Date: 08-22-2020

Case Style:

OHIO DEPARTMENT OF AGRICULTURE - vs - THOMAS BROWN

Case Number: CA2019-11-085

Judge: Robin N. Piper

Court: IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY

Plaintiff's Attorney: Dave Yost, Attorney General of Ohio, James R. Patterson, Lydia Arko Zigler

Defendant's Attorney:

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Call 888-853-4800 if you need an Agricultural Attorney in Ohio.

Description:

{¶1} Appellant, Thomas Brown, appeals a decision of the Clermont County Court
of Common Pleas involuntarily dismissing his counterclaims against appellee, the Ohio
Department of Agriculture ("ODA").
{¶2} The Asian Longhorned Beetle ("ALB"), an invasive insect pest, is capable of
causing fatal damage to deciduous hardwood trees located in Ohio. These trees, including
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maple, birch, poplar, and willow, make up an important segment of Ohio's environmental
economy including timber, hardwood landscape trees, and the plant nursery industry. The
trees also play an important role in Ohio's forest ecosystem. In 2011, an ALB infestation
was discovered in Clermont County that threatened both Ohio's economy and environment.
{¶3} The ODA and United States Department of Agriculture ("USDA") created the
ALB Cooperative Eradication Program ("the ALB Program") to help eliminate Ohio's ALB
infestation.1 The ODA has power to enforce Ohio's plant pest control laws as enumerated
in R.C. Chapter 927, and the USDA has parallel authority under the federal Plant Protection
Act. Given their comparable authority and goals, the ODA and USDA often work together
to coordinate efforts and share resources.
{¶4} Specific to the ALB Program, the ODA oversaw the surveying of trees to
identify ALB infestations while the USDA had sole responsibility for the removal of infested
trees. Thus, the ODA lacked responsibility for, or oversight of, tree removal from infested
properties and its authority was limited to inspection and identification of ALB infestations
in Ohio.
{¶5} In 2012, the ODA identified an ALB infestation of trees on Brown's property.
These infested trees were removed by Young's General Contracting, Inc. ("Young's"), which
had contracted with the USDA for tree removal. The ODA attempted to perform follow up
inspections of Brown's property to determine if the ALB infestation had been fully
eradicated. However, Brown refused to allow access to his property on three separate
occasions in October 2015 and January 2016. Brown refused ODA access for inspections
because he believed Young's damaged his property during removal of infested trees and

1. The USDA has declared ALB infestation an emergency and works with state and local governments across
the country to eradicate the ALB before infestations cause lasting economic damage. Evans v. United States,
876 F.3d 375, 378 (1st Cir.2017).
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failed to return the property to its former state after the trees were removed.
{¶6} The ODA filed for injunctive relief, asking the trial court to restrain Brown from
interfering with efforts to survey and later remove any infested trees. Brown asserted
several counterclaims, including a request for injunctive relief and a takings claim in which
he alleged destruction of property and failure to remediate his land after the removal of
trees.
{¶7} The matter proceeded to a bench trial during which the ODA presented a case
for injunctive relief. Brown then presented his case-in-chief in support of his counterclaims.
At the close of Brown's case, the ODA made a motion to dismiss Brown's counterclaims,
which the trial court granted pursuant to Ohio Civ.R. 41(B)(2). The trial court determined
that the proper party to pursue the counterclaims against was the USDA because it had
authority regarding tree removal, not the ODA which only had survey and identification
authority. Brown now appeals the trial court's decision, raising the following assignment of
error:
{¶8} THE TRIAL COURT ERRED BY GRANTING THE ODA'S MOTION FOR
INVOLUNTARY DISMISSAL OF BROWN'S COUNTERCLAIMS PURSUANT TO CIV.R.
41(B)(2).
{¶9} Brown argues in his assignment of error that the trial court erred by
involuntarily dismissing his counterclaims.
{¶10} According to Civ.R. 41(B)(2), after a plaintiff in a bench trial has completed
the presentation of his or her evidence, the defendant may move for a dismissal on the
ground that the plaintiff has failed to demonstrate a right to relief based upon the facts and
the law. The trial court, who is the trier of fact in a bench trial, then determines whether it
is appropriate to render judgment against the plaintiff or hold judgment until the close of all
evidence. The court, as the trier of the facts, may then determine the facts and render
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judgment against the plaintiff, or may decline to render any judgment until the close of all
the evidence.
{¶11} A trial court's ruling on a Civ.R. 41(B)(2) motion may not be disturbed on
appeal unless such judgment is erroneous as a matter of law or against the manifest weight
of the evidence. Ohio Valley Associated Builders & Contrs. v. Rapier Elec., Inc., 12th Dist.
Butler Nos. CA2013-07-110 and CA2013-07-121, 2014-Ohio-1477, ¶ 23. In a manifest
weight analysis, the appellate court weighs the evidence and all reasonable inferences,
considers the credibility of witnesses, and determines whether, in resolving conflicts in the
evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of
justice that the judgment must be reversed and a new trial ordered. Burdick v. Burd Bros.,
12th Dist. Clermont No. CA2018-07-054, 2019-Ohio-1593, ¶ 16.
{¶12} After reviewing the record, we find the trial court's decision was not against
the manifest weight of the evidence nor erroneous as a matter of law. As noted above,
Brown alleged in his counterclaims to the ODA's complaint for injunctive relief that tree
removal from his property caused damage. Brown alleged breach of contract, negligence,
trespass, and in a fourth claim for relief, petitioned for a writ of mandamus to initiate
appropriation proceedings for the taking of his property. Within these counterclaims, Brown
alleged that Young's improperly removed trees from his land, allowed livestock to escape
his property, and failed to remediate the land so that erosion and water run-off destroyed
part of his property.
{¶13} While there is no dispute that the ODA was responsible for determining which
trees were infested while the USDA was responsible for tree removal, Brown argues that
the ODA was the proper party to bring his counterclaims against because the ODA and
USDA were engaged in the "same undertaking." Within Brown's counterclaims, he
specifically alleged that the ODA and USDA were "in a joint venture," and that the ALB
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Program was "vicariously liable" for Young's actions taken during remediation of his
property after tree removal.
{¶14} A joint venture is an association of persons with intent, by way of contract,
express or implied, to engage in and carry out a single business adventure for joint profit,
for which purpose they combine their efforts, property, money, skill and knowledge, without
creating a partnership, and agree that there shall be a community of interest among them
as to the purpose of the undertaking, and that each coadventurer shall stand in the relation
of principal, as well as agent, as to each of the other coadventurers. Hepperly v. Sickles,
12th Dist. Warren No. CA2014-12-147, 2015-Ohio-2223, ¶ 11.
{¶15} After reviewing the record, we find that the ODA and USDA were not engaged
in a joint venture. The agreement between the ODA and USDA specifically enumerates
each department's role in the process of eradicating the ALB threat. According to the
agreement, the USDA is the only party responsible for tree removal contracts. As
expressed within a memo addressing delegation of duties, the ODA and USDA determined
that the USDA
will be responsible for securing and administering any
contractual arrangements with third party contractors which may
include the following: ALB host tree cutting and removal; stump
grinding and/or herbicide treatments of stumps from the
removed trees; chipping of removed host material;
transportation and disposal of the chips; chemical treatments of
non-infested host trees and other similar and related measures
as necessary.
{¶16} The roles expressly assigned to each department are distinct, rather than
interchangeable or implementable by either party. The USDA could not remove the infested
trees and remediate the land without the ODA first identifying which trees were infested.
Nor could the ODA remove the trees of its own accord, as that authority was exclusive to
the USDA.
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{¶17} The separate roles executed by each department, which were expressly set
forth in the agreement, were also distinctive regarding control and how each duty was
executed. The ODA directed its employees or contractors to investigate possible
infestations, while the USDA separately controlled its employees and contractors in
removing the trees and remediating the land. See Evans v. United States, 876 F.3d 375,
381 (1st Cir.2017) ("the conduct of federal employees is generally held to be discretionary
unless a federal statute, regulation, or policy specifically prescribes a course of action for
an employee to follow. State law will not suffice"). The ODA had no control over the USDA
directives, and vice versa. Thus, the departments did not exercise joint control.
{¶18} Nor did their agreement grant the ODA authority over the USDA or provide for
reciprocal authority between the departments. This is especially true where the ALB
Program was essentially federally funded, and the federal government directly indicated
what the ODA could and could not do with the funding.2 For example, within a memo
between the federal ALB Eradication Program Director and the Chief of Ohio's Division of
Plant Industry, the ODA agreed that it had to obtain "prior approval from the ALB Director
or her designee prior to commitment of any Federal funds to include but not limited to all
procurement actions and travel." The ODA was also required to identify and account for all
equipment, supplies, and materials purchased.
{¶19} Moreover, there was no sharing of profits and losses, as the purpose of the
agreement between the two departments was to protect Ohio's trees against the ALB threat,
not to profit from individual landowners trying to rid their properties of ALB infestations. Any
funds not expended in the fight against the ALB would be returned to the federal
government, not shared with Ohio's treasury. Thus, the record does not support the

2. According to the Notice of Award for Cooperative Agreement, the federal government provided $1,494,000
while Ohio provided $147,407 toward the project.
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existence of a joint venture between the ODA and the USDA.
{¶20} In addition to the lack of joint venture, the trial court properly determined that
the ODA was not the proper party against which to allege breach of contract, given that
ODA never signed a contract with Young's for tree removal. Young's contracted to be
responsible for property damage and agreed to return land to its original conditions after
tree removal. Thus, the ODA is not the proper party against which to allege breach of
contract where there is simply no privity between the ODA and the alleged damage to
Brown's property. For these same reasons, the ODA could not have committed negligence,
trespass, or a taking where it had no role in, nor was responsible for, the tree removal.
{¶21} The trial court also found, and we agree, that there was no agency relationship
between the ODA and the USDA. The agreement between the two never provided for any
"agency" rights or responsibilities, and neither department had control over how the other
completed its role of either surveying trees for removal or removing the identified trees.
{¶22} According to their agreement, the relationship between the two departments
is described as a "mutually beneficial cooperative effort" rather than vesting either entity
with principal or agent responsibilities or authorities. In fact, the ODA and USDA expressly
agreed to "work cooperatively in carrying out the goals and objectives" of the ALB Project.
The roles, responsibilities, and actions of the ODA and the USDA were separate from each
other and lack any indicia of agency.
{¶23} In a similar case, the United States District Court for the District of
Massachusetts determined that the Massachusetts Department of Conservation and
Recreation ("MDCR") and the USDA did not enter an agency relationship during their
combined efforts to eradicate ALB infestations in Massachusetts. Evans v. United States,
D.Mass. No. 14-40042-DHH, 2016 U.S. Dist. LEXIS 135979, at *19-20 (Sep. 30, 2016).
The court first determined that 7 U.S.C. 7751(a) provides that the USDA may cooperate
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with a state, but the statute does not provide for any agency relationship. The court went
on to determine that the agreement between the MDCR and the USDA did not address
agency, and instead, described the relationship as "cooperative."
{¶24} The agreement between the MDCR and the USDA, similar to the one reached
between the ODA and USDA, addressed that "eradication is achieved through the
cooperative efforts of federal, state and local governments," and that federal and state
agencies would work together "through this mutually beneficial cooperative effort," to
address the dangers posed by the ALB. Given the language of the controlling federal
statute and the agreement reached, the Evans Court held that no agency relationship
existed. We agree with the reasoning of the federal court, and find that no agency
relationship existed between the ODA and USDA for similar reasons.
{¶25} We also note that the trial court's ultimate decision granting a permanent
injunction speaks directly to the separate actions and authority of the ODA and the USDA.
In its judgment entry granting the permanent injunction, the trial court limited the scope of
the injunction in favor of the ODA for the purposes of "surveying and tagging (if applicable)
the trees" on Brown's property. However, the trial court specifically noted that "this Order
does not require Brown to allow access to his property to the United States Department of
Agriculture, its employees and contractors."
{¶26} The trial court's decision thus recognizes the limited scope of the ODA's
injunctive relief specific to its singular role in the ALB Program; surveying and tagging trees
for removal. Whether the USDA, through Young's, is liable for damage to Brown's property
or whether the USDA is entitled to injunctive relief to allow tree removal on Brown's property
were questions not raised to the trial court given the sperate positions of the ODA and the
USDA.
{¶27} After reviewing the record and considering all of Brown's arguments, we find
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the trial court's decision to involuntarily dismiss Brown's counterclaims was supported by
the manifest weight of the evidence and that such decision was not erroneous as a matter
of law. Brown's single assignment of error is, therefore, overruled.

Outcome: Judgment affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: