                              THIRD DIVISION
                             ELLINGTON, P. J.,
                        DILLARD and MCFADDEN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                    March 29, 2016




In the Court of Appeals of Georgia
 A15A2326. JONES v. SABAL TRAIL TRANSMISSION, LLC.

      MCFADDEN, Judge.

      This appeal is from a trial court’s grant of declaratory judgment and injunctive

relief authorizing a company to enter and survey certain property for a proposed

natural gas pipeline. The appellant property owner claims that she did not get

adequate notice that the hearing on the appellant’s petition would consolidate the

interlocutory injunction and declaratory judgment requests set forth in the petition;

however, the record shows that she did receive sufficient notice and that she

acquiesced in the consolidated hearing on both issues. The appellant also claims that

the trial court erred in applying state law in this matter because it is preempted by

federal law, but she waived this issue by not raising it below. Likewise, the

appellant’s argument that the appellee did not meet the definition of the term
“pipeline company” as it is used in two code sections was also waived because it was

not raised in the trial court. Finally, appellant contends that the appellee was required

to obtain a certain federal certificate before it could be authorized under a state statute

to survey her property; however, the plain language of the applicable state statute

imposes no such requirement. Because the appellant has failed to show reversible

error, we affirm.

       Sabal Trail Transmission, LLC was hired to construct and operate a natural gas

pipeline that will begin in Alabama, run through Georgia, and end in Florida. Sabal

Trail has already surveyed approximately 99 percent of the proposed pipeline route,

which will traverse property owned by Sandra Jones in Colquitt County. Sabal Trail

requested permission to enter Jones’ property to perform the survey, but Jones refused

the request.

       Sabal Trail filed the instant action for interlocutory injunctive relief and

declaratory judgment, seeking authorization to enter Jones’ property to perform the

survey pursuant to OCGA § 22-3-88, which provides: “The power of eminent domain

may be exercised by persons who are or may be engaged in constructing or operating

pipelines for the transportation or distribution of natural or artificial gas and by

persons who are or may be engaged in furnishing natural or artificial gas for heating,

                                            2
lighting, or power purposes in the State of Georgia.” Jones filed an answer and

counterclaims. After an evidentiary hearing at which both parties appeared and were

represented by counsel, the trial court entered a final declaratory judgment and

injunction, declaring that Sabal Trail has the right under OCGA § 22-3-88 to enter the

property for purposes of conducting the survey and enjoining Jones from interfering

with Sabal Trail’s right to survey the property. Jones appeals from the final

declaratory judgment and injunction.

      1. Consolidated hearing.

      Jones contends that the trial court erred in consolidating the hearing on the

interlocutory injunction application with the declaratory judgment action because the

notice for the hearing indicated only that it was for the interlocutory injunction. The

contention is without merit.

      The notice of the hearing indicated that it was issued pursuant to Sabal Trail’s

“Motion for Interlocutory Injunction,” which, despite the style of the pleading, was

also an action for declaratory judgment; the pleading plainly asserted claims for, and

sought, both injunctive relief and a declaratory judgment as to Sabal Trail’s right to

conduct the survey. See Udoinyion v. Michelin North America, 313 Ga. App. 248,

253 (2) (721 SE2d 190) (2011) (substance, rather than nomenclature, of pleadings

                                          3
determines their nature). The notice further ordered Jones to appear at the hearing

“pursuant to OCGA §§ 9-4-1, et seq., 9-5-1, et seq. and 9-11-65.” OCGA § 9-4-1 et

seq. is the chapter of the code governing declaratory judgments, while OCGA § 9-5-1

et seq. governs injunctions. OCGA § 9-11-65 (a) (2) expressly provides that “[b]efore

or after the commencement of the hearing of an application for an interlocutory

injunction, the court may order the trial of the action on the merits to be advanced and

consolidated with the hearing of the application.”

      Pursuant to the notice, Jones appeared at the hearing with counsel. At the start

of the hearing, the trial judge stated that the litigation involved “the petition for

declaratory judgment to conduct survey.” Thereafter, the judge stated to the attorneys,

“Gentlemen, on the petition for declaratory judgment to conduct the survey, the

petition was filed by the Plaintiff. Is the Plaintiff ready to proceed?” Counsel for

Sabal Trail responded affirmatively and then, during his opening statement, asserted

that both declaratory judgment and injunctive relief were appropriate to enforce Sabal

Trail’s right to conduct the survey and expressly asked the court to conduct a final

hearing “and grant declaratory relief on the right of entry.” Jones raised no objection

to this request.



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      Thereafter, during his opening statement, counsel for Jones said that he

believed the hearing should be “about following those elements as to whether [Sabal

Trail is] entitled to this injunction,” but he did not object to consolidating that

interlocutory injunction issue with the petition’s declaratory judgment request and he

did not claim insufficient notice. Thereafter, both sides presented evidence in the

form of testimony and exhibits. During closing argument, counsel for Sabal Trail

again expressly requested both an injunction and declaratory judgment, citing OCGA

§ 9-11-65 as support for “this being a final hearing and a declaratory judgment being

granted at this time with an associated injunction.” During his closing, counsel for

Jones argued legal issues, but did not address the consolidation of the injunction and

declaratory judgment issues or make any argument concerning the notice of the

hearing.

      The trial court did not issue a decision at the conclusion of the hearing; rather,

it took the matter under advisement and instructed the parties to submit proposed

orders. There is nothing in the record showing that Jones subsequently raised any

objection to the consolidation of the injunction and declaratory judgment requests at

the hearing or asserted a claim of insufficient notice. Almost two weeks after the

hearing, the trial court entered its final declaratory judgment and injunction.

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      Under these circumstances, we find that Jones not only had sufficient notice

that the hearing would encompass both the interlocutory injunction and declaratory

judgment claims set forth in Sabal Trail’s initial pleading, but that she also acquiesced

in the consolidation of those issues, which were clearly identified by the judge and

opposing counsel, at the hearing. “Parties can not take their chances for a favorable

[judgment], and then, the result being unsatisfactory, ask that a new trial be granted

because of [alleged] irregularities which they have passed over in silence during the

progress of the [hearing].” Fulcher v. Canal Ins. Co., 132 Ga. App. 325, 328 (3) (208

SE2d 116) (1974) (citations and punctuation omitted) (rejecting claim that trial court

erred in granting declaratory relief because notice indicated hearing was only for

injunctive relief, where appellants did not object to the proceeding). Accordingly, this

enumeration of error provides no grounds for reversal.

      2. Preemption.

      Jones claims that the trial court erred in finding that Sabal Trail has authority

under OCGA § 22-3-88 to enter her property to survey because the Natural Gas Act,

15 U. S. C. § 717 et seq., does not authorize the entry and federal law preempts state

law in this area. However, Jones did not raise this issue below and therefore it is

waived.

                                           6
      We note that in a recent unreported opinion involving the same pipeline at

issue in this case, this same claim of error was found to have been waived because it

was neither raised below nor ruled upon by the trial court. While that unreported

opinion, in which all three judges fully concurred, is neither physical nor binding

precedent, see Court of Appeals Rule 33 (b), its analysis on this issue is persuasive.

See Bell v. Sabal Trail Transmission, ___ Ga. App. ___ (Case No A15A2390,

decided March 9, 2016). Accordingly, we adopt the analysis from that case, set it

forth in full below, and apply it to this case. As explained in our unreported opinion:

             Whether the defense of preemption is jurisdictional or waivable
      is a question of law we review de novo. The Supreme Court has
      recognized that the defense of preemption can be jurisdictional, and
      therefore nonwaivable, if success on the preemption defense would
      dictate the choice of forum and thereby deprive the reviewing court of
      subject matter jurisdiction. In contrast, the defense of preemption is
      waivable where it merely dictates a different choice of law. Fryer v.
      A.S.A.P. Fire & Safety Corp., 658 F3d 85, 90 (II) (1st Cir. 2011)
      (citations omitted). “Here, the preemption defense is not jurisdictional
      because a successful preemption defense under [the Natural Gas Act]
      would dictate only a change in law, not a change in forum.” Id.; see also
      Van Syoc v. Equitrans, L.P., 2:13-CV-01735, 2015 WL 1346872, *6
      (III) (W.D. Penn. 2015) (because natural gas regulation is not a
      completely preempted field, defendants’ eminent domain counterclaim
      could not provide a basis for removal or otherwise support subject
      matter jurisdiction upon federal court); Vaden v. Discover Bank, 556
      U.S. 49, 61-62 (II) (129 SCt 1262; 173 LEd2d 206) (2009) (state-law-
      based counterclaim does not qualify a case for federal court jurisdiction,
      even if counterclaim relies exclusively on federal substantive law). The

                                          7
      preemption claim in this case involves a choice of federal law, rather
      than a choice of forum. (Footnote omitted).

      Consequently, we conclude that Jones’ failure to raise this preemption claim

below waives the issue and we will not consider it for the first time on appeal.

      3. OCGA §§ 22-3-80 and 22-3-81.

      Jones argues that it was error for the trial court to find that Sabal Trail has

eminent domain authority because it is not a pipeline company as that term is used in

OCGA §§ 22-3-80 and 22-3-81. Pretermitting the fact that those code sections

concern petroleum pipeline companies, not natural gas pipeline companies like Sabal

Trail, is the fact that this argument has been waived because it was not raised and

ruled on in the trial court. “An appellate court will not consider an issue raised for the

first time on appeal, because the trial court has not had the opportunity to consider it.”

(Punctuation and footnote omitted.) Sitton v. Print Direction, 312 Ga. App. 365, 370

(3) (718 SE2d 532) (2011) (citation and punctuation omitted).

      4. FERC certificate.

      Jones argues that the trial court erred in finding that Sabal Trail has the right

under OCGA § 22-3-88 to enter and survey her property because Sabal Trail has not

yet obtained a certificate of public convenience and necessity from the Federal



                                            8
Energy Regulatory Commission (“FERC”). As with the federal law preemption issue

discussed above in Division 2, this same issue concerning a FERC certificate was

addressed and rejected by this court’s unreported opinion in Bell v. Sabal Trail

Transmission, supra, ___ Ga. App. ___ . As noted above, this unreported decision is

not physical or binding precedent. See Court of Appeals Rule 33 (b). Nevertheless,

we find its analysis of this issue to be persuasive and therefore set it out below in full

and follow it in this case. As explained in our unreported opinion:

             By its plain terms, OCGA § 22-3-88 does not condition its grant
      of eminent domain on the possession of any certificate or permit. If the
      General Assembly had intended to condition the right of eminent
      domain for natural gas pipelines upon a certificate of convenience and
      necessity, it could have made the certificate an express condition, as it
      did with petroleum pipelines. See OCGA § 22-3-81 (2) (defining
      “pipeline company” as one which transports petroleum and petroleum
      products); OCGA § 22-3-82 (c) (pipeline company has right of
      reasonable access for surveying after obtaining certificate of
      convenience and necessity); and OCGA § 22-3-83 (a) (pipeline
      company’s exercise of eminent domain right conditioned upon obtaining
      certificate of public convenience and necessity).
             Moreover, the certificate prerequisite for the exercise of eminent
      domain for petroleum pipelines was enacted at the same time as the
      statute governing eminent domain for natural gas pipelines, which has
      no such prerequisite. Accordingly, we conclude that a certificate is not
      a condition precedent to the survey and entry rights granted by OCGA
      § 22-3-88 and Georgia case law. See, e.g., Robinson v. Transcontinental
      Gas Pipe Line Corp., 421 F2d 1397, 1398 (5th Cir. 1970). See also
      Walker v. Gateway Pipeline Co., 601 So2d 970, 975 (Ala. 1992)
      (“Although a FERC certificate may have been a prerequisite to

                                            9
      construction of pipeline facilities, such a certificate was not a
      prerequisite to precondemnation entries for the purpose of survey and
      examination.”).

      Accordingly, the trial court did not err in finding that Sabal Trail is not required

to have a FERC certificate in order to exercise its rights under OCGA § 22-3-88.

      Judgment affirmed. Dillard, J., concurs; Ellington, P. J., concurs in the

judgment only.




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