Stefanich v. Am. Elec. Power, 2007 Ohio 6108 (Ohio App. 11/5/2007)
| Decision Date | 05 November 2007 |
| Docket Number | No. 07 CA 0045.,07 CA 0045. |
| Citation | 2007 Ohio 6108 |
| Parties | Ruth Stefanich, executrix of the Estate of William J. Stefanich, Deceased, et al., Plaintiffs-Appellants, v. American Electric Power Company, Inc. et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Appeal from the Licking County Court of Common Pleas Court Case No. 04CV710.
Affirmed.
James R. Cooper, Morrow, Gordon, & Byrd, Ltd., 33 West Main St. P.O. Box 4190, Newark, Ohio 43058-4190, for Plaintiffs-Appellants.
Craig R. Carlson, Anthony R. McClure, Porter, Wright, Morris & Arthur, LLP, 41 South High Street, Columbus, Ohio 43215-6194, for Defendant-Appellee Ohio Power Company.
Before: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.
{¶1} Appellants, Ruth Jean Stefanich, individually and as the Executrix of the Estate of William J. Stefanich, appeal the decision of the Licking County Court of Common Pleas granting summary judgment in favor of appellee Ohio Power Company in this dispute over the movement of utility poles and wires upon certain property.
{¶2} Appellants own property along State Route 79 in Union Township and the Village of Hebron. Ohio Power Company ("Ohio Power") has held an easement on this property to construct and maintain power lines since 1934. The easement specifically provides that Ohio Power Company has a "right of way and easement" with the following rights: "to construct, erect, operate and maintain a line of poles and wires for the purpose of transmitting electric or other power, including telegraph or telephone wires, in[,] on, along, over, through, or across the following described land situated in Union Township, in the County of Licking, in the State of Ohio, and part of Township No. 1 and Range No. 12 and bounded:"
{¶3} "On the North by the lands of Wesley Brooke"
{¶4} "On the East by the lands of E.W. & Eliz. Boner-B.P. Harris"
{¶5} "On the South by the lands of Edward Walters"
{¶6} "On the West by the lands of W.J. Stewart-Roscoe & Ida Hoskinson."
{¶7} "Together with the right, to said party of the second part [Ohio Power], its successors and assigns, to place, erect, maintain, inspect, add to the number of, and relocate at will, poles, crossarms of fixtures, and string wires and cables, adding thereto from time to time * * *".
{¶8} See, Defendant's Motion for Summary Judgment, Ex. A {¶9} In approximately 1988, appellants entered into a lease with Barnes Advertising Company. Deposition of Ruth Stefanich, at 13. The lease permitted Barnes to erect and maintain advertising billboards. Id. at 16. The most recent lease agreement was signed in 2002 with a term ending March 31, 2007. Id. Appellants also leased a portion of the property to Slater Brothers Farm LLC for farming. Id. at 17. The lease with Slater Brothers remained the same after the relocation of the power lines. Id. at 19-20.
{¶10} In 2001 and 2002, ODOT planned to widen State Route 79 in Licking County. Jason Sturgeon Affidavit ¶2. As a result of this plan, ODOT required Ohio Power to move its power line. Id. ¶5. ODOT paid appellants approximately $35,000.00 to appropriate a portion of their property for this project. Stefanich Depo. at 23. Ohio Power submitted relocation plans to ODOT. Sturgeon Affidavit ¶6. In all of the plans Ohio Power submitted, the power lines were relocated to minimize encroachment on private property and ODOT's right of way. Tracy Wintermute Affidavit ¶6. The relocation plan indicated the power lines would be located above billboards on appellants' property. Id. ¶8.
{¶11} In June of 2003, ODOT approved Ohio Power's relocation plans. Sturgeon Affidavit ¶11. Ohio Power relocated the power lines in accordance therewith.
{¶12} Appellants were aware the relocation of the power lines was due to the road widening. Stefanich Depo. at 21. Appellant was alarmed by the location of the power lines in relation to the billboards. Id. at 26-27.
{¶13} Appellants filed suit. Shortly thereafter, Mr. Stefanich died. One month later, Mrs. Stefanich was told that one of Mr. Barnes' employees, a Dustin Price, was electrocuted while working on a billboard. Stefanich Depo. at 27, 39-40. The record does not contain further details about this incident.
{¶14} In January 2005, appellants filed an amended complaint against American Electric Power Company, Inc., American Electric Power Service Corporation and Ohio Power Company raising claims of negligence, breach of contract, intentional interference with contractual relationships, and injunctive relief. American Electric Power Company, Inc. and American Electric Power Service Corporation were dismissed from the case. Ohio Power filed a Motion for Summary Judgment arguing appellants failed to provide evidence of damages. Appellants opposed the motion.
{¶15} The trial court granted the Motion for Summary Judgment citing appellants' failure to show evidence of damages. Specifically, the trial court found Judgment Entry dated February 28, 2007, at 2. Additionally, the trial court noted Id. at 4.
{¶16} The trial court filed a nunc pro tunc judgment entry on March 5, 2007, incorporating the first judgment entry and finding that the order was final and appealable without just cause for delay. Appellant then appealed.
{¶17} Appellant raises a single Assignment of Error:
{¶18}
{¶19} Our standard of review is de novo, and as an appellate court, we must stand in the shoes of the trial court and review summary judgment on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35.
{¶20} Civil Rule 56 (C) states in part:
{¶21} "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, 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."
{¶22} Summary judgment is a procedural device to terminate litigation, so it must be awarded cautiously with any doubts resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356.
{¶23} The party seeking summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, citing Dresher v. Burt (1996), 75 Ohio St.3d 280.
I.
{¶24} Appellant argues that the trial court erred in granting appellee's motion for summary judgment because it failed to consider the reasonable use of the easement by Ohio Power.
{¶25} In the amended complaint, Appellants asserted claims of negligence, breach of terms of the easement and intentional interference with contractual relationships against Ohio Power. Each of these claims has as a common element a requirement to establish damages.
{¶26} In a negligence case, a plaintiff must prove that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff suffered harm and (4) the harm was proximately caused by defendant's breach of duty. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265.
{¶27} The breach of terms of an easement is analogous to a breach of contract claim. A breach of contract occurs when a party demonstrates the existence of a binding contract or agreement; the nonbreaching party performed its contractual obligations; the other party failed to fulfill its contractual obligations without legal excuse; and the nonbreaching party suffered damages as a result of the breach." (Citations omitted); Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, paragraph two of the syllabus.
{¶28} Appellants alleged Ohio Power breached the terms of the easement by failing to pay damages to "... repair or replace all fences, gates, drains and ditches injured or destroyed by it on said premises or pay grantor all damages done to the fences, drains, ditches, crops and stock on the premises herein described by the construction, operation and maintenance of said lines". Plaintiffs' Amended Complaint, ¶9.
{¶29} In order to recover on a claim of intentional interference with a contractual relationship, plaintiff must prove "(1) the existence of a contract, (2) the...
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