[Cite as Wimmer v. Pub. Util. Comm., 131 Ohio St.3d 283, 2012-Ohio-757.]




               WIMMER ET AL., APPELLANTS, v. PUBLIC UTILITIES
                          COMMISSION ET AL., APPELLEES.
  [Cite as Wimmer v. Pub. Util. Comm., 131 Ohio St.3d 283, 2012-Ohio-757.]
Public utilities—Transmission-line easement—Public Utilities Commission
        decision to remove vegetation in easement was reasonable.
  (No. 2011-0563—Submitted January 17, 2012—Decided February 29, 2012.)
       APPEAL from the Public Utilities Commission, No. 09-777-EL-CSS.
                                 __________________
        PFEIFER, J.
        {¶ 1} Kurt Wimmer and the Wimmer Family Trust (“the Wimmers”)
argue that the Public Utilities Commission of Ohio erred in allowing Ohio Edison
Company to remove certain trees from a transmission-line easement running over
the Wimmers’ property. We disagree and affirm the order of the commission.
                                    I. Background
        {¶ 2} Ohio Edison owned a transmission-line easement running over the
Wimmers’ property. For years, Ohio Edison, in accordance with the company’s
general policy, had trimmed and (rarely) removed trees growing in the easement.
But that policy changed after several tree-to-line contacts contributed to cause a
blackout throughout the northeastern United States in 2003. When the company
sought to remove the trees in the easement on the Wimmers’ property, the family
objected.
        {¶ 3} The Wimmers took their complaint to court, where the court of
common pleas found in favor of Ohio Edison. On appeal, the court of appeals
affirmed, concluding that Ohio Edison’s easement permitted it to remove the
trees. Wimmer Family Trust v. FirstEnergy, 9th Dist. No. 08CA009392, 2008-
Ohio-6870, ¶ 16. We vacated that judgment “on the authority of Corrigan v.
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Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009.” Wimmer
Family Trust v. FirstEnergy Corp., 123 Ohio St.3d 144, 2009-Ohio-4304, 914
N.E.2d 1036, ¶ 1. In Corrigan, we held that the utility’s easement permitted tree
removal but that the commission, not a court, was required to decide whether
removal was reasonable. Corrigan at ¶ 19, 21.
       {¶ 4} The Wimmers then took their complaint to the commission. After
an evidentiary hearing, the commission ruled in Ohio Edison’s favor and
permitted it to remove the trees. Wimmer v. Ohio Edison Co., Pub. Util. Comm.
No. 09-777-EL-CSS (Jan. 27, 2011).The Wimmers appealed to this court, and
Ohio Edison has intervened in defense of the order.
                                   II. Discussion
                A. The Wimmers’ first two propositions are settled
       {¶ 5} The first two propositions of the Wimmers’ brief predominantly
address interpretation of the easement held by Ohio Edison. Those issues were
not before the commission and are not relevant here because they were settled in
an earlier proceeding.
       {¶ 6} As noted above, this is the second time that the Wimmers’ case has
reached this court. They filed their first complaint in the court of common pleas,
whose decision in favor of Ohio Edison was affirmed by the court of appeals. We
disposed of their case on the authority of Corrigan. Wimmer Family Trust at ¶ 1.
Corrigan involved a utility-landowner dispute over whether a tree should be
removed or pruned. We held that there was “no question that the company has a
valid easement,” that “the tree is within the easement,” and that the easement
“grants the company the right to remove any tree within the easement that could
pose a threat to the transmission lines.” Id. at ¶ 17 and 19.
       {¶ 7} By disposing of the Wimmers’ earlier litigation on the authority of
Corrigan, this court decided the easement issues in favor of Ohio Edison. As in
Corrigan, the utility’s easement over the Wimmers’ property expressly permits




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the removal of trees. It grants the utility “the right to trim, remove, or control
* * * trees * * * as may interfere with or endanger” the utility’s transmission
lines. Even so, the Wimmers argue that their easement does not permit tree
removal. We consider that issue settled. See S.Ct.Prac.R. 11.2(A) (motions for
reconsideration must be filed within ten days of the filing of the judgment entry or
order). Moreover, even had the issue remained alive after our earlier decision, it
is quite clear that the utility’s easement permits the removal of trees.
                 B. Evidence supported the commission’s decision
       {¶ 8} We thus turn to the issue that is properly presented here: whether
the commission erred in finding that removal of the Wimmers’ trees was
reasonable. The Wimmers argue that Ohio Edison failed to present evidence that
their trees “may interfere with or endanger the utility’s transmission lines.” In
their view, the proffered evidence “was long on Ohio Edison’s fear and
speculation and short on hard facts.”
       {¶ 9} Contrary to these assertions, evidence was presented that supported
the order. The commission found that “the vegetation in question has the genetic
disposition to grow to heights tall enough to potentially interfere with the * * *
line.” Wimmer, Pub. Util. Comm. No. 09-777-EL-CSS, at 9. The commission
also found that Ohio Edison “reasonably determined that this vegetation may
interfere or threaten to interfere with the transmission line and should be
removed.” Id. These findings were supported by the expert testimony of Rebecca
Spach, who described the trees growing in the right-of-way and explained that
“the average mature heights are well above the height of the [line].” Indeed,
Spach explained that even with continuous trimming and pruning, at least one tree
had already grown to within four feet of the line, in violation of the National
Electric Safety Code, which is published by the Institute of Electrical and
Electronics Engineers and sets the industry-accepted safety standards.




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         {¶ 10} The Wimmers do not challenge the admission of Spach’s
testimony on any ground, nor do they challenge her qualification as an expert.
They do not adduce any contrary testimony or difficulty on cross-examination
that would call her testimony into question. And they present no argument or
factual support for their assertion that her testimony was speculative. On the
contrary, Spach personally observed the trees in the right-of-way. The average
mature height and growth rate of those trees is also a matter of observation, not
guesswork. Accordingly, the commission’s decision is not—as the Wimmers
must show—“ ‘so clearly unsupported by the record as to show misapprehension,
mistake, or willful disregard of duty.’ ” Monongahela Power Co. v. Pub. Util.
Comm., 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29, quoting
AT&T Communications of Ohio, Inc. v. Pub. Util. Comm., 88 Ohio St.3d 549,
555, 728 N.E.2d 371 (2000).
         {¶ 11} Because the Wimmers do not show any error in the commission’s
order, we must affirm. We note with approval the commission’s admonition that
Ohio Edison “attempt to minimize the impact to property owners, to the extent
possible and without sacrificing safety and reliability, when performing [utility-
vegetation-management] activities.” Wimmer, Pub. Util. Comm. No. 09-777-EL-
CSS, at 10. Like the Wimmers, Ohio Edison must comply with the commission’s
order.
                                   III. Conclusion
         {¶ 12} For the foregoing reasons, we affirm the order of the commission.
                                                                   Order affirmed.
         O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.
                                __________________
         Lester S. Potash, for appellants.




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                              January Term, 2012




       Michael DeWine, Attorney General, and William L. Wright, Werner L.
Margard III, and Devin D. Parram, Assistant Attorneys General, for appellee.
       Jones Day, David A. Kutik, Jeffrey Saks, and Douglas R. Cole, for
intervening appellee, Ohio Edison Company.
                          ______________________




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