Ohio Power Co. v. Burns
| Decision Date | 04 August 2021 |
| Docket Number | 20CA20,20CA22,Nos. 20CA19,20CA21,s. 20CA19 |
| Citation | 176 N.E.3d 778 |
| Parties | OHIO POWER COMPANY, Plaintiff-Appellee, v. Michael BURNS, et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Joseph R. Miller, Thomas Fusonie, John M. Kuhl, Kara M. Mundy, Vorys, Sater, Seymour and Pease LLP, Columbus, Ohio for Defendants-Appellants.
Ryan P. Sherman, Christopher J. Baronzzi, Jason T. Gerken, Syed Ahmadul Huda, Porter Wright Morris & Arthur LLP, Columbus, Ohio for Plaintiff-Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Defendants-Appellants Michael and Misty Burns, Ronald and Barbara Bohlen, Jeffrey and Holly Dexter, and Ryan and Denay May ("Landowners") own property over which Plaintiff-Appellee Ohio Power Company seeks to take easements by eminent domain. The trial court held a necessity hearing and determined that the easements sought by Ohio Power, except the distribution line easements, were necessary, and that Ohio Power's admission during the hearing that an easement for distribution lines was not necessary did not constitute an abandonment. The trial court also denied the Burnses’ and Bohlens’ motion for judgment on the pleadings based on Ohio Power's invalid petition verifications. The trial court found that their motion to dismiss was not timely, and that even if it were to consider the motion's merits, the invalid verification was inconsequential.
{¶2} Landowners collectively raise five assignments of error for our review. The Burnses and the Bohlens challenge the trial court's denial of their motion for judgment on the pleadings, arguing that their motion was timely and that Ohio Power's invalid petition verification resulted in a void proceeding. We find that the trial court erred when it determined that the motion was untimely. Under Civ.R. 12(C), a motion for judgment on the pleadings may be made "within such time as not to delay the trial." The "trial" for purposes of R.C. 163.01, et seq. is the jury trial on compensation under R.C. 163.14 ; Landowners’ motion was timely. However, we find that the error was harmless because the trial court addressed the merits of the motion. Although we find the trial court erred in finding "the verification was accurate," we nevertheless confirm the trial court's denial of the motion on other grounds. We agree with Landowners that the verification was invalid because the Ohio Board of Directors’ 2019 Board resolution ("2019 Board resolution") attached as an exhibit to the petition did not exist when the petition was verified. However, at the necessity hearing Ohio Power employees testified about the 2019 Board resolution and authenticated it. Under R.C. 163.12(C), the trial court had discretion to sua sponte "amend any defect or informality in the proceedings under [R.C.] 163.01 to [R.C.] 163.22" and deem any deficiency in the petition's verification cured by the hearing testimony. We overrule Landowners’ first assignment of error.
{¶3} All Landowners challenge the trial court's finding that Ohio Power was entitled to both a rebuttable and an irrebuttable presumption of the necessity for the appropriation under R.C. 163.09(B)(1)(a)-(c). First, they contend that the regulatory agency, the Ohio Power Siting Board ("Siting Board"), approved the necessity of the project , not the necessity of the appropriation of the easement rights. They contend that the Siting Board did not review the easements or their terms and, in fact, had no jurisdiction to do so. As a result, the irrebuttable presumption created in R.C. 163.09(B)(1)(c) is inapplicable. Likewise, Landowners contend that because the Ohio Power Board of Directors did not review the easements or their terms, its resolution did not approve any specific easements or easement terms. Therefore, Ohio Power is not entitled to the rebuttable presumption created in R.C. 163.09(B)(1)(a). For their fourth assignment of error, Landowners argue that the trial court erred in finding that Ohio Power met its burden of presenting evidence of the necessity for the appropriation under R.C. 163.09(B)(1)(b) because the trial court improperly deferred to Ohio Power, finding "[t]he public utility is in the best position to determine what is necessary to * * * maintain an electric transmission line now and for many decades into the future * * *." We find that neither the Ohio Power Siting Board nor the Ohio Power Board of Directors approved the specific appropriations against the Landowners. Therefore, Ohio Power was not entitled to the presumptions set forth in R.C. 163.09(B)(1)(a) and (c). The trial court erred in applying these presumptions in favor of Ohio Power. Likewise, the trial court was mistaken regarding the scope of review to be employed and erred in deferring to Ohio Power on the issue of the necessity of the easements. The trial court also erred in determining that the extent of the taking was a factual question for the jury to consider at the compensation trial. We sustain Landowners’ second, third, and fourth assignments of error.
{¶4} Finally, Landowners argue that the trial court erred in concluding that Ohio Power's decision not to pursue an easement for distribution lines was not an abandonment under R.C. 163.21. We agree with the trial court's finding that Ohio Power's concession was not an abandonment under R.C.163.21. However, we nevertheless find that the trial court erred in how it addressed the distribution line rights issue. Ohio Power lost the right to appropriate easement rights for distribution lines because the Landowners raised a successful challenge in their answer and at the hearing. Under R.C. 163.21(B), Ohio Power was "not entitled to appropriate [that] particular property" and the trial court should have issued a judgment against Ohio Power for costs and determined a just amount in favor of the Landowners for reasonable disbursements and expenses associated with defending against the taking of distribution line rights. We sustain the Landowners’ fifth assignment of error on other grounds.
{¶5} We affirm, in part, and reverse, in part, the trial court's judgment and remand the cause for further proceedings consistent with the decision herein.
{¶6} In 2017, the Ohio Power Board of Directors gave initial approval for a project in Marietta, Ohio to enhance the reliability of the electric transmission network. The Board of Directors determined that the existing 23kV network was not strong enough to support the load, was obsolete, and should be replaced with a 138kV network. The project, known as "The Bell Ridge-Devola 138kV Transmission Line Project," (the "Project") included miles of new 138kV transmission lines and required siting, rights of way, and property purchases. In August 2018, the Siting Board issued a certificate of environmental compatibility and public need for the Project. The Ohio Power Board of Directors issued a December 2019 resolution approving the Project.
{¶7} Ohio Power filed petitions for appropriation against Landowners in 2020 to take easements on their property after efforts to negotiate easements failed. Ohio Power alleged that it currently possessed an easement across each of the Landowners’ properties for an existing electric power line, but it was replacing that line with a new line that would require a wider easement area.1 Ohio Power alleged that the appropriation was necessary and for a public good. The petitions included among the exhibits: (1) a copy of the proposed easement; (2) a copy of the Siting Board's August 2018 certificate of environmental compatibility and public need for the Project; and (3) the Ohio Power Board of Directors December 2019 resolution recognizing the necessity of the Project and of acquiring easements, rights of way, or fee simple titles along approximately ten miles of the new line.
{¶8} Landowners filed answers in which they denied that the easements were necessary and denied that the Siting Board's August 2018 certificate declared the appropriation a necessity. Landowners alleged that the proposed easements were: (1) overly broad, (2) sought rights for not only Ohio Power, but "successors and assigns," (3) sought rights to allow "electric transmission, distribution and internal communication lines," (4) sought to have the right to "reconstruct, ... alter, improve, extend, inspect, patrol, protect, repair, remove, replace, upgrade and relocate" multiple communication lines, equipment, fixtures, wire, and cables, and (5) to do anything "convenient for the enjoyment of the Easement." Landowners also alleged that the easements contained no limit on the assignability of the easements and took anti-abandonment rights for Ohio Power and its successor and assigns. Landowners contended that all these additional rights contained in the easements were more than necessary to promote the public use. Landowners also requested mediation under R.C. 163.051, which allows either party to ask that the determination of the value of the property be submitted to nonbinding mediation, which must conclude within 50 days after the answer is filed.
{¶9} The trial court held a consolidated hearing under R.C. 163.09 to determine any matters relating to: (1) the right to make the appropriation, (2) the inability of the parties to agree, or (3) the necessity for the appropriation. Prior to the hearing, Ohio Power submitted a pre-hearing brief in which it argued that the Siting Board approved the Project and that "project approval" meant that "the appropriations sought in these cases have actually been deemed necessary and approved." Ohio Power contended that the Siting Board's certificate declaring that the Project "will serve the public interest, convenience, and necessity" is the equivalent of an "approval by a state * * * regulatory authority of an appropriation by a public utility" and therefore the "irrebuttable presumption of the necessity for the appropriation" created in R.C. 163.09(B)(1)(c) applies...
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Ohio Power Co. v. Burns
...in the review required by R.C. 163.09(B) and by Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 115. 2021-Ohio-2714, 176 N.E.3d 778, ¶ 55-56. The appellate court observed that the trial court had "summarily stated that it was 'persuaded by Ms. Rentschler's testimony that a......