WESTERN RADIO SERVICES CO., an Oregon corporation, Plaintiff-Appellant,
VERIZON WIRELESS (VAW), LLC, dba Verizon Wireless, a Delaware limited liability company and Midstate Electric Cooperative, Inc., Defendants-Respondents.
and submitted January 9, 2018
Deschutes County Circuit Court 15CV0303; A164562 Wells B.
W. Kelly argued the cause and fled the brief for appellant.
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.
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
Or. App.447] Case Summary:
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
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.
Or. App.448] POWERS, J.
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)
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.
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, ...