[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. :

:

:

:

:

: CASE NO. CA2019-11-085

O P I N I O N

6/15/2020

CIVIL APPEAL FROM CLERMONT C OUNTY 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, O hio 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 Cou nty Court of Common Pleas involuntarily dismissing his counterclaims agai nst appellee, the Ohio Department of Agriculture ("ODA"). {¶2} The Asian Longhorned Beetle ("ALB"), an invasive insect pest, i s capable of causing fatal damage to deciduous hardwood trees located in Ohi o. These trees, includingClermont CA2019-11-085

- 2 - maple, birch, poplar, and willow, make up an important segment of Ohio's environmental economy including timber, hardwood landscape trees, and the pla nt 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 e conomy and environment. {¶3} The ODA and United States Department of Agriculture ("USDA") cr eated 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 a s 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 U SDA often work together

to coordinate efforts and share resources. {¶4} Specific to the ALB Program, the ODA oversaw the surveying of t rees to identify ALB infestations while the USDA had sole responsibilit y for the removal of infested trees. Thus, the ODA lacked responsibility for, or oversight o f, tree removal from infested properties and its authority was limited to inspection and iden tification of ALB infestations

in Ohio. {¶5} In 2012, the ODA identified an ALB infestation of trees on Brow n's property. These infested trees were removed by Young's General Contractin g, Inc. ("Young's"), which had contracted with the USDA for tree removal. The ODA attempt ed to perform follow up inspections of Brown's property to determine if the ALB infesta tion had been fully eradicated. However, Brown refused to allow access to his prop erty 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 work s with state and local governments across the country to eradicate the ALB before infestations cause last ing economic damage. Evans v. United States , 876 F.3d 375, 378 (1st Cir.2017).Clermont CA2019-11-085

- 3 - failed to return the property to its former state after the tre es 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 infeste d trees. Brown asserted several counterclaims, including a request for injunctive relie f 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 pres ented 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 t he USDA because it had authority regarding tree removal, not the ODA which only had su rvey and identification authority. Brown now appeals the trial court's decision, raisi ng 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 er red by involuntarily dismissing his counterclaims. {¶10} According to Civ.R. 41(B)(2), after a plaintiff in a bench tria l 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 deter mine the facts and renderClermont CA2019-11-085

- 4 - judgment against the plaintiff, or may decline to render any ju dgment until the close of all

the evidence. {¶11} A trial court's ruling on a Civ.R. 41(B)(2) motion may not be d isturbed on appeal unless su ch judgment i s 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 al l 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 s uch a manifest miscarriage of justice that the judgment must be reversed and a new trial orde red. 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 o f law. As noted above, Brown alleged in his counterclaims to the ODA's complaint for i njunctive 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 wr it of mandamus to initiate appropriation proceedings for the taking of his property. With in these counterclaims, Brown alleged that Young's improperly removed trees from his land, al lowed 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 dete rmining which trees were infested while the USDA was responsible for tree rem oval, 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 co unterclaims, he specifically alleged that the ODA and USDA were "in a joint ven ture," and that the ALBClermont CA2019-11-085

- 5 - Program was "vicariously liable" for Young's actions taken duri ng remediation of his property after tree removal. {¶14} A joint venture is an association of persons with intent, by wa y of contract, express or implied, to engage in and carry out a single busines s 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 communi ty of interest among them as to the purpose of the undertaking, and that each coadventure r shall stand in the relation of principal, as well as agent, as to each of the other coadven turers. 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 spe cifically enumerates each department's role in the process of eradicating the ALB th reat. 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 OD A 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; stum p grinding and/or herbicide treatments of stumps from the removed trees; chipping of removed host material; transportation and disposal of the chips; chemical treatments o f non-infested host trees and other similar and related measures as necessary. {¶16} The roles expressly assigned to each department are distinct, r ather than interchangeable or implementable by either party. The USDA cou ld 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 a uthority was exclusive to

the USDA.Clermont CA2019-11-085

- 6 - {¶17} The separate roles executed by each department, which were expr essly set forth in the agreement, were also distinctive regarding control and how each duty was executed. The ODA directed its employees or contractors to inv estigate possible infestations, while the USDA separately controlled its employee s 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 genera lly held to be discretionary unless a federal statute, regulation, or policy specifically pr escribes 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 exer cise joint control. {¶18} Nor did their agreement grant the ODA authority over the USDA o r provide for reciprocal authority between the departments. This is especial ly true where the ALB Program was essentially federally funded, and the federal gover nment 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 Ch ief of Ohio's Division of Plant Industry, the ODA agreed that it had to obtain "prior app roval from the ALB Director or her designee prior to commitment of any Federal funds to inc lude 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 pu rpose of the agreement between the two departments was to protect Ohio's tre es against the ALB threat, not to profit from individual landowners trying to rid their pr operties of ALB infestations. Any funds not expended in the fight against the ALB would be return ed 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.Clermont CA2019-11-085

- 7 - existence of a joint venture between the ODA and the USDA. {¶20} In addition to the lack of joint venture, the trial court prope rly 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. You ng's contracted to be responsible for property damage and agreed to return land to it s original conditions after tree removal. Thus, the ODA is not the proper party against wh ich to allege breach of contract where there is simply no privity between the ODA and t he alleged damage to Brown's property. For these same reasons, the ODA could not ha ve committed negligence, trespass, or a taking where it had no role in, nor was responsi ble for, the tree removal. {¶21} The trial court also found, and we agree, that there was no age ncy relationship between the ODA and the USDA. The agreement between the two ne ver 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 rem oving the identified trees. {¶22} According to their agreement, the relationship between the two departments is described as a "mutually beneficial cooperative effort" rath er than vesting either entity with principal or agent responsib ilities or authorities. In fa ct, the ODA and USDA expressly agreed to "work cooperatively in carrying out the goals and obj ectives" of the ALB Project. The roles, responsibilities, and actions of the ODA and the USD A were separate from each other and lack any indicia of agency. {¶23} In a similar case, the United States District Court for the Dis trict of Massachusetts determined that the Massachusetts Department of C onservation and Recreation ("MDCR") and the USDA did not enter an agency relati onship 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 cooperateClermont CA2019-11-085

- 8 - with a state, but the statute does not provide for any agency r elationship. The court went on to determine that the agreem ent between the MDCR and the USD A 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 achiev ed through the cooperative efforts of federal, state and local governments," a nd 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 th e 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 reaso ns. {¶25} We also note that the trial court's ultimate decision granting a permanent injunction speaks directly to the separate actions and authorit y of the ODA and the USDA. In its judgment entry granting the permanent injunction, the tr ial court limited the scope of the injunction in favor of the ODA for the purposes of "surveyi ng and tagging (if applicable) the trees" on Brown's property. However, the trial court speci fically noted that "this Order does not require Brown to allow access to his property to the U nited 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 Prog ram; 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 t ree 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 argum ents, we findClermont CA2019-11-085

- 9 - the trial court's decision to involuntarily dismiss Brown's cou nterclaims 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, over ruled. {¶28} Judgment affirmed.

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