STATE v. PALMER
2012-Ohio-757
Supreme Court of Ohio
February 29, 2012
131 Ohio St.3d 283
{¶ 26} The trial court did not prematurely embrace the general issue for trial when it ruled that Ohio‘s sex-offender regulations did not apply to Palmer.
Order Dismissing Indictment
{¶ 27} The state also asks us to review the trial court‘s order that Palmer‘s “name be removed from all sexually oriented [offender] lists maintained by the local, state or federal government.”
Conclusion
{¶ 28} We reverse the decision of the Tenth District Court of Appeals and remand this case to the Franklin County Court of Common Pleas for an order consistent with our decision in Williams as well as with
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Chief Counsel, Appellate Division, for appellee.
Yeura R. Venters, Franklin County Public Defender, and David L. Strait and Shayla L. Werner, Assistant Public Defenders, for appellant.
WIMMER ET AL., APPELLANTS, v. PUBLIC UTILITIES COMMISSION ET AL., APPELLEES.
No. 2011-0563
Supreme Court of Ohio
Submitted January 17, 2012—Decided February 29, 2012.
131 Ohio St.3d 283, 2012-Ohio-757
{¶ 1} Kurt Wimmer and the Wimmer Family Trust (“the Wimmers“) argue that the Public Utilities Commission of Ohio erred in allowing Ohio Edison Company to remove certain trees from a transmission-line easement running over the Wimmers’ property. We disagree and affirm the order of the commission.
I. Background
{¶ 2} Ohio Edison owned a transmission-line easement running over the Wimmers’ property. For years, Ohio Edison, in accordance with the company‘s general policy, had trimmed and (rarely) removed trees growing in the easement. But that policy changed after several tree-to-line contacts contributed to cause a blackout throughout the northeastern United States in 2003. When the company sought to remove the trees in the easement on the Wimmers’ property, the family objected.
{¶ 3} The Wimmers took their complaint to court, where the court of common pleas found in favor of Ohio Edison. On appeal, the court of appeals affirmed, concluding that Ohio Edison‘s easement permitted it to remove the trees. Wimmer Family Trust v. FirstEnergy, 9th Dist. No. 08CA009392, 2008-Ohio-6870, 2008 WL 5387640, ¶ 16. We vacated that judgment “on the authority of Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009.” Wimmer Family Trust v. FirstEnergy Corp., 123 Ohio St.3d 144, 2009-Ohio-4304, 914 N.E.2d 1036, ¶ 1. In Corrigan, we held that the utility‘s easement permitted tree removal but that the commission, not a court, was required to decide whether removal was reasonable. Id. at ¶ 19, 21.
{¶ 4} The Wimmers then took their complaint to the commission. After an evidentiary hearing, the commission ruled in Ohio Edison‘s favor and permitted it to remove the trees. Wimmer v. Ohio Edison Co., Pub. Util. Comm. No. 09-777-EL-CSS (Jan. 27, 2011). The Wimmers appealed to this court, and Ohio Edison has intervened in defense of the order.
II. Discussion
A. The Wimmers’ first two propositions are settled
{¶ 5} The first two propositions of the Wimmers’ brief predominantly address interpretation of the easement held by Ohio Edison. Those issues were not before the commission and are not relevant here because they were settled in an earlier proceeding.
{¶ 7} By disposing of the Wimmers’ earlier litigation on the authority of Corrigan, this court decided the easement issues in favor of Ohio Edison. As in Corrigan, the utility‘s easement over the Wimmers’ property expressly permits the removal of trees. It grants the utility “the right to trim, remove, or control * * * * * * trees as may interfere with or endanger” the utility‘s transmission lines. Even so, the Wimmers argue that their easement does not permit tree removal. We consider that issue settled. See
B. Evidence supported the commission‘s decision
{¶ 8} We thus turn to the issue that is properly presented here: whether the commission erred in finding that removal of the Wimmers’ trees was reasonable. The Wimmers argue that Ohio Edison failed to present evidence that their trees “may interfere with or endanger the utility‘s transmission lines.” In their view, the proffered evidence “was long on Ohio Edison‘s fear and speculation and short on hard facts.”
{¶ 9} Contrary to these assertions, evidence was presented that supported the order. The commission found that “the vegetation in question has the genetic disposition to grow to heights tall enough to potentially interfere with * * * the line.” Wimmer, Pub. Util. Comm. No. 09-777-EL-CSS, at 9. The commission also found that Ohio Edison “reasonably determined that this vegetation may interfere or threaten to interfere with the transmission line and should be removed.” Id. These findings were supported by the expert testimony of Rebecca Spach, who described the trees growing in the right-of-way and explained that “the average mature heights are well above the height of the [line].” Indeed, Spach explained that even with continuous trimming and pruning, at least one tree had already grown to within four feet of the line, in violation of the National Electric Safety Code, which is published by the Institute of Electrical and Electronics Engineers and sets the industry-accepted safety standards.
{¶ 11} Because the Wimmers do not show any error in the commission‘s order, we must affirm. We note with approval the commission‘s admonition that Ohio Edison “attempt to minimize the impact to property owners, to the extent possible and without sacrificing safety and reliability, when performing [utility vegetation-management] activities.” Wimmer, Pub. Util. Comm. No. 09-777-EL-CSS, at 10. Like the Wimmers, Ohio Edison must comply with the commission‘s order.
III. Conclusion
{¶ 12} For the foregoing reasons, we affirm the order of the commission.
Order affirmed.
O‘CONNOR, C.J., and LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Lester S. Potash, for appellants.
Michael DeWine, Attorney General, and William L. Wright, Werner L. Margard III, and Devin D. Parram, Assistant Attorneys General, for appellee.
Jones Day, David A. Kutik, Jeffrey Saks, and Douglas R. Cole, for intervening appellee, Ohio Edison Company.