Alford v. E. Ohio Gas Co.

• Citation: 2014 Ohio 2134
• Decision Date: 12 May 2014
• Docket Number: Case No. 2013AP030014
• Parties: BRIAN ALFORD, ET AL. Plaintiffs-Appellees/Cross-Appellants v. THE EAST OHIO GAS COMPANY DBA DOMINION EAST OHIO Defendant-Appellant/Cross-Appellee
• Court: United States Court of Appeals (Ohio)

2014 Ohio 2134

BRIAN ALFORD, ET AL. Plaintiffs-Appellees/Cross-Appellants v. THE EAST OHIO GAS COMPANY DBA DOMINION EAST OHIO Defendant-Appellant/Cross-Appellee

Case No. 2013AP030014

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

DATE OF JUDGMENT ENTRY: May 12, 2014

JUDGES:

Hon. William B. Hoffman, P.J.

Hon. Sheila G. Farmer, J.

Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING:

Appeal from the Tuscarawas County

Common Pleas Court, Case No.

2010CT101185

JUDGMENT:

Affirmed in part; Reversed in part;

and Remanded

APPEARANCES:

For Plaintiffs-Appellees/Cross-Appellants

THOMAS W. CONNORS

Black, McCuskey, Souers & Arbaugh

For Defendant-Appellant/Cross-Appellee

JEROME W. COOK

MANJU GUPTA

McDonald Hopkins LLC

Hoffman, P.J.

{¶1} Defendant-Appellant/Cross-Appellee The East Ohio Gas Company dba Dominion East Ohio appeals the October 9, 2012, November 15, 2012, and February 14, 2013 judgment entries entered by the Tuscarawas County Court of Common Pleas granting judgment in favor of Plaintiffs-Appellees/Cross-Appellants Brian and Erin Alford, husband and wife, and their children. The Alfords have filed a cross-appeal.

STATEMENT OF THE FACTS AND CASE

{¶2} Plaintiffs-Appellees/Cross-Appellants Brian and Erin Alford, husband and wife, and their children (hereinafter "Alfords") initiated a complaint against Defendant-Appellant/Cross-Appellee The East Ohio Gas Company dba Dominion East Ohio (hereinafter "Dominion"), asserting multiple claims as will be discussed infra.

{¶3} At all times pertinent hereto, the Alfords' residence was located approximately 400 yards to the western side of the Guernsey and Clay Compressor Stations operated by Dominion. Brian Alford purchased the real property at issue herein located at 550 Gravel Lick Road, S.W. Port Washington, Ohio in 1998, together with his father for the price of $80,000. Brian Alford's father subsequently passed away, and Brian Alford married Erin Alford. Brian and Erin Alford moved onto the property, making improvements thereto and establishing the properly as their family home. The residence in which the Alfords lived was a 1,152 square foot double-wide trailer improved to have the appearance of a log cabin.

{¶4} In January of 2007, a new engine was installed by Dominion at the Clay Compressor Station. The engine was a 945-horsepower internal combustion engine, which replaced a 633- horsepower Caterpillar internal combustion engine. During thesame year, the Guernsey Station, which had previously been operated manually, began operating via computer. Both the Clay and Guernsey Compressor Stations were permitted facilities and operating legally under the regulatory authority of the Ohio EPA.

{¶5} It is undisputed prior to the changes, the Alfords did not experience excessive noise, vibration and/or fumes on their property. However, the Alfords claimed subsequent to the 2007 changes at the Guernsey and Clay compressor stations, they began experiencing excessive noise, fumes and vibration on their property.

{¶6} The Alfords asked Dominion to enclose the Clay Compressor Station due to excessive noise, fumes and vibration after the installation of the new engine. Dominion, however, attributed some of the noise to other businesses in the area, including the Tennessee Gas Metering and Regulation Station, the DTI Gilmore Metering and Regulation Station, and the DTI Gilmore Compressor Station, a Title V facility.

{¶7} The Alfords then contacted Brent Breon, Dominion's Manager of Gas Operations for the geographic area. Breon committed he would attempt to obtain capital funding for a sound-deadening building for the Clay Station, if this would placate the Alfords' complaints.

{¶8} The Alfords proceeded to file a complaint with the Ohio EPA on July 16, 2007, and on July 25, 2007.

{¶9} Dominion proceeded to erect a sound-deadening enclosure around the Clay Compressor Station. The enclosure was completed on January 18, 2008.

{¶10} Three months later, the Alfords requested a sound-deafening enclosure or barrier be erected between their property and the Guernsey Station. The Alfords further complained of continuing vibrations emanating from the Clay Station.

{¶11} Erin Alford then contacted her congressman. Shortly thereafter, Dominion obtained reports from sound consultants regarding conditions at the compressor stations and options to address the problems. A number of options were recommended, including a silencer on the blowdown vents, a soundwall and replacement of exhaust mufflers. An engineer from Dominion elected to plant a row of trees with admission he had no knowledge as to whether the measure would effect noise on the property.

{¶12} The Alfords testified at trial they were able to determine the noise effecting their property resulted from the Guernsey and Clay Compressor Stations.

{¶13} The Alfords then requested Dominion purchase their property. Dominion refused.

{¶14} Aside from the Alfords' writ of mandamus claim which was tried to the court, their claims for nuisance, trespass, intentional and negligent infliction of emotional distress, negligence and punitive damages proceeded to jury trial. The trial court directed a verdict in favor of Dominion on the Alfords' nuisance, trespass, intentional infliction of emotional distress and punitive damages claims, leaving for the jury's consideration the Alfords' claims for negligence and negligent infliction of emotional distress.

{¶15} The jury returned a verdict in favor of Dominion and against the Alfords on their claim for negligent infliction of emotional distress. On the negligence claim, thejury found in favor of the Alfords in the aggregate amount of $132,000. Specifically, the jury returned a verdict for damages as follows: 1.) $0 for pain and suffering; 2.) $32,000 for annoyance, injury; inconvenience, endangered comfort, health and safety; 3.) $25,000 for loss of consortium; and 4). $75,000 for injury to real property.¹

{¶16} On November 29, 2012, Dominion moved the trial court to enter an order for judgment notwithstanding the verdict or in the alternative a new trial solely on the Alfords' claim for negligence. Via Judgment Entry of February 14, 2013, the trial court denied the motion finding reasonable minds could conclude the Alfords were entitled to damages in the amount of $132,000.

{¶17} Dominion now appeals, assigning as error:

{¶18} "I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION FOR DIRECTED VERDICT AND/OR FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON COUNT IV OF PLAINTIFFS' FOURTH AMENDED COMPLAINT WHERE THE ALLEGED NEGLIGENT OPERATION AND MAINTENANCE OF THE GUERNSEY AND CLAY COMPRESSOR STATIONS WAS ALREADY THE SUBJECT OF A DIRECTED VERDICT GRANTED IN FAVOR OF DEFENDANT-APPELLANT ON THE PLAINTIFFS' ENTIRE NUISANCE CLAIM (COUNT I OF PLAINTIFFS' FOURTH AMENDED COMPLAINT) THAT INCLUDED, AS ACKNOWLEDGED BY THE PLAINTIFFS AND THE TRIAL COURT, THE THEORY OF QUALIFIED AND/OR PRIVATE NUISANCE PREDICATED ON THE SAME ALLEGATIONS OF NEGLIGENT OPERATION AND MAINTENANCE AND THAT SOUGHT THE SAME DAMAGES.

{¶19} "II. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION FOR DIRECTED VERDICT AND/OR FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON COUNT IV OF PLAINTIFFS' FOURTH AMENDED COMPLAINT WHERE PLAINTIFFS PRODUCED NO EXPERT TESTIMONY OR EVIDENCE TO ESTABLISH THE STANDARD OF CARE OR ANY BREACH OF THE STANDARD OF CARE RELATING TO THE OPERATION AND MAINTENANCE OF NATURAL GAS FIRED TURBINE COMPRESSOR STATIONS AND/OR RECIPROCATING INTERNAL COMBUSTION COMPRESSOR STATIONS WHERE THAT STANDARD OF CARE WAS NOT WITHIN THE COMMON KNOWLEDGE OR EXPERIENCE OF THE JURORS.

{¶20} "III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION FOR DIRECTED VERDICT AND/OR FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON COUNT IV OF PLAINTIFFS' FOURTH AMENDED COMPLAINT WHERE PLAINTIFFS PRODUCED NO EXPERT TESTIMONY OR EVIDENCE TO ESTABLISH PROXIMATE CAUSE.

{¶21} "IV. THE TRIAL COURT ERRED AS A MATTER OF LAW OR COMMITTED PLAIN ERROR WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE LOSS OF CONSORTIUM CLAIM WHERE PLAINTIFFS ADMITTED THAT NO LOSS OF CONSORTIUM CLAIMS WERE PART OF THE ORIGINAL COMPLAINT, PLAINTIFFS EXPRESSLY ANNOUNCED IN RESPONSE TO REQUESTS FOR ADMISSIONS THAT THEY RESERVED THEIR RIGHT TO AMEND TO ADD THESE CLAIMS, BUT WHERE NONE OF THE FOUR SUBSEQUENT AMENDED COMPLAINTS EVER

ADDED CLAIMS FOR LOSS OF CONSORTIUM AND THE TRIAL COURT'S ORDER ALLOWING THE FILING OF THE FOURTH AMENDED COMPLAINT PROHIBITED ANY FURTHER AMENDMENTS.

{¶22} "V. THE TRIAL COURT ERRED AS A MATTER OF LAW OR COMMITTED PLAIN ERROR WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION FOR DIRECTED VERDICT JUDGMENT NOTWITHSTANDING THE VERDICT ON THE DAMAGES FOR ALLEGED 'ANNOYANCE, INJURY, INCONVENIENCE, ENDANGERED COMFORT, HEALTH OR SAFETY' WHERE THOSE DAMAGES ARE NOT RECOVERABLE IN CASES OF ALLEGED PERMANENT DAMAGE TO REAL PROPERTY AND WHERE PERMANENT INJURY TO REAL PROPERTY WAS THE ONLY TYPE OF REAL PROPERTY DAMAGE FOR WHICH THE JURY RECEIVED AN INSTRUCTION AND WHERE THESE DAMAGES WERE SOUGHT IN COUNT I OF PLAINTIFFS' COMPLAINT THAT WAS ALREADY THE SUBJECT OF A DIRECTED VERDICT IN FAVOR OF DEFENDANT-APPELLANT.

{¶23} "VI. THE TRIAL COURT ERRED AS A MATTER OF LAW OR COMMITTED PLAIN ERROR WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION FOR DIRECTED VERDICT AND/OR FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE DAMAGES FOR ALLEGED DIMINUTION IN VALUE OF PLAINTIFFS' REAL PROPERTY RESULTING FROM THE ALLEGED PERMANENT DAMAGE TO THAT REAL PROPERTY WHERE PERMANENT INJURY TO REAL PROPERTY WAS THE ONLY TYPE OF REAL PROPERTY DAMAGE FOR WHICH THE JURY RECEIVED AN INSTRUCTION AND WHERE THERE WAS NO EVIDENCE OF DIMINUTION OF VALUE AS THAT METHOD WAS DEFINED BY THE COURT

AND WHERE THESE DAMAGES WERE SOUGHT IN COUNT I OF PLAINTIFFS' COMPLAINT THAT WAS ALREADY THE SUBJECT OF A DIRECTED VERDICT IN FAVOR OF DEFENDANT-APPELLANT.

{¶24} "VII. THE TRIAL COURT...