[Cite as Columbia Gas of Ohio, Inc. v. Toledo Edison Co., 2015-Ohio-3942.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Columbia Gas of Ohio, Inc.                                Court of Appeals No. L-14-1263

        Appellant                                         Trial Court No. CI0201206338

v.

The Toledo Edison Company, et al.                         DECISION AND JUDGMENT

        Appellee                                          Decided: September 25, 2015

                                                 *****

        Michael L. Snyder, Jerome W. Cook, Joseph M. Muska and
        Beth I. Gillin, for appellant.

        Denise M. Hasbrook and Emily Ciecka Wilcheck, for appellee.

                                                 *****

        SINGER, J.

        {¶ 1} Appellant, Columbia Gas of Ohio, Inc., appeals the judgment of the Lucas

County Court of Common Pleas. For the reasons that follow, we affirm.
     {¶ 2} Appellant sets forth four assignments of error:

            I. The trial court erred as a matter of law by failing to take judicial

     notice mandated by Civ.R. 44.1(A)(1), (2) of the mandatory minimum legal

     duties imposed upon Appellee Toledo Edison by the statutory and

     regulatory law of the State of Ohio governing electric utilities and by

     failing to apply that law despite sufficient notice to the trial court and

     opposing counsel that Appellant Columbia Gas was relying upon this very

     statutory and regulatory law.

            II. The trial court abused its discretion and committed reversible

     error by striking the affidavits of Bills and Carbonara where Appellant

     Columbia had complied with all pretrial orders, there was no order

     declaring Appellant Columbia to be in default of any discovery order, and

     where any good faith comparison of the affidavits and the SEA Reports

     would have eliminated the baseless and legally unsupported claim that there

     was any bad faith associated with their content or submission at the

     summary judgment stage.

            III. The trial court abused its discretion by denying Appellant

     Columbia’s Motion for Leave to file First Amended Complaint Instanter,

     with Amended Complaint attached, where no justification was provided in

     the trial court’s order, the amended complaint only amplified on existing

     claims based upon facts discovered to date, only modified the damages




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       claim to include punitive damages and where over three months remained

       before the scheduled trial.

              IV. The trial court erred as a matter of law by failing to apply the

       doctrine of res ipsa loquitur in support of Appellant Columbia’s Motion for

       Summary Judgment and in opposition to Defendant’s Motion for Summary

       Judgment where the facts support a reasonable person concluding that it is

       more likely that [sic] not that Appellant [sic] Toledo Edison’s negligence

       was associated with the destruction of the regulator station by fire.

       {¶ 3} Appellant owned a natural gas regulator station located on Manhattan

Boulevard in Toledo, Ohio. In that vicinity, there was a wooden utility pole with a

wooden crossarm and electrical equipment which were owned by appellee.

       {¶ 4} On November 16, 2010, the primary conductor which had been attached to

the crossarm on the utility pole fell off the insulator and onto three secondary conductors

located on the pole below the primary line. Subsequently, a fire occurred which resulted

in the destruction of appellant’s regulator station.

       {¶ 5} On November 15, 2012, appellant filed a complaint against appellee seeking

to recover in excess of $25,000 which appellant alleged it expended in building a new

natural gas regulator station. In its complaint, appellant alleged appellee was negligent,

as well as negligent per se, by failing to inspect and maintain its equipment, record and

retain documentation of defects, and remedy defects. Appellant also alleged damage to

real and personal property.




3.
       {¶ 6} Appellee answered the complaint then filed a motion for summary judgment.

Appellant filed a motion for partial summary judgment to which it attached the affidavits

of two of its experts, Randall Bills and Robert Carbonara. Appellee filed a motion to

strike these affidavits. The trial court granted appellee’s motion to strike. The trial court

also granted appellee’s motion for summary judgment finding that appellee demonstrated

there was no genuine issue of material fact that appellee owed no duty to appellant as the

events of November 16, 2010, were unforeseen, and there was no evidence that appellee

breached a standard of care in the industry which proximately caused appellant’s loss.

Appellant timely appealed.

       {¶ 7} Appellant’s second assignment of error will be addressed first. Appellant

claims the trial court abused its discretion in striking the two affidavits attached to its

motion for partial summary judgment. Appellant contends the trial court’s basis for

striking the affidavits was that the affidavits were not produced before the expert

identification deadline. Appellant argues it timely identified its experts and produced two

expert reports, although there was no requirement by the trial court for the exchange of

expert reports. Appellant submits it clarified for appellee that Bills was its expert to be

called at trial to testify about the entire expert report, but there was no prohibition

regarding the submission of another expert’s affidavit in summary judgment briefing.

Appellant maintains there was no bad faith related to the submission or content of the

affidavits and the court’s ruling effectively excluded the expert reports.




4.
       {¶ 8} Appellee counters appellant represented to appellee that Bills would be

appellant’s only testifying expert. Appellee agues Bills’ affidavit contained opinions not

discussed at his deposition, and both affidavits included opinions not previously disclosed

in expert reports. In addition, appellee contends Bills’ affidavit contained averments

which are contradictory to statements he made at his deposition, and no explanation for

the contradictions was offered.

       {¶ 9} A trial court’s decision to grant or deny a motion to strike an affidavit is

reviewed using an abuse of discretion standard. Early v. The Toledo Blade, 130 Ohio

App.3d 302, 318, 720 N.E.2d 107 (6th Dist.1998). An abuse of discretion connotes that

the lower court’s attitude in reaching its judgment was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 10} Affidavits offered in support of and in opposition to a motion for summary

judgment “shall be made on personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant is competent to

testify to the matters stated in the affidavit.” Civ.R. 56(E). Affidavits that contain

hearsay or other inadmissible evidence are not sufficient to support a motion for

summary judgment. Tokles & Son, Inc. v. Midwestern Indem. Co., 65 Ohio St.3d 621,

605 N.E.2d 936 (1992); JPMorgan Chase Bank v. Murdock, 6th Dist. Lucas No.

L-06-1153, 2007-Ohio-751, ¶ 25.




5.
       {¶ 11} With respect to supplementation of discovery responses, Civ.R. 26(E)(1)(b)

states in pertinent part:

               A party is under a duty seasonably to supplement his response with

       respect to any question directly addressed to * * * the identity of each

       person expected to be called as an expert witness at trial and the subject

       matter on which he is expected to testify.

       {¶ 12} One purpose of the Rules of Civil Procedure is to facilitate the flow of

pertinent information between parties by way of discovery requests and to eliminate

unfair surprise. Jones v. Murphy, 12 Ohio St.3d 84, 86, 465 N.E.2d 444 (1984). “If

discovery is to serve its purpose, the parties must be entitled, upon the unveiling of a

contention, to a reasonable opportunity to prepare to defend against it.” Shumaker v.

Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367, 370, 504 N.E.2d 44 (1986), abrogated

on other grounds in State v. D’Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909 (1993).

The purpose of Civ.R. 26(E)(1)(b) is to prevent “trial by ambush.” Id. at 371. A trial

court may exclude expert testimony as a sanction for violating Civ.R. 26(E). Jones at 85.

Since the exclusion of otherwise reliable and probative evidence is an extreme sanction, a

trial court should only exclude evidence when clearly necessary to enforce willful

noncompliance or prevent unfair surprise. Weimer v. Anzevino, 122 Ohio App.3d 720,

725, 702 N.E.2d 940 (7th Dist.1997).

       {¶ 13} Here, a review of the record shows appellant disclosed the identity of three

expert witnesses, Bills, Carbonara and Jeffrey Lindsey. Appellee then requested to take




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the depositions of these three experts, via a notice of depositions duces tecum pursuant to

Civ.R. 30(B), and directed the witnesses to bring with them numerous documents

including any and all reports and opinions prepared with respect to the case. Thereafter,

appellant’s counsel notified counsel for appellee that “Randy [Bills] is our testifying

expert.” Counsel for appellee responded “[p]lease confirm that I understood your email

below correctly and that only Randy will testify.” Appellant’s counsel replied “[a]greed.

* * * [Randy] will be our testifying expert.” Consequently, appellee issued an amended

notice of deposition duces tecum only to Bills and only Bills’ deposition was taken.

Approximately six weeks later and with no notice to appellee, appellant offered the

affidavits of Bills and Carbonara during summary judgment briefing. Appellee moved to

strike the affidavits. As noted by the trial court in its decision to grant the motion to

strike the affidavits, appellant did not dispute or deny that its counsel represented that

Bills would be its only testifying expert, and that both Bills and Carbonara’s affidavits

contained opinions not included in the expert reports.

                                   Carbonara’s Affidavit

       {¶ 14} Appellant’s counsel unequivocally represented to appellee’s counsel that

Bills would be its testifying expert. Since Carbonara would not be testifying as an expert

at trial, the statements in Carbonara’s affidavit are inadmissible hearsay and are not

sufficient to support a motion for summary judgment. Tokles, supra; Murdock, supra.

Accordingly, the trial court did not abuse its discretion in striking Carbonara’s affidavit.




7.
                                      Bills’ Affidavit

       {¶ 15} Appellee took Bills’ deposition at which Bills testified that the entire scope

of his opinions was contained in the two expert reports. Thus, following Bills’

deposition, appellee had a reasonable expectation, in the absence of any supplementation,

that Bills’ opinions would be consistent with the responses provided during the discovery

process. However, in Bills’ affidavit, he rendered opinions on issues which were not

included in the expert reports and which he did not disclose at his deposition.

       {¶ 16} We conclude, to the extent that Bills’ affidavit contains new, undisclosed

testimony for which no discovery had been provided, the trial court did not abuse its

discretion in striking Bills’ affidavit. As to the remaining statements in Bills’ affidavit

which are consistent with his previous deposition testimony, we find the court erred in

striking these statements. However, this error is harmless as the record shows Bills’

deposition was filed with the trial court and the expert reports, which were discussed with

Bills at his deposition, were marked as exhibits to his deposition. Therefore, Bills’

deposition testimony and the expert reports are included in the trial court record.

       {¶ 17} For the foregoing reasons, appellant’s second assignment of error is not

well-taken.

       {¶ 18} In its first assignment of the error, appellant argues the trial court should

have taken judicial notice, as required by Civ.R. 44.1(A)(1) and (2), of the minimum

legal duties imposed upon appellee by Ohio’s statutory and regulatory law governing

electric utilities, including certain Ohio Revised Code sections, Ohio Administrative




8.
Code (“OAC”) regulations and relevant NESC (National Electric Safety Code) rules, and

applied them. Appellant requests that this court take judicial notice of the foregoing

laws, rules and regulations, apply them, and find appellee negligent as a matter of law.

         {¶ 19} Appellee counters the NESC standards cited by appellant were not a part of

the summary judgment record, as the standards were mentioned in Carbonara’s affidavit,

and that affidavit was stricken from the summary judgment record. Appellee argues even

if the court took judicial notice of these standards it does not mean appellee was

negligent. Appellee further contends appellant’s request for this court to take judicial

notice of these regulations and find appellee breached the regulations is wholly without

merit.

         {¶ 20} Civ.R. 44.1(A) provides:

                 (1) Judicial notice shall be taken of the rules of the supreme court of

         this state and of the decisional, constitutional, and public statutory law of

         this state.

                 (2) A party who intends to rely on a municipal ordinance, a local

         rule of court, or an administrative regulation within this state shall give

         notice in his pleading or other reasonable written notice.

         {¶ 21} Decisions concerning judicial notice are generally reviewed under an abuse

of discretion standard. Reichman v. Reichman, 5th Dist. Tuscarawas No. 2001 AP 12

0112, 2002-Ohio-4712, ¶ 23. However, if a party fails to object when a trial court does

not take judicial notice, only plain error may be raised on appeal. Kessler v. Kessler, 6th




9.
Dist. Huron No. H-86-28, 1986 WL 14832, *3 (Dec. 19, 1986). Plain error must be

prejudicial to such an extent that it has a materially adverse effect on the character and

public confidence in the judicial proceedings. Schade v. Carnegie Body Co., 70 Ohio

St.2d 207, 209, 436 N.E.2d 1001 (1982). The plain error doctrine is used in civil cases

only under exceptional circumstances to avoid a manifest miscarriage of justice.

Cleveland Elec. Illum. Co. v. Astorhurst Land Co., 18 Ohio St.3d 268, 275, 480 N.E.2d

794 (1985).

       {¶ 22} Here, a review of the admissible evidence in the record indicates

appellant’s complaint contained allegations that appellee failed to comply or act in

accordance with certain Ohio Revised Code sections, OAC sections and the NESC.

These allegations were sufficiently pled to give notice that appellant intended to rely on

these authorities. Thus, the trial court could have taken judicial notice of these authorities

had appellant so requested, however, appellant did not move the trial court to take

judicial notice of any laws, rules or regulations. Therefore, appellant’s claim that the trial

court erred in not taking judicial notice of and applying certain Ohio Revised Code

sections, OAC sections and the NESC will be reviewed under a plain error analysis.

       {¶ 23} Upon review of the record we find no manifest injustice in the proceedings

in the trial court which would constitute plain error. Appellant presented no admissible

evidence that appellee violated any particular provision or section of the Ohio Revised

Code, the OAC or the NESC. Therefore, there was no plain error in the trial court not




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taking judicial notice of these authorities, nor was there plain error in the trial court not

applying them to find appellee negligent.

       {¶ 24} In addition, appellant has requested that we take judicial notice of and

apply relevant Ohio Revised Code sections, the OAC, and the NESC, and find appellee

negligent. We decline to take judicial notice of and apply these authorities to find

appellee was negligent, as there is no admissible evidence in the record that appellee

violated any particular section of the Ohio Revised Code or the OAC or any provision of

the NESC. Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 25} In its third assignment of error, appellant contends the trial court abused its

discretion in denying its motion for leave to file an amended complaint.

       {¶ 26} Civ.R. 15(A) provides that a party may amend its pleading by leave of

court and leave “shall be freely granted when justice so requires.” Turner v. Cent. Local

School Dist., 85 Ohio St.3d 95, 99, 706 N.E.2d 1261 (1999). Although the rule allows

for liberal amendment, a motion to amend should be denied if there is a showing of bad

faith, undue delay or undue prejudice to the opposing party. Id. A trial court’s decision

to grant or deny a motion for leave to amend a pleading is discretionary and will not be

reversed unless the court abused its discretion. State ex rel. Askew v. Goldhart, 75 Ohio

St.3d 608, 610, 665 N.E.2d 200 (1996).

       {¶ 27} Here, the trial court did not set forth its basis for denying appellant’s

motion for leave to amend. However, a review of the record shows with respect to the

timing of appellant’s motion, that it was filed almost two years after the original




11.
complaint was filed and one day after the court’s denial of appellant’s motion to continue

the trial date and set alternative cut off dates. When appellant sought leave to amend, it

was less than a week before the deadline for the filing of summary judgment motions,

and the deadlines for disclosing expert witnesses had already passed.

       {¶ 28} Appellant’s proposed amended complaint contained 60 numbered

paragraphs, while the original complaint had 24 numbered paragraphs. Appellant offered

no explanation for the delay in seeking to amend its complaint and the addition of these

new allegations other than to “update and refine the allegations to conform to the

information revealed by discovery.” The allowance of these additional allegations would

require appellee to file additional pleadings and engage in further discovery, although

extensive discovery had already been conducted. In turn, the deadline for filing motions

for summary judgment would need to be extended, and other cut off dates would also

need to be changed.

       {¶ 29} Based on our review of the record, we cannot say the trial court abused its

discretion by denying appellant leave to amend its complaint, as appellant’s motion was

untimely and appellee would be prejudiced by allowing the amendment. Accordingly,

appellant’s third assignment of error is not well-taken.

       {¶ 30} In the fourth assignment of error, appellant argues the court erred in failing

to apply the doctrine of res ipsa loquitur when ruling on the motions for summary

judgment. Appellant maintains appellee was in exclusive control and management of the

electrical equipment on the utility pole, the weather at the time was mild with no




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lightning and the failure of the crossarm and the re-energization of the circuit would not

have occurred in the absence of appellee’s negligence.

       {¶ 31} The doctrine of res ipsa loquitur is a rule of evidence which permits a

plaintiff to prove negligence circumstantially by showing (1) the instrumentality which

caused the harm was in the exclusive control of the defendant and (2) the event which

caused the harm was not the type which would normally occur in the absence of the

defendant’s negligence. Hake v. Wiedemann Brewing Co., 23 Ohio St.2d 65, 66-67, 262

N.E.2d 703 (1970). Whether a plaintiff has met this burden is a question of law to be

determined by the trial court. Id. at 67.

       {¶ 32} Here, appellant failed to show that the instrumentality which caused the

regulator station fire was under the exclusive control of appellee. While appellant claims

the fire was more likely than not associated with appellee’s negligence, appellee

produced evidence that the fire occurred due to other causes, namely, the weather and

appellant’s own failure to ground the equipment. Based on the evidence presented, this is

not a situation where the doctrine of res ipsa loquitur should have been applied. The trial

court therefore did not err in failing to apply the doctrine. Accordingly, appellant’s

fourth assignment of error is found not well-taken.




13.
       {¶ 33} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to

App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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