Corrigan v. Illum. Co. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Corrigan v. Illum. Co., Slip Opinion No. 2017-Ohio-7555.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-7555
CORRIGAN ET AL., APPELLANTS, v. ILLUMINATING COMPANY ET AL.,
APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Corrigan v. Illum. Co., Slip Opinion No. 2017-Ohio-7555.]
Public utilities—Vegetation-management plan—Evidence supported Public
Utilities Commission’s order authorizing removal of tree from easement—
Order affirmed.
(No. 2014-0799—Submitted June 7, 2017—Decided September 13, 2017.)
APPEAL from the Public Utilities Commission,
No. 09-492-EL-CSS.
FRENCH, J.
{¶ 1} The Public Utilities Commission of Ohio, appellee, determined that
the plan of intervening appellee, the Illuminating Company (“the company”), to
remove a silver maple tree located near its transmission line was reasonable. The
tree belonged to appellants, Mary-Martha and Dennis Corrigan. Before it was
removed, the tree stood within the company’s easement running through the
Corrigans’ property. The Corrigans have appealed the commission’s
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determination, asserting that it was unlawful and unreasonable. We find no error
and therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
{¶ 2} For over ten years, the parties have litigated the fate of this tree. In
2004, the company notified the Corrigans that the tree was subject to removal
because it was within the company’s easement and potentially interfered with the
transmission line. Corrigan v. Illum. Co., 122 Ohio St. 3d 265, 2009-Ohio-2524,
910 N.E.2d 1009, ¶ 2. The Corrigans obtained permanent injunctive relief in
common pleas court, which enjoined the company from removing the tree. Id. at
¶ 5. The company then appealed and asserted, among other things, that the common
pleas court lacked subject-matter jurisdiction. Id. at ¶ 6. The court of appeals
rejected that argument and affirmed. Id.
{¶ 3} We accepted the company’s discretionary appeal and reversed,
holding that the jurisdiction of the Public Utilities Commission over the Corrigans’
complaint was exclusive. Id. at ¶ 15. We observed that the Corrigans’ claim was
properly understood not as a challenge to the scope of the company’s rights under
the easement but rather as a challenge to the company’s vegetation-management
plan, which the commission alone oversees. Id. at ¶ 20. Because the latter
challenge implicated a service-related issue, we concluded that the dispute fell
within the commission’s exclusive jurisdiction. Id.
{¶ 4} Less than a week after our decision, the Corrigans filed a complaint
with the commission against the company to prevent the tree’s removal. After a
hearing, the commission ruled that the company’s planned removal of the tree was
reasonable. The commission found that the tree was extensively decayed and that
“parts of it are almost certain to fail in the not-too-distant future.” It concluded that
pruning was impracticable because the tree would have responded with new growth
in the pruned areas. Further, too much pruning would have depleted the tree’s
energy reserves, causing it to die. The commission credited the company’s
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testimony on the potential safety hazards posed by the tree’s continued existence
near the transmission line, which included outages, fire, and electrocution. And the
commission explained that ceding vegetation-management responsibilities to
customers was imprudent because it would endanger customers and unduly burden
the company in trying to enforce its policies.
{¶ 5} The next day, the commission granted the Corrigans’ request for a
stay and directed the company to refrain from removing or otherwise harming the
tree pending the issuance of a final, appealable order. At the Corrigans’ request,
two days after the commission issued the final order on May 14, 2014, it directed
the company to refrain from removing or otherwise harming the tree “for 14 days
or, in the event the next Commission meeting is postponed, until the next
Commission meeting.” That same day, the Corrigans filed for a stay in this court.
We denied the stay request because the Corrigans did not comply with the notice
and bond requirements prescribed by R.C. 4903.16. 139 Ohio St. 3d 1428, 2014-
Ohio-2725, 11 N.E.3d 283. On June 27, 2014, without a stay in place—either from
the commission or this court—the company removed the tree.
STANDARD OF REVIEW
{¶ 6} “R.C. 4903.13 provides that a PUCO order shall be reversed, vacated,
or modified by this court only when, upon consideration of the record, the court
finds the order to be unlawful or unreasonable.” Constellation NewEnergy, Inc. v.
Pub. Util. Comm., 104 Ohio St. 3d 530, 2004-Ohio-6767, 820 N.E.2d 885, ¶ 50.
And we will not reverse or modify a commission decision as to questions of fact
when the record contains sufficient probative evidence to show that the
commission’s decision was not manifestly against the weight of the evidence and
was not so clearly unsupported by the record as to show misapprehension, mistake,
or willful disregard of duty. Monongahela Power Co. v. Pub. Util. Comm., 104
Ohio St. 3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29. The appellant bears the
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burden of demonstrating that the commission’s decision is against the manifest
weight of the evidence or is clearly unsupported by the record. Id.
DISCUSSION
{¶ 7} The Corrigans’ challenges are largely fact-based and proceed along
two main themes: (1) the evidence does not support a finding that pruning was
impracticable and (2) the evidence does not support a finding that the tree posed a
threat to the line. The Corrigans intersperse these arguments with generalized
disagreements with the commission’s approach to vegetation management. Just as
in Wimmer v. Pub. Util. Comm., 131 Ohio St. 3d 283, 2012-Ohio-757, 964 N.E.2d
411, in which we concluded that the evidence supported a commission order
authorizing tree removal, we reject the Corrigans’ evidentiary challenges and
otherwise find no merit to their position.
The Corrigans’ First Proposition of Law
{¶ 8} The Corrigans first assert that the evidence does not support the
commission’s finding that continued pruning was not a viable option. We are
unpersuaded. Robert J. Laverne, manager of education and training for Davey Tree
Expert Company and a certified arborist, testified that past pruning operations were
ineffective over the long term and that future pruning would diminish the tree’s
vigor. Laverne pointed to areas of decay from past pruning cuts, which sapped the
tree’s ability to produce the energy required for sustenance. And he observed that
past pruning had actually shortened the tree’s expected life span.
{¶ 9} Scant evidence points in the other direction. Mrs. Corrigan explained
that she thought that the tree was healthy because it had foliage and because others
had told her it was healthy. But she is not an arborist and has no education, training,
or experience in maintaining, pruning, or trimming trees. Moreover, Laverne
explained that foliage does not necessarily indicate a healthy tree and that he has
witnessed trees with full crowns of foliage that have fallen down due to excessive
decay. The evidentiary ledger decidedly favors the commission’s finding on the
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ineffectiveness of pruning; the Corrigans seek a reweighing of the evidence, but
that is not our function here. Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124
Ohio St. 3d 284, 2009-Ohio-6764, 921 N.E.2d 1038, ¶ 35.
{¶ 10} The Corrigans next insist that continued pruning was a viable option
because past pruning enabled the tree and the line to coexist. But this reasoning is
flawed because it overlooks the fact that the health of the tree had deteriorated and
that pruning would not have reversed the tree’s worsening condition. Laverne
explained that decay pockets were scattered throughout the tree, that the tree was
in a state of decline, and that there was a high degree of certainty that the decay rate
was increasing. He stated that nothing could be done to arrest or limit the spread
of decay. Nor could the tree have cured or pushed the decay out on its own; once
wood is decayed, it remains that way. While some tree species are able to
compartmentalize areas of decay by generating chemical barriers, silver maples
compartmentalize poorly.
{¶ 11} The Corrigans also object to what they view as the company’s
increasingly aggressive approach to removing trees. But they have not established
reversible error. Ohio Adm.Code 4901:1-10-27(E)(1) requires electric utilities to
maintain a right-of-way vegetation-control program. The particular program
followed by the company describes “vegetation control” as “the removal of
vegetation that has the potential to interfere with the safe and efficient operation of
the transmission system.” In its order, the commission noted its past approval of
the company’s program and explained, “We can find nothing about [the
company’s] planned removal of the Tree that conflicts with its right-of-way
vegetation control measures on file * * *.” Dispositive here is the Corrigans’ failure
to allege—let alone show—that the company’s program conflicts with the rule.1
1
The Corrigans argue for the first time in their reply brief that the commission should have rejected
the company’s definition of “incompatible vegetation” pursuant to R.C. 4905.37. We ignore this
newly raised argument. In re Application of Am. Transm. Sys., Inc., 125 Ohio St. 3d 333, 2010-
Ohio-1841, 928 N.E.2d 427, ¶ 35 (a new argument raised on reply is waived).
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The Corrigans’ Second Proposition of Law
{¶ 12} The Corrigans assert in their second proposition of law that the
commission’s order contravenes what they believe to be the commission’s
vegetation-management policy. We are unconvinced. The Corrigans derive this
alleged policy from In re Complaint of Jeffers v. Toledo Edison Co., Pub. Util.
Comm. No. 10-430-EL-CSS, 2013 WL 792598 (Jan. 23, 2013). There, the
commission stated that a utility has a responsibility to “attempt to minimize the
impact to the property owners, to the extent possible and without sacrificing safety
and reliability, when performing vegetation management activities.” Id. at *5.
“[R]emoval of trees is sometimes necessary in accordance with a utility’s
vegetation management plan, though removal must be done only when trimming
and pruning are not a viable option.” Id. at *7.
{¶ 13} Even if these statements are official commission policy, the order
faithfully follows them. As discussed, the commission concluded that pruning was
no longer a viable option. This finding, coupled with the commission’s concerns
for the reliability and safety hazards that the tree posed to the line and to the public,
justifies the commission’s conclusion that removal of the tree was reasonable.
{¶ 14} The Corrigans counter that they pruned the tree within the standards
of acceptable arboreal care so that the tree could be preserved without sacrificing
the safety and reliability of the transmission line. But the record belies this
assertion. Mrs. Corrigan was the only person to testify in support of the complaint,
and her lay testimony does not establish that the tree was pruned according to
arboreal standards or that the pruning preserved the safety and reliability of the line.
The commission found that the Corrigans failed to rebut the company’s evidence
showing the safety hazards posed by the tree’s continued existence near the line.
We do not second-guess the commission’s factual determinations. Ohio
Consumers’ Counsel v. Pub. Util. Comm., 114 Ohio St. 3d 340, 2007-Ohio-4276,
872 N.E.2d 269, ¶ 29.
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{¶ 15} The Corrigans next contend that the commission’s “policy of
vegetation preservation” required the company to cite evidence that the Corrigans
could not properly attend to their tree. They claim that the company presented no
such evidence; thus, the tree should have been allowed to stand. But the Corrigans
were the complainants, and as the commission expressly stated in its order, they
bore the burden of proving their claim. Grossman v. Pub. Util. Comm., 5 Ohio
St.2d 189, 190, 214 N.E.2d 666 (1966). The commission found that the Corrigans
failed to prove that the company acted unreasonably in implementing its right-of-
way vegetation-control program, and we find no error in that determination.
The Corrigans’ Third Proposition of Law
{¶ 16} In their last challenge, the Corrigans contend that the evidence does
not support the commission’s conclusion that the tree could potentially interfere
with the line. We disagree. The tree at issue was a silver maple located in the
backyard of the Corrigans’ property. Before it was removed, it stood about 55 feet
tall, placing it roughly 25 feet higher than the lower conductor of the company’s
transmission line. The company’s witnesses admitted that the tree was not directly
underneath the line and that it was outside of the horizontal clearance prescribed by
the National Electrical Safety Code, which is adopted in Ohio Adm.Code 4901:1-
10-06.
{¶ 17} Rebecca Spach, FirstEnergy Service Company’s manager of
transmission vegetation management and a certified arborist, explained that if the
tree fell toward the line it would strike the middle and lower wires. And as already
described, the evidence showed that the tree was decayed in many areas. At a
minimum, parts of the tree were, in the words of the commission, “destined to fail
and fall into the transmission lines.” This supports the commission’s finding that
the company “reasonably determined that the Tree could potentially interfere with
its transmission lines.” The tree stood within the easement granted to the company,
and the easement’s terms require no more to justify removal. Corrigan, 122 Ohio
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St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, at ¶ 17, 19 (“the easement is
unambiguous” and “grants the company the right to remove any tree within the
easement that could pose a threat to the transmission lines”).
{¶ 18} Next, the Corrigans cite a “supplemental support system” installed
on the tree, and they allege that the system could have preserved the tree’s useful
life by 10 to 30 years. But Laverne explained that the system was installed directly
below one of the large pruning wounds and that in the not-too-distant future, the
wood at the pruning site would decay, resulting in a loosened lag bolt that would
almost certainly render the system ineffective within ten years. The commission
credited Laverne’s opinion of the system, and we do not substitute our judgment
for the commission’s evidentiary findings. Monongahela Power, 104 Ohio St. 3d
571, 2004-Ohio-6896, 820 N.E.2d 921, at ¶ 29.
{¶ 19} Lastly, the Corrigans accuse the commission of “fearmongering”
when it cited the safety hazards that could arise from vegetation contact with a line.
In their view, highway travel presents a greater risk of harm than that posed by the
tree. Because highway travel is not banned despite its much greater risks, they
assert, the lesser, more speculative hazard posed by the tree cannot support its
removal.
{¶ 20} The Corrigans’ comparison of disparate risks does not persuade us.
The company’s witness David Kozy, FirstEnergy Service Company’s general
manager of transmission engineering, explained that if the tree contacted the line,
the resulting outages—and potential fires—could endanger property and people.
Likewise, the company’s witness Stephen Cieslewicz, a certified arborist and
certified utility specialist, stated that the Northeast blackout in 2003 taught the
industry that there should be less pruning and more tree removal. The commission
found that the Corrigans did not rebut the company’s safety-related evidence, and
we will not disturb that factual finding. Id.
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{¶ 21} Ultimately, the Corrigans’ comparison of the hazards posed by
highway travel to those posed by the tree boils down to a generalized disagreement
with the commission’s policy of regarding safety and reliability as paramount.
Abstract policy disputes do not, on their own, establish reversible error. In re
Application of Columbus S. Power Co., 129 Ohio St. 3d 271, 2011-Ohio-2638, 951
N.E.2d 751, ¶ 17.
CONCLUSION
{¶ 22} Because the Corrigans failed to show that the commission’s decision
was unlawful or unreasonable, we affirm.
Order affirmed.
O’CONNOR, C.J., and KENNEDY and O’NEILL, JJ., concur.
O’DONNELL, J., concurs in judgment only.
DEWINE, J., dissents, with an opinion joined by FISCHER, J.
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DEWINE, J., dissenting.
{¶ 23} The only thing at issue in this case is the fate of a tree that was
chopped down over three years ago. Once the tree was felled, there was no relief
this court could provide to the Corrigans. I would dismiss their appeal as moot.
{¶ 24} Our court decides “actual controversies.” Fortner v. Thomas, 22
Ohio St. 2d 13, 14, 257 N.E.2d 371 (1970). This means that a party bringing a case
must have standing, that is, “a personal stake in the outcome of the controversy.”
Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Standing
requires an injury that is “likely to be redressed by the requested relief.” Moore v.
Middletown, 133 Ohio St. 3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22,
citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S. Ct. 2130, 119
L. Ed. 2d 351 (1992). And standing must continue throughout the proceedings. As
described by one commentator, “[m]ootness is * * * the doctrine of standing set in
a time frame: The requisite personal interest that must exist at the commencement
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of the litigation (standing) must continue throughout its existence (mootness).”
Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363,
1384 (1973).
{¶ 25} Decided correctly, this case could easily qualify as a textbook
example of mootness. To be sure, the Corrigans had standing when they filed the
complaint. They presented an actual controversy about the fate of their tree. But
the chainsaw that brought down the silver maple took the Corrigans’ standing with
it. The relief they sought—to keep their tree—was no longer available. Even if the
Corrigans’ legal arguments were to carry the day, we cannot bring back the tree.
The appeal should be dismissed as moot.
FISCHER, J., concurs in the foregoing opinion.
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Lester S. Potash, for appellants.
Michael DeWine, Attorney General, and William L. Wright, Thomas G.
Lindgren, and Katie L. Johnson, Assistant Attorneys General, for appellee Public
Utilities Commission of Ohio.
Jones Day and David A. Kutik; and James W. Burk and Carrie M. Dunn,
for intervening appellee Illuminating Company.
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