Cottrell v. American Electric Power

[Cite as Cottrell v. Am. Elec. Power, 190 Ohio App.3d 518, 2010-Ohio-5673.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
COTTRELL,
APPELLANT, CASE NO. 11-10-06
v.
AMERICAN ELECTRIC POWER ET AL., OPINION
APPELLEES.
Appeal from Paulding County Common Pleas Court
Trial Court No. CI-05-133
Judgment Reversed and Cause Remanded
Date of Decision: November 22, 2010
APPEARANCES:
Clayton J. Crates and Daniel R. Michel, for appellant.
D. Patrick Kasso, for appellees.
ROGERS, J.
Case No. 11-10-06
{¶ 1} Although originally placed on our accelerated calendar, we elect,
pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.
{¶ 2} The plaintiff-appellant, David Cottrell, appeals the judgment of the
Paulding County Common Pleas Court, granting summary judgment in favor of
the defendants-appellees, American Electric Power (“AEP”) and Asplundh Tree
Expert Co. (“Asplundh”), and dismissing his complaint. On appeal, Cottrell
contends that the trial court had subject-matter jurisdiction over his cause of action
for negligence and that genuine issues of material fact existed on his claims of
trespass, conversion, and R.C. 901.51, rendering summary judgment in favor of
AEP and Asplundh error. Based upon the following, we reverse the judgment of
the trial court.
{¶ 3} In June 2005, Cottrell filed a complaint alleging that AEP destroyed
two trees located on his real property through excessive trimming. Cottrell also
alleged that the falling debris damaged his slate sidewalk. Cottrell sought
monetary compensation, including treble damages for the trees pursuant to R.C.
901.51. The complaint further alleged that Asplundh, whose employees
performed the trimming, was acting as AEP’s agent at that time.
Contemporaneous with the filing of his complaint, Cottrell filed a motion for
temporary orders, requesting that AEP and anyone acting on its behalf be enjoined
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from cutting any trees on another property he owned in Carryall Township in
Paulding County. This request for temporary orders was granted the same day.
{¶ 4} Both AEP and Asplundh answered the complaint and asserted, inter
alia, that the trees at issue were within the right-of-way/easement belonging to
AEP and that they had legal authority to access and trim the trees at issue. In
April 2006, Cottrell was deposed by counsel for AEP and Asplundh. During his
deposition, Cottrell testified that he had bought his home in Antwerp, Ohio, in
1981. He further testified that sometime during the late spring or early summer of
2004, Asplundh employees came to his home and trimmed two trees that were
located on his property and that were not in the right-of-way. Cottrell explained
that they had not merely cut limbs that were located in the right-of-way and that
were near the power lines, but that they had cut limbs that were not in the right-of-
way and had cut excessively into the tree. Cottrell complained to the foreman but
was told by the foreman that he “could do whatever he wanted.” Cottrell was also
questioned about a report he obtained from an arborist, Robert J. Laverne, whom
he hired to evaluate his trees. In the report, Laverne detailed the damage to the
trees, the cause of the damage, and the replacement cost of the trees. Cottrell also
explained how his slate sidewalk was damaged and was questioned about the
estimate he received regarding the cost to fix this damage. The arborist’s report,
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the sidewalk estimate, and a number of photographs of Cottrell’s property,
including the trees and sidewalk, were attached to his deposition as exhibits.
{¶ 5} In November 2006, AEP and Asplundh filed a joint motion for
summary judgment as to Cottrell’s claim for treble damages pursuant to R.C.
901.51. In this motion, they contended that they had a duty and a privilege to trim
the trees, which precluded an award of treble damages.1 Cottrell filed a response
in which he argued that there was no evidence that any duty AEP had required that
it cut into the trees that far into his property and that genuine issues of material
fact existed as to whether AEP and Asplundh had a privilege to enter into his
property to the extent that they did. AEP and Asplundh filed a reply to Cottrell’s
response. In January 2007, the trial court granted partial summary judgment in
AEP’s and Asplundh’s favor as to the R.C. 901.51 claim, finding that they had had
a privilege to trim the trees in question, but noted that Cottrell was not precluded
from pursuing recovery for any negligent exercise of that privilege.
{¶ 6} The parties agreed to attempt mediation. However, in February
2007, AEP and Asplundh filed a motion for judgment on the pleadings, alleging
that Cottrell’s complaint did not state a claim for negligence. The trial court did
not rule on this motion. The following day, the mediation report was filed. This
1
AEP acknowledged for purposes of summary judgment that Asplundh trimmed Cottrell’s trees on AEP’s
behalf. As will be further discussed, AEP and Asplundh maintained this same position in subsequent
motions to the trial court and before this Court on appeal.
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report indicated that the parties agreed on all but one issue, involving Cottrell’s
other property located in Carryall Township. In June 2007, AEP and Asplundh
filed a motion to enforce the settlement agreement, which the trial court denied.
AEP and Asplundh filed a motion to vacate the temporary orders issued in June
2005 regarding Cottrell’s other property in Carryall Township. The trial court
granted this motion. Thereafter, AEP and Asplundh filed a second motion to
enforce the settlement agreement, and the trial court overruled this motion as well.
{¶ 7} In August 2008, AEP and Asplundh filed a motion to dismiss
pursuant to Civ.R. 12(B)(1), asserting that the trial court did not have subject-
matter jurisdiction over the complaint because the Public Utilities Commission of
Ohio (“PUCO”) has exclusive jurisdiction over this matter. Cottrell did not
respond, and in September 2008, the trial court granted the motion and dismissed
the complaint. Cottrell appealed that decision to this court, and we reversed the
decision of the trial court and remanded the cause, finding that the trial court had
subject matter jurisdiction. See Cottrell v. AEP (Feb. 17, 2009), 3d Dist. No. 11-
08-11 (“Cottrell I”).
{¶ 8} Subsequent to our decision in Cottrell I, AEP and Asplundh once
again filed a motion to dismiss for lack of subject-matter jurisdiction, relying on
Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009,
which was decided by the Ohio Supreme Court in June 2009, four months after
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our decision in Cottrell I. The trial court converted this motion to a motion for
summary judgment pursuant to Civ.R. 56 and permitted the parties to file
evidentiary materials and written arguments in support of their respective
positions.
{¶ 9} In October 2009, AEP and Asplundh filed a motion for summary
judgment with a memorandum in support. Attached to this motion were, inter alia,
the affidavit of Douglas Dunakin, a registered professional surveyor; a copy of the
survey performed by Dunakin of Cottrell’s property; the affidavit of Keith
Confere, a supervisor for Asplundh who photographed the area of Cottrell’s
property at issue in 2008; several of the photographs taken by Confere; the
affidavit of Jeffrey Ling, a registered consulting arborist who took photographs of
the property in dispute in July 2006; and several of the photographs taken by Ling.
Cottrell filed his response to this motion in November 2009. Attached to
Cottrell’s response were the affidavit of R.J. Laverne,2 an employee of Davey Tree
Company who took photographs of Cottrell’s property in November 2004, and
several photographs of Cottrell’s property that were taken by Laverne. Two
weeks after Cottrell filed his response, AEP and Asplundh filed a reply.
{¶ 10} On May 10, 2010, the trial court rendered its decision. The trial
2
Although the affidavit states that it is of “R.J. Laverne,” this affidavit appears to be from “Robert J.
Laverne,” the arborist hired by Cottrell and whose report was submitted as an exhibit during Cottrell’s
deposition.
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court found that the sidewalk was entirely within the right-of-way and that a
substantial portion of the foliage from the two trees was also within the right-of-
way. The court further found that it had previously determined in its decision
regarding the R.C. 901.51 claim that AEP and Asplundh were privileged to trim
the trees. Thus, the trial court concluded that this privilege also defeated Cottrell’s
claims based upon conversion and trespass, and the court rendered summary
judgment in favor of AEP and Asplundh. In addition, the trial court concluded
that Cottrell’s claim that AEP and Asplundh were negligent in the manner in
which they trimmed the trees in question was not within the court’s subject-matter
jurisdiction, but rather was within the exclusive jurisdiction of PUCO. Therefore,
the trial court dismissed this claim. Based upon these findings, the trial court
dismissed the complaint in its entirety.
{¶ 11} It is from this judgment that Cottrell appeals, presenting the
following assignment of error for our review.
The trial court erred in granting defendant/appellee’s motion for
summary judgment.
{¶ 12} In his sole assignment of error, Cottrell contends that the trial court
improperly weighed the evidence before it and made factual determinations based
thereon rather than construing the evidence in a light most favorable to the non-
moving party, i.e. Cottrell, as required by Civ.R. 56. More specifically, the trial
court found that his sidewalk was entirely within the right-of-way, that a
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substantial portion of the foliage of the two trees was in the right-of-way, that the
foliage was growing in proximity to AEP’s power lines, and that as a result, AEP
and Asplundh had a privilege to trim the trees. Cottrell maintains that these
findings evidence that the court weighed the evidence and elected to construe it in
favor of AEP and Asplundh. Cottrell also asserts that the trial court erred in
relying upon Corrigan, 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, in
determining that his claim for negligence was within PUCO’s exclusive
jurisdiction.
{¶ 13} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court used different or erroneous reasons as the basis for
its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib.
Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25, citing State ex rel. Cassels v.
Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 222. Summary
judgment is appropriate when, looking at the evidence as a whole, (1) there is no
genuine issue as to any material fact; (2) reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party against whom the motion
for summary judgment is made; and, therefore, (3) the moving party is entitled to
judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick Chem. Corp.
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(1995), 73 Ohio St.3d 679, 686-687. If any doubts exist, the issue must be
resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65
Ohio St.3d 356, 358-359.
{¶ 14} The party moving for summary judgment has the initial burden of
producing some evidence that demonstrates the lack of a genuine issue of material
fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. In doing so, the moving
party is not required to produce any affirmative evidence but must identify those
portions of the record that affirmatively support his argument. Id. at 292. The
nonmoving party must then rebut with specific facts showing the existence of a
genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings. Id.; Civ.R. 56(E).
Trespass, Conversion, and R.C. 901.51
{¶ 15} In Cottell I, we found that although Cottrell’s complaint was poorly
drafted, it alleged claims for conversion, trespass, and treble damages under R.C.
901.51. Cottrell, 3d Dist. No. 11-08-11. “A common-law tort in trespass upon
real property occurs when a person, without authority or privilege, physically
invades or unlawfully enters the private premises of another whereby damages
directly ensue, even though such damages may be insignificant.” (Emphasis
added.) Linley v. DeMoss (1992), 83 Ohio App.3d 594, 598; see also Apel v. Katz
(1998), 83 Ohio St.3d 11, 19. Conversion occurs when another wrongfully
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exercises dominion over property to the exclusion of the rights of the owner or
withholds the property from the owner’s possession under a claim inconsistent
with the owner’s rights. See Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d
93, 96. As for the treble-damages claim, the Revised Code provides, “No person,
without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise
injure a * * * tree * * * standing or growing on the land of another or upon public
land.” (Emphasis added.) R.C. 901.51. Common among these three causes of
action is that they require the alleged tortfeasor to have acted in some
unauthorized manner.
{¶ 16} As previously noted, the trial court found that there was no genuine
issue of fact that AEP and Asplundh were privileged to cut the trees at issue. In so
doing, the trial court determined that a substantial portion of the foliage of the two
trees was within the right-of way and that Asplundh had trimmed the trees that
were in proximity to AEP’s power lines.
{¶ 17} Our review of the record reveals that the only evidence of AEP’s and
Asplundh’s privilege to cut these trees is the survey of Dunakin. This survey, the
accuracy of which is not in dispute, reveals that a highway right-of way3 extends
to the inside edge of the sidewalk at issue, placing the sidewalk entirely within the
3
The parties refer to the right-of-way as a “highway right-of-way.” However, none of the parties ever
discusses, defines, or explains what “highway” right-of-way means, and the survey simply notes: “East
River Street (U.S. 24) 60’ R/W.” In addition, as will be discussed later in this opinion, none of the parties
explains what rights AEP has by virtue of that right-of-way.
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right-of-way; the electrical poles and power lines are located entirely in the right-
of-way; the trunks of the two trees at issue are located solely on Cottrell’s property
and not in the right-of-way; and an undetermined amount of foliage from the two
trees extends into the right-of-way. What the survey does not reveal and what
AEP and Asplundh have failed to include is any evidence of what AEP’s rights are
within this right-of-way or that the portions of the trees trimmed by Asplundh
were located solely within the right-of-way or that they were otherwise privileged
to trim these trees in the manner that they did.
{¶ 18} Although we acknowledge that a company engaged in the
transmission and distribution of electrical current has a duty “to exercise the
highest degree of care consistent with the practical operation of its business in the
construction, maintenance and inspection of its equipment,” Otte v. Dayton Power
& Light Co. (1988), 37 Ohio St.3d 33, 38, this duty does not give the company
unbridled discretion to trespass, convert, or destroy another’s property. In fact, as
we stated in Cottrell I, 3d Dist. No. 11-08-11, “[w]hen public utilities exceed the
scope of their easements, the injured party may seek recourse in the court of
common pleas for common-law trespass or under R.C. 901.51.” Cottrell, citing
Bayes v. Toledo Edison Co., 6th Dist. Nos. L-03-1177 and L-03-1194, 2004-Ohio-
5752.
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{¶ 19} Even assuming arguendo that AEP and Asplundh had the authority
to trim trees in the right-of-way, Cottrell testified that a significant amount of the
trimming occurred over his property rather than over the right-of-way, including
the trimming of branches that were growing away from the power lines. In
support of this testimony, he submitted photographs of these trees that were taken
during late autumn a few months after the trimming occurred when the trees had
no leaves. These photographs appear to show many cut-off points on the trees that
are directly above the trunk or in directions going away from the power lines,
which place these limbs completely outside of the right-of-way.
{¶ 20} AEP and Asplundh presented no evidence to refute that these cuts
were made by Asplundh during the trimming it performed of Cottrell’s trees in
2004. While they did present photographs that were taken in the summers of 2006
and 2008, these photographs were taken two and four years, respectively, after the
cutting occurred. Further, these photographs depict the trees with significant
amounts of foliage and are taken at angles that make it difficult to observe the cuts
and their locations in relation to the right-of-way. Thus, when construing the
evidence in a light most favorable to Cottrell, as Civ.R. 56 requires, we find that
AEP and Asplundh exceeded any privilege that they may have had in trimming
these trees. Consequently, we find that genuine issues of material fact exist
regarding whether AEP and Asplundh were privileged to trim Cottrell’s trees to
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the extent they did so outside the right-of-way, and summary judgment in favor of
AEP and Asplundh was not appropriate on these claims.
Negligence and Subject-Matter Jurisdiction
{¶ 21} In dismissing the negligence claim, the trial court characterized
Cottrell’s claim as primarily a vegetation-management issue that was within the
exclusive jurisdiction of PUCO. PUCO has been given broad jurisdiction over
service-related matters involving public utilities through the enactment of R.C.
4901.01 et seq. See Kazmaier Supermarket, Inc. v. Toledo Edison Co. (1991), 61
Ohio St.3d 147, 150. However, this discretion 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 (1994), 68 Ohio St.3d 209, 211. Accordingly, the Ohio
Supreme Court has established a two-part test for determining whether PUCO has
exclusive jurisdiction over a complaint:
“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, the claim is not within PUCO’s exclusive
jurisdiction.
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Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301, 2008-Ohio-
3917, ¶ 12-13, quoting Pacific Indemn. Ins. Co. v. Illum. Co., 8th Dist No. 82074,
2003-Ohio-3954, ¶ 15.
{¶ 22} This test was recently applied by the Supreme Court in Corrigan v.
Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, ¶ 12. In Corrigan, a property
owner filed a complaint for injunctive relief to prevent an electric company from
removing a tree located within its easement. Id. at ¶ 1-3, 17. In determining
whether PUCO had exclusive jurisdiction over the matter, the court specifically
noted that the case before it was not about an easement, which is a pure contract
matter that would confer subject-matter jurisdiction in the court of common pleas.
Id. at ¶ 17. Instead, the court found that the property owner’s “complaint with the
decision to remove the tree is really an attack on the company’s vegetation-
management plan * * * a service-related issue, which is within PUCO’s exclusive
jurisdiction.” Id. at ¶ 20. See also DeLost v. First Energy Corp., 7th Dist. No. 07
MA 194, 2008-Ohio-3086.
{¶ 23} AEP and Asplundh now urge us to apply the holding in Corrigan to
the case sub judice, as the trial court did, claiming that the sole issue is whether its
cutting of the trees was necessary and reasonable as part of its plan to control
vegetation around its power lines. We disagree.
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{¶ 24} In Corrigan, the reason the court stated that the case was not about
an easement was that no one disputed that the tree being removed by the power
company was wholly within the easement of the power company. Corrigan, 122
Ohio St.3d 265, 2009-Ohio-2524, at ¶ 17. However, as we stated the first time
these parties were before us, “[t]his case differs significantly from both Delost and
Corrigan in that Cottrell’s complaint alleged that the damaged trees were outside
AEP’s easement, and there is no evidence in the record to refute this claim.”
Cottrell, 3d Dist. No. 11-08-11. This statement remains accurate. AEP submitted
no evidence regarding its easement, if any. The undisputed evidence also shows
that the trees at issue are located outside the right-of-way but that some of their
branches were in the right-of-way. In addition, Cottrell’s testimony and his
photographs provide evidence that the damage to the trees of which he complains
occurred outside the right-of-way. Notably, the administrative regulations
promulgated by PUCO require electric utilities to establish programs for
“preventative requirements for the electric utility to maintain safe and reliable
service,” as to “[r]ight of way vegetation.” (Emphasis added.) Ohio Adm.Code
4901:1-10-27. PUCO does not regulate vegetation management outside the right-
of-way, rendering such cases outside those acts normally authorized by PUCO and
requiring its expertise. Thus, Corrigan is inapplicable to the case sub judice, and
the two-part test established in Allstate has not been met.
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{¶ 25} Moreover, Cottrell also asserts that his sidewalk and portions of his
lawn were damaged by the falling limbs. “Even if it is presumed that the Utilities
acted within their rights, when property is damaged during the exercise of
easement rights, a property owner may still be entitled to compensation where he
has not burdened or interfered with the grantee’s use of the easement.” Bayes,
2004-Ohio-5752, ¶ 73, citing Jones v. Dayton Power & Light Co. (Dec. 14, 1994),
2d Dist. No. 94-CA-49, 1994 WL 702062 (landowner entitled to compensation for
trees that “posed a threat to power lines” removed by electric company crew).
These claims are based on pure tort. Accordingly, we find that the trial court had
subject-matter jurisdiction over Cottrell’s negligence claim and erred in dismissing
this claim.
Conclusion
{¶ 26} In sum, we find that the trial court erred in granting summary
judgment in favor of AEP and Asplundh and dismissing Cottrell’s complaint.
Therefore, the sole assignment of error is sustained.
{¶ 27} Having found error prejudicial to the appellant herein, in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded
WILLAMOWSKI, P.J., and PRESTON, J., concur.
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