DeLost v. Ohio Edison Co.

[Cite as DeLost v. Ohio Edison Co., 2012-Ohio-4561.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
RAYMOND M. DELOST, et al. ) CASE NO. 10 MA 162
)
PLAINTIFFS-APPELLANTS )
)
VS. ) OPINION
)
OHIO EDISON COMPANY, et al. )
)
DEFENDANTS-APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 08 CV 2839
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiffs-Appellants: Atty. Raymond M. Delost
3685 Stutz Drive, Suite 100
Canfield, Ohio 44406
Atty. Richard L. Goodman
720 Youngstown-Warren Road, Suite E
Niles, Ohio 44446
For Defendants-Appellees: Atty. John T. Dellick
Harrington, Hoppe & Mitchell, Ltd.
26 Market Street, Suite 1200
P.O. Box 6077
Youngstown, Ohio 44501-6077
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 25, 2012
[Cite as DeLost v. Ohio Edison Co., 2012-Ohio-4561.]
WAITE, P.J.
{¶1} This appeal is part of a longstanding dispute between Appellants
Raymond and Maria Delost (“the Delosts”), and Appellees Ohio Edison Company
(“Ohio Edison”) and Penn Line Service, Inc. (“Penn Line”), over the removal of trees
on the Delosts’ property. The instant appeal deals with the removal of 21 white pine
trees from the utility transmission easement that crosses the Delosts’ property. The
Delosts filed a complaint in the Mahoning County Court of Common Pleas alleging
that the removal of the trees constituted trespass, conversion, breach of contract, and
reckless destruction of vegetation in violation of R.C. 901.51. The trial court granted
summary judgment to the defendants on all counts. We agree that summary
judgment in favor of Ohio Edison and Penn Line was appropriate, and the judgment
of the trial court is affirmed.
{¶2} In the present appeal, it is clear that the Delosts are trying to relitigate
the same issue they unsuccessfully argued in Delost v. First Energy Corp., 7th Dist.
No. 07 MA 194, 2008-Ohio-3086, aff’d 123 Ohio St.3d 113, 2009-Ohio-4305, 914
N.E.2d 392 (Delost I). Although Delost I began as a complaint for injunctive relief,
one of the main issues in dispute was the scope of Ohio Edison's easement. In
Delost I it was determined that their easement allowed Ohio Edison to trim or to
completely remove trees within the easement, and that any further issues
surrounding Ohio Edison's vegetation management policies and practices within the
scope of the easement are matters for the Public Utility Commission of Ohio
(“PUCO”) to decide.
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{¶3} In the instant case, all four causes of action in the Delosts’ complaint
are fundamentally based on the same premise as the request for injunctive relief
found in Delost I: that Ohio Edison's easement did not grant Ohio Edison or its
agents permission to completely cut down trees within the easement. However, we
have previously ruled on this in Delost I when we stated “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.” Id. at ¶44. Since this
jurisdictional issue has been decided in Delost I, the matter is res judicata in the
instant appeal.
Background of the Case
{¶4} The Delosts own real property located at 130 and 140 Lakeshore Drive
in Struthers, Mahoning County, Ohio. Ohio Edison owns a public utility transmission
easement over a portion of that property. In 2006, the Delosts filed a lawsuit in the
Mahoning County Court of Common Pleas seeking to enjoin Ohio Edison from
clearing trees within the transmission easement. The trial court dismissed the
complaint on the grounds that the PUCO, rather than the court of common pleas, had
exclusive jurisdiction over the right to control vegetation in a transmission easement.
{¶5} On appeal, we determined that R.C. 4901.1 et seq. conveys exclusive
jurisdiction to the PUCO over public utility service-related matters such as vegetation
management and tree removal within service easements. Delost I at ¶40. We
further held that the Delosts were essentially challenging the vegetation management
policy of Ohio Edison as it applied to their easement, and as such, the matter fell
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under the exclusive jurisdiction of the PUCO to decide, rather than the court of
common pleas. Id. at ¶44. As part of our Opinion, we certified a conflict with the
holding of Corrigan v. Illuminating Co., 175 Ohio App.3d 360, 2008-Ohio-684, 887
N.E.2d 363 (8th Dist.). Our Opinion in Delost I was released on June 17, 2008, and
no immediate motion for stay of the judgment was sought by the Delosts, nor was an
immediate appeal to the Ohio Supreme Court filed.
{¶6} Shortly after we ruled in Delost I, Ohio Edison and Penn Line removed
the trees within the easement. The Delosts then filed a motion with this Court
seeking a stay of our judgment in Delost I. A two-week stay was granted. On July 9,
2008, the Delosts filed a notice of certified conflict with the Ohio Supreme Court
pursuant to S.Ct.Prac.R. 4.1, and a further stay of our decision in Delost I was
granted.
{¶7} On July 14, 2008, the Delosts filed a multi-count lawsuit in the
Mahoning County Court of Common Pleas asking for $10 million in punitive
damages. The Delosts later amended the complaint to allege trespass, conversion,
violation of R.C. 901.51, and breach of contract.
{¶8} On July 30, 2009, the Delosts filed a complaint against Ohio Edison
with the PUCO. (8/26/09 Notice of PUCO filing.)
{¶9} On June 4, 2009, the Ohio Supreme Court reversed the decision of the
Eighth District Court of Appeals in Corrigan, relying in large part on our Opinion in
Delost I. See Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910
N.E.2d 1009. On September 1, 2009, the Ohio Supreme Court affirmed the
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judgment in favor of Ohio Edison in Delost I. The summary opinion simply referred to
the analysis in Corrigan. Corrigan held that the easement “grants the company the
right to remove any tree within the easement that could pose a threat to the
transmission lines,” and that the PUCO had exclusive jurisdiction over the
fundamental dispute in the case, which was the power company’s decision to
remove, rather than trim, trees within the easement. Id. at ¶19-20.
{¶10} On December 1, 2009, Appellees filed a motion for summary judgment
in this instant action. The motion was heard by the magistrate assigned to the case.
The magistrate concluded that the court had no jurisdiction over the claims against
Ohio Edison for conversion and reckless destruction of vegetation because those
claims were nothing more than an attack against the vegetation management policy
of the utility, which is under the jurisdiction of the PUCO, as had been resolved in
Delost I. The magistrate determined that it had jurisdiction over the breach of
contract and trespass claims against Ohio Edison, and over all the claims against
Penn Line, which is not a public utility. The magistrate ruled in favor of Ohio Edison
and Penn Line on all these claims.
{¶11} Appellants filed objections to the magistrate's decision. In reviewing the
objections, the trial court determined that it had jurisdiction over all the claims against
both defendants because they were pure contract and tort claims, and thus, fell
outside of the jurisdiction of the PUCO. The trial court then overruled the objections
and granted summary judgment to Appellees on all claims on the grounds that Ohio
Edison had a proper easement to remove the trees, and because a landowner has
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no right to damages for removal of trees within a proper utility easement. The court
filed its judgment on October 14, 2010, leading to this appeal.
ASSIGNMENT OF ERROR
The trial court erred when it granted Defendants-Appellees’ Motion for
Summary Judgment without considering all the evidence in the record.
(R. 72, Judgment Entry dated October 14, 2010).
{¶12} The Delosts challenge the decision to grant summary judgment to the
defendants in this case. An appellate court conducts a de novo review of a trial
court's decision to grant summary judgment, using the same standards as the trial
court as set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105, 671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial
court must determine that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion,
and viewing the evidence most favorably in favor of the party against whom the
motion for summary judgment is made, the conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). When
a court considers a motion for summary judgment, the facts must be taken in the light
most favorable to the nonmoving party. Id.{¶13} “[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact on a material element of the
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nonmoving party's claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280,
296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving
party has the reciprocal burden of setting forth specific facts showing that there is a
genuine issue for trial. Id. at 293. In other words, in the face of a properly supported
motion for summary judgment, the nonmoving party must produce some evidence
that suggests that a reasonable factfinder could rule in that party's favor. Brewer v.
Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).
{¶14} The trial court in this case concluded that Appellant's four claims
against Ohio Edison and Penn Line sounded in pure contract and tort law, and thus
did not fall under the exclusive jurisdiction of the PUCO as had been the case in
Delost I. It is true, as stated by the trial court, that 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). Nevertheless, creative pleading of tort and contract
claims does not confer jurisdiction to the court of common pleas if the real elements
of the claims remain under the purview of the PUCO. Delost I at ¶21.
{¶15} The trial court proceeded to rule on the four claims in this case: breach
of contract, trespass, conversion and violation of R.C. 901.51. Closer inspection of
the actual claims and assertions made in the Delosts’ complaint and arguments on
appeal reveals that the Delosts are attempting to relitigate the central issue that was
determined in Delost I, namely, the vegetation management decisions of Ohio Edison
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as applied to the transmission easement. What was decided in Delost I was that the
easement allowed Ohio Edison to cut down trees within the easement, and that any
further issues regarding the vegetation management policies of Ohio Edison fell to
the jurisdiction of the PUCO. Since review of summary judgment is de novo, a
reviewing court may affirm the trial court's judgment for reasons that are different
from those used by the trial court. Cordray v. Internatl. Prep. School, 128 Ohio St.3d
50, 2010-Ohio-6136, 941 N.E.2d 1170, ¶31.
{¶16} The reason the PUCO has exclusive jurisdiction over vegetation
management issues is explained at length in Corrigan. R.C. 4901.01 et seq. gives
the PUCO exclusive jurisdiction to hear complaints filed against public utilities
regarding a broad range of subjects including vegetation management decisions. Id.
at ¶8. This jurisdiction “ ‘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).
{¶17} The Ohio Supreme Court has adopted a two-part test from Pacific
Indemn. Ins. Co. v. Illum. Co., 8th Dist. No. 82074, 2003-Ohio-3954, to determine
whether the PUCO has exclusive jurisdiction over an action: first, is the 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 the PUCO's exclusive
jurisdiction. Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301, 2008-
-8-
Ohio-3917, 893 N.E.2d 824, ¶12-13. By affirming our decision in Delost I on the
basis of its decision in Corrigan, the Ohio Supreme Court has made it clear that
vegetation management, including tree cutting, within the Delosts’ easement satisfies
the Pacific Indemn. Ins. Co. test and is to be determined under the exclusive
jurisdiction of the PUCO.
{¶18} As noted earlier, a court is not limited by the allegations in the complaint
in determining the true substance of the complaint. State ex rel. Columbia Gas of
Ohio, Inc. v. Henson, 102 Ohio St.3d 349, 2004-Ohio-3208, 810 N.E.2d 953, ¶19. A
court must review the substance of the claims to determine if service-related issues
are involved. Id. at ¶20-21. “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 that the commission has exclusive jurisdiction to
resolve.” State ex rel. Illum. Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio
St.3d 69, 2002-Ohio-5312, 776 N.E.2d 92, ¶21, quoting Higgins v. Columbia Gas of
Ohio, Inc., 136 Ohio App.3d 198, 202, 736 N.E.2d 92 (7th Dist.2000).
{¶19} It is plain that the breach of contract claim in this appeal is nothing more
than a rehashing of the dispute in Delost I. The Delosts’ argument in the instant
appeal requires an identical analysis, but asks us to reach a different outcome, than
the Ohio Supreme Court reached in Delost I and Corrigan. A court of appeals cannot
simply disregard the prior holdings and mandates of the higher court. “Ohio appellate
courts are inferior in judicial authority to the Ohio Supreme Court. Therefore, they
are bound by the Supreme Court's decisions * * *.” State v. Howard, 7th Dist. No. 08
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MA 121, 2009-Ohio-6398, ¶49. In order to rule in Appellants' favor, we would need
to disregard the holding of Delost I and Corrigan regarding the interpretation of the
easement language and the exclusive jurisdiction of the PUCO.
{¶20} The doctrine of res judicata consists of two related concepts; claim
preclusion (historically called estoppel by judgment in Ohio) and issue preclusion
(traditionally known as collateral estoppel). Grava v. Parkman Twp., 73 Ohio St.3d
379, 381, 653 N.E.2d 226 (1995). Claim preclusion is where a valid, final judgment
rendered upon the merits bars all subsequent actions based upon any claim arising
out of the transaction or occurrence that was the subject matter of the previous
action. Ft. Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio
St.3d 392, 395, 692 N.E.2d 140 (1998). Issue preclusion involves the principle that a
fact or a point that was actually and directly at issue in a previous action and was
determined by a court of competent jurisdiction may not be drawn into question in a
subsequent action between the same parties or their privies, whether the cause of
action in the two actions is identical or different. Id.{¶21} Issue preclusion bars the Delosts from relitigating the issue as to
whether Ohio Edison has the right to cut down trees in the easement, and whether
any further vegetation management questions belong under the jurisdiction of the
PUCO. The Delosts are not alleging that Ohio Edison or Penn Lines engaged in any
activity outside of the easement. They allege simply that Ohio Edison and Penn
Lines entered the easement, cut down trees, and left the easement. Appellants
contend that Ohio Edison, as a matter of policy or practice, could only cut down trees
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as a last resort when the trees were actually interfering with transmission lines. This
clearly calls into question the realm of vegetation management, just as in Delost I,
and only the PUCO can address the question. The Delosts filed a complaint with the
PUCO on July 30, 2009, and they are free to raise these issues in that forum. (See
8/26/09 Notice of PUCO filing.)
{¶22} It is also apparent that the Delosts’ remaining three claims (trespass,
conversion and violation of R.C. 901.51) are also dependent on the resolution of the
vegetation management question regarding removing trees instead of trimming them.
The first claim is that of trespass. “A ‘trespasser’ may be defined as one who
unauthorizedly goes upon the private premises of another without invitation or
inducement, express or implied, but purely for his own purposes or convenience; and
where no mutuality of interest exists between him and the owner or occupant.”
Keesecker v. G.M. McKelvey Co., 141 Ohio St. 162, 166, 47 N.E.2d 211 (1943). In
their trespass claim the Delosts allege that the trees did not pose any threat to
service, and for that reason, Ohio Edison did not have permission to enter the
property to remove the trees. Appellants cannot prove trespass without resolving the
vegetation management issue. Thus, it is not a pure tort claim. The trial court
properly dismissed the trespass claim.
{¶23} The conversion claim also depends on resolution of the vegetation
management question. “Conversion” is defined as the “wrongful exercise of
dominion over property in exclusion of the right of the owner, or withholding it from
his possession under a claim inconsistent with his rights.” Northway McGuffey
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College v. Brienza, 7th Dist. No. 07 MA 145, 2008-Ohio-6207, ¶35, quoting Zacchini
v. Scripps-Howard Broadcasting Co., 47 Ohio St.2d 224, 226, 351 N.E.2d 454(1976). A conversion claim arising from the removal of vegetation from within a
lawful utility easement falls under the jurisdiction of the PUCO. Schad v. Ohio Edison
Co., 5th Dist. No. 09-COA-024, 2010-Ohio-585, referencing Corrigan.
{¶24} Finally, there is the alleged violation of R.C. 901.51, which states: “No
person, without privilege to do so, shall recklessly cut down, destroy, girdle, or
otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the
land of another or upon public land.” Since the existence of a privilege is a defense
to this statute, and because the privilege involves Ohio Edison’s vegetation
management decision to cut down rather than trim trees in the easement, this matter
also must be determined by the PUCO, and does not fall under the jurisdiction of the
court of common pleas. As the trial court correctly pointed out, Appellants were not
entitled to any compensation for the removal of trees as part of Ohio Edison's
operations within the scope of its easement. Rueckel v. Texas Eastern Transmission
Corp., 3 Ohio App.3d 153, 158-159, 444 N.E.2d 77 (5th Dist.1981) (landowner is not
entitled to any further compensation for removal of trees interfering with the use of a
pipeline easement). Thus, even if the court of common pleas did have jurisdiction
over the claim, no relief was available.
{¶25} Summary judgment was also proper in favor of Penn Line, even though
Penn Line is not a public utility. Penn Line performs tree-trimming and vegetation
management services for Ohio Edison. Under any theory of liability against Penn
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Line, whether as an agent of Ohio Edison or as an independent contractor, Penn
Line may rely on rights granted by the easement to Ohio Edison as a defense to
liability. Since Appellants cannot prove any liability of Ohio Edison (at least not in the
court of common pleas at this time), they cannot prevail against an agent or
independent contractor performing tree removal services on behalf of Ohio Edison.
Once again, the authority granted by the easement to cut down trees has already
been determined in Delost I and the issue is res judicata in this case.
{¶26} Finally, the Delosts present arguments regarding their concern that
Appellees violated some type of continuing stay of this Court’s judgment in Delost I
when they cut down the trees on July 1, 2008. As far as can be determined from the
record, the Delosts had not filed a direct appeal or notice of certified conflict with the
Ohio Supreme Court by that date, nor had they filed any action with the PUCO or
taken any further action with the court of common pleas. Since we already certified a
conflict in the Delost I Opinion itself, the Delosts were free to file a notice of certified
conflict as of the date our Opinion was released, June 17, 2008. In the process, they
could have attempted to obtain a stay of execution from the Ohio Supreme Court.
They did not do this. They could have also attempted to obtain an immediate stay
from this Court under App.R. 27, but this was not done by July 1, 2008. Thus, on
July 1, 2008, there was nothing to prevent Ohio Edison from entering the easement
on the Delosts’ property and performing vegetation management services.
{¶27} The Delosts themselves apparently acknowledge there was no
enforceable stay of execution in effect on July 1, 2008, because they came to us on
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that date and filed a motion for stay of our June 17, 2008, judgment, rather than a
motion to enforce an existing or previous stay. If there had already been a stay in
effect, a new request would not have been necessary.
{¶28} Once a court of appeals issues a ruling, the parties may act on it
immediately. Even the filing of a notice of appeal to the Ohio Supreme Court does
not generally give rise to any type of automatic stay of a judgment from a court of
appeals. The non-prevailing party in an appeal must either file a motion for stay in
the court of appeals under App.R. 27, or seek a stay in Ohio Supreme Court pursuant
to S.Ct.Prac.R. 2.2(A)(3)(a), after filing a further appeal to that Court. The Delosts
took no action prior to July 1, 2008, so Ohio Edison was not violating any stay of
execution when it cut the trees down on July 1, 2008.
{¶29} Based on all of the reasons stated above, and primarily on the Ohio
Supreme Court’s previous rulings in Delost I and Corrigan, we overrule all of
Appellants' arguments in this appeal. The common thread in all four of the Delosts’
claims is that Ohio Edison, and by extension, Penn Line, violated the scope of the
transmission easement by cutting down, rather than trimming, trees in the utility
easement. Since the broad scope of the easement was previously determined, the
only remaining question about Ohio Edison's decision to cut down rather than trim
trees is a vegetation management question and falls under the exclusive jurisdiction
of the PUCO to determine. Appellants did not provide any evidence that Penn Line
acted contrary to the vegetation management policies of Ohio Edison, and summary
judgment in favor of Penn Line was proper. Because we have overruled all of
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Appellants' arguments, we hereby affirm the judgment of the trial court in favor of
Ohio Edison and Penn Line on all claims.
Vukovich, J., concurs.
DeGenaro, J., concurs.