Corder v. Ohio Edison, Co. , 2019 Ohio 2639 ( 2019 )

[Cite as Corder v. Ohio Edison, Co., 2019-Ohio-2639.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
HARRISON COUNTY
CRAIG D. CORDER ET AL.,
Plaintiffs-Appellants,
v.
OHIO EDISON COMPANY,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 18 HA 0002
Civil Appeal from the
Court of Common Pleas of Harrison County, Ohio
Case No. CVH-2017-0057
BEFORE:
David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Reversed and Remanded.
Atty. Charles Kidder, Kidder Law Firm, LLC., 6375 Riverside Drive, Suite 220, Dublin,
Ohio 43017, for Plaintiffs-Appellants and
Atty. Denise Hasbrook, Roetzel & Andress, LPA, One SeaGate, Suite 1700, Toledo,
Ohio, 43604, for Defendant-Appellee.
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Dated: June, 19, 2019
D’APOLITO, J.
{¶1} Appellants, Craig D. Corder, Jackie C. Corder, and Scott Corder appeal the
judgment entry of the Harrison County Court of Common Pleas finding sua sponte that
the Public Utilities Commission of Ohio (“PUCO”) has exclusive jurisdiction over the issue
raised in this action for declaratory judgment and injunctive relief. Appellants contend
that the plain language of three 1948 easements, which traverse a portion of their
property, prohibits Appellee, Ohio Edison from applying herbicide to control vegetation
growth. Appellee counters that resolution of vegetation control issues requires PUCO’s
administrative expertise, and herbicide application constitutes a practice normally
authorized by the utility. Because the resolution of this matter turns on the interpretation
of an ambiguous term in the easements, the judgment entry of the trial court is reversed
and this matter is remanded for the trial court to interpret the relevant language in the
easements.
STANDARD OF REVIEW
{¶2} The standard of review for a dismissal for lack of subject matter jurisdiction,
pursuant to Civ.R. 12(B)(1), is whether any cause of action cognizable by the forum has
been raised in the complaint. Vos v. State, 7th Dist. Columbiana No. 16 CO 0034, 2017-
Ohio-4005, 91 N.E.3d 217, ¶ 15. Subject matter jurisdiction can be raised by the trial
court sua sponte at any time during the proceedings. Snyder Computer Sys. v. Sayas
Auto Sales, 7th Dist. Jefferson No. 09-JE-6, 2009-Ohio-6759, ¶ 15. A court applying
Civ.R. 12(B)(1) is not confined to the allegations of the complaint and may consider
material pertinent to the subject matter jurisdiction inquiry. DeLost v. First Energy Corp.,
7th Dist. Mahoning No. 07 MA 194, 2008-Ohio-3086, ¶ 17. Lack of subject matter
jurisdiction is a questions of law that we review de novo. Id.
PUCO JURISDICTION
{¶3} The General Assembly enacted R.C. 4901.01 et seq. to regulate the
business activities of public utilities and created PUCO to administer and enforce these
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provisions. Kazmaier Supermarket, Inc. v. Toledo Edison Co., 61 Ohio St. 3d 147, 150,
573 N.E.2d 655 (1991). R.C. 4905.26 provides that PUCO shall hear complaints filed
against public utilities alleging that “any regulation, measurement, or practice affecting or
relating to any service furnished by the public utility, or in connection with such service,
is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or
unjustly preferential.”
{¶4} The Ohio Supreme Court has long recognized that the “ ‘jurisdiction
specifically conferred by statute upon [PUCO] over public utilities of the state * * * is so
complete, comprehensive and adequate as to warrant the conclusion that it is likewise
exclusive.’ ” State ex rel. N. Ohio Tel. Co. v. Winter , 23 Ohio St. 2d 6, 9, 260 N.E.2d 827
(1970), quoting State ex rel. Ohio Bell Tel. Co. v. Cuyahoga Cty. Court of Common Pleas,
128 Ohio St. 553, 557, 192 N.E. 787 (1934); see also Kazmaier, 61 Ohio St. 3d at 152,
573 N.E.2d 655. Nonetheless, the broad jurisdiction of PUCO over service-related
matters does not affect the basic jurisdiction of the court of common pleas in other areas
of possible claims against utilities, including pure tort and contract claims. State ex rel.
Ohio Edison Co. v. Shaker, 68 Ohio St. 3d 209, 211, 625 N.E.2d 608 (1994).
{¶5} In deciding whether the claims raised by the complaint are pure contract or
tort claims that do not fall within PUCO’s exclusive jurisdiction, courts look to the
substance of the claims. In other words, “[c]asting the allegations in the complaint to
sound in tort or contract is not sufficient to confer jurisdiction upon a trial court when the
basic claim is one relating to service, a claim which only [PUCO] has jurisdiction to
resolve.” Higgins v. Columbia Gas of Ohio, Inc., 136 Ohio App. 3d 198, 202, 736 N.E.2d
92 (2002). See, also, State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102 Ohio St. 3d
349, 810 N.E.2d 953, 2004-Ohio-3208, ¶ 19.
{¶6} In Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St. 3d 301, 2008-
Ohio-3917, 893 N.E.2d 824, ¶ 12-13, the Supreme Court of Ohio adopted a two-part
inquiry to determine whether PUCO has exclusive jurisdiction over an action: First, is
PUCO’s administrative expertise required to resolve the issue in dispute? If the answer
is “yes,” a court must determine next if the act complained of constitutes a practice
normally authorized by the utility. Id. at ¶ 11. If both questions are answered in the
affirmative, the claim is within PUCO's exclusive jurisdiction. Id. at ¶ 12.
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{¶7} Nevertheless, the Ohio Supreme Court in Allstate acknowledged that
PUCO is not a court and has no power to judicially ascertain and determine legal rights
and liabilities. Id. at ¶ 6, citing State ex rel. Dayton Power & Light Co. v. Riley, 53 Ohio
St.2d 168, 170, 373 N.E.2d 385 (1978). See New Bremen v. Pub. Util. Comm., 103 Ohio
St. 23, 30-31, 132 N.E. 162 (1921). Stated differently, “[PUCO] does not possess judicial
power and may not adjudicate controversies between parties as to property rights.”
Dayton Communications Corp. v. Pub. Util. Comm., 64 Ohio St. 2d 302, 303-304, 414
N.E.2d 1051 (1980). The Allstate Court also categorically rejected the argument that
every act by a utility is service-related. Id. at ¶ 6.
{¶8} An interested party may recover damages against the public utility for
matters within PUCO’s jurisdiction by invoking the formal complaint procedure outlined in
R.C. 4905.61. If a customer or interested party establishes their claims, they may seek
an award of treble damages against the utility in court. DiFranco v. FirstEnergy Corp.,
11th Dist. Geauga No. 2010-G-2990, 2011-Ohio-5434, 969 N.E.2d 1241, reversed on
other grounds at 134 Ohio St. 3d 144, 2012-Ohio-5445, 980 N.E.2d 996.
DECLARATORY JUDGMENT
{¶9} A declaratory judgment action is a statutory in nature. R.C. 2721.03, reads,
in pertinent part:
* * *any person interested under a deed, will, written contract, or other
writing constituting a contract or any person whose rights, status, or other
legal relations are affected by a constitutional provision, statute, rule as
defined in section 119.01 of the Revised Code, municipal ordinance,
township resolution, contract, or franchise may have determined any
question of construction or validity arising under the instrument,
constitutional provision, statute, rule, ordinance, resolution, contract, or
franchise and obtain a declaration of rights, status, or other legal relations
under it.* * *
{¶10} "To obtain declaratory judgment as an alternative to other remedies, a
plaintiff must demonstrate three elements: (1) that a real controversy exists between
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adverse parties; (2) which is justiciable in nature; (3) and that speedy relief is necessary
to the preservation of rights which may be otherwise impaired or lost." Fairview Gen.
Hosp. v. Fletcher, 63 Ohio St. 3d 146, 148-49, 586 N.E.2d 80 (1992), citing Herrick v.
Kosydar, 44 Ohio St. 2d 128, 130, 339 N.E.2d 626 (1975). Parties to an easement
commonly seek adjudication of disputed issues through the mechanism of declaratory
judgment. See, e.g. Cliffs & Creeks, L.L.C. v. Swallie, 7th Dist. Belmont No. 17 BE 0039,
2018-Ohio-5410; Hills & Hollers, LLC v. Ohio Gathering Co., LLC, 7th Dist. Belmont No.
17 BE 0040, 2018-Ohio-2814, 116 N.E.3d 801, reconsideration denied, 7th Dist. Belmont
No. 17 BE 0040, 2018-Ohio-3425, and appeal not allowed sub nom. Hills & Hollers, L.L.C.
v. Ohio Gathering Co., 154 Ohio St. 3d 1464, 2018-Ohio-5209, 114 N.E.3d 215 : Watson
v. Caldwell Hotel, LLC, 7th Dist. Noble No. 16 NO 0432, 2017-Ohio-4007, 91 N.E.3d 179.
{¶11} An easement is “the grant of a use on the land of another.” Hills & Hollers,
LLC v. Ohio Gathering Co., LLC, 7th Dist. Belmont No. 17 BE 0040, 2018-Ohio-2814,
116 N.E.3d 801, ¶ 28, reconsideration denied, 7th Dist. Belmont No. 17 BE 0040, 2018-
Ohio-3425, ¶ 28, and appeal not allowed sub nom. Hills & Hollers, L.L.C. v. Ohio
Gathering Co., 154 Ohio St. 3d 1464, 2018-Ohio-5209, 114 N.E.3d 215, ¶ 28, citing Alban
v. R.K. Co., 15 Ohio St. 2d 229, 231-232, 239 N.E.2d 22 (1968). When an easement is
created by an express grant, the easement’s extent and limitations depend on the
language in the grant. Id., citing Alban at 232. When the terms of an easement are clear
and unambiguous, a court cannot create new terms by finding an intent not expressed in
the language used. Id., citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St. 2d 241,
246, 374 N.E.2d 146 (1978). The language of the easement, considered in light of the
surrounding circumstances, is the best indication of the extent and limitations of the
easement. State ex rel. Wasserman v. Fremont, 140 Ohio St. 3d 471, 2014-Ohio-2962,
20 N.E.3d 664, ¶ 28, citing Apel v. Katz, 83 Ohio St. 3d 11, 17, 697 N.E.2d 600 (1998).
THE EASEMENTS
{¶12} Appellee is a public utility providing electric service to its customers.
Appellants own four parcels of land in Township of Nottingham, Harrison County. 12.1
acres of Appellants’ property (“Property”) are traversed by three separate easements.
Case No. 18 HA 0002
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The easements were executed in 1948 by previous owners of the Property. The
easements contain identical language and grant to Appellee:
the right to erect, inspect, operate, replace, repair, patrol and permanently
maintain upon, over and along the above described right-of-way across said
premises all necessary structures, wires and other usual fixtures and
appurtenances used for or in connection with the transmission and
distribution of electric current, and the right of ingress and egress upon, over
and across said premises for access to and from said right-of-way, and the
right to trim, cut and remove at any and all times such trees, limbs,
underbrush or other obstructions as in the judgment of [Appellee] may
interfere with or endanger said structures, wires or appurtenances, or their
operation.
(Emphasis added)(Bloss Aff.; Exh. C).
{¶13} The parties agree that the easements are valid and enforceable. They
further agree that the easements’ language is clear and unambiguous. However, they
disagree about the plain meaning of the term “remove” as it relates to the use of herbicide
for vegetation control.
FACTS AND PROCEDURAL HISTORY
{¶14} Appellants filed this declaratory judgment action seeking a statement of the
parties’ rights based on the contractual language of the easements in response to a
written notice in 2017 that Appellee intended to apply herbicide to the Property.
Appellants also requested an injunction prohibiting Appellee from applying the herbicide.
{¶15} Cross-motions for summary judgment were filed. Appellee did not assert
that PUCO had exclusive jurisdiction over the issue raised by Appellants, but, instead,
argued that the term “remove” should be broadly interpreted to fulfill the clearly-articulated
purpose of the easements.
{¶16} After briefing was complete, the trial court conducted a final pretrial in an
effort to facilitate a settlement. No argument or further evidence was presented at the
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final pretrial conference, and the parties were unable to reach a compromise. On the
same day, the trial court issued the judgment entry at issue here, finding sua sponte that
PUCO had exclusive jurisdiction over the claims. (5/17/08 J.E.) This timely appeal
followed.
{¶17} Appellee provided the following undisputed evidence. Appellee and its
affiliated companies maintain approximately 7,000 miles of transmission lines in Ohio,
including the double circuit high voltage transmission line on the Property, which carries
138,000 volts (or 138 kilovolts (kV))(“Line”). The Line is connected to the grid, which
carries electricity at high voltages over long distances to deliver bulk power to cities and
neighborhoods served by Appellee and other utilities, including American Electric Power’s
Nottingham Substation and the Holmes-Wayne Electric Cooperative’s Reedsburg
substation.
{¶18} A fault or failure of the Line could adversely impact reliable service to an
indeterminate number of customers served by Appellee and the substations. If the Line
is too close to surrounding vegetation, it could result in outages from failure of the Line,
as well as fire, serious injury, or death.
{¶19} Vegetation that contacts a transmission line is dangerous because it
instantly becomes an alternate grounding path for the electricity, and the Line itself would
short-circuit or fault if contact is made. Not only would a vegetation-line contact result in
widespread outages, but vegetation contacting or growing in close proximity to a
transmission line may start tree or brush fires, which can spread to surrounding vegetation
and structures and cause severe property damage. Accordingly, prevention of
vegetation/line contacts is critical to public safety and the reliability of the utility’s
operations.
{¶20} The National Electrical Safety Code (“NESC”) has been adopted by PUCO
and is codified in Ohio Administrative Code § 4901:1-10-06. It sets forth clearances that
must be maintained between transmission lines and other objects to prevent unwanted
contact with the lines. Vegetation that grows tall enough to encroach on established
NESC clearance zones will interfere with the safe and reliable operation of the Line on
the Property.
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{¶21} Electric utilities became markedly more sensitive to the risks of transmission
line-vegetation contacts after the 2003 blackout. As a result of the 2003 blackout, the
Federal Electric Regulatory Commission (“FERC”) and its enforcement arm, the National
Electric Reliability Commission (“NERC”), developed standards and requirements to
ensure that another blackout would not occur. Each utility was required to develop and
implement a Transmission Vegetation Management Program (“TVM Program”) as part of
this effort, which adhered to established industry mandates for vegetation management
near all transmission lines.
{¶22} Appellee’s TVM Program complies with the mandates of the Ohio Adm.
Code, NERC, FERC and ANSI (American National Standards Institute) A300. Appellee’s
TVM Program consists of a plan submitted to PUCO pursuant to Ohio Administrative
Code § 4901:1-10-27(E)(1)(f) (“Plan”) and a set of specifications detailing the Plan
(“Specifications”) developed for representatives charged with its implementation. The
Specifications incorporate best management practices established by the ANSI A300
Standard for Tree Care Operation, Trees, Shrubs and Other Woody Plant Management
and the Integrated Vegetation Management for Utility Rights of Way, an ANSI A300
companion publication.
{¶23} Because the results of vegetation contacts with a transmission line can be
catastrophic, the goal of Appellee’s TVM Program and those of other utilities is not simply
to mitigate risk, but to totally eliminate incompatible vegetation with the potential to
interfere with the safe and efficient operation of the transmission lines. Herbicide are a
key component to the removal of incompatible vegetation such as underbrush.
{¶24} In targeting vegetation for removal, the TVM Program distinguishes
“compatible” from “incompatible” vegetation. Incompatible vegetation is all vegetation that
will grow tall enough to interfere with overhead electric facilities or which impedes the
ability to visually inspect the transmission corridor from structure to structure. In contrast,
compatible vegetation such as grass, forbs and small shrubs will never grow tall enough
to affect the safety and reliability of the transmission system because it cannot reach
sufficient height to threaten adequate clearances. Compatible vegetation is encouraged
to grow and efforts are taken for its preservation.
Case No. 18 HA 0002
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{¶25} Appellee’s TVM Plan defines “vegetation control” as “the removal of
vegetation that has the potential to interfere with the safe and efficient operation of the
transmission system.” (Id. at ¶ 6, Exh. A 3). The TVM Plan requires removal of all
incompatible vegetation from edge to edge of the right of way that has the potential to
interfere with the safe and efficient operation of the lines. Herbicide is specifically
mandated under the Specifications as the method to control incompatible vegetation less
than six inches in diameter at breast height.
{¶26} Rogerio Maldonado, an ISA Certified Arborist, Utility Specialist, and a
Transmission Forestry Specialist with over 33 years of experience in the green industry,
opined that incompatible vegetation on the Property that meets the criteria of six inches
in diameter or less at breast height must be removed through use of herbicide. Otherwise,
the vegetation may interfere with the safe operation of the transmission line. If such
incompatible vegetation is left unmanaged, Maldonado opined that it could grow as high
as 50-80 feet and interfere with the safe operation of the Line.
{¶27} Maldonado and his forestry team developed a specific work plan for removal
of incompatible vegetation from the Property in May of 2017 (“Work Plan”). The Work
Plan required removal of incompatible vegetation on 3.9 acres or 32.2% of the total 12.1
acres encompassed by the easements on the Property, through the application of an
herbicide registered with the Environmental Protection Agency.
{¶28} Incompatible vegetation exceeding the threshold of six inches in diameter
at breast height was cut down and removed with Appellants’ permission on June 8, 2017
and June 12, 2017. However, that effort provided only temporary “hot-spotting” measures
to maintain adequate minimal clearance while this litigation was pending. Based on
Maldonado’s judgment and experience, herbicide must be applied to the 3.9 acres to
prevent interference with the Line. As of the date of his testimony, the Property was out
of compliance with the specifications of the TVM Program.
{¶29} Appellee concedes that herbicides have not been previously used to control
incompatible vegetation on the easements. Because prior vegetation had been removed
without the use of herbicides in the past, the incompatible vegetation on the Property has
become denser because the cut stumps sprouted numerous stems. Maldonado opined
that herbicide must now be used to properly maintain the Line.
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{¶30} Salvatore Quattrocchi, the President of EnviroSolutions Group, an
agricultural consulting firm serving public utilities and governmental agencies, with over
35 years of experience in the agricultural chemical specialty industry, opined that the
herbicide proposed to be used on the Property is safe. He further opined that Appellees’
TVM Program is consistent with sound, accepted utility industry practices for application
and use of such herbicide. Quattocchi warranted that the proposed herbicide will not have
any effect on desirable plants, mammals, reptiles, insects, birds, or bee pollinators.
ANALYSIS
{¶31} Appellants advance a single assignment of error:
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DISMISING THE CORDERS’
DECLARATORY JUDGMENT CLAIM THAT SEEKS THE
CONSTRUCTION OF THE EASEMENTS AND A DECLARATION OF
THE PARTIES’ RIGHTS THEREUNDER FOR LACK OF SUBJECT
MATTER JURISDICTION.
{¶32} In dismissing this action for lack of subject matter jurisdiction, the trial court
relied exclusively upon our decision in DeLost, 2008-Ohio-3086. The DeLosts filed an
action to enjoin the utility from cutting white pine trees and vegetation they planted on a
portion of their property subject to an easement. The specific language of the easement
at issue in DeLost is not quoted in the opinion, however we characterized the issue
presented in that case as follows: “[W]hether an action seeking to stop a utility company
from cutting down trees within an easement that it owns is actionable exclusively with the
PUCO or involves a pure contract claim that invokes the jurisdiction of the common pleas
court.” Id. at ¶ 24.
{¶33} Applying the test announced in State ex rel. Columbia Gas of Ohio v.
Henson, 102 Ohio St. 3d 349, 2004-Ohio-3208, 810 N.E.2d 953, we cited numerous
sections of the Ohio Administrative Code governing vegetation management and
concluded that the issue presented in DeLost was “manifestly service-related.” DeLost,
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supra, ¶ 40. We observed that, “[s]ince vegetation management within an easement is
included in that chapter of the Ohio Administrative Code, we must conclude that cutting
down vegetation is a practice relating to service as contemplated by R.C. 2905.26.” Id.
{¶34} The decision in DeLost was cited with favor by the Ohio Supreme Court the
following year in Corrigan v. Illum. Co., 122 Ohio St. 3d 265, 2009-Ohio-2524, 910 N.E.2d
1009 (2009). In Corrigan, the property owners filed a complaint for injunctive relief to
prevent the utility from cutting a silver maple tree located within the utility’s easement,
which, according to the utility, had the potential to interfere with a power line. Id. at ¶ 2.
{¶35} The easement in Corrigan, which the Ohio Supreme Court concluded was
unambiguous, read, in pertinent part:
Said right and easement shall include the right of the Grantee, its
successors and assigns, at all times to enter upon the right of way occupied
by said transmission lines for the purpose of constructing, inspecting,
protecting, repairing or removing said towers, wires, fixtures and
appliances, together with full authority to cut and remove any trees, shrubs
or other obstructions upon the above described property which may
interfere or threaten to interfere with the construction, operation and
maintenance of said transmission lines.
Id. at ¶ 18.
{¶36} The utility asserted that the trial court lacked subject matter jurisdiction over
the action. Id. at ¶ 5-6. The trial court and the Eight District Court of Appeals disagreed,
finding that no evidence had been offered to show that the silver maple tree threatened
to interfere with the transmission lines. However, the Ohio Supreme Court reversed,
holding that jurisdiction over Corrigan’s claims rested with PUCO. Id. at ¶ 21.
{¶37} Applying the two-part test announced in Allstate, supra, the Supreme Court
determined that the utility’s “decision to remove a tree is governed by its vegetation-
management plan, which is regulated by PUCO.” Id. The Supreme Court further
determined that the act complained of constituted a practice normally authorized by the
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utility because “[v]egetation management is necessary to maintain safe and reliable
electrical service.” Id. at ¶ 16.
{¶38} In its decision, the Ohio Supreme Court specifically rejected the property
owners’ argument that the issue was a matter of contract, because there was no question
that the utility had a valid easement and that the tree was within the easement. Id. at ¶
17. The Ohio Supreme Court found that the easement was unambiguous and granted to
the utility the right to cut and remove any tree within the easement that could pose a threat
to the transmission lines.” Id. at ¶ 18-19. Because the case did not involve the
interpretation of the language of the easement, but, rather, a challenge to the utility’s
discretion to cut and remove a tree under its vegetation management plan, the Ohio
Supreme Court opined that the challenge involved a service-related issue that fell within
PUCO's exclusive jurisdiction:
It is clear from the record that the Corrigans are not contesting the meaning
of the language of the easement but rather the company’s decision to
remove the tree instead of pruning it. In 2000, the company changed its
vegetation-management plan so that its policy was to remove vegetation
that threatened to interfere with its lines. Although the Corrigans disagree
with this policy, the broad language of the easement granted to the
company allows the utility to remove trees within its easement that may
interfere or threaten to interfere with its power lines. Therefore, the
Corrigans’ complaint with the decision to remove the tree is really an attack
on the company’s vegetation-management plan. That type of complaint is a
service-related issue, which is within PUCO’s exclusive jurisdiction.
Id. at ¶ 20.
{¶39} Appellants correctly argue that the facts here are distinguishable from the
facts in Corrigan and DeLost. In Corrigan, the Ohio Supreme Court conceded that the
Corrigans did not challenge the utility’s contractual right to cut and remove the tree at
issue, but, instead, they challenged the utility’s discretion to cut instead of prune.
Although not overtly stated in DeLost, the easement in that case appears to have granted
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to the utility the contractual right to cut and remove trees and vegetation. In ceding
jurisdiction to PUCO, both the Ohio Supreme Court and this Court recognized that the
very determination sought by Appellants here was not raised in Corrigan and DeLost, that
is, whether the easement grants to the utility the authority, rather than the discretion, to
carry out the intended action.
{¶40} In the field of contract interpretation, clear and unambiguous contractual
language is applied without consideration of extrinsic evidence. Steubenville v. Jefferson
Cty., 7th Dist. Jefferson No. 07 JE 51, 2008-Ohio-5053, ¶ 22, citing Shifrin v. Forest City
Ent., Inc., 64 Ohio St. 3d 635, 638, 597 N.E.2d 499 (1992). If a contract is reasonably
susceptible to more than one meaning, then it is ambiguous and extrinsic evidence of
reasonableness or intent can be employed. Id. Words and phrases are given their
common and ordinary meanings absent specific contractual definitions. Id., citing King v.
Nationwide Ins. Co., 35 Ohio St. 3d 208, 212, 519 N.E.2d 1380 (1988)(unless manifest
absurdity would result or an alternative meaning is clearly demonstrated in the contract).
{¶41} The easements grant Appellee the right to “cut, trim and remove such * * *
underbrush or other obstructions as in the judgment of [Appellee] may interfere with or
endanger said structures, wires or appurtenances, or their operation.” Based on the
punctuation of the phrase “cut, trim and remove,” the term “remove” can be read as part
of one conjunctive phrase – to “trim and remove,” or two conjunctive phrases -- to “cut
and remove” and “trim and remove.” In other words, “remove” can be interpreted to mean
“to haul away after cutting or trimming.” Had the drafter intended to create three separate
rights, he could have placed a comma after “cut.” The drafter could have also used the
disjunctive connecter – “or” – to show that “remove” was an alternative to cutting and
trimming, rather than simply an act to follow the acts of cutting and trimming.
{¶42} Further, assuming that the right to “remove” was a third and separate right,
which included any reasonable method to prevent interference with or endangerment of
the Line as determined by the PUCO, the terms “cut” and “trim” would be superfluous.
When interpreting a contract, a court must presume that words are used for a specific
purpose and should avoid interpretations that render portions meaningless or
unnecessary. Wohl v. Swinney, 118 Ohio St. 3d 277, 2008-Ohio-2334, 888 N.E.2d 1062,
¶ 22 (2008).
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{¶43} Appellants’ interpretation of the term “remove” finds support in its common
definitions. Dictionary.com provides the following alternative definitions for the term
“remove”:
verb (used with object), re·moved, re·mov·ing.
to move from a place or position; take away or off:
to remove the napkins from the table.
to take off or shed (an article of clothing):
to remove one’s jacket.
{¶44} Assuming arguendo that the term “remove” is ambiguous, Appellants assert
that Appellee’s literature addressing the maintenance of easements establishes that the
parties could not have intended the term to include the use of herbicide. According to
Appellee’s publication, “Maintaining a Safe and Reliable Transmission System,” Form
1189 (06-14), reads, in pertinent part, “[n]early 60 years of university and industry
research also has shown that herbicide use on [rights-of-way] can help create optimum
plant and wildlife habitats.” (1/17/2008 Corder Mot., Exh. F 8). Appellants argue that the
most generous mathematical calculation possible indicates that Appellee began using
EPA-registered herbicide in 1954, six years after the execution of the easements at issue
in this case.
{¶45} The same argument was advanced before the Supreme Court of West
Virginia in Kell v. Appalachian Power Co., 170 W.Va. 14, 289 S.E.2d 450 (1982). In 1939,
the Kells’ predecessors in interest granted the power company an easement over the
property at issue, which allowed the power company to remove any trees, branches, or
obstructions that might endanger the safety or interfere with the use of poles, wires, etc.
Id. at 15, n. 1.The Kells filed a lawsuit to prohibit the power company from chemically
spraying their property to kill vegetation. Id. at 16.
{¶46} In construing the 1939 easement, the Kell Court observed that the intent of
the parties was controlling and, that the spraying of herbicide was unknown in 1939. Id.
at 19. As such, the Court concluded that “[i]t was clearly not the intention of the parties
to allow the power company to destroy all living vegetation within the area sprayed or
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adjoining areas where these deadly herbicide could drift. Such action is not necessary to
the protection of the power company's equipment.” Kell, 170 W.Va. at 19, 289 S.E.2d at
456.
{¶47} The Kell Court concluded that the 1939 easement did not authorize the
power company to apply herbicide. Id. at 20. At least one state intermediate court has
likewise observed in dicta that the term “remove” in a utility easement does not include
the use of herbicide, because “such chemicals do more than merely ‘remove’ existing
plant structures.” Rutherford v. Centerpoint Energy Houston Electric Co., 1st Dist. Fort
Bend No. 01-10-00186-CV, 2011 WL 3359712, fn. 1 (Texas).
{¶48} Appellee, on the other hand, argues that “remove” is an unambiguous term,
and that herbicide is a method of removal subject to the discretion of the PUCO. In other
words, because the determination here involves Appellee’s methods and practice,
Appellee asserts that it falls within the exclusive jurisdiction of the PUCO. Appellee’s
broad interpretation of “remove” finds support in the stated purpose of the easement,
which is to permit the utility to prevent interference with or danger to its structures, wires
or appurtenances, or their operation.
{¶49} Next, Appellee argues that the uncontroverted evidence in the record
supports the trial court’s conclusion that the PUCO has exclusive jurisdiction over the
application of the herbicide on the Property. To the contrary, the evidence offered by
Appellees supports the conclusion that application of the herbicide is reasonable, not that
the easement grants Appellee the authority to apply herbicide.
{¶50} When a utility cuts a tree, instead of pruning it, pursuant to the terms of an
easement which grants the utility unlimited discretion to cut and remove trees, PUCO has
exclusive jurisdiction to determine whether the utility’s decision is reasonable. The same
is true when a utility cuts a tree and is vested with unlimited discretion to determine
whether a particular tree threatens its lines.
{¶51} Here, the terms of the easements limit the utility’s authority to “cut, trim and
remove” underbrush. Having determined that the term “remove” is subject to multiple
interpretations, we find that the term “remove” is ambiguous.
{¶52} As a consequence, the issue presented in this action for declaratory and
injunctive relief is pure contract and the trial court has subject matter jurisdiction to
Case No. 18 HA 0002
– 16 –
interpret the easements. It is important to note that the trial court’s determination on
remand is limited in scope to the interpretation of the ambiguous term. In other words,
should the trial court conclude that the easements grant the utility the authority to use
herbicide, PUCO has exclusive jurisdiction over the reasonableness of the utility’s
decision.
CONCLUSION
{¶53} Appellants’ sole assignment of error has merit. Accordingly, this matter is
remanded to the trial court to interpret the ambiguous term “remove” in the easements
Donofrio, J., concurs.
Waite, P.J., concurs.
Case No. 18 HA 0002
[Cite as Corder v. Ohio Edison, Co., 2019-Ohio-2639.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is sustained and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Harrison County, Ohio, is reversed. We hereby remand this
matter to the trial court for further proceedings according to law and consistent with this
Court’s Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.