[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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