[Cite as Ohio Dept. of Agriculture v. Brown, 2020-Ohio-3316.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

OHIO DEPARTMENT OF 

AGRICULTURE, 

 Appellee, 

 - vs - 

THOMAS BROWN, 

 Appellant. 

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CASE NO. CA2019-11-085 

O P I N I O N 

6/15/2020 

 

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2016CVH00923 

Dave Yost, Attorney General of Ohio, James R. Patterson, Lydia Arko Zigler, Executive 

Agencies Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215, for appellee 

Strauss Troy Co., LPA, Brian J. O'Connell, Joseph J. Braun, Amy L. Hunt, 150 East Fourth 

Street, 4th Floor, Cincinnati, Ohio 45202, for appellant 

 PIPER, J. 

{¶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. 

{¶28} Judgment affirmed. 

 

 S. POWELL, P.J., and RINGLAND, J., concur.