[Cite as Nexus Gas Transm., L.L.C. v. Sprague, 2016-Ohio-4901.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


Nexus Gas Transmission, LLC                               Court of Appeals No. E-15-069

        Appellant/Cross-Appellee                          Trial Court No. 2015 CV 0349

v.

Gene C. & Ruth E. Sprague, et al.                         DECISION AND JUDGMENT

        Appellees/Cross-Appellants                        Decided: July 7, 2016

                                                *****

        James J. Hughes, III, William D. Mason, Frank L. Merrill,
        Daniel E. Gerken and Ann Marie Sferra, for appellant/cross-appellee.

        Terry J. Lodge, for appellees/cross-appellants.

                                                *****

        YARBROUGH, J.

                                            I. Introduction

        {¶ 1} Appellant/cross-appellee, Nexus Gas Transmission, LLC, and appellees/

cross-appellants, Thomas Cikotte, Kathlene Cikotte, LaClaire Evans, Lily Evans, Mary

Matthias, individually and as trustee, William Schaeffer, individually and as trustee,
Valerie Wheeler, individually and as trustee, Hannah Andrews, individually and as

trustee, and Robert Wheeler (hereinafter referred to collectively as “appellees”), appeal

the judgment of the Erie County Court of Common Pleas, granting Nexus the right to

enter onto appellees’ properties to conduct survey activities, but staying the execution of

its judgment “until the time in which to file an appeal has run and/or NEXUS is

authorized by the Sixth District Court of Appeals.”

                         A. Facts and Procedural Background

       {¶ 2} The facts of this case are undisputed. Following appellees’ refusal to allow

Nexus access to their properties, Nexus, an interstate natural gas transmission company,

initiated these proceedings on June 5, 2015, by the filing of a complaint and a separate

“motion for temporary restraining order, preliminary injunction, and/or permanent

injunction.” Nexus amended the complaint and motion on June 19, 2015.

       {¶ 3} In its complaint, Nexus sought a declaration from the court that it has the

right to enter onto appellees’ properties for the purpose of conducting survey activities in

furtherance of its efforts to construct approximately 250 miles of natural gas pipeline.

According to the complaint, Nexus is in the process of obtaining approval for the project

from the Federal Energy Regulatory Commission (FERC). In order to obtain FERC’s

approval, Nexus must first complete the surveys that are the subject of this litigation. As

alleged in the complaint, Nexus’s surveys “will be performed during daylight hours, in a

minimal amount of time, and with the goal of causing little to no inconvenience to the

[appellees].”




2.
       {¶ 4} On August 17, 2015, two months after filing its complaint, Nexus filed a

motion for summary judgment, arguing that it was entitled to a declaratory judgment

because it had a statutory right to conduct survey activities on appellees’ properties under

R.C. 163.03 and 1723.01. Following appellees’ timely response in opposition to Nexus’s

motion for summary judgment and Nexus’s reply thereto, the trial court issued its

decision on the motion. In its decision, the trial court held:

              1. NEXUS is a company organized for the purpose of transporting

       natural gas through pipes, conduits and tubing;

              2. NEXUS sent proper notice as stated in R.C. 163.03 to the

       [appellees] notifying them of its intent to enter their property to conduct

       Survey Activities;

              3. Pursuant to R.C. 1723.01 and R.C. 163.03 NEXUS has the right

       to enter onto the [appellees’] property without permission for the purpose

       of conducting Survey Activities[;]

              4. Such access by NEXUS will not constitute a trespass; [and]

              5. NEXUS shall not commence entering onto the [appellees’]

       properties without permission for the purpose of conducting Survey

       Activities until the time in which to file an appeal has run and/or NEXUS is

       authorized by the Sixth District Court of Appeals.




3.
         {¶ 5} Four days after the trial court issued its decision, Nexus filed its timely

notice of appeal. Shortly thereafter, appellees filed their timely notice of cross-appeal.

This matter has since been placed on the accelerated calendar.

                                   B. Assignments of Error

         {¶ 6} On appeal, Nexus assigns the following error for our review:

                The trial court abused its discretion when it ordered a stay of its

         judgment, thereby depriving Appellant of the immediate right to enforce

         the judgment, without any request for or facts to support a stay.

         {¶ 7} For their part, appellees present the following assignment of error:

                The trial court erred as a matter of law when it awarded summary

         judgment to NEXUS Gas Transmission, LLC, on its request for a

         declaratory judgment.

         {¶ 8} For ease of discussion, we will begin by addressing appellees’ assignment of

error.

                                           II. Analysis

             A. Nexus’s Statutory Right to Enter onto Appellees’ Properties

         {¶ 9} In appellees’ assignment of error, they contend that the trial court erred in

granting Nexus’s motion for summary judgment upon the finding that Nexus was

statutorily authorized to conduct survey activities.

         {¶ 10} We review summary judgment decisions de novo, applying the same

standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127,




4.
129, 572 N.E.2d 198 (9th Dist.1989). Applying Civ.R. 56(C), summary judgment is

appropriate where (1) there is no genuine issue as to any material fact, (2) the moving

party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but

one conclusion, and viewing the evidence in the light most favorable to the non-moving

party, that conclusion is adverse to the non-moving party. Harless v. Willis Day

Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

       {¶ 11} In concluding that Nexus was authorized by law to conduct survey

activities on appellees’ properties, the trial court relied upon two statutes: R.C. 163.03

and 1723.01. R.C. 163.03 provides:

              Any agency may, upon the notice prescribed in this section, prior to

       or subsequent to the filing of a petition pursuant to section 163.05 of the

       Revised Code, enter upon any lands, waters, and premises for the purpose

       of making such surveys, soundings, drillings, appraisals, and examinations

       as are necessary or proper for the purpose of the agency under sections

       163.01 to 163.22, inclusive, of the Revised Code, and such entry shall not

       constitute a trespass. Notice of such proposed entry shall be given to the

       owner or the person in possession by such means as are reasonably

       available not less than forty-eight hours nor more than thirty days prior to

       the date of such entry.

              The agency shall make restitution or reimbursement for any actual

       damage, resulting to such lands, waters, and premises and to improvements




5.
       or personal property located in, on, along, over, or under such lands, waters,

       and premises, as a result of such activities. If the parties are unable to agree

       upon restitution or other settlement, damages are recoverable by civil action

       to which the state or agency hereby consents.

       {¶ 12} Additionally, R.C. 1723.01 states:

              If a company is organized for the purpose of * * * transporting

       natural or artificial gas, petroleum, coal or its derivatives, water, or

       electricity, through tubing, pipes, or conduits, or by means of wires, cables,

       or conduits[,] then such company may enter upon any private land to

       examine or survey lines for its tubing, pipes, conduits, poles, and wires,

       * * * and may appropriate so much of such land, or any right or interest

       therein, as is deemed necessary * * *.

       {¶ 13} Here, appellees argue that R.C. 163.03 does not authorize Nexus to enter

onto their properties because such authorization is limited to an “agency.” Under R.C.

163.01(C), “agency” is defined to include “any public agency or private agency.”

Moreover, “private agency” is defined as “any corporation, firm, partnership, voluntary

association, joint-stock association, or company that is not a public agency and that is

authorized by law to appropriate property in the courts of this state.” R.C. 163.01(B).

       {¶ 14} Citing the definition of “private agency” contained in R.C. 163.01(B),

appellees contend that Nexus does not qualify because it is not “authorized by law to

appropriate property.” According to appellees’ interpretation of the statute, Nexus will




6.
not be authorized by law to appropriate property until it receives a “certificate of public

convenience and necessity” from FERC under 15 U.S.C. 717f(h). Thus, appellees urge

that the trial court erred in finding that Nexus has a right to conduct survey activities on

private property under R.C. 163.03. We disagree.

       {¶ 15} In focusing on federal statutes relating to Nexus’s authority to appropriate

property as a transporter of natural gas, appellees ignore the grant of such authority

expressly set forth in R.C. 1723.01. As a natural gas transporter, Nexus is permitted

under R.C. 1723.01 to “enter upon any private land to examine or survey lines for its

tubing, pipes, conduits, poles, and wires, * * * and may appropriate so much of such

land, or any right or interest therein, as is deemed necessary.” (Emphasis added.)

       {¶ 16} Given its authority to appropriate land under R.C. 1723.01, Nexus qualifies

as a “private agency” under R.C. 163.01(B), and, by extension, an “agency” under R.C.

163.01(C). Pursuant to R.C. 163.03, Nexus possesses the right to enter onto appellees’

properties to conduct survey activities.1 Moreover, R.C. 1723.01 provides additional

authority to support Nexus’s argument that it is statutorily permitted to conduct survey

activities on appellees’ properties. Therefore, we find that the trial court did not err in

granting Nexus’s motion for summary judgment.

       {¶ 17} Accordingly, appellees’ assignment of error is not well-taken.




1
  The trial court found, and appellees do not dispute, that Nexus complied with the notice
requirements set forth in R.C. 163.03.




7.
                    B. Trial Court’s Issuance of a Stay of Execution

       {¶ 18} In Nexus’s sole assignment of error, it challenges the validity of the trial

court’s decision to stay the execution of its judgment “until the time in which to file an

appeal has run and/or NEXUS is authorized by the Sixth District Court of Appeals.”

       {¶ 19} A trial court’s decision awarding a stay is reviewed under an abuse of

discretion standard. State ex rel. Zellner v. Cincinnati Bd. of Edn., 34 Ohio St.2d 199,

200, 297 N.E.2d 528 (1973). An abuse of discretion implies the court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶ 20} Appellees challenge Nexus’s characterization of the court’s order as a

“stay.” Appellees assert that the court’s order preventing Nexus from immediately

entering onto appellees’ land was merely an extension of the declaratory relief granted to

Nexus. We need not determine the exact nature of the court’s ruling in this case because,

even assuming Nexus is correct in its characterization of the ruling, we find that the trial

court acted within its discretion in imposing a stay. Indeed, were the trial court to permit

Nexus to immediately enter onto appellees’ land, Nexus could have conducted its survey

activities before appellees had an opportunity to appeal the trial court’s decision, thereby

rendering this action moot. Given this reality, we do not find that the trial court abused

its discretion.

       {¶ 21} Accordingly, Nexus’s sole assignment of error is not well-taken.




8.
                                     III. Conclusion

       {¶ 22} The judgment of the Erie County Court of Common Pleas is affirmed.

Costs are hereby assessed to the parties equally in accordance with App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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