[Cite as Digiorno v. Ohio Dept. of Transp., 2017-Ohio-2698.]




GARY DIGIORNO, et al.                                  Case No. 2015-00942

       Plaintiffs                                      Judge Patrick M. McGrath
                                                       Magistrate Anderson M. Renick
       v.
                                                       ENTRY GRANTING DEFENDANT’S
OHIO DEPARTMENT OF                                     MOTION FOR SUMMARY JUDGMENT
TRANSPORTATION

       Defendant



        {¶1} On March 3, 2017, defendant filed a motion for summary judgment pursuant
to Civ.R. 56(B).        On March 31, 2017, plaintiffs filed a response.         The motion for
summary judgment is now before the court for a non-oral hearing. L.C.C.R. 4.
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that 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, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
        {¶4} Plaintiffs allege that on February 5, 2014, agents of defendant, the Ohio
Department of Transportation (ODOT), wrongfully removed seven trees from
Case No. 2015-00942                          -2-                                    ENTRY


Cynthia Digiorno’s property. Digiorno stated that, on the same day, she had a phone
conversation with Christine Myers, a public information officer for ODOT, and was
informed that “the trees were rotted and posed a road hazard.” (Plaintiffs’ Exhibit 1.)
Plaintiffs contend that the trees were healthy and not rotted. On either February 5 or
February 6, 2014, Digiorno received a phone call from Kim Scott, a transportation
manager for ODOT’s Huron County maintenance facility. According to Digiorno, Scott
related that the trees were removed “because they provided too much shade on the
highway which deteriorated the asphalt causing potholes.” (Id. ¶ 5)
       {¶5} On March 14, 2014, Myers responded to an inquiry from plaintiffs’ counsel
with a letter that provided a more detailed explanation of ODOT’s reasons for removing
the trees. In her letter, Myers stated that due to the size and proximity of the trees to
the highway, the trees were identified for removal based upon two factors. Myers stated
that the primary reason for removal of the trees was the shade that caused premature
deterioration of the asphalt, including a significant amount of potholes. Additionally, the
proximity of the trees to the roadway presented a potential hazard to motorists whose
vehicles might leave the road and collide with a tree.
       {¶6} Defendant attached to its motion for summary judgment the deposition of
Kim Scott. Scott testified that her duties included performing highway inspections and
scheduling work to maintain the roadways and vegetation in adjacent areas.               On
September 23, 2013, Scott completed a work order for tree removal and pruning which
lists the condition of the trees as “dead” and directs workers to clear the right of way that
borders Digiorno’s property on SR 18 in Huron County. (Defendant’s Exhibit B.) The
work order states that the trees to be removed had been marked with a white “X.” Scott
testified that she marked trees which she determined presented potential problems for
the highway pavement. Scott explained that the trees shaded the highway in a manner
that accelerated pavement deterioration by causing the pavement to remain wet or
Case No. 2015-00942                         -3-                                    ENTRY


frozen in the winter months. Scott testified that the work order was reviewed by an
ODOT engineer before it was presented for bidding by private contractors.
       {¶7} There is no dispute that the trees were located within ODOT’s right of way.
Raymond Foos, a professional surveyor, established that the right of way occupied by
ODOT on State Route (SR) 18 was taken as a highway easement in 1955 and recorded
in a deed that is attached to his affidavit. (Defendant’s Exhibit C.) Foos averred that
the stumps from the removed trees are located within the right of way and subject to the
terms and conditions of the easement. However, plaintiffs contend that the removal of
the trees was not consistent with the purposes of the easement which granted ODOT its
right of way. According to plaintiffs, the reasons provided for removing the trees were
“fabricated” after defendant discovered the trees were not dead.
       {¶8} Pursuant to R.C. 5501.42, the director of ODOT is vested with “supervision
and control of all trees and shrubs within the limits of a state highway. The department
of agriculture or other proper department may, with the consent of the director of
transportation, take charge of the care of such trees, and such department, in the event
it takes charge of such tress, may, with the consent of the director of transportation,
plant additional trees within the limits of a state highway. The cost and expense of
caring for or planting such trees may be paid out of any funds available to the director or
for the development of forestry of the state.
       {¶9} “The director may cut, trim, or remove any grass, shrubs, trees, or weeds
growing or being within the limits of a state highway.
       {¶10} “The powers conferred by this section upon the director shall be exercised
only when made necessary by the construction or maintenance of the highway or for the
safety of the traveling public.” (Emphasis added.); Ritchie v. Ohio DOT, 10th Dist.
Franklin No. 03AP-691, 2004-Ohio-2505, ¶ 7.
       {¶11} The Tenth District Court of Appeals has held that “[t]he law in Ohio is
consistent * * * when an easement for public use exists over a landowner’s property,
Case No. 2015-00942                          -4-                                   ENTRY


and that landowner was compensated when the easement was granted, the landowner
has no right to receive additional compensation for improvements to the highway or
object to improvements constructed within the easement, as long as the improvements
are consistent with the purposes of the contemplated easement. Ritchie, ¶ 11, quoting
Smith v. Peyatt, Trumbull App. No. 3759, (May 6, 1988) 1988 Ohio App. LEXIS 1764;
Masheter v. Blaisdell, 30 Ohio St.2d 8 (1972).
       {¶12} Although plaintiffs contend that a genuine issue of material fact remains as
to the condition of the trees and defendant’s reasons for ordering the removal, the court
finds that there is no dispute that the trees were within the highway right of way and that
the easement pertained to “public highway and road purposes.”             The undisputed
evidence shows that the trees at issue shaded a portion of SR 18, which caused
premature    deterioration   of   the   asphalt    roadway.    Furthermore,    defendant’s
determination that the removal was justified because the close proximity of the trees to
the highway presented a potential hazard to motorists is also consistent with the
purpose of the easement. The court finds that reasonable minds can only conclude that
the removal of the trees was related to a highway improvement which is consistent with
the purposes of the easement and that plaintiffs are not entitled to compensation.
       {¶13} Based upon the foregoing, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment is GRANTED.              Judgment is
rendered in favor of defendant. All previously scheduled events are VACATED. Court
costs are assessed against plaintiffs. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.




                                                   PATRICK M. MCGRATH
                                                   Judge
Case No. 2015-00942            -5-                                ENTRY


cc:
Oliver Joseph Murray            Frank S. Carson
10 East Main Street             Peter E. DeMarco
Ashland, Ohio 44805-0650        Assistant Attorneys General
                                150 East Gay Street, 18th Floor
                                Columbus, Ohio 43215-3130

Filed April 19, 2017
Sent to S.C. Reporter 5/5/17
