Ogle v. Ohio Power Co. , 2012 Ohio 4986 ( 2012 )

[Cite as Ogle v. Ohio Power Co., 2012-Ohio-4986.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
Charles R. Ogle, et al., :
:
Plaintiffs-Appellants, :
: Case No. 11CA27
v. :
: DECISION AND
Ohio Power Company, et al, : JUDGMENT ENTRY
:
Defendants-Appellees. : Filed: October 23, 2012
______________________________________________________________________
APPEARANCES:
Charles R. Ogle and Melanie A. Ogle, Rockbridge, Ohio, pro se Appellants.
Brian L. Buzby and Daniel B. Miller, Porter, Wright, Morris & Arthur, LLP, Columbus,
Ohio, for Appellee Ohio Power Company.
Christopher T. Cline, Blaugrund, Herbert, Kessler, Miller, Myers & Postalakis,
Worthington, Ohio, for Appellees, Christpoher T. Cline, Teresa Jo Gubsch and Margaret
Ann Plahuta.
______________________________________________________________________
Kline, J.:
{¶1} Charles R. Ogle and Melanie A. Ogle (collectively, the “Ogles”) appeal the
judgment of the Hocking County Court of Common Pleas, which granted summary
judgment in favor of Ohio Power Company (hereinafter “Ohio Power”). The Ogles
contend that an Ohio Power telecommunications tower near the Ogles’ property
constitutes a nuisance. Because there is no genuine issue of material fact that the
telecommunications tower constitutes a nuisance, we disagree. Accordingly, we affirm
the judgment of the trial court.
I.
Hocking App. No. 11CA27 2
{¶2} In October 2007, the Ogles filed a complaint seeking to enjoin Ohio Power
from constructing a telecommunications tower (hereinafter the “Tower”) on property
owned by Christopher T. Cline, Teresa Jo Gubsch, and Margaret Ann Plahuta
(hereinafter, we will refer to this property as the “Cline Property”).1 The Ogles own
property adjacent to the Cline Property.
{¶3} The trial court granted Ohio Power’s motion to dismiss the Ogles’ claim.
We determined, however, that the Ogles’ complaint sufficiently alleges a private
nuisance claim, and we reversed the trial court’s judgment. Ogle v. Ohio Power Co.,
180 Ohio App. 3d 44, 2008-Ohio-7042, 903 N.E.2d 1284, ¶ 7-11 (4th Dist.).
{¶4} In October 2008, Ohio Power constructed the Tower on the Cline
Property. Eventually, Ohio Power moved for summary judgment on the Ogles’ nuisance
claim. The trial court then granted Ohio Power’s motion and dismissed the Ogles’
complaint.
{¶5} The Ogles appeal and assert the following assignments of error: I. “THE
TRIAL COURT ERRED IN FINDING DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT MERITORIOUS AND DISMISSING PLAINTIFFS’ COMPLAINT.” II. “THE
TRIAL COURT ERRED IN APPLYING SCHOENBERGER V. DAVIS (JUNE 23, 1983),
CUYAHOGA APP. NO. 45611 REGARDING A DRIVEWAY WHICH IN SCOPE AND
EFFECT IS MAGNIFICENTLY SET APART FROM A 350-FOOT ELECTROMAGNETIC
MICROWAVE TOWER.” III. “THE TRIAL COURT ERRED IN CITING A CALIFORNIA
CASE OLIVER V. AT&T WIRELESS SERVICE (1999), 76 CAL.APP.4TH 521
REGARDING A CELLULAR TOWER SUBJECT TO THE FEDERAL
1
The owners of the Cline Property are also defendants/appellees, and they have joined
in and adopted Ohio Power’s filings in this case.
Hocking App. No. 11CA27 3
TELECOMMUNICATIONS ACT OF 1996.” IV. “THE TRIAL COURT ERRED IN
CONCLUDING THAT ‘NO SUCH EVIDENCE OF NEGLIGENCE EXISTS HEREIN’, IN
THAT THE PLAINTIFFS WERE NOT REQUIRED TO COME FORWARD WITH
EVIDENCE TO SUPPORT THEIR CLAIMS OTHER THAN IN THEIR RESPONSE TO
DISCOVERY.” V. “THE TRIAL COURT ERRED IN MISAPPLYING ADAMS V.
GORRELL (1927), 28 OHIO APP. 55 TO THIS CASE.” VI. “THE TRIAL COURT
ERRED IN SEPARATING OUT THE ISSUE OF PROPERTY VALUE AS
INSUFFICIENT TO CONSTITUTE A NUISANCE.” VII. “THE TRIAL COURT ERRED IN
CONCLUDING ‘INAPPLICABILITY’ OF PLAINTIFFS’ NUISANCE PER SE AND
NUISANCE ACCIDENS ARGUMENTS, WITH CITATIONS, OF A 350-FOOT
ELECTROMAGNETIC MICROWAVE TOWER LOCATED NEAR AND VISIBLE FROM
PLAINTIFFS’ RESIDENCE AND MOST OF THEIR PROPERTY, TO BE ABSENT OF
GENUINE FACTUAL ISSUES.” VIII. “THE COURT ERRED IN GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ‘FOR THE REASONS
STATED HEREIN, AS WELL AS THOSE PERSUASIVELY ARGUED BY
DEFENDANTS IN THEIR BRIEFS’ WITHOUT RECAPITULATING ANY PARTICULAR
PERSUASIVE REASONS MADE BY DEFENDANTS.” IX. “THE COURT ERRED IN
NOT VIEWING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN A LIGHT
MOST FAVORABLE TO THE PARTY OPPOSING THE MOTION.” And X. “THE TRIAL
COURT ERRED IN FINDING THAT ‘(1) THERE ARE NO GENUINE ISSUES OF
MATERIAL FACT, (2) DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER
OF LAW, AND (3) REASONABLE MINDS, VIEWING THE EVIDENCE MOST
FAVORABLY TO PLAINTIFFS, COULD FIND ONLY FOR DEFENDANTS.’”
Hocking App. No. 11CA27 4
II.
{¶6} In all of their assignments of error, the Ogles essentially argue that the trial
court erred in granting Ohio Power’s motion for summary judgment. Therefore, we will
consider all of the Ogles’ assignments of error together.
{¶7} “Because this case was decided upon summary judgment, we review this
matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko, 106
Ohio St. 3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Summary judgment is
appropriate only when the following have been established: (1) that there is no genuine
issue as to any material fact; (2) that the moving party is entitled to judgment as a
matter of law; and (3) that reasonable minds can come to only one conclusion, and that
conclusion is adverse to the nonmoving party. Civ.R. 56(C). Accord Bostic v. Connor,
37 Ohio St. 3d 144, 146, 524 N.E.2d 881 (1988); Grimes v. Grimes, 4th Dist. No.
08CA35, 2009-Ohio-3126, ¶ 14. In ruling on a motion for summary judgment, the court
must construe the record and all inferences therefrom in the opposing party’s favor.
Doe v. First United Methodist Church, 68 Ohio St. 3d 531, 535, 629 N.E.2d 402 (1994).
{¶8} The burden of showing that no genuine issue of material fact exists falls
upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St. 3d 280,
294, 662 N.E.2d 264 (1996). However, once the movant supports his or her motion with
appropriate evidentiary materials, the nonmoving party “may not rest upon the mere
allegations or denials of the party’s pleadings, but the party’s response, by affidavit or
as otherwise provided in [Civ.R. 56], must set forth specific facts showing that there is a
genuine issue for trial.” Civ.R. 56(E). Accord Grimes at ¶ 15.
Hocking App. No. 11CA27 5
{¶9} “In reviewing whether an entry of summary judgment is appropriate, an
appellate court must independently review the record and the inferences that can be
drawn from it to determine if the opposing party can possibly prevail.” Grimes at ¶ 16.
“Accordingly, we afford no deference to the trial court’s decision in answering that legal
question.” Morehead v. Conley, 75 Ohio App. 3d 409, 412, 599 N.E.2d 786 (4th
Dist.1991). Accord Grimes at ¶ 16.
{¶10} The Ogles have alleged a private nuisance claim against Ohio Power. “A
‘private nuisance’ is ‘a nontrespassory invasion of another’s interest in the private use
and enjoyment of land.’” Ogle, 180 Ohio App. 3d 44, 2008-Ohio-7042, 903 N.E.2d 1284,
at ¶ 7, quoting Brown v. Scioto Cty. Commrs., 87 Ohio App. 3d 704, 712, 622 N.E.2d
1153 (4th Dist.1993). There are two types of private nuisance claims – a qualified
nuisance and an absolute nuisance. Adams v. Pitorak & Coenen Invests., Ltd., 11 Dist.
Nos. 2009-G-2931 & 2009-G-2940, 2010-Ohio-3359, ¶ 36. The essence of an absolute
nuisance is that “no matter how careful one is, such activities are inherently injurious
and cannot be conducted without damaging someone else’s property or rights.” Brown
at 713. Thus, absolute nuisance is “based upon either intentional conduct or
abnormally dangerous conditions, and as such the rule of absolute liability applies.” Id.
“Conversely, qualified nuisance is premised upon negligence. It consists of a lawful act
that is so negligently or carelessly done as to have created an unreasonable risk of
harm which in due course results in injury to another.” Id.
{¶11} First, we conclude there is no genuine issue of fact to sustain a qualified
nuisance claim. The Ogles did not present any evidence that Ohio Power’s construction
Hocking App. No. 11CA27 6
and operation of the Tower was done negligently or carelessly. Thus, there is no
evidence that the Tower constituted a qualified nuisance. See Brown at 713.
{¶12} Next, we analyze whether the Ogles can show that the Tower constitutes
an absolute nuisance. “[A]n absolute nuisance requires intentional conduct on the part
of the defendant[.] Intentional, in this context, means not that a wrong or the existence
of a nuisance was intended but that the creator of [it] intended to bring about the
conditions which are in fact found to be a nuisance.” Angerman v. Burick, 9th Dist. No.
02CA0028, 2003-Ohio-1469, ¶ 10. The Ogles argue that the Tower is a nuisance
based on (1) health hazards caused by the Tower and (2) the unsightliness of the
Tower.
{¶13} There is no evidence to support the Ogles’ claim that the Tower is a
nuisance based on alleged health hazards. For example, the Ogles allege that the
Tower’s electromagnetic emissions pose an increased risk of cancer. However, the
Ogles have not come forward with any actual evidence showing that the Tower
constitutes a health hazard of any sort. Thus, there is no genuine issue of material fact
regarding whether the Tower is a nuisance based on the alleged health hazards.
{¶14} Additionally, the Ogles’ assertions that the Tower is unsightly are
insufficient to show that the Tower constitutes a nuisance. See Bohley v. Crofoot, 7
Ohio Law. Abs. 667, 1929 WL 2231, *1 (9th Dist.1929). In Bohley, the court held that
the unsightliness of a lawfully operated junkyard was, by itself, insufficient to constitute
a nuisance. Specifically, the court stated as follows:
The mere unsightliness of the junk upon defendant’s
premises violates no rights of the plaintiff, any more
Hocking App. No. 11CA27 7
than an unsightly house or other building would; and a
court of equity cannot, at the instance of one
neighbor, control another neighbor in the use of his
own premises when such use in no way violates the
rights of said first neighbor; where no right has been
invaded, although one may have damaged another,
no liability has been incurred, and no redress, either
in law or in equity, is obtainable. Id.
See also Schoenberger v. Davis, 8th Dist. No. 45611, 1983 WL 5501, *6 (June 23,
1983). Other jurisdictions have also found that “unsightliness, without more, does not
create an actionable nuisance.” Ness v. Albert, 665 S.W.2d 1, 1-2 (Mo.App.1983); see
also Oliver v. AT&T Wireless Servs., 76 Cal. App. 4th 521, 534 (1999) (“The displeasing
height and shape of the new tower cannot, in and of itself, make it a nuisance to those
who sit on the other side of the property line.”); Oklejas v. Williams, 165 Ga.App. 585,
586, 302 S.E.2d 110 (1983).
{¶15} Finally, the Ogles argue that the Tower has caused a diminution in value
in their property. Even assuming that to be true, the only evidence that the Ogles have
presented to support their nuisance claim is that the Tower is unsightly. And
“unsightliness, without more, does not create an actionable nuisance.” Ness at 1-2.
Consequently, because there is no evidence to support an actionable nuisance, the
Ogles cannot recover for the alleged diminution in value of their property.
{¶16} Accordingly, we conclude (1) that there is no genuine issue as to any
material fact regarding the Ogles’ nuisance claim; (2) that Ohio Power is entitled to
Hocking App. No. 11CA27 8
judgment as a matter of law; and (3) that reasonable minds can come to only one
conclusion, and that conclusion is adverse to the Ogles. As a result, we overrule all of
the Ogles’ assignments of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Hocking App. No. 11CA27 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Hocking County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. and McFarland, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.