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Corder v. Ohio Edison Co.

Court of Appeals of Ohio, Seventh District

June 19, 2019

CRAIG D. CORDER ET AL., Plaintiffs-Appellants,
v.
OHIO EDISON COMPANY, Defendant-Appellee.

          Civil Appeal from the Court of Common Pleas of Harrison County, Ohio Case No. CVH-2017-0057

          Atty. Charles Kidder, Kidder Law Firm, LLC., for Plaintiffs-Appellants and

          Atty. Denise Hasbrook, Roetzel & Andress, LPA, for Defendant-Appellee.

          BEFORE: David A. D'Apolito, Gene Donofrio, Cheryl L. Waite, Judges.

          OPINION AND JUDGMENT ENTRY

          D'APOLITO, J.

         {¶1} Appellants, Craig D. Corder, Jackie C. Corder, and Scott Corder appeal the judgment entry of the Harrison County Court of Common Pleas finding sua sponte that the Public Utilities Commission of Ohio ("PUCO") has exclusive jurisdiction over the issue raised in this action for declaratory judgment and injunctive relief. Appellants contend that the plain language of three 1948 easements, which traverse a portion of their property, prohibits Appellee, Ohio Edison from applying herbicide to control vegetation growth. Appellee counters that resolution of vegetation control issues requires PUCO's administrative expertise, and herbicide application constitutes a practice normally authorized by the utility. Because the resolution of this matter turns on the interpretation of an ambiguous term in the easements, the judgment entry of the trial court is reversed and this matter is remanded for the trial court to interpret the relevant language in the easements.

         STANDARD OF REVIEW

         {¶2} The standard of review for a dismissal for lack of subject matter jurisdiction, pursuant to Civ.R. 12(B)(1), is whether any cause of action cognizable by the forum has been raised in the complaint. Vos v. State, 7th Dist. Columbiana No. 16 CO 0034, 2017-Ohio-4005, 91 N.E.3d 217, ¶ 15. Subject matter jurisdiction can be raised by the trial court sua sponte at any time during the proceedings. Snyder Computer Sys. v. Sayas Auto Sales, 7th Dist. Jefferson No. 09-JE-6, 2009-Ohio-6759, ¶ 15. A court applying Civ.R. 12(B)(1) is not confined to the allegations of the complaint and may consider material pertinent to the subject matter jurisdiction inquiry. DeLost v. First Energy Corp., 7th Dist. Mahoning No. 07 MA 194, 2008-Ohio-3086, ¶ 17. Lack of subject matter jurisdiction is a questions of law that we review de novo. Id.

         PUCO JURISDICTION

         {¶3} The General Assembly enacted R.C. 4901.01 et seq. to regulate the business activities of public utilities and created PUCO to administer and enforce these provisions. Kazmaier Supermarket, Inc. v. Toledo Edison Co., 61 Ohio St.3d 147, 150, 573 N.E.2d 655 (1991). R.C. 4905.26 provides that PUCO shall hear complaints filed against public utilities alleging that "any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential."

         {¶4} The Ohio Supreme Court has long recognized that the" 'jurisdiction specifically conferred by statute upon [PUCO] over public utilities of the state * * * 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, 23 Ohio St.2d 6, 9, 260 N.E.2d 827 (1970), quoting State ex rel. Ohio Bell Tel. Co. v. Cuyahoga Cty. Court of Common Pleas, 128 Ohio St. 553, 557, 192 N.E. 787 (1934); see also Kazmaier, 61 Ohio St.3d at 152, 573 N.E.2d 655. Nonetheless, 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, 68 Ohio St.3d 209, 211, 625 N.E.2d 608 (1994).

         {¶5} In deciding whether the claims raised by the complaint are pure contract or tort claims that do not fall within PUCO's exclusive jurisdiction, courts look to the substance of the claims. 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 relating to service, a claim which only [PUCO] has jurisdiction to resolve." Higgins v. Columbia Gas of Ohio, Inc., 136 Ohio App.3d 198, 202, 736 N.E.2d 92 (2002). See, also, State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102 Ohio St.3d 349, 810 N.E.2d 953, 2004-Ohio-3208, ¶ 19.

         {¶6} In Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824, ¶ 12-13, the Supreme Court of Ohio adopted a two-part inquiry to determine whether PUCO has exclusive jurisdiction over an action: First, is PUCO's administrative expertise required to resolve the issue in dispute? If the answer is "yes," a court must determine next if the act complained of constitutes a practice normally authorized by the utility. Id. at ¶ 11. If both questions are answered in the affirmative, the claim is within PUCO's exclusive jurisdiction. Id. at ¶ 12.

         {¶7} Nevertheless, the Ohio Supreme Court in Allstate acknowledged that PUCO is not a court and has no power to judicially ascertain and determine legal rights and liabilities. Id. at ¶ 6, citing State ex rel. Dayton Power & Light Co. v. Riley, 53 Ohio St.2d 168, 170, 373 N.E.2d 385 (1978). See New Bremen v. Pub. Util. Comm., 103 Ohio St. 23, 30-31, 132 N.E. 162 (1921). Stated differently, "[PUCO] does not possess judicial power and may not adjudicate controversies between parties as to property rights." Dayton Communications Corp. v. Pub. Util. Comm., 64 Ohio St.2d 302, 303-304, 414 N.E.2d 1051 (1980). The Allstate Court also categorically rejected the argument that every act by a utility is service-related. Id. at ¶ 6.

         {¶8} An interested party may recover damages against the public utility for matters within PUCO's jurisdiction by invoking the formal complaint procedure outlined in R.C. 4905.61. If a customer or interested party establishes their claims, they may seek an award of treble damages against the utility in court. DiFranco v. FirstEnergy Corp., 11th Dist. Geauga No. 2010-G-2990, 2011-Ohio-5434, 969 N.E.2d 1241, reversed on other grounds at 134 Ohio St.3d 144, 2012-Ohio-5445, 980 N.E.2d 996.

         DECLARATORY JUDGMENT

         {¶9} A declaratory judgment action is a statutory in nature. R.C. 2721.03, reads, in pertinent part:

* * *any person interested under a deed, will, written contract, or other writing constituting a contract or any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.* * *

         {¶10} "To obtain declaratory judgment as an alternative to other remedies, a plaintiff must demonstrate three elements: (1) that a real controversy exists between adverse parties; (2) which is justiciable in nature; (3) and that speedy relief is necessary to the preservation of rights which may be otherwise impaired or lost." Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d 146, 148-49, 586 N.E.2d 80 (1992), citing Herrick v. Kosydar, 44 Ohio St.2d 128, 130, 339 N.E.2d 626 (1975). Parties to an easement commonly seek adjudication of disputed issues through the mechanism of declaratory judgment. See, e.g. Cliffs & Creeks, LLC. v. Swallie, 7th Dist. Belmont No. 17 BE 0039, 2018-Ohio-5410; Hills & Hollers, LLC v. Ohio Gathering Co., LLC, 7th Dist. Belmont No. 17 BE 0040, 2018-Ohio-2814, 116 N.E.3d 801, reconsideration denied, 7th Dist. Belmont No. 17 BE 0040, 2018-Ohio-3425, and appeal not allowed sub nom. Hills & Hollers, LLC. v. Ohio Gathering Co., 154 Ohio St.3d 1464, 2018-Ohio-5209, 114 N.E.3d 215: Watson v. Caldwell Hotel, LLC, 7th Dist. Noble No. 16 NO 0432, 2017-Ohio-4007, 91 N.E.3d 179.

         {¶11} An easement is "the grant of a use on the land of another." Hills & Hollers, LLC v. Ohio Gathering Co., LLC, 7th Dist. Belmont No. 17 BE 0040, 2018-Ohio-2814, 116 N.E.3d 801, ¶ 28, reconsideration denied, 7th Dist. Belmont No. 17 BE 0040, 2018-Ohio-3425, ¶ 28, and appeal not allowed sub nom. Hills & Hollers, LLC. v. Ohio Gathering Co., 154 Ohio St.3d 1464, 2018-Ohio-5209, 114 N.E.3d 215, ¶ 28, citing Alban v. R.K. Co., 15 Ohio St.2d 229, 231-232, 239 N.E.2d 22 (1968). When an easement is created by an express grant, the easement's extent and limitations depend on the language in the grant. Id., citing Alban at 232. When the terms of an easement are clear and unambiguous, a court cannot create new terms by finding an intent not expressed in the language used. Id., citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). The language of the easement, considered in light of the surrounding circumstances, is the best indication of the extent and limitations of the easement. State ex rel. Wasserman v. Fremont, 140 Ohio St.3d 471, 2014-Ohio-2962, 20 N.E.3d 664, ¶ 28, citing Apel v. Katz, 83 Ohio St.3d 11, 17, 697 N.E.2d 600 (1998).

         THE EASEMENTS

         {¶12} Appellee is a public utility providing electric service to its customers. Appellants own four parcels of land in Township of Nottingham, Harrison County. 12.1 acres of Appellants' property ("Property") are traversed by three separate easements.

         The easements were executed in 1948 by previous owners of the Property. The easements contain identical language and grant to Appellee:

the right to erect, inspect, operate, replace, repair, patrol and permanently maintain upon, over and along the above described right-of-way across said premises all necessary structures, wires and other usual fixtures and appurtenances used for or in connection with the transmission and distribution of electric current, and the right of ingress and egress upon, over and across said premises for access to and from said right-of-way, and the right to trim, cut and remove at any and all times such trees, limbs, underbrush or other ...

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