The

Johnsons also assert that Mr. Johnson’s act of swearing out a criminal mischief complaint

is not an invasion of privacy.

{¶29} “The right of privacy is the right of a person to be let alone, to be free from

unwarranted publicity, and to live without unwarranted interference by the public in

matters with which the public is not necessarily concerned.” Housh v. Peth, 165 Ohio St.

35, 133 N.E.2d 340 (1956), paragraph one of the syllabus. Relevant here, one actionable

invasion of the right of privacy is “the wrongful intrusion into one’s private activities in such

a manner as to outrage or cause mental suffering, shame or humiliation to a person of

ordinary sensibilities.” Id. at paragraph two of the syllabus. This “has also been called

Adams App. No. 21CA1142 16

‘intrusion upon seclusion.’ ” Lunsford v. Sterilite of Ohio, L.L.C., 162 Ohio St.3d 231,

2020-Ohio-4193, 165 N.E.3d 245, ¶ 32. The Supreme Court of Ohio has stated:

“Intrusion upon seclusion” is based on the “right to be left alone.” People

for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615,

630, 895 P.2d 1269 (1995). It is “akin to trespass in that it involves intrusion

or prying into the plaintiff’s private affairs.” Killilea v. Sears, Roebuck & Co.,

27 Ohio App.3d 163, 166, 499 N.E.2d 1291 (10th Dist.1985). “ ‘One who

intentionally intrudes, physically or otherwise, upon the solitude or seclusion

of another or his private affairs or concerns, is subject to liability to the other

for invasion of his privacy, if the intrusion would be highly offensive to a

reasonable person.’ ” Sustin v. Fee, 69 Ohio St.2d 143, 145, 431 N.E.2d

992 (1982), quoting Restatement of the Law 2d, Torts, Section 652B (1977).

Whether an invasion of privacy has occurred turns on the particular facts of

the case. However, the right to privacy is not absolute.

(Citations omitted.) Id. at ¶ 33.

{¶30} In this case, there is no evidence that the Johnsons intruded upon the

solitude or seclusion of the Morlatts or their private affairs or concerns. The activities

intruded into—the electric crew’s work and the driveway construction—were not private.

The activities occurred on or within view of a public right-of-way located on the Johnsons’

property. The Morlatts had no reasonable expectation of privacy in the area in which the

intrusions occurred. Therefore, we conclude that the judgment on the invasion of privacy

claim against the Johnsons is against the manifest weight of the evidence. The trial court

clearly lost its way and created such a manifest miscarriage of justice that the judgment

must be reversed. We sustain the first assignment of error, and we reverse the trial

court’s judgment with respect to the invasion of privacy claim against the Johnsons.

C. Absolute Nuisance

{¶31} In their second assignment of error, the Johnsons contend that the

judgment against them on the absolute nuisance claim is against the manifest weight of

the evidence. The Johnsons maintain that there is no evidence they engaged in any

Adams App. No. 21CA1142 17

“unlawful/intentional” acts. The Johnsons assert that they had no duty to grant the

Morlatts an electricity easement and that Mr. Morlatt admitted on cross-examination that

Mr. Johnson did not prevent “ ‘Rural Electric from putting a utility easement, electricity to

[the Morlatt] property.’ ” With respect to the driveway incident, the Johnsons assert that

the Morlatts removed fence posts which “did not belong to them” and “began dumping

gravel and constructing a driveway in land owned by the Johnsons.” The Johnsons argue

that “[i]f by reason of a right of way the Morlatts are permitted to construct a driveway

from Stoney Road to their property, they neither provided evidence of this right of way or

that their property abutted it.” Therefore, the Johnsons maintain that “it was imminently

reasonable for [them] to believe the Morlatts were trespassing, or at a minimum, that the

Morlatts were making improvements in a right of way without appropriate permits.” The

Johnsons also suggest that the Morlatts did not suffer harm which would support a

nuisance claim because they “could not and did not prove diminished property value,”

“they offered no evidence of physical harm,” and their “purported evidence of ‘emotional

injury’ consisted of having to defend their attempt to conduct un-permitted, unfettered

improvements on property either owned by the Johnsons, or subject to the road right of

way.”

{¶32} “ ‘There is perhaps no more impenetrable jungle in the entire law than that

which surrounds the word ‘nuisance.’ ” Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio

App.3d 704, 712, 622 N.E.2d 1153 (1993), quoting Prosser & Keeton, The Law of Torts,

Section 86, 616 (5th Ed.1984). “ ‘ “Nuisance” is a term used to designate the wrongful

invasion of a legal right or interest.’ ” Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210,

2010-Ohio-2470, 932 N.E.2d 313, ¶ 17, quoting Taylor v. Cincinnati, 143 Ohio St. 426,

Adams App. No. 21CA1142 18

431-432, 55 N.E.2d 724 (1944). “ ‘It comprehends not only the wrongful invasion of the

use and enjoyment of property, but also the wrongful invasion of personal legal rights and

privileges generally.’ ” Id., quoting Taylor at 432. “However, such right or interest may

be invaded by any one of several types of wrongful conduct, and the liability of a

defendant, in any case, depends upon the type of his wrongful conduct with respect to

the right or interest invaded.” Taylor at 432.

{¶33} A private nuisance is “a nontrespassory invasion of another’s interest in the

private use and enjoyment of land.” Brown at 712, citing Restatement of the Law 2d,

Torts, Section 821D, at 100 (1979). “Unlike a public nuisance, a private nuisance

threatens only one or few persons.” Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-

Ohio-7042, 903 N.E.2d 1284, ¶ 7, citing Taylor at 442. “A private nuisance may be

categorized as either an absolute or a qualified nuisance.” Adkins v. Boetcher, 4th Dist.

Ross No. 08CA3060, 2010-Ohio-554, ¶ 16. “As distinguished from a qualified nuisance

involving negligence, an absolute nuisance consists of either a culpable and intentional

act resulting in harm, or an act involving culpable and unlawful conduct causing

unintentional harm, or a nonculpable act resulting in accidental harm for which, because

of the hazards involved, absolute liability attaches notwithstanding the absence of fault.”

Interstate Sash & Door Co. v. Cleveland, 148 Ohio St. 325, 74 N.E.2d 239 (1947),

paragraph one of the syllabus. In this case, the Morlatts alleged a claim for absolute

nuisance against the Johnsons.

{¶34} “For there to be an action for nuisance, the injury must be real, material,

and substantial.” Banford at ¶ 17, citing Eller v. Koehler, 68 Ohio St. 51, 55, 67 N.E. 89

(1903). Moreover, “[i]t has long been recognized that a nuisance must materially interfere

Adams App. No. 21CA1142 19

with physical comfort.” (Emphasis added.) Id. at ¶ 28. See also id. at ¶ 22, quoting

Antonik v. Chamberlain, 81 Ohio App. 465, 476, 78 N.E. 752 (9th Dist.1947), quoting 39

American Jurisprudence, Nuisance, Section 30 (explaining that in Antonik, the court

“stated that a private nuisance ‘generally turns on the factual question whether the use to

which the property is put is a reasonable use under the circumstances, and whether there

is “an appreciable, substantial, tangible injury resulting in actual, material, physical

discomfort, and not merely a tendency to injure. It must be real and not fanciful or

imaginary, or such as results merely in a trifling annoyance, inconvenience, or discomfort”

’ ”). “ ‘ “The discomforts must be physical, not such as depend upon taste or imagination.

But whatever is offensive physically to the senses, and by such offensiveness makes life

uncomfortable, is a nuisance * * *.” ’ ” Banford at ¶ 28, quoting Weishann v. Kemper, 27

Ohio N.P. (N.S.) 269, 278 (1928), quoting Cleveland v. Citizens Gas Light Co., 20 N.J.Eq.

201, 205-206 (1869).

{¶35} “Damages for nuisance may include diminution in the value of the property,

costs of repairs, loss of use of the property, and compensation for annoyance, discomfort,

and inconvenience.” Id. at ¶ 17. However, the Supreme Court of Ohio has stated: “If the

existence of a nuisance depends upon ‘an appreciable, substantial, tangible injury

resulting in actual, material, physical discomfort,’ then it logically follows that the element

of physical discomfort must be present for a plaintiff to have been damaged by the

nuisance. The same standard must apply whether evaluating the existence of a nuisance

or evidence of the damages caused by the nuisance.” Id. at ¶ 25. Thus, in Banford, the

court held that “in order to recover damages for annoyance and discomfort in a nuisance

claim, a plaintiff must establish that the nuisance caused physical discomfort,” id. at ¶ 28,

Adams App. No. 21CA1142 20

even though the defendant in that case had admitted the existence of a nuisance, id. at

¶ 24. In doing so, the court observed that “ ‘[c]ases supporting recovery for personal

discomfort or annoyance involve either excessive noise, dust, smoke, soot, noxious

gases, or disagreeable odors as a premise for awarding compensation.’ ” Id. at ¶ 26,

quoting Widmer v. Fretti, 95 Ohio App. 7, 18, 116 N.E.2d 728 (6th Dist.1952). “These

conditions affect one’s sight, sound, smell, hearing, or touch, which may cause a physical

discomfort.” Id.

{¶36} In this case, the Morlatts failed to present evidence that they suffered the

requisite injury for the existence of a nuisance. There is evidence from which a trier of

fact could conclude that the Johnsons’ conduct annoyed and inconvenienced the Morlatts

because it resulted in a delay of unspecified duration in the Morlatts getting electric

service to their property and a brief delay in the driveway construction. However, there

is no evidence that the Johnsons created conditions that were offensive physically to the

senses and materially interfered with the Morlatts’ physical comfort. Although there is

evidence the Johnsons made Mr. Morlatt uncomfortable using his property and letting his

daughter live on it, “it is important to distinguish uncomfortable as an emotion versus

being physically uncomfortable.” Scott v. Nameth, 10th Dist. Franklin No. 14AP-630,

2015-Ohio-1104, ¶ 15. “The Supreme Court of Ohio in Banford is clear that ‘[i]t has long

been recognized that a nuisance must materially interfere with physical comfort.’ ” Id.,

quoting Banford at ¶ 28.

{¶37} We observe that in Banford, despite holding that a plaintiff must establish a

nuisance caused physical discomfort to get damages for annoyance and discomfort, the

court later stated that

Adams App. No. 21CA1142 21

a person may recover for annoyance and discomfort for a nuisance,

including fear and other emotions, without a physical component if the

annoyance or discomfort are connected to the person’s loss of use or loss

of enjoyment of property. In Stoll v. Parrott & Strawser Properties, Inc.,

Warren App. No. CA2002-12-133, 2003-Ohio-5717, 2003 WL 22427815, ¶

25, the jury awarded damages for annoyance and discomfort that the

plaintiffs experienced in the use and enjoyment of their property. The

plaintiffs testified that they had been unable to leave their property when it

flooded due to work in a nearby development. After each flooding incident,

they spent two to three days cleaning up debris in their yard.

Banford, 126 Ohio St.3d 210, 2010-Ohio-2470, 932 N.E.2d 313, at ¶ 30. However, Stoll

is distinguishable from this case. “In Stoll, the loss of use caused by flooding of the

property was a real, physical loss of use.” Scott at ¶ 17, citing Banford at ¶ 30 (noting

nuisance “involves a restriction or infringement upon the use and enjoyment of property”

and “must cause damages that are real, material, and substantial”). In this case, Mr.

Morlatt testified that he discontinued use of his property because he was afraid of having

additional negative interactions with the Johnsons and being charged with another crime.

There is no physical reason the Morlatts cannot use their property. Fear and emotional

discomfort are “not enough under the controlling standard articulated in Banford.” Id.

(qualified nuisance claim failed as matter of law where plaintiffs alleged they were

uncomfortable in their home and yard because of defendants’ security cameras but failed

to allege or demonstrate damages from physical discomfort, failed to allege any physical

manifestation of discomfort, and there was no physical reason they could not use their

property).

{¶38} For the foregoing reasons, we conclude the trial court’s judgment on the

absolute nuisance claim against the Johnsons is against the manifest weight of the

evidence. The trial court clearly lost its way and created such a manifest miscarriage of

justice that the judgment must be reversed. We sustain the second assignment of error,

Adams App. No. 21CA1142 22

and we reverse the trial court’s judgment with respect to the absolute nuisance claim

against the Johnsons.

V. ATTORNEY FEES

{¶39} In what we are treating as their third assignment of error, the Johnsons

contend that the trial court erred when it awarded the Morlatts attorney fees. The

Johnsons assert that “Ohio follows the ‘American Rule,’ which provides that a prevailing

party in a civil action may not generally recover its attorney fees as part of the ‘costs of

litigation.’ ” The Johnsons assert no exception to the rule applies in this case.

{¶40} “Ohio courts generally follow the ‘American rule’ with respect

to attorney fees: each party is responsible for its own attorney fees.” Phoenix Lighting

Group, L.L.C. v. Genlyte Thomas Group, L.L.C., 160 Ohio St.3d 32, 2020-Ohio-1056, 153

N.E.3d 30, ¶ 9. “[T]here are exceptions to this rule,” Wilborn v. Bank One Corp., 121 Ohio

St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7, but they “must be narrowly construed,”

Dolan v. Glouster, 4th Dist. Athens Nos. 11CA18, 12CA1, 11CA19, 12CA6, 11CA33,

2014-Ohio-2017, ¶ 113. “Attorney fees may be awarded when a statute or an enforceable

contract specifically provides for the losing party to pay the prevailing party’s attorney

fees, * * * or when the prevailing party demonstrates bad faith on the part of the

unsuccessful litigant * * *.” Wilborn at ¶ 7. Another exception “allows an award of attorney

fees to the prevailing party as an element of compensatory damages when the [finder of

fact] finds that punitive damages are warranted.” Phoenix at ¶ 9. “[W]here a case

presents a legal issue regarding the availability of attorney fees, our review is de novo.”

Shamrock v. Cobra Resources, LLC, 2022-Ohio-1998, 191 N.E.3d 1197, ¶ 114 (11th

Adams App. No. 21CA1142 23

Dist.), citing 2-J Supply, Inc. v. Garrett & Parker, LLC, 4th Dist. Highland No. 13CA29,

2015-Ohio-2757, ¶ 9 (reviewing de novo “the legal issue of whether the trial court erred

in refusing to apply a rule of law concerning the availability of attorney’s fees).

{¶41} The trial court did not articulate the basis for the attorney fee award in its

August 5, 2020 entry. The Morlatts did not assert any statutory basis for such an award,

there is no evidence of a contract between the Morlatts and Johnsons, and the trial court

did not award any punitive damages. Even if the trial court concluded that the Morlatts

demonstrated bad faith on the part of the Johnsons, in light of our rulings on the first and

second assignment of error, the Morlatts are no longer the prevailing party with respect

to any of their claims against the Johnsons. See generally Black’s Law Dictionary (11th

Ed.2019) (defining a “prevailing party” as one “in whose favor a judgment is rendered,

regardless of the amount of damages awarded”). Therefore, we cannot discern any basis

for deviation from the American Rule in this case, conclude the trial court erred when it

awarded attorney fees, and sustain the third assignment of error.

VI. CONCLUSION

{¶42} For the foregoing reasons, we sustain the assignments of error, reverse the

trial court’s judgment, and remand for further proceedings consistent with this opinion.

JUDGMENT REVERSED

AND CAUSE REMANDED.

Adams App. No. 21CA1142 24

APPENDIX

Adams App. No. 21CA1142 25

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS

REMANDED. Appellees shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Adams

County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of

this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________

Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment

entry and the time period for further appeal commences from the date of filing with

the clerk.