      [Cite as Columbia Gas Transm., L.L.C. v. Ogle, 2012-Ohio-1483.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                               HOCKING COUNTY


COLUMBIA GAS TRANSMISSION, LLC, :
                                                   :
      Plaintiff-Appellee,                          : Case No. 10CA11
                                                   :
      vs.                                          : Released: March 21, 2012
                                                   :
CHARLES and MELANIE OGLE                           : DECISION AND JUDGMENT
                                                   : ENTRY
      Defendants-Appellants.                       :

                                       APPEARANCES:

Charles R. and Melanie A. Ogle, Rockbridge, Ohio, pro se.

James M. Doerfler, Reed Smith, LLP, Pittsburgh, Pennsylvania, for Appellee.


McFarland, J.:

      {¶1} Appellants Charles and Melanie Ogle appeal the judgment of the trial

court granting declaratory judgment to Appellee Columbia Gas Transmission,

LLC. Appellants argue that the trial court erred by 1) failing to dismiss Appellee’s

complaint; 2) entering a decision that contains erroneous facts and that decides

issues beyond the scope of the complaint; and 3) denying Appellants’ motion for

post-judgment relief. Having reviewed the record, we find that the trial court erred

by denying Appellants due process and we reverse the trial court’s judgment and

remand the cause for further proceedings.
Hocking App. No. 10CA11                                                           2


                                        FACTS

      {¶2} Appellants own approximately 88 acres of land situated in Hocking

County, Ohio. There exists a lease between Appellants (lessors) and Appellee

(lessee), whereby Appellee stores and extracts natural gas from underneath

Appellants land. The lease purportedly gives Appellee the right to access the

subject property to use and maintain an existing natural gas well. Appellee

believes that the lease also gives it the right to construct additional wells, subject to

obtaining regulatory approval. Consequently, Appellee marked a site for a

proposed second well on Appellants’ property and began the process to obtain

regulatory approval to construct the second well.

      {¶3} Appellants, on the other hand, are unhappy with the proposed well’s

location and their proposed compensation. Appellants believe that the lease

prohibits Appellee from constructing a well within 300 feet of a barn; yet at the

time of the lease’s execution, no barn existed in the property. To take advantage of

this clause in the lease, Appellants erected a barn within 300 feet of the new well’s

proposed location. Appellants also began filing papers with various government

entities in an effort to prohibit the second well’s construction.

      {¶4} Given Appellant’s objections and anticipating litigation and

interference from Appellants, Appellee filed the instant action. Appellee requested

the trial court declare that 1) the lease gives Appellee the right to unimpeded
Hocking App. No. 10CA11                                                          3


access to the first well for the purposes of maintaining and operating it; and 2) the

lease gives Appellee the right to drill additional wells as needed, subject to

regulatory approval. Appellee also requested a permanent injunction prohibiting

Appellants from interfering with Appellee’s rights under the lease.

      {¶5} Subsequently, Appellants filed their own action for declaratory

judgment, seeking a declaration that the lease is unconscionable. The trial court

consolidated this case with Appellee’s action, because the two cases involved the

same facts and the construction of the same lease.

      {¶6} Appellee moved for summary judgment on Appellants’ claims, and

Appellants voluntarily dismissed their claims. The trial court then entered

judgment on May 14, 2010 in Appellee’s favor. Appellants objected to the trial

court’s final judgment entry and sought reconsideration.1 Subsequently,

Appellants filed the instant appeal alleging the following assignments of error.

                                     ASSIGNMENTS OF ERROR

      I.         “THE TRIAL COURT ERRED IN NOT DISMISSING
                 APPELLEE’S COMPLAINT FOR LACK OF GENUINE ISSUE OF
                 MATERIAL FACT, CASE, OR JUDICIABLE CONTROVERSY.

      II.        “THE TRIAL COURT ERRED IN DECLARING A DECISION
                 AND JUDGMENT ENTRY (NUNC PRO TUNC), WITH
                 ERRONEOUS STATEMENTS AS FACT AND ISSUES FOR
                 WHICH THERE WAS NO AMENDED COMPLAINT.



      1
          The record contains no ruling from the trial court on this issue.
Hocking App. No. 10CA11                                                      4


      III.   “THE TRIAL COURT ERRED IN DENYING DEFENDANTS’
             RULE 60(B) MOTION FOR POST-JUDGMENT RELIEF.”

                                    ANALYSIS

                                         I.

      {¶7} We address Appellants’ second assignment of error first because it is

dispositive. In their second assignment of error, Appellants argue the trial court

erred when it issued its final decision and judgment entry. Specifically, Appellants

take issue with the trial court’s recitation of facts, and the fact that they were

unaware the trial court was entertaining entering a final judgment.

      {¶8} Appellee filed its motion for summary judgment on March 1, 2010.

Appellee requested the trial court dismiss the “unconscionability claims alleged by

[Appellants].” In its supporting memorandum, Appellee explained Appellants’

claims were untimely and substantively deficient, and requested the trial court

dismiss Appellants’ claims of unconscionability.        Appellee did not request

judgment upon its own claims.

      {¶9} On March 16, 2010, Appellants dismissed their claims for

unconscionability, effectively mooting Appellee’s motion for summary judgment,

and filed a memorandum contra stating the same. The record does not reveal that

the trial court formally ruled upon Appellee’s motion for summary judgment.
Hocking App. No. 10CA11                                                          5


      {¶10} On April 6, 2010, the trial court notified the parties that it would

conduct a pretrial on May 14, 2010, followed by the trial to the court on July 16,

2010. No subsequent notices altered this schedule.

      {¶11} On May 14, 2010, the trial court signed an entry entitled “Stipulated

Decision and Judgment Entry,” which did not contain the parties’ signatures or

their attorneys’ signatures, and granted Appellee’s claims for declaratory

judgment. The trial court then filed a nunc pro tunc entry that was identical, except

it deleted the word “stipulated” from the caption. Appellants objected to this entry

and requested reconsideration, which the trial court did not grant.

      {¶12} “The fundamental requirements of due process are notice and an

opportunity to be heard at a meaningful time and manner.” Carver v. Map Corp.,

4th Dist. No. 01CA2757, 2001-Ohio-2403, citing State v. Hochhausler (1996), 76

Ohio St.3d 455, 459, 668 N.E.2d 457 and In re Adoption of Zschach (1996), 75

Ohio St.3d 648, 653, 665 N.E.2d 1070. “However hurried a court may be in its

efforts to reach the merits of a controversy, the integrity of procedural rules is

dependent upon consistent enforcement because the only fair and reasonable

alternative thereto is complete abandonment.” Miller v. Lint (1980), 62 Ohio St.2d

209, 215, 404 N.E.2d 752. “‘Civ.R. 56 does not authorize courts to enter

summary judgment in favor of a non-moving party.’” Todd Dev. Co. v. Morgan,

116 Ohio St.3d 461, 880 N.E.2d 88, 2008-Ohio-87, at ¶15, quoting Marshall v.
Hocking App. No. 10CA11                                                                                   6


Aaron (1984), 15 Ohio St.3d 48, 472 N.E.2d 335, at the syllabus. The exception to

this prohibition is “an entry of summary judgment against the moving party does

not prejudice his due process rights where all relevant evidence is before the court,

no genuine issue as to any material fact exists, and the non-moving party is entitled

to judgment as a matter of law.” State ex rel. Cuyahoga Cty. Hosp. v. Ohio Bur. of

Workers’ Comp., 27 Ohio St.3d 25, 28, 500 N.E.2d 1370, citing Houk v. Ross

(1973), 34 Ohio St.2d 77, 296 N.E.2d 266, paragraph one of the syllabus.

      {¶13} In the instant case, the trial court’s final judgment entry deprived

Appellants of due process and must be reversed. First and foremost, the record

reveals no procedural process by which the trial court arrived at its judgment.

There is no indication that the trial court issued its ruling in response to a pending

motion, a previously held hearing, or other dispositive procedural device.

      {¶14} Second, even assuming that the trial court’s entry was its ruling on

Appellee’s motion for summary judgment,2 the trial court was without authority to

rule on claims not addressed within the motion. The trial court was only permitted

to enter summary judgment in Appellee’s favor (the moving party) or in

Appellants’ favor (the non-moving parties), regarding Appellants’ claims of

unconscionability. A trial court cannot sua sponte enter summary judgment on




      2
          The trial court’s entry did not purport to be a ruling on the pending motion for summary judgment.
Hocking App. No. 10CA11                                                       7


issues not raised within a party’s motion for summary judgment. Doing so violates

the basic principles of due process.

      {¶15} Similarly, a trial court may not unilaterally forego a trial and decide

the merits of case without notifying the parties and giving them an opportunity to

be heard.      Appellee’s argument that the record discloses no objection from

Appellants concerning the submission of the tendered final judgment entry is

neither persuasive nor dispositive. Just the same, the record discloses no notice the

trial court was going to consider the merits of Appellee’s claims before the

scheduled bench trial. Without such notice, the trial court deprived Appellants of

due process.

      {¶16} Accordingly, we sustain Appellants’ second assignment of error and

reverse the trial court’s judgment.

                                   JUDGMENT REVERSED AND THE
                       CAUSE REMANDED FOR FURTHER PROCEEDINGS
                                  CONSISTENT WITH THIS OPINION.
Hocking App. No. 10CA11                                                        8


                                 JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED AND THE CAUSE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION and that the Appellants recover of Appellee costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Hocking County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date
of this entry.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
       Exceptions.

      Harsha, J.: Concurs in Judgment and Opinion.
      Abele, P.J.: Dissents.

                                              For the Court,


                                              BY: _________________________
                                                  Matthew W. McFarland, Judge




                                NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
