Cottrell v. American Electric PowerCottrell v. American Electric Power
D. Patrick Kasso, for appellees.
OPINION
ROGERS, Judge.
{¶ 1} Although originally placed on our accelerated calendar, we elect, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.
{¶ 2} The plaintiff-appellant, David Cottrell, appeals the judgment of the Paulding County Common Pleas Court, granting summary judgment in favor of the defendants-appellees, American Electric Power (“AEP“) and Asplundh Tree Expert Co. (“Asplundh“), and dismissing his complaint. On appeal, Cottrell contends that the trial court had subject-matter jurisdiction over his cause of action for negligence and that genuine issues of material fact existed on his claims of trespass, conversion, and
{¶ 3} In June 2005, Cottrell filed a complaint alleging that AEP destroyed two trees located on his real property through excessive trimming. Cottrell also alleged that the falling debris damaged his slate sidewalk. Cottrell sought monetary compensation, including treble damages for the trees pursuant to
{¶ 4} Both AEP and Asplundh answered the complaint and asserted, inter alia, that the trees at issue were within the right-of-way/easement belonging to AEP and that they had legal authority to access and trim the trees at issue. In April 2006, Cottrell was deposed by counsel for AEP and Asplundh. During his deposition, Cottrell testified that he had bought his home in Antwerp, Ohio, in 1981. He further testified that sometime during the late spring or early summer of 2004, Asplundh employees came to his home and trimmed two trees that were located on his property and that were not in the right-of-way. Cottrell explained that they had not merely cut limbs that were located in the right-of-way and that were near the power lines, but that they had cut limbs that were not in the right-of-way and had cut excessively into the tree. Cottrell complained to the foreman but was told by the foreman that he “could do whatever he wanted.” Cottrell was also questioned about a report he obtained from an arborist, Robert J.
{¶ 5} In November 2006, AEP and Asplundh filed a joint motion for summary judgment as to Cottrell‘s claim for treble damages pursuant to
{¶ 6} The parties agreed to attempt mediation. However, in February 2007, AEP and Asplundh filed a mоtion for judgment on the pleadings, alleging that Cottrell‘s complaint did not state a claim for negligence. The trial court did not rule on this motion. The following day, the mediation report was filed. This report indicated that the parties agreed on all but one issue, involving Cottrell‘s other property located in Carryall Township. In June 2007, AEP and Asplundh filed a motion to enforce the settlement agreement, which the trial court denied. AEP and Asplundh filed a motion to vacate the temporary orders issued in June 2005 regarding Cottrell‘s other property in Carryall Township. The trial court granted this motion. Thereafter, AEP and Asplundh filed a second motion to enforce the settlement agreement, and the trial court overruled this motion as well.
{¶ 7} In August 2008, AEP and Asplundh filed a motion to dismiss pursuant to
{¶ 8} Subsequent to our decision in Cottrell I, AEP and Asplundh once again filed a motion to dismiss for lack of subject-matter jurisdiction, relying on Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, which was decided by the Ohio Supreme Court in June 2009, four months after our decision in Cottrell I. The trial court converted this motion to a motion for summary judgment pursuant to
{¶ 9} In October 2009, AEP and Asplundh filed a motion for summary judgment with a memorandum in support. Attached to this motion were, inter alia, the affidavit of Douglas Dunakin, a registered professional surveyor; a copy of the survey performed by Dunakin of Cottrell‘s property; the affidavit of Keith Confere, a supervisor for Asplundh who photographed the area of Cottrell‘s property at issue in 2008; several of the photographs taken by Confere; the affidavit of Jeffrey Ling, a registered consulting arborist who took photographs of the property in dispute in July 2006; and several of the photographs taken by Ling. Cottrell filed his response to this motion in November 2009. Attached to Cottrell‘s response were the affidavit of R.J. Laverne,2 an employеe of Davey Tree Company who took photographs of Cottrell‘s property in November 2004, and several photographs of Cottrell‘s property that were taken by Laverne. Two weeks after Cottrell filed his response, AEP and Asplundh filed a reply.
{¶ 10} On May 10, 2010, the trial court rendered its decision. The trial court found that the sidewalk was entirely within the right-of-way and that a substantial portion of the foliage from the two trees was also within the right-of-way. The court further found that it had previously determined in its decision regarding the
{¶ 11} It is from this judgment that Cottrell appeals, presenting the following assignment of error for our review.
Thе trial court erred in granting defendant/appellee‘s motion for summary judgment.
{¶ 12} In his sole assignment of error, Cottrell contends that the trial court improperly weighed the evidence before it and made factual determinations based thereon rather than construing the evidence in a light most favorable to the non-moving party, i.e. Cottrell, as required by
{¶ 13} An appellate court reviews a summary judgment order de novo. Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175, 722 N.E.2d 108. Accordingly, a reviewing court will not reverse an otherwise correct judgment merely because the lower court used different or erroneous reasons as the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, 774 N.E.2d 775, ¶ 25, citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 222, 631 N.E.2d 150. Summary judgment is appropriate when, looking at the evidence as a whole, (1) there is no genuine issue as to any material fact; (2) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made; and, therefore, (3) the moving party is entitled to judgment as a matter of law.
{¶ 14} The party moving for summary judgment has the initial burden of producing some evidence that demonstrates the lack of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. In doing so, the moving party is not required to produce any affirmative evidence but must identify those portions of the record that affirmatively support his
Trespass, Conversion, and R.C. 901.51
{¶ 15} In Cottrell I, we found that although Cottrell‘s complaint was poorly drafted, it alleged claims for conversion, trespass, and treble damages under
{¶ 16} As previously noted, the trial court found that there was no genuine issue of fact that AEP and Asplundh were privileged to cut the trees at issue. In so doing, the trial court determined that a substantial portion of the foliage of the two trees was within the right-of way and that Asplundh had trimmed the trees that were in proximity to AEP‘s power lines.
{¶ 17} Our review of the record reveals that the only evidence of AEP‘s and Asplundh‘s privilege to cut these trees is the survey of Dunakin. This survey, the аccuracy of which is not in dispute, reveals that a highway right-of way3 extends to the inside edge of the sidewalk at issue, placing the sidewalk entirely within the right-of-way; the electrical poles and power lines are located entirely in the right-of-way; the trunks of the two trees at issue are located solely on Cottrell‘s property and not in the right-of-way; and an undetermined amount of
{¶ 18} Although we acknowledge that a company engaged in the transmission and distribution of electrical current has a duty “to exercise the highest degree of care consistent with the practical operation of its business in the construction, maintenance and inspection of its equipment,” Otte v. Dayton Power & Light Co. (1988), 37 Ohio St.3d 33, 38, 523 N.E.2d 835, this duty does not give the company unbridled discretion to trespass, convert, or destroy another‘s property. In fact, as we stated in Cottrell I, 3d Dist. No. 11-08-11, “[w]hen public utilities exceed the scope of their easements, the injured party may seek recourse in the court of common pleas for common-law trespass or under
{¶ 19} Even assuming arguendo that AEP and Asplundh had the authority to trim trees in the right-of-way, Cottrell testified that a significant amount of the trimming occurred over his property rather than over the right-of-way, including the trimming of branches that were growing away from the power lines. In support of this testimony, he submitted photographs of these trees that were taken during late autumn a few months after the trimming occurred when the trees had no leaves. These photographs appear to show many cut-off points on the trees that are directly above the trunk or in directions going away from the pоwer lines, which place these limbs completely outside of the right-of-way.
{¶ 20} AEP and Asplundh presented no evidence to refute that these cuts were made by Asplundh during the trimming it performed of Cottrell‘s trees in 2004. While they did present photographs that were taken in the summers of 2006 and 2008, these photographs were taken two and four years, respectively, after the cutting occurred. Further, these photographs depict the trees with significant amounts of foliage and are taken at angles that make it difficult to observe the cuts and their locations in relation to the right-of-way. Thus, when construing the evidence in a light most favorable to Cottrell, as
{¶ 21} In dismissing the negligence claim, the trial court characterized Cottrell‘s claim as primarily a vegetation-management issue that was within the exclusive jurisdiction of PUCO. PUCO has been given broаd jurisdiction over service-related matters involving public utilities through the enactment of
“First, is PUCO‘s administrative expertise required to resolve the issue in dispute? Second, does the act complained of constitute a practice normally authorized by the utility?” If the answer to either question is in the negative, the claim is not within PUCO‘s exclusive jurisdiction.
Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824, ¶ 12-13, quoting Pacific Indemn. Ins. Co. v. Illum. Co., 8th Dist No. 82074, 2003-Ohio-3954, 2003 WL 21710787, ¶ 15.
{¶ 22} This test was recently applied by the Supreme Court in Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, ¶ 12. In Corrigan, a property owner filed а complaint for injunctive relief to prevent an electric company from removing a tree located within its easement. Id. at ¶ 1-3. In determining whether PUCO had exclusive jurisdiction over the matter, the court specifically noted that the case before it was not about an easement, which is a pure contract matter that would confer subject-matter jurisdiction in the cоurt of common pleas. Id. at ¶ 17. Instead, the court found that the property owner‘s “complaint with the decision to remove the tree is really an attack on the company‘s vegetation-management plan * * * a service-related issue, which is within PUCO‘s exclusive jurisdiction.” Id. at ¶ 20. See also DeLost v. First Energy Corp., 7th Dist. No. 07 MA 194, 2008-Ohio-3086, 2008 WL 2486506.
{¶ 23} AEP and Asplundh now urge us to apply the holding in Corrigan to the case sub judice, as the trial court did, claiming that the sole issue is whether its cutting of the trees was necеssary and reasonable as part of its plan to control vegetation around its power lines. We disagree.
{¶ 24} In Corrigan, the reason the court stated that the case was not about an easement was that no one disputed that the tree being removed by the power company was wholly within the easement of the power company. Corrigan, 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, at ¶ 17. However, as we stated the first time these parties were before us, “[t]his case differs significantly from
{¶ 25} Moreover, Cottrell also asserts that his sidewalk and portions of his lawn were damaged by the fаlling limbs. “Even if it is presumed that the Utilities acted within their rights, when property is damaged during the exercise of easement rights, a property owner may still be entitled to compensation where he has not burdened or interfered with the grantee‘s use of the easement.” Bayes, 2004-Ohio-5752, 2004 WL 2426234, ¶ 73, citing Jones v. Dayton Power & Light Co. (Dec. 14, 1994), 2d Dist. No. 94-CA-49, 1994 WL 702062 (landowner entitled to compensation for trees that “posed a threat to power lines” removed by electriс company crew). These claims are based on pure tort. Accordingly, we find that the trial court had subject-matter jurisdiction over Cottrell‘s negligence claim and erred in dismissing this claim.
Conclusion
{¶ 26} In sum, we find that the trial court erred in granting summary judgment in favor of AEP and Asplundh and dismissing Cottrell‘s complaint. Therefore, the sole assignment of error is sustained.
{¶ 27} Having found error prejudicial to the appellant herein, in the particulars assigned and argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
WILLAMOWSKI, P.J., and PRESTON, J., concur.