DocketNumber: No. 07 MA 194.
Citation Numbers: 2008 Ohio 3086
Judges: VUKOVICH, J.
Filed Date: 6/17/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 3} On May 8, 2006, the DeLosts filed a complaint seeking a preliminary and permanent injunction to prevent Ohio Edison from cutting down the white pine trees and other vegetation. On that same day, they also filed a motion for a temporary restraining order.
{¶ 4} In response, Ohio Edison filed a motion to dismiss for lack of subject matter jurisdiction. It asserted that the management of vegetation is manifestly service related and, as such, falls within the exclusive jurisdiction of the PUCO.
{¶ 5} The DeLosts then filed a motion in opposition to the motion to dismiss. They asserted that the matter did not fall within the exclusive jurisdiction of the PUCO because the claims were pure contract claims. They argued that the case deals with the scope of the easement and whether it permits the removal of the trees and vegetation.
{¶ 6} On August 23, 2006, the magistrate granted the motion to dismiss. It found that the easement granted Ohio Edison the right to ingress and egress for purposes of maintaining the power lines. It also found that the complaint does not *Page 3 involve a dispute over whether an easement exists or if the easement is flawed in scope. It then stated:
{¶ 7} "[T]he Court finds that R.C.
{¶ 8} In finding as such, it used the two-step analysis inAyers-Sterrett, Inc. v. American Telecommunications Systems, Inc.
(2005),
{¶ 9} "In the current matter, the parties are disputing the rights and privileges conveyed in an easement. Easements are, by definition, `a right of use over the property of another.' Black's Law Dictionary, Sixth Edition. This Court has jurisdiction over property disputes." 11/09/06 J.E.
{¶ 10} The case then proceeded with discovery. There were some discovery disputes; Ohio Edison filed a motion for a protective order and the DeLosts filed a motion to compel. The magistrate heard arguments on both motions and then issued an order for Ohio Edison to comply with discovery and it also denied Ohio Edison's request for a protective order. 07/05/07 Magistrate's Decision. Ohio Edison filed objections to that ruling. The common pleas court overruled the objections and instructed Ohio Edison to comply with discovery. 08/29/07 J.E.
{¶ 11} Instead of complying with discovery, Ohio Edison filed an appeal in our court from the discovery order. 09/27/07 Case No. 07MA171. On the same day the appeal was filed, it also filed a motion for a writ of prohibition with our court. Case No. 07MA179. The appeal, 07MA171, from the discovery order was dismissed sua sponte due to lack of a final appealable order. 10/15/07 Opinion and Journal Entry. As to the writ, 07MA179, we issued an Alternative Writ. We granted the trial court "twenty-eight (28) days to grant the relief requested or show cause why a permanent writ should not be issued." 10/11/07 J.E.
{¶ 12} On October 18, 2007, the trial court vacated its earlier decision that found that it had jurisdiction to hear the complaint. It then found that it lacked subject *Page 4 matter jurisdiction to hear the complaint and held that the jurisdiction for the complaint lies exclusively with the PUCO.
{¶ 13} On October 26, 2007, the DeLosts filed a timely appeal from that decision, this appeal, Case No. 07MA194. They also filed a motion to stay the temporary injunction during the pendency of the appeal. The trial court found the motion well taken and issued a stay. 10/26/07 J.E.
{¶ 14} Due to the issuance of the stay, on October 31, 2007, Ohio Edison supplemented its prohibition action, Case No. 07MA170, expressing concern that the trial court was exercising jurisdiction in the underlying action notwithstanding its subject matter jurisdiction dismissal. On November 1, 2007, Ohio Edison filed a cross-appeal in this appeal 07MA194.
{¶ 15} On November 9, 2007, in the prohibition action, 07MA170, this court found that the trial court's October 26, 2007 stay order did not in fact stay its October 18, 2007 dismissal entry. In response, in this appeal, 07MA194, the DeLosts filed a motion to stay the trial court's dismissal. On December 12, 2007, this court stayed the trial court's dismissal order and reinstated the temporary restraining order. 12/12/07J.E.
{¶ 17} Ohio Edison filed a Civ. R. 12(B)(1) motion to dismiss that was eventually granted by the trial court. The standard to apply to grant a motion to dismiss pursuant to Civ. R. 12(B)(1) is "whether any cause of action cognizable by the forum has been raised in the complaint."State ex rel. Bush v. Spurlock (1989),
{¶ 18} Ohio Edison maintains that the trial court's decision is correct. It contends that the right to control vegetation within its easement is manifestly service related and, as such, the PUCO has exclusive jurisdiction. The DeLosts, on the other hand, claim this is a pure contract interpretation; the rights of the respective parties are dictated by the language of the easement.
{¶ 19} The General Assembly enacted R.C.
{¶ 20} Therefore, "[t]he commission has exclusive jurisdiction over various matters involving public utilities, such as rates and charges, classifications, and service, effectively denying to all Ohio courts (except this court) any jurisdiction over such matters." State ex rel.The Illum. Co.,
{¶ 21} Thus, we must determine whether the claims raised are pure contract claims and do not require a consideration of statutes and regulations administered and *Page 6
enforced by the commission. State ex rel. The Illuminating Co.,
{¶ 22} The Ohio Supreme Court has previously listed several tort and contract cases in which the PUCO does not have jurisdiction:
{¶ 23} "Other courts retain limited subject matter jurisdiction over tort and some contract claims involving utilities regulated by the commission. See, e.g., Kazmaier Supermarket, Inc. v. Toledo EdisonCo., supra,
{¶ 24} Considering all the above law espoused by the Ohio Supreme Court concerning when the jurisdiction of the PUCO is invoked as compared to when the common pleas court's jurisdiction is invoked, we now turn to the analysis of whether 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.
{¶ 25} The DeLosts argue that this case deals solely with the interpretation of that easement, i.e. pure contract. They rely on two cases to support that conclusion, *Page 7 Beaumont v. First Energy Corp, 11th Dist. No. 2004-G-2573,
{¶ 26} Beaumont concerned the extent of the utility company's authority under certain easements to completely remove trees and other vegetation. The property owners at the trial court level sought a declaratory judgment as to their rights under the easements. They also sought a preliminary and permanent injunction. After an evidentiary hearing, the trial court determined that the utility company had the right to cut down the trees within the easement. That decision was appealed to the Eleventh District Court of Appeals. The appellate court went through the language of the easements and determined that the trial court had not interpreted them wrongly.
{¶ 27} The facts in Beaumont and in the instant matter are similar. But Beaumont is not on point for the issue of whether the common pleas court or the PUCO has jurisdiction of the issue at hand.Beaumont does not discuss or render a decision on the PUCO's exclusive jurisdiction or lack thereof. In fact, there is no mention in the case of the PUCO. Admittedly, if the PUCO did have jurisdiction over the issue then the trial court lacked jurisdiction to determine the issue, which would result in the decision being void ab initio. That lack of jurisdiction could have been raised sua sponte by the appellate court. However, without any discussion as to the PUCO's exclusive jurisdiction, it cannot be concluded that Beaumont stands for the proposition that the common pleas court had jurisdiction over the issue and that the PUCO did not. We decline to read such a holding into the Beaumont decision.
{¶ 28} The second case relied on by the DeLosts, Corrigan, 8th Dist. 89402,
{¶ 29} The first assignment of error in that opinion addresses the jurisdiction of the PUCO and the common pleas court. The Eighth District applied a two question test to determine whether or not the removal of trees and vegetation fell within the exclusive jurisdiction of the PUCO: *Page 8
{¶ 30} "In deciding whether an action is service-related and belongs under PUCO's exclusive jurisdiction, some courts approach the issue by posing two questions. 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, courts routinely find that those claims fall outside PUCO's exclusive jurisdiction." Id. at ¶ 9, quoting Pacific Indemn. Ins. Co., 8th Dist. No. 82074, 2003-Ohio-3954.
{¶ 31} In addressing the first question of whether the PUCO's expertise is required, the Eighth District determined that it was not. It explained that the removal of trees within the easement does not require the PUCO's administrative expertise, rather it requires an interpretation of the contractual language of the easement. Id. at ¶ 10. As such, it concluded that the common pleas court had jurisdiction over the issue, not the PUCO.
{¶ 32} We can find nothing in the facts of Corrigan to distinguish it from the case currently before our court. We simply do not agree with the conclusion of our sister district.
{¶ 33} In State ex rel. The Illuminating Co., the Ohio Supreme Court stated:
{¶ 34} "Consequently, we must determine whether the claims raised by AE in its counterclaim are within the exclusive initial jurisdiction of the commission or are pure tort and contract claims that do not require a consideration of statutes and regulations administered and enforced by the commission."
{¶ 35} This insinuates that when an issue requires statutes and/or regulations administered and enforced by the commission to be considered, the issue is not pure contract. Therefore, instead of being within the common pleas court's jurisdiction, the issue would fall within the exclusive jurisdiction of the PUCO.
{¶ 36} Ohio Edison directs this court to R.C.
{¶ 37} "Upon complaint in writing against any public utility by any person * * * that any rate, fare, charge, toll, rental, schedule, classification, * * * or service rendered, charged, demanded, exacted, or proposed to be rendered, charged, *Page 9 demanded, or exacted, is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law, or that any regulation, measurement, or practice affecting or relating to anyservice furnished by the public utility, or in connection with suchservice, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential, or that any service is, or will be, inadequate or cannot be obtained, and, upon complaint of a public utility as to any matter affecting its own product or service, if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing and shall notify complainants and the public utility thereof." (Emphasis Added).
{¶ 38} Ohio Edison focuses on the emphasized language and asserts that vegetation management is clearly a utility "practice affective or relating to any service." It argues that the DeLosts' protest with its removal of the trees and vegetation is a complaint that Ohio Edison's practice of vegetation management is unreasonable. It cites Ohio Adm. Code
{¶ 39} Ohio Adm. Code
{¶ 40} This summarization shows that all of these sections are manifestly service related. Or. in other words. these sections help ensure that reliable service is provided to consumers. Since vegetation management within an easement is included *Page 10
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.
{¶ 41} Additionally, to support the above conclusion, it is noted that in paragraph (A) of Ohio Adm. Code
{¶ 42} "The rebuttable presumption that an electric utility is providing adequate service pursuant to paragraph (F) of rule 4901:1-10-02 of the Administrative Code, does not apply to this rule."
{¶ 43} The rebuttable presumption paragraph (A) refers to is if a complaint under R.C.
{¶ 44} Likewise, logically speaking, vegetation management is necessary to maintain reliable service. Presumably, many electric company's service lines are located within easements. Trimming and removing vegetation is necessary to prevent the disruption of service and for the safety of employees working on the service. Therefore, we find that the determination of whether Ohio Edison can cut down the vegetation within the easement on the DeLosts' property is a matter for the PUCO. This assignment of error lacks merit.
{¶ 46} As stated above, this court has determined that the PUCO has exclusive jurisdiction. That determination renders the cross-assignment of error moot and therefore, it is not addressed.
{¶ 48} "Does a complaint seeking to prevent the removal of trees and vegetation within an easement owned by the utility company fall within the exclusive jurisdiction of the Public Utilities Commission of Ohio (PUCO) or is it a pure contract case in which jurisdiction lies with the common pleas court?"
DeGenaro, P.J., concurs.
*Page 1Waite, J., concurs.