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Tuesday, Jan. 17, 20112

In the Matter of the Complaint of Kurt Wimmer/Wimmer Family Trust v. Ohio Edison Company, Case no. 2011-0563
Appeal from Order of Public Utilities Commission of Ohio

State of Ohio v. Donald Eafford, Case no. 2011-0599
8th District Court of Appeals (Cuyahoga County)

Keith Lawrence v. City of Youngstown, Case no. 2011-0621
7th District Court of Appeals (Mahoning County)

State of Ohio v. Tracy B. Davis, Sr., Case no. 2011-0685
2nd District Court of Appeals (Montgomery County)

Must PUCO Consider Owner's Residual Property Rights in Determining Whether Trees In Easement May be Removed?

Under Terms of the Easement Agreement Between Owner and Utility

In the Matter of the Complaint of Kurt Wimmer/Wimmer Family Trust v. Ohio Edison Company, Case no. 2011-0563
Appeal from Order of Public Utilities Commission of Ohio

ISSUE: When a real estate easement agreement gives an electric utility permission to enter an owner’s property and trim or remove such trees or tree limbs within the easement “as may interfere with or endanger” the company’s power lines, must the Public Utilities Commission of Ohio (PUCO) consider the owner’s residual rights to enjoyment and maintenance of vegetation on the property in determining whether the utility is acting reasonably when it decides to cut down trees in the easement rather than trimming them based on a change in the company’s vegetation management policies?

BACKGROUND:  In 1983, Kurt and Noele Wimmer owned and resided on a parcel of property on Chestnut Ridge Road in North Ridgeville. During that year the Wimmers executed an easement agreement with the Ohio Edison Company (OE)  in which they permitted the company to erect overhead electric transmission lines and supporting structures along the western edge of their property. The area of the Wimmers’ property underlying and immediately adjacent to the path of the power lines included approximately 50 trees. The easement granted OE the rights to enter the property and to “trim, remove, or control by any other means ... such trees, limbs, and underbrush within or adjacent to said right-of-way as may interfere with or endanger” the company’s power lines and their safe operation. While the Wimmers continue to reside on the property, title to the land has since been transferred to a separate legal entity known as the Wimmer Family Trust.

From 1983 until 2004, contractors hired by the power company periodically entered the property, performed pruning and trimming of the trees, and applied growth retardants to maintain a safe distance between the trees and the company’s power lines.  In 2008, OE informed the Wimmers that under a  PUCO-approved vegetation management policy the company had adopted in 2004, OE was no longer trimming trees underlying its power lines but instead was removing all vegetation capable of growing to a height that would threaten the lines. Based on the company’s determination that, without continued trimming, the trees on the Wimmers’ property would grow higher than the power lines,  OE notified the Wimmers that it planned to cut down most of the 50 trees on their property.

The Wimmers responded to that notice by threatening to sue OE if it took action to remove the trees on their property, and offering to engage the same tree trimming contractor used by OE to maintain their trees for the past 20-plus years to continue providing that service at the Wimmers’ expense.  OE responded that relying on a property owner to maintain vegetation at a safe distance from its power lines was contrary to the company’s PUCO-approved vegetation management policy.

Pursuant to the Supreme Court of Ohio’s 2009 holding in Corrigan v. Illuminating Co. that disputes between a property owner and a utility company over vegetation removal fall under the jurisdiction of the PUCO rather than local courts, the Wimmers filed a complaint with the PUCO. They asked the commission to issue an order prohibiting OE from removing their trees and declaring that the trees did not currently interfere with or threaten the company’s power lines, and if properly maintained as in the past, would not threaten those lines in the future. The commission reviewed evidence submitted by the parties and conducted a hearing, following which it rejected the Wimmers’ complaint and cited the Supreme Court’s Corrigan decision as having established that a utility company has the right to remove trees that are within an easement consistent with its vegetation management policy, notwithstanding the objections of a property owner.

The Wimmers have exercised their right to appeal the PUCO’s ruling directly to the Supreme Court.

Attorneys for the Wimmers argue that the PUCO’s order was unreasonable and contrary to law because it failed to address the residual rights retained by the Wimmers under Ohio property law when they entered into the 1983 easement agreement with OE. They assert that under the easement,
the Wimmers retained the rights to enjoy the use of their property and to maintain the vegetation growing on their  land subject only to OE’s limited discretion to remove a tree that “interferes with or threatens” its power lines. 

They contend that, contrary to the PUCO’s holding, the Corrigan decision did not establish that an electric company has the unfettered right to enforce a vegetation policy that allows the removal of trees in an easement without any showing of current interference or threat to its power lines, but merely held that when disputes arise between a utility and a property owner regarding the removal of vegetation in an easement, those disputes must be resolved through proceedings before the PUCO rather than through a lawsuit filed in a local court.  They urge the court to vacate the PUCO’s current order and remand the case to the commission with a directive to consider the interplay between the Wimmers’ residual property rights under the 1983 easement agreement and OE’s limited right under that agreement to remove only such trees as may constitute an actual threat to the company’s equipment. 

Attorneys for the PUCO and OE urge the Court to affirm the PUCO’s order authorizing the utility to go forward with the removal of trees from the easement area of the Wimmers’ property pursuant to its commission-approved vegetation control policy. They point to evidence and expert testimony presented at the commission’s hearing that the trees at issue typically grow to a height of up to 70 feet, and therefore without trimming present a clear danger to grow into and through OE’s power lines.  They argue that utilities are required by federal and state regulations to proactively prevent power outages and dangerous conditions arising from tree-related interference with power lines, and say they are not authorized to delegate that duty to individual property owners even if the owners are willing to bear the expense of tree-trimming.

Werner L. Margard III, 614.466.4397, for the Public Utilities Commission of Ohio.

David A. Kutik, 216.586.3939, for Ohio Edison Co.

Lester S. Potash, 216.771.8400, for the Wimmer Family Trust.

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When Jury Verdict Form Does Not Identify Drug Possessed by Defendant, Is Court Limited to Misdemeanor Sentence?

Or May Court Reference Indictment, Other Parts of Record to Determine Level of Offense?

State of Ohio v. Donald Eafford, Case no. 2011-0599
8th District Court of Appeals (Cuyahoga County)

ISSUE: When the verdict form returned by a jury finds a defendant guilty of drug possession but does not identify the drug he possessed, must the trial court sentence the defendant based on the least serious level of that offense, or may the court rely on information in the indictment, jury instructions and other parts of the trial record to establish what drug the defendant possessed, and sentence him accordingly?

BACKGROUND: While executing a search warrant at a house on Rexford Avenue in Cleveland, police encountered a person who was smoking what appeared to be crack cocaine, found other persons with drug paraphernalia in their possession who were in close proximity to crack cocaine that was in plain view, and found Donald Eafford asleep in an upstairs bedroom and a crack pipe with drug residue in the bathroom. Documents in the house indicated that Eafford was the person leasing the property from its owner.

Eafford was indicted on three criminal counts including possession of less than five ounces of cocaine, which is a fifth-degree felony. At trial, police testimony and other evidence presented by the state indicated that the drug possessed by Eafford was crack cocaine, and the judge’s instructions to the jury specified that in order to convict him on the possession count, jurors must find that Eafford was in possession of “cocaine or a compound, mixture, preparation or substance containing cocaine in an amount less than five grams.”  The verdict form provided to the jury by the court and returned to the judge with the jurors’ signatures indicated that they found Eafford guilty of “possession of drugs in violation of R.C. 2925.11(A), as charged in Count Two of the indictment.” The verdict form did not specify the identity the drug Eafford possessed, or indicate the level (degree of felony or misdemeanor) of his offense.

After confirming with both the prosecutor and defense counsel that the drug possession count was a fifth-degree felony, the court sentenced Eafford to eight months in prison on that count and eight months on a separate count of  permitting drug abuse, with the terms to be served concurrently (at the same time).

Eafford subsequently appealed his convictions and sentence. Among other assignments of error, Eafford argued that, because the verdict form returned by the jury did not indicate a finding that the drug he possessed was cocaine or state that his offense was a felony, a provision of the state’s criminal code, R.C. 2945.75, and a 2007 decision of the Supreme Court of Ohio interpreting that statute, State v. Pelfrey, required that he must be sentenced only for “the least degree of the offense charged.”  Because the drug possession statute under which he was charged sets forth not only felony offenses such as possession of cocaine or heroin, but also misdemeanor drug possession offenses, Eafford asserted that the absence of a jury finding that he possessed cocaine or was guilty of a felony-level offense supported only a conviction for misdemeanor drug possession, and required sentencing under misdemeanor rather than felony sentencing guidelines. The 8th District Court of Appeals agreed with Eafford’s arguments and remanded the case to the trial court for resentencing based on a misdemeanor count of drug possession.

The state, represented by the Cuyahoga County prosecutor’s office, sought and was granted Supreme Court review of the 8th District’s ruling.

Attorneys for the state urge the Court to reject the 8th District’s interpretation of R.C. 2945.75 and the Pelfrey decision in this case, and instead endorse the interpretation applied by the 10th District in a virtually identical case, State v. Pace (2011).  In Pace, they say, the 10th District held that when the indictment, trial evidence, arguments by counsel and jury instructions in a case all clearly indicated to jurors that the defendant was charged with a felony count of possession of cocaine, a jury finding of guilt of drug possession “as charged in the indictment” was sufficient to support a felony conviction and sentencing despite the failure of the jury verdict form to specify that the drug at issue was cocaine or that the offense was a felony.

Attorneys for Eafford argue that this case does not depend on interpretation of the Pelfrey decision or R.C. 2945.75.  They point out that the verdict form returned by the jury in Eafford’s case found him guilty of “possession of drugs,” which is a specific misdemeanor offense defined in R.C. 2925.11(C)(2), and did not make reference to the felony of “possession of cocaine” which is a separate offense defined in R.C. 2925.11(C)(4). Thus, they contend, regardless of what the state charged in its indictment or argued at trial, the jury authorized to decide Eafford’s case found him guilty of only a misdemeanor offense, and the trial court erred by ignoring the jury’s verdict and instead imposing a felony conviction and sentence.

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutors' office.

David M. King, 216.443.3667, for Donald Eafford.

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Does Time Limit For Notice of Workers' Comp Discrimination Suit Begin to Run Before Employee Is Notified of Termination?

Where Worker Claims Firing Was Retaliation for Workplace Injury Claims

Keith Lawrence v. City of Youngstown, Case no. 2011-0621
7th District Court of Appeals (Mahoning County)

ISSUE: When there is a gap in time between the date an employer decides to terminate a worker and the date the worker is notified of his termination, does the 90-day time limit for the worker to file notice of intent to sue for wrongful termination under R.C. 4123.90 begin to run on the date set by the employer as the date of termination, or the date on which the worker received notice that he had been terminated?

BACKGROUND: R.C. 4123.90 prohibits an employer from firing or taking other negative employment action against a worker in retaliation for that person’s filing of a claim for state workers’ compensation benefits. The law requires that a fired worker asserting a claim of such discrimination must notify the employer of his or her intent to file suit within 90 days after the “date of termination,” and must actually file suit within 180 days after that date.

Keith Lawrence was employed as a laborer with the Youngstown city street department from 1999 until July 2002, when he was laid off.  During that period of employment, Lawrence suffered three different work-related injuries for which he applied for and received state workers’ compensation benefits. Lawrence was rehired by the department in July 2006, but was required to sign an agreement that, instead of the normal 90-day probationary period served by other department employees, Lawrence would be subject to a probationary period of one year during which the city could terminate his employment for any reason or without a stated cause. The city later stated that the basis for the extended probationary period was Lawrence’s history of on-the-job injuries and missed work.

Lawrence was suspended from his job duties on Jan. 7, 2007, when the city learned that his driver license had been suspended. On Feb. 19, 2007, Lawrence succeeded in having his license suspension lifted, and went to the street department office to confirm that fact. During that visit, the department secretary handed Lawrence a letter informing him that he had been fired. The letter listed the date of his termination as Jan. 9, 2007. 

On April 17, 2007, Lawrence’s attorney served notice on the city that Lawrence was considering filing suit against the city for discriminatory wrongful discharge in violation of R.C. 4123.90 based on retaliation for his prior workers’ compensation claims. On July 6, 2007, Lawrence filed suit in the Mahoning County Court of Common Pleas asserting a claim under the workers’ compensation retaliation statute. 

The city moved for summary judgment dismissing Lawrence’s workers’ compensation discrimination claim on the basis that his April 17, 2007 letter notifying the city of his intent to file suit had not been sent within the statutory 90-day time limit after the date of his termination, which the city asserted was Jan. 9, 2007.  Lawrence opposed the summary judgment motion, arguing that the 90-day “clock” for notifying the city of his possible lawsuit had not started to run until he was informed of his termination on Feb. 19, 2007, and therefore his April 17, 2007, notice letter to the city had been delivered within 90 days after his termination. 

The trial court granted summary judgment in favor of the city. On review, the 7th District Court of Appeals affirmed the trial court’s ruling  that the Jan. 9 termination date set forth in the city’s letter to Lawrence was the date on which the 90-day limitations period began to run. The court of appeals noted in its opinion that even if Lawrence didn’t receive that letter until Feb. 19,  he still had 49 days in which to serve timely notice on the city of his intent to sue, but failed to meet that deadline.

The 7th District certified that, while its ruling on the date of termination was consistent with rulings by several other courts of appeals, it was in conflict with decisions in which the 6th and 11th Districts held that a worker’s “date of termination” for purposes of filing a discrimination claim under R.C. 4123.90 was the date on which the employee was notified of his termination. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.

Attorneys for Lawrence point to decisions of the U.S. Supreme Court and federal courts of appeals holding that the limitations period for a terminated worker to advance a discrimination claim for wrongful termination of employment does not begin to run until the worker becomes or reasonably should have become aware that he or she has been fired. They argue that the 7th District’s ruling in this case allows an employer to limit or eliminate an employee’s ability to assert anti-discrimination claims simply by setting a “termination date” that only the employer is aware of, and not notifying  the employee of his permanent dismissal until all or most of the time within which  a responsive legal action must be taken has elapsed. They also assert that the disagreement among appellate districts regarding what date constitutes an employee’s “date of termination” under R.C. 4123.90 is evidence that the statutory language is ambiguous, and note that courts must interpret remedial statutes, including state workers’ compensation laws, in the manner most favorable to claimants such as Lawrence.  

Attorneys for Youngstown urge the Court to affirm the 7th District’s ruling that the language of R.C. 4123.90 unambiguously requires that an employee alleging discriminatory termination under that statute must give his employer notice of intent to sue within 90 days “immediately following the discharge” of that employee. In this case, they say, it is undisputed that the city terminated Lawrence’s employment on Jan. 9, 2007 and that Lawrence performed no work in his former position after that date. Accordingly, they argue, the 90-day limitations period within which Lawrence was required to notify the city of his  intent to file a discrimination complaint began to run on Jan. 9, 2007, and expired before his notification letter was delivered to the city on April 17, 2007.

Neil D. Schor, 330.744.1111, for the city of Youngstown.

Martin S. Hume, 330.746.8491, for Keith Lawrence.

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Does Threat Made Before Criminal Complaint Is Filed Constitute Violation of Ohio's Witness Intimidation Law?

Where Witness Is Threatened After Police Investigation Has Begun

State of Ohio v. Tracy B. Davis, Sr., Case no. 2011-0685
2nd District Court of Appeals (Montgomery County)

ISSUE: When a threat intended to deter a person who has information about a crime from disclosing that information to police is made after a police investigation of the crime has been initiated, but before a criminal complaint has been filed in the case, does that threat constitute “intimidation of a witness” as that offense is defined in R.C. 2921.04(B)?

BACKGROUND: R.C. 2921.04(B) prohibits the use of “force or threats of harm to any person or property” in an attempt to “influence, intimidate, or hinder ... an attorney or witness involved in a criminal action or proceeding in the discharge of the duties of attorney or witness.”

In this case, Tracy Davis was driving a van owned by his ex-wife, Sinnie Nelson, when he was involved in an incident in which he initially fled from a police officer, and then drove the van toward the officer, who pulled his gun and fired several shots at the van as it drove by him and fled the scene.
While the officer called for assistance and took steps to initiate an investigation, Davis drove the van to Nelson’s nearby apartment, where he attempted to clean up broken glass and cover bullet holes in the vehicle with duct tape.  He told Nelson that police would probably be coming to the apartment to question her about who had been driving her van, and threatened to kill her if she didn’t tell officers that she had let an acquaintance named Patrick use it that day.

Davis then left for work. Shortly thereafter, police, who had identified Nelson as the owner of the van, came and questioned her about who had been using the vehicle that day. Frightened by Davis’ threat, she told them she had allowed an acquaintance named Patrick to borrow it.  Later the same day Davis was questioned by police in connection with an unrelated incident, and taken into custody when an I.D. check showed that there were outstanding warrants for his arrest. While he was being processed at the police station, the officer involved in the shooting incident spotted and identified him as the van driver. When police returned to Nelson’s apartment and informed her that Davis was in jail, she told them about his earlier threat and confirmed that she had actually loaned the van to Davis and not Patrick.

Davis was charged with multiple offenses arising from the shooting incident, and found guilty of intimidating a witness and tampering with evidence. Davis appealed, asserting among other arguments that the state had failed to prove an essential element of the crime of witness intimidation, because it had not shown that Nelson was a “witness involved in a criminal action or proceeding” at the time he threatened her. The 2nd District Court of Appeals reviewed R.C. 2921.04(B) and a 2009 Supreme Court of Ohio decision applying that statute in a similar case, State v. Malone, and held that Davis’ conviction for witness intimidation must be vacated on the basis that no “action or proceeding” was pending against him in a court at the time his threat against Nelson was made.

The state, represented by the Montgomery County prosecutor’s office, sought and was granted Supreme Court review of the 2nd District’s decision.

Attorneys for the state urge the Court to overrule the 2nd District and reinstate Davis’ conviction. They argue that the fact-gathering process of a police investigation is an essential part of bringing a criminal case to trial, and therefore, once an investigation has begun, it should be considered part of a “criminal action or proceeding” to which the witness intimidation statute applies. They also assert that the legislative intent underlying the witness intimidation statute is to deter lawbreakers from using threats of violence to prevent persons with knowledge about their crimes from coming forward with that information, and argue that a threat against a witness intended to prevent police from obtaining information necessary to support a criminal complaint is no different in intent or effect than a threat made against the same witness after charges have been filed against a defendant.

Attorneys for Davis urge the Court to follow its holding in State v. Malone that in order to convict a defendant of violating  the witness intimidation statute, R.C. 2921.04(B), the state must show that there was a “criminal action or proceeding” pending in a court at the time the alleged threat was made. They point out that in the preceding subsection of the same statute, R.C. 2921.04(A), which addresses intimidation of a crime victim, the legislature adopted language prohibiting threats prior to the filing of a criminal complaint. They argue that if the legislature had also intended the witness intimidation provision to apply prior to the initiation of a criminal charge, it could and would have used the same language in R.C. 2921.04(B).

R. Lynn Nothstine, 937.225.4117, for the state and Montgomery County prosecutor's office.

Brandin D. Marlow, 937.322.3860, for Tracy Davis.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.