[Cite as DeLost v. Ohio Edison Co.,

.] 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.,

.] 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,

, aff’d

,

,

(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. -2-

{¶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 -3-

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.,

,

,

(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.,

,

,

. On September 1, 2009, the Ohio Supreme Court affirmed the -4-

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 -5-

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.,

,

(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.,

,

(1977). When

a court considers a motion for summary judgment, the facts must be taken in the light

most favorable to the nonmoving party.

{¶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 -6-

nonmoving party's claim.” (Emphasis deleted.) Dresher v. Burt,

,

(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.

. 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.,

,

(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,

,

(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 -7-

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,

,

,

, ¶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,

,

(1970), quoting State ex rel. Ohio Bell Tel. Co. v.

Cuyahoga Cty. Court of Common Pleas,

,

(1934).

{¶17} The Ohio Supreme Court has adopted a two-part test from Pacific

Indemn. Ins. Co. v. Illum. Co., 8th Dist. No. 82074,

, 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.,

, 2008- -8-

Ohio-3917,

, ¶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,

,

,

, ¶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,

,

,

, ¶21, quoting Higgins v. Columbia Gas of

Ohio, Inc.,

,

(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 -9-

MA 121,

, ¶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.,

,

(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.,

,

(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.

{¶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 -10-

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.,

,

(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 -11-

College v. Brienza, 7th Dist. No. 07 MA 145,

, quoting Zacchini

v. Scripps-Howard Broadcasting Co.,

,

(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,

, 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.,

,

(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 -12-

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 -13-

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 -14-

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.