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Western Radio Services Co. v. Verizon Wireless (Vaw), LLC

Court of Appeals of Oregon

May 8, 2019

WESTERN RADIO SERVICES CO., an Oregon corporation, Plaintiff-Appellant,
v.
VERIZON WIRELESS (VAW), LLC, dba Verizon Wireless, a Delaware limited liability company and Midstate Electric Cooperative, Inc., Defendants-Respondents.

          Argued and submitted January 9, 2018

          Deschutes County Circuit Court 15CV0303; A164562 Wells B. Ashby, Judge.

          George W. Kelly argued the cause and fled the brief for appellant.

          Derek D. Green argued the cause for respondent Verizon Wireless (VAW), LLC. Also on the brief was Davis Wright Tremaine LLP.

          Matthew J. Kalmanson argued the cause for respondent Midstate Electric Cooperative, Inc. Also on the brief were Ruth C. Rocker and Hart Wagner LLP.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         [297 Or. App.447] Case Summary:

         Plaintiff appeals from a trial court judgment dismissing plaintiff's action for trespass and declaratory judgment against defendants Verizon Wireless and Midstate Electric Cooperative, Inc., assigning error to the trial court's granting of defendants' motion for summary judgment. In plaintiff's view, there are genuine issues of material fact as to plaintiff's ownership of a disputed power line over which defendants allegedly trespassed that preclude summary judgment.

         Held:

         In order to avoid summary judgment on a claim for trespass or, as would more appropriately be alleged in this case, trespass to chatel, the plaintiff must establish actual ownership of the disputed property. The only evidence in the record in support of plaintiff's claim that he owned the power line over which he alleges defendants trespassed is plaintiff's affidavit concerning his understanding of the parties' agreement, which is not sufficient evidence from which a reasonable factfinder could find that plaintiff in fact owned the power line.

          [297 Or. App.448] POWERS, J.

         Plaintiff Western Radio Services appeals from a limited judgment dismissing its action against defendants Verizon Wireless and Midstate Electric Cooperative, Inc., assigning error to the trial court's granting of defendants' motion for summary judgment. We review the trial court's ruling for whether there are genuine issues of material fact that preclude summary judgment and whether the trial court correctly ruled that defendants are entitled to judgment as a matter of law. ORCP 47 C. We conclude that the trial court did not err in its rulings. We further conclude, however, that the trial court's dismissal of plaintiff's declaratory judgment claims was not the proper disposition and that the judgment must be vacated and remanded for entry of judgment that includes a declaration of the rights of the parties. Bell v. City of Hood River, 283 Or.App. 13, 20, 388 P.3d 1128 (2016)

         The relevant facts are undisputed. Defendant Midstate is a private, nonprofit electric cooperative that provides electricity to its members in an "exclusively serviced territory." Plaintiff is a wireless telecommunications carrier and is a member of Midstate.

         Under ORS 758.450, a utility service may apply with the Public Utility Commission (PUC) for the allocation of exclusively serviced territory. ORS 758.450(1); see also ORS 758.735 (describing application process). If the PUC approves an application, no other person may offer, construct, ...


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