[Cite as Columbia Gas of Ohio, Inc. v. Toledo Edison Co., 2015-Ohio-3942.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Columbia Gas of Ohio, Inc. Court of Appeals No. L-14-1263
Appellant Trial Court No. CI0201206338
v.
The Toledo Edison Company, et al. DECISION AND JUDGMENT
Appellee Decided: September 25, 2015
*****
Michael L. Snyder, Jerome W. Cook, Joseph M. Muska and
Beth I. Gillin, for appellant.
Denise M. Hasbrook and Emily Ciecka Wilcheck, for appellee.
*****
SINGER, J.
{¶ 1} Appellant, Columbia Gas of Ohio, Inc., appeals the judgment of the Lucas
County Court of Common Pleas. For the reasons that follow, we affirm.
{¶ 2} Appellant sets forth four assignments of error:
I. The trial court erred as a matter of law by failing to take judicial
notice mandated by Civ.R. 44.1(A)(1), (2) of the mandatory minimum legal
duties imposed upon Appellee Toledo Edison by the statutory and
regulatory law of the State of Ohio governing electric utilities and by
failing to apply that law despite sufficient notice to the trial court and
opposing counsel that Appellant Columbia Gas was relying upon this very
statutory and regulatory law.
II. The trial court abused its discretion and committed reversible
error by striking the affidavits of Bills and Carbonara where Appellant
Columbia had complied with all pretrial orders, there was no order
declaring Appellant Columbia to be in default of any discovery order, and
where any good faith comparison of the affidavits and the SEA Reports
would have eliminated the baseless and legally unsupported claim that there
was any bad faith associated with their content or submission at the
summary judgment stage.
III. The trial court abused its discretion by denying Appellant
Columbia’s Motion for Leave to file First Amended Complaint Instanter,
with Amended Complaint attached, where no justification was provided in
the trial court’s order, the amended complaint only amplified on existing
claims based upon facts discovered to date, only modified the damages
2.
claim to include punitive damages and where over three months remained
before the scheduled trial.
IV. The trial court erred as a matter of law by failing to apply the
doctrine of res ipsa loquitur in support of Appellant Columbia’s Motion for
Summary Judgment and in opposition to Defendant’s Motion for Summary
Judgment where the facts support a reasonable person concluding that it is
more likely that [sic] not that Appellant [sic] Toledo Edison’s negligence
was associated with the destruction of the regulator station by fire.
{¶ 3} Appellant owned a natural gas regulator station located on Manhattan
Boulevard in Toledo, Ohio. In that vicinity, there was a wooden utility pole with a
wooden crossarm and electrical equipment which were owned by appellee.
{¶ 4} On November 16, 2010, the primary conductor which had been attached to
the crossarm on the utility pole fell off the insulator and onto three secondary conductors
located on the pole below the primary line. Subsequently, a fire occurred which resulted
in the destruction of appellant’s regulator station.
{¶ 5} On November 15, 2012, appellant filed a complaint against appellee seeking
to recover in excess of $25,000 which appellant alleged it expended in building a new
natural gas regulator station. In its complaint, appellant alleged appellee was negligent,
as well as negligent per se, by failing to inspect and maintain its equipment, record and
retain documentation of defects, and remedy defects. Appellant also alleged damage to
real and personal property.
3.
{¶ 6} Appellee answered the complaint then filed a motion for summary judgment.
Appellant filed a motion for partial summary judgment to which it attached the affidavits
of two of its experts, Randall Bills and Robert Carbonara. Appellee filed a motion to
strike these affidavits. The trial court granted appellee’s motion to strike. The trial court
also granted appellee’s motion for summary judgment finding that appellee demonstrated
there was no genuine issue of material fact that appellee owed no duty to appellant as the
events of November 16, 2010, were unforeseen, and there was no evidence that appellee
breached a standard of care in the industry which proximately caused appellant’s loss.
Appellant timely appealed.
{¶ 7} Appellant’s second assignment of error will be addressed first. Appellant
claims the trial court abused its discretion in striking the two affidavits attached to its
motion for partial summary judgment. Appellant contends the trial court’s basis for
striking the affidavits was that the affidavits were not produced before the expert
identification deadline. Appellant argues it timely identified its experts and produced two
expert reports, although there was no requirement by the trial court for the exchange of
expert reports. Appellant submits it clarified for appellee that Bills was its expert to be
called at trial to testify about the entire expert report, but there was no prohibition
regarding the submission of another expert’s affidavit in summary judgment briefing.
Appellant maintains there was no bad faith related to the submission or content of the
affidavits and the court’s ruling effectively excluded the expert reports.
4.
{¶ 8} Appellee counters appellant represented to appellee that Bills would be
appellant’s only testifying expert. Appellee agues Bills’ affidavit contained opinions not
discussed at his deposition, and both affidavits included opinions not previously disclosed
in expert reports. In addition, appellee contends Bills’ affidavit contained averments
which are contradictory to statements he made at his deposition, and no explanation for
the contradictions was offered.
{¶ 9} A trial court’s decision to grant or deny a motion to strike an affidavit is
reviewed using an abuse of discretion standard. Early v. The Toledo Blade, 130 Ohio
App.3d 302, 318, 720 N.E.2d 107 (6th Dist.1998). An abuse of discretion connotes that
the lower court’s attitude in reaching its judgment was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶ 10} Affidavits offered in support of and in opposition to a motion for summary
judgment “shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated in the affidavit.” Civ.R. 56(E). Affidavits that contain
hearsay or other inadmissible evidence are not sufficient to support a motion for
summary judgment. Tokles & Son, Inc. v. Midwestern Indem. Co., 65 Ohio St.3d 621,
605 N.E.2d 936 (1992); JPMorgan Chase Bank v. Murdock, 6th Dist. Lucas No.
L-06-1153, 2007-Ohio-751, ¶ 25.
5.
{¶ 11} With respect to supplementation of discovery responses, Civ.R. 26(E)(1)(b)
states in pertinent part:
A party is under a duty seasonably to supplement his response with
respect to any question directly addressed to * * * the identity of each
person expected to be called as an expert witness at trial and the subject
matter on which he is expected to testify.
{¶ 12} One purpose of the Rules of Civil Procedure is to facilitate the flow of
pertinent information between parties by way of discovery requests and to eliminate
unfair surprise. Jones v. Murphy, 12 Ohio St.3d 84, 86, 465 N.E.2d 444 (1984). “If
discovery is to serve its purpose, the parties must be entitled, upon the unveiling of a
contention, to a reasonable opportunity to prepare to defend against it.” Shumaker v.
Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367, 370, 504 N.E.2d 44 (1986), abrogated
on other grounds in State v. D’Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909 (1993).
The purpose of Civ.R. 26(E)(1)(b) is to prevent “trial by ambush.” Id. at 371. A trial
court may exclude expert testimony as a sanction for violating Civ.R. 26(E). Jones at 85.
Since the exclusion of otherwise reliable and probative evidence is an extreme sanction, a
trial court should only exclude evidence when clearly necessary to enforce willful
noncompliance or prevent unfair surprise. Weimer v. Anzevino, 122 Ohio App.3d 720,
725, 702 N.E.2d 940 (7th Dist.1997).
{¶ 13} Here, a review of the record shows appellant disclosed the identity of three
expert witnesses, Bills, Carbonara and Jeffrey Lindsey. Appellee then requested to take
6.
the depositions of these three experts, via a notice of depositions duces tecum pursuant to
Civ.R. 30(B), and directed the witnesses to bring with them numerous documents
including any and all reports and opinions prepared with respect to the case. Thereafter,
appellant’s counsel notified counsel for appellee that “Randy [Bills] is our testifying
expert.” Counsel for appellee responded “[p]lease confirm that I understood your email
below correctly and that only Randy will testify.” Appellant’s counsel replied “[a]greed.
* * * [Randy] will be our testifying expert.” Consequently, appellee issued an amended
notice of deposition duces tecum only to Bills and only Bills’ deposition was taken.
Approximately six weeks later and with no notice to appellee, appellant offered the
affidavits of Bills and Carbonara during summary judgment briefing. Appellee moved to
strike the affidavits. As noted by the trial court in its decision to grant the motion to
strike the affidavits, appellant did not dispute or deny that its counsel represented that
Bills would be its only testifying expert, and that both Bills and Carbonara’s affidavits
contained opinions not included in the expert reports.
Carbonara’s Affidavit
{¶ 14} Appellant’s counsel unequivocally represented to appellee’s counsel that
Bills would be its testifying expert. Since Carbonara would not be testifying as an expert
at trial, the statements in Carbonara’s affidavit are inadmissible hearsay and are not
sufficient to support a motion for summary judgment. Tokles, supra; Murdock, supra.
Accordingly, the trial court did not abuse its discretion in striking Carbonara’s affidavit.
7.
Bills’ Affidavit
{¶ 15} Appellee took Bills’ deposition at which Bills testified that the entire scope
of his opinions was contained in the two expert reports. Thus, following Bills’
deposition, appellee had a reasonable expectation, in the absence of any supplementation,
that Bills’ opinions would be consistent with the responses provided during the discovery
process. However, in Bills’ affidavit, he rendered opinions on issues which were not
included in the expert reports and which he did not disclose at his deposition.
{¶ 16} We conclude, to the extent that Bills’ affidavit contains new, undisclosed
testimony for which no discovery had been provided, the trial court did not abuse its
discretion in striking Bills’ affidavit. As to the remaining statements in Bills’ affidavit
which are consistent with his previous deposition testimony, we find the court erred in
striking these statements. However, this error is harmless as the record shows Bills’
deposition was filed with the trial court and the expert reports, which were discussed with
Bills at his deposition, were marked as exhibits to his deposition. Therefore, Bills’
deposition testimony and the expert reports are included in the trial court record.
{¶ 17} For the foregoing reasons, appellant’s second assignment of error is not
well-taken.
{¶ 18} In its first assignment of the error, appellant argues the trial court should
have taken judicial notice, as required by Civ.R. 44.1(A)(1) and (2), of the minimum
legal duties imposed upon appellee by Ohio’s statutory and regulatory law governing
electric utilities, including certain Ohio Revised Code sections, Ohio Administrative
8.
Code (“OAC”) regulations and relevant NESC (National Electric Safety Code) rules, and
applied them. Appellant requests that this court take judicial notice of the foregoing
laws, rules and regulations, apply them, and find appellee negligent as a matter of law.
{¶ 19} Appellee counters the NESC standards cited by appellant were not a part of
the summary judgment record, as the standards were mentioned in Carbonara’s affidavit,
and that affidavit was stricken from the summary judgment record. Appellee argues even
if the court took judicial notice of these standards it does not mean appellee was
negligent. Appellee further contends appellant’s request for this court to take judicial
notice of these regulations and find appellee breached the regulations is wholly without
merit.
{¶ 20} Civ.R. 44.1(A) provides:
(1) Judicial notice shall be taken of the rules of the supreme court of
this state and of the decisional, constitutional, and public statutory law of
this state.
(2) A party who intends to rely on a municipal ordinance, a local
rule of court, or an administrative regulation within this state shall give
notice in his pleading or other reasonable written notice.
{¶ 21} Decisions concerning judicial notice are generally reviewed under an abuse
of discretion standard. Reichman v. Reichman, 5th Dist. Tuscarawas No. 2001 AP 12
0112, 2002-Ohio-4712, ¶ 23. However, if a party fails to object when a trial court does
not take judicial notice, only plain error may be raised on appeal. Kessler v. Kessler, 6th
9.
Dist. Huron No. H-86-28, 1986 WL 14832, *3 (Dec. 19, 1986). Plain error must be
prejudicial to such an extent that it has a materially adverse effect on the character and
public confidence in the judicial proceedings. Schade v. Carnegie Body Co., 70 Ohio
St.2d 207, 209, 436 N.E.2d 1001 (1982). The plain error doctrine is used in civil cases
only under exceptional circumstances to avoid a manifest miscarriage of justice.
Cleveland Elec. Illum. Co. v. Astorhurst Land Co., 18 Ohio St.3d 268, 275, 480 N.E.2d
794 (1985).
{¶ 22} Here, a review of the admissible evidence in the record indicates
appellant’s complaint contained allegations that appellee failed to comply or act in
accordance with certain Ohio Revised Code sections, OAC sections and the NESC.
These allegations were sufficiently pled to give notice that appellant intended to rely on
these authorities. Thus, the trial court could have taken judicial notice of these authorities
had appellant so requested, however, appellant did not move the trial court to take
judicial notice of any laws, rules or regulations. Therefore, appellant’s claim that the trial
court erred in not taking judicial notice of and applying certain Ohio Revised Code
sections, OAC sections and the NESC will be reviewed under a plain error analysis.
{¶ 23} Upon review of the record we find no manifest injustice in the proceedings
in the trial court which would constitute plain error. Appellant presented no admissible
evidence that appellee violated any particular provision or section of the Ohio Revised
Code, the OAC or the NESC. Therefore, there was no plain error in the trial court not
10.
taking judicial notice of these authorities, nor was there plain error in the trial court not
applying them to find appellee negligent.
{¶ 24} In addition, appellant has requested that we take judicial notice of and
apply relevant Ohio Revised Code sections, the OAC, and the NESC, and find appellee
negligent. We decline to take judicial notice of and apply these authorities to find
appellee was negligent, as there is no admissible evidence in the record that appellee
violated any particular section of the Ohio Revised Code or the OAC or any provision of
the NESC. Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 25} In its third assignment of error, appellant contends the trial court abused its
discretion in denying its motion for leave to file an amended complaint.
{¶ 26} Civ.R. 15(A) provides that a party may amend its pleading by leave of
court and leave “shall be freely granted when justice so requires.” Turner v. Cent. Local
School Dist., 85 Ohio St.3d 95, 99, 706 N.E.2d 1261 (1999). Although the rule allows
for liberal amendment, a motion to amend should be denied if there is a showing of bad
faith, undue delay or undue prejudice to the opposing party. Id. A trial court’s decision
to grant or deny a motion for leave to amend a pleading is discretionary and will not be
reversed unless the court abused its discretion. State ex rel. Askew v. Goldhart, 75 Ohio
St.3d 608, 610, 665 N.E.2d 200 (1996).
{¶ 27} Here, the trial court did not set forth its basis for denying appellant’s
motion for leave to amend. However, a review of the record shows with respect to the
timing of appellant’s motion, that it was filed almost two years after the original
11.
complaint was filed and one day after the court’s denial of appellant’s motion to continue
the trial date and set alternative cut off dates. When appellant sought leave to amend, it
was less than a week before the deadline for the filing of summary judgment motions,
and the deadlines for disclosing expert witnesses had already passed.
{¶ 28} Appellant’s proposed amended complaint contained 60 numbered
paragraphs, while the original complaint had 24 numbered paragraphs. Appellant offered
no explanation for the delay in seeking to amend its complaint and the addition of these
new allegations other than to “update and refine the allegations to conform to the
information revealed by discovery.” The allowance of these additional allegations would
require appellee to file additional pleadings and engage in further discovery, although
extensive discovery had already been conducted. In turn, the deadline for filing motions
for summary judgment would need to be extended, and other cut off dates would also
need to be changed.
{¶ 29} Based on our review of the record, we cannot say the trial court abused its
discretion by denying appellant leave to amend its complaint, as appellant’s motion was
untimely and appellee would be prejudiced by allowing the amendment. Accordingly,
appellant’s third assignment of error is not well-taken.
{¶ 30} In the fourth assignment of error, appellant argues the court erred in failing
to apply the doctrine of res ipsa loquitur when ruling on the motions for summary
judgment. Appellant maintains appellee was in exclusive control and management of the
electrical equipment on the utility pole, the weather at the time was mild with no
12.
lightning and the failure of the crossarm and the re-energization of the circuit would not
have occurred in the absence of appellee’s negligence.
{¶ 31} The doctrine of res ipsa loquitur is a rule of evidence which permits a
plaintiff to prove negligence circumstantially by showing (1) the instrumentality which
caused the harm was in the exclusive control of the defendant and (2) the event which
caused the harm was not the type which would normally occur in the absence of the
defendant’s negligence. Hake v. Wiedemann Brewing Co., 23 Ohio St.2d 65, 66-67, 262
N.E.2d 703 (1970). Whether a plaintiff has met this burden is a question of law to be
determined by the trial court. Id. at 67.
{¶ 32} Here, appellant failed to show that the instrumentality which caused the
regulator station fire was under the exclusive control of appellee. While appellant claims
the fire was more likely than not associated with appellee’s negligence, appellee
produced evidence that the fire occurred due to other causes, namely, the weather and
appellant’s own failure to ground the equipment. Based on the evidence presented, this is
not a situation where the doctrine of res ipsa loquitur should have been applied. The trial
court therefore did not err in failing to apply the doctrine. Accordingly, appellant’s
fourth assignment of error is found not well-taken.
13.
{¶ 33} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
14.
Columbia Gas of Ohio, Inc. v. Toledo Edison Co.
Combined Opinion