[Cite as E. Ohio Gas Co. v. Youngstown, 2020-Ohio-731.]




             IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                MAHONING COUNTY

                            EAST OHIO GAS COMPANY DBA
                              DOMINION ENERGY OHIO,

                                        Plaintiff-Appellant,

                                                    v.

                                  CITY OF YOUNGSTOWN,

                                       Defendant-Appellee.


                       OPINION AND JUDGMENT ENTRY
                                       Case No. 19 MA 0007


                                    Civil Appeal from the
                      Court of Common Pleas of Mahoning County, Ohio
                                  Case No. 2017 CV 02750

                                        BEFORE:
                  Gene Donofrio, Chery L. Waite, Carol Ann Robb, Judges.


                                             JUDGMENT:
                                               Affirmed.



 Atty. Richard Cline and Atty. Adam Smith, McDonald Hopkins LLC, 600 Superior
 Avenue, East, Suite 2100, Cleveland, Ohio 44114, for Plaintiff-Appellant, and
                                                                                        –2–


 Atty. Eugene Fehr, Deputy Law Director, 26 South Phelps Street, Fourth Floor, Law
 Department, Youngstown, Ohio 44503, for Defendant-Appellee.

                                          Dated:
                                     February 26, 2020

 Donofrio, J.

          {¶1}   Plaintiff-appellant, the East Ohio Gas Company d/b/a Dominion Energy
Ohio (Dominion), appeals from a Mahoning County Common Pleas Court judgment
awarding summary judgment in favor of defendant-appellee, the City of Youngstown (the
City), on appellant’s declaratory judgment action regarding which party is to bear the cost
of relocating Dominion’s natural gas pipeline.
          {¶2}   At the center of this case is a 400-foot section of sanitary sewer pipeline
that runs under Phelps Street in Youngstown between Federal Street and Commerce
Street.
          {¶3}   On February 17, 2010, Youngstown City Council passed Ordinance No.
10-54, authorizing the City’s Board of Control to take bids and enter into a contract for the
Phelps Street Combined Sewer Replacement Project (Sewer Replacement Project). The
ordinance provided:

          The project will entail replacing an existing 24” combined brick sewer
          located on Phelps Street between Lincoln Avenue and Federal Street with
          a new combined sewer. The existing sewer is in poor condition and full
          replacement is warranted and recommended.

          {¶4}   In January 2011, the City hired MS Consultants, Inc. (MS Consultants) to
provide design services for the Sewer Replacement Project. MS Consultants requested
information from Dominion, AT&T Transmission (AT&T), and Ohio Edison Company
(Ohio Edison) as to the location of their underground utility lines on Phelps Street.
Dominion’s natural gas pipeline was located beneath the sidewalk on Phelps Street.
          {¶5}   The City awarded the bid on the excavation work to Marucci and Gaffney
Excavating (M&G). When M&G began work on the project on February 4, 2013, workers
discovered that AT&T’s and Ohio Edison’s duct banks and vaults, which housed their



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utility lines, had not been properly identified on the plans. Consequently, M&G could not
proceed with the project.
       {¶6}      Once the City obtained information on the location of the AT&T and Ohio
Edison duct banks and vaults, it was determined that those utilities would have to be
completely relocated in order to replace and repair the sewer pipeline. It was further
determined that the AT&T and Ohio Edison duct banks would be relocated to the northern
sidewalk along Phelps Street. Dominion claimed this would interfere with its pipeline.
Dominion too was required to relocate its pipeline. According to Dominion, it was forced
to move its pipeline to accommodate AT&T’s and Ohio Edison’s duct banks and vaults.
According to the City, Dominion had to relocate its pipeline because it was in direct conflict
with the sewer pipeline replacement.
       {¶7}      Dominion and the City subsequently entered into the Cooperation
Agreement for Relocation of Utilities (Cooperation Agreement) in order to avoid delaying
the Sewer Replacement Project.         Under the terms of the Cooperation Agreement,
Dominion agreed to advance the cost of relocating its pipeline and the City agreed to
deposit $150,000 in escrow. The parties agreed to then litigate who would be responsible
for the cost of relocating Dominion’s pipeline.
       {¶8}     Dominion filed a complaint for declaratory judgment against the City on
October 16, 2017, pursuant to the Cooperation Agreement. The complaint asserted that
the City’s maintenance, operation, and upkeep of a sewer system is a proprietary
function.     It further asserted that Dominion’s pipeline was not in conflict with the
anticipated repair and maintenance of the sewer pipeline and that Dominion was forced
to relocate its pipeline only because the City directed that AT&T’s duct bank be relocated
to the same location Dominion’s pipeline was already occupying. Therefore, Dominion
sought a declaratory judgment that the City was required to reimburse it for its relocation
costs. The City filed a counterclaim seeking a declaration that Dominion had a common
law duty to relocate its pipeline at its own cost to make way for public improvements.
       {¶9}     The City subsequently awarded the bid on the Sewer Replacement Project
to M&G and work commenced. Dominion paid $170,838.03 to relocate its pipeline.
       {¶10} Dominion filed a motion for summary judgment. It argued that the City’s
actions were an improper exercise of municipal authority. The City filed a competing



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motion for summary judgment. It argued that a municipality can require a public utility to
relocate it facilities at the utility’s expense in order to accommodate the governmental
utility operations of the municipality, including the reconstruction or replacement of a
sanitary sewer.
       {¶11} The trial court granted the City’s motion for summary judgment and denied
Dominion’s motion. In so doing, the court noted that in accordance with common law,
utilities are required to relocate their facilities within a public right-of-way at their own
expense when requested to do so by a municipality in order to reconstruct a sewer. It
found that sewer reconstruction is a governmental activity in the interest of the public
health and welfare and is an appropriate exercise of the municipality’s police power.
Therefore, the court declared that Dominion was to bear the cost of relocating its pipeline
and that the City was not responsible for payment of any of the relocation costs.
       {¶12}   Dominion filed a timely notice of appeal on January 8, 2019. It now raises
two assignments of error asserting the trial court erred in granting the City’s motion for
summary judgment.
       {¶13} An appellate court reviews a summary judgment ruling de novo. Comer v.
Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus, we shall apply
the same test as the trial court in determining whether summary judgment was proper.
       {¶14} A court may grant summary judgment only when (1) no genuine issue of
material fact exists; (2) the moving party is entitled to judgment as a matter of law; and
(3) the evidence can only produce a finding that is contrary to the non-moving party.
Mercer v. Halmbacher, 9th Dist. Summit No. 27799, 2015-Ohio-4167, ¶ 8; Civ.R. 56(C).
The initial burden is on the party moving for summary judgment to demonstrate the
absence of a genuine issue of material fact as to the essential elements of the case with
evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662
N.E.2d 264 (1996). If the moving party meets its burden, the burden shifts to the non-
moving party to set forth specific facts to show that there is a genuine issue of material
fact. Id.; Civ.R. 56(E). “Trial courts should award summary judgment with caution, being
careful to resolve doubts and construe evidence in favor of the nonmoving party.” Welco
Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993).
       {¶15}   Dominion’s first assignment of error states:



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                THE TRIAL COURT ERRED IN FINDING PLAINTIFF/APPELLANT
       THE EAST OHIO GAS COMPANY, D/B/A DOMINION ENERGY OHIO
       (“DEO”), RESPONSIBLE FOR THE COSTS OF RELOCATING ITS
       NATURAL GAS PIPELINE AND IMPACTED SERVICES (“DEO’S
       PIPELINE”)     WHERE      SUCH      RELOCATION        WAS   ORDERED       BY
       DEFENDANT/APPELLEE THE CITY OF YOUNGSTOWN (“COY”) BOTH
       (A) TO PERMIT ANOTHER PUBLIC UTILITY TO MOVE INTO THE SAME
       LOCATION PREVIOUSLY OCCUPIED BY DEO’S PIPELINE AND (B) TO
       ENGAGE IN THE PROPRIETARY FUNCTION OF REPAIRING AN OLD,
       RAPIDLY DETERIORATING SECTION OF SEWER PIPELINE IN THE
       COURSE OF ORDINARY, ONGOING MAINTENANCE.

       {¶16}    In this assignment of error, Dominion argues that the Sewer Replacement
Project is a proprietary, as opposed to a governmental, function. It goes on to argue that
utility relocation necessitated by proprietary operations must be paid for by the
municipality.   Dominion asserts that while the construction of a sewer system is a
governmental function, the operation and upkeep of the sewers is a proprietary function.
It contends that maintenance problems are those that are remedied by repairs and
attention to general deterioration.
       {¶17}    Dominion asserts the evidence demonstrates that the sewer pipeline was
rapidly deteriorating due to a lack of maintenance and upkeep, which resulted in the City
initiating the Sewer Replacement Project. It argues that when a municipality is engaging
in normal, ongoing maintenance, even when the municipality has allowed the facility to
reach a deteriorating condition, the municipality is engaging in a proprietary function as a
matter of law. Because the Sewer Replacement Project is proprietary in nature, Dominion
contends, it is entitled to its relocation costs of $170,838.03.
       {¶18}    The determinative issue in this assignment of error is whether the Sewer
Replacement Project constituted a governmental function or a proprietary function.
       {¶19} A municipality cannot require public utilities using public streets to relocate
their facilities at their own expense to accommodate the municipality’s proprietary
function. State ex rel. Speeth v. Carney, 163 Ohio St. 159, 177-178, 126 N.E.2d 449



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(1955). “A governmental subdivision in the exercise of its proprietary functions is in the
same position as a private utility attempting to force such relocation.” Id. at 178.
       {¶20} But a municipality can require public utilities to relocate their lines at their
own expense in order to accommodate the municipality’s governmental function. Duke
Energy Ohio, Inc. v. Cincinnati, 1st Dist. Hamilton No. C-140763, 2015-Ohio-4844, ¶ 24.
The United States Supreme Court has long held, “when a utility company makes use of
the public right of way, the municipality may require the company to relocate its equipment
at its own cost when the public welfare so requires.” Perrysburg v. Toledo Edison Co.,
171 Ohio App.3d 174, 2007-Ohio-1327, 870 N.E.2d 189 (6th Dist.) ¶ 16, quoting New
Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 462, 25
S.Ct. 471, 49 L.Ed. 831 (1905).
       {¶21} R.C. 2744.01 defines “governmental function” and “proprietary function” in
the context of sovereign immunity. The definitions are instructive in this case as well.
       {¶22} A “governmental function” is a function of a political subdivision that is
specified in R.C. 2744.01(C)(2) or that satisfies any of the following:

       (a) A function that is imposed upon the state as an obligation of sovereignty
       and that is performed by a political subdivision voluntarily or pursuant to
       legislative requirement;

       (b) A function that is for the common good of all citizens of the state;

       (c) A function that promotes or preserves the public peace, health, safety,
       or welfare; that involves activities that are not engaged in or not customarily
       engaged in by nongovernmental persons; and that is not specified in
       division (G)(2) of this section as a proprietary function.

R.C. 2744.01(C)(1). A “governmental function” includes “[t]he provision or nonprovision,
planning or design, construction, or reconstruction of a public improvement, including, but
not limited to, a sewer system[.]” R.C. 2744.01(C)(2)(l).

       {¶23} A “proprietary function” is a function of a political subdivision that is
specified in R.C. 2744.01(G)(2) or that satisfies both of the following:




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      (a) The function is not one described in division (C)(1)(a) or (b) of this
      section and is not one specified in division (C)(2) of this section;

      (b) The function is one that promotes or preserves the public peace, health,
      safety, or welfare and that involves activities that are customarily engaged
      in by nongovernmental persons.

R.C. 2744.01(G)(1). A “proprietary function” includes “[t]he maintenance, destruction,
operation, and upkeep of a sewer system[.]” R.C. 2744.01(G)(2)(d).

      {¶24}    Specifically as to sewer systems, the Ohio Supreme Court has stated:

      The weight of authority holds that the construction and institution of a sewer
      system is a governmental matter, and that there is no liability for mere failure
      to construct sewers. However, the weight of authority is equally decisive in
      holding that the operation and upkeep of sewers is not a governmental
      function, but is a ministerial or proprietary function of the city.

Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250, 255, 148 N.E. 846 (1925). The Court
has elaborated on why sewer construction is a governmental function:

      The function of public drainage, then, arises under the police power, and
      certainly the power to construct public sewers constitutes a part of the police
      power, for such sewers are established for the express purpose of
      preserving the public health. This being the case, the function is purely
      governmental.

Hutchinson v. City of Lakewood, 125 Ohio St. 100, 104, 180 N.E. 643 (1932).
      {¶25}    In this case, Dominion argues that the Sewer Replacement Project was a
maintenance project to remedy deterioration and, therefore, was a proprietary rather than
a governmental function.
      {¶26}    The more discretion and work involved, the more likely the sewer issue is
to be considered a governmental function:




Case No. 19 MA 0007
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       [W]hen remedying the sewer problem would involve little discretion but,
       instead, would be a matter of routine maintenance, inspection, repair,
       removal of obstructions, or general repair of deterioration, then the
       complaint is properly characterized as a maintenance, operation, or upkeep
       issue. * * * When remedying a problem would require a city to, in essence,
       redesign or reconstruct the sewer system, then the complaint presents a
       design or construction issue.

(Internal citations omitted); Essman v. City of Portsmouth, 4th Dist. Scioto No. 09CA3325,
2010-Ohio-4837, ¶ 32.
       {¶27}    Dominion relies in part on two statements the City made in its answer and
counterclaim. In its answer, the City stated: “The Phelps Street Sewer is a 24 inch brick
culvert that is over 100 years old and is rapidly deteriorating, threatening to collapse all
of the infrastructure, including the roadway, above it.” (Counterclaim ¶ 4). The City also
referred to the Sewer Replacement Project as “replacement or maintenance.”
(Counterclaim ¶ 5). Dominion argues that these “admissions” make clear that the Sewer
Replacement Project is one of maintenance and upkeep, thus making it a proprietary
function.
       {¶28} But given the vast scope of the Sewer Replacement Project and the fact
that the sewer had to be completely replaced and reconstructed, it constituted a
governmental function.
       {¶29}    In proceeding with the Sewer Replacement Project, the City passed two
ordinances. Youngstown City Ordinance No. 10-54 recognized that the sewer pipeline
was in poor condition and that “full replacement is warranted and recommended.”
Youngstown City Ordinance No. 15-25 likewise stated that the sewer pipeline was in
severe disrepair “must be replaced.” Thus, the City viewed the Sewer Replacement
Project as a means to completely replace the existing sewer pipeline, not to simply
maintain or repair it.
       {¶30} Dominion also points to superintendent of the wastewater treatment plant,
Thomas Mirante III’s deposition testimony that repairing the sewer pipeline is part of
“normal ongoing maintenance.” (Mirante Dep. 39). But Dominion fails to point out that



Case No. 19 MA 0007
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Mirante further stated that the maintenance was to assess which sewers need to be
replaced. (Mirante Dep. 39).
         {¶31} Dominion further contends that the City characterized the repair and
maintenance of the sewer pipeline as a proprietary function for accounting purposes.
(Mirante Dep. 46-48; Bozanich Dep. 27-28).
         {¶32} But again Dominion fails to follow up with the rest of the deposition
testimony. David Bozanich was the City’s finance director at the relevant time. He
explained that for accounting purposes, the City categorizes proprietary or enterprise
activities separate from governmental activities. (Bozanich Dep. 27). The difference,
Bozanich explained, was how the activity was funded. (Bozanich Dep. 27). An enterprise
or proprietary activity is funded by a user fee whereas a government activity is funded by
a tax. (Bozanich Dep. 27-28). Bozanich stated that anything having to do with water
operations, waste water operations, and sanitation operations is paid by enterprise funds.
(Bozanich Dep. 28).        Thus, how the City categorized the funding for the Sewer
Replacement Project for accounting purposes has no bearing on whether it actually
constituted a governmental or proprietary function. If it did, then anything having to do
with waste water and sanitation, including the new construction of a sanitary sewer, could
never constitute a governmental function.
         {¶33} Next, Dominion points to the General Notes contained in the project plans
approved by the City. It claims the General Notes provided that in the event of a direct
conflict with a utility, the contractor was to coordinate the relocation with the utility
company and that compensation would be provided to the utility company. (Pierko Dep.
Ex.2).
         {¶34} But once again, Dominion fails to read the entire testimony. The General
Notes specifically provide:

         The contractor must support and protect all existing utilities encountered
         during construction. The cost shall be included in the unit bid price for
         installation of the sewer. In the event a direct conflict occurs with a utility,
         as pre-determined by the engineer, the contractor shall coordinate the
         relocation or replacement with the utility company. Compensation shall be
         provided under the terms of the agreement.


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(Pierko Dep. 77-78, Ex. 2). Dominion’s attorney asked MS project manager John Pierko
if this provision meant that the contractor would compensate the utility company. (Pierko
Dep. 78). Pierko stated that it did not. (Pierko Dep. 78). Pierko stated that the entire
paragraph had to be read, which led to the conclusion that if the contractor were to
encounter an unforeseen relocation that was not shown on the drawings then it was
agreed that the contractor would be entitled to additional compensation. (Pierko Dep. 79-
80).

       {¶35} In addressing an immunity issue this court was faced with whether certain
drainage sewer work was a governmental or proprietary function. We determined that
“when Austintown covered the drainage ditch and installed the pipe and catch basin, it
had provided/redesigned/constructed a new sewer, not maintained it.”                Ivory v.
Austintown Twp., 7th Dist. Mahoning No. 10 MA 106, 2011-Ohio-3171, ¶ 19.                 We
concluded that sewer design and construction is a governmental, not proprietary,
function. Id.
       {¶36}    The Tenth District, also while analyzing an immunity question, determined:
“The replacement of a storm sewer line constitutes the construction or reconstruction of
a sewer system, not the maintenance and upkeep of a sewer system nor the maintenance
of a water supply system. Therefore, this work constituted a governmental function.”
Repasky v. Upper Arlington, 10th Dist. Franklin No. 12AP-752, 2013-Ohio-2516, ¶ 13.
       {¶37}    The evidence in this case is uncontroverted that the Sewer Replacement
Project was more than ordinary maintenance or upkeep. Instead, the entire 100-year-old
sewer had to be replaced and reconstructed. Thus, the trial court was correct in finding
that the Sewer Replacement Project was a governmental function. As such, summary
judgment in the City’s favor was proper since the utility company (in this case Dominion)
was required to pay for the relocation of its gas line that occupied the public right-of-way.
       {¶38}    Accordingly, Dominion’s first assignment of error is without merit and is
overruled.
       {¶39}    Dominion’s second assignment of error states:

                THE TRIAL COURT ERRED IN FAILING TO FIND, OR EVEN
       ADDRESS, THAT COY DISCRIMINATED AGAINST AND DISPARATELY



Case No. 19 MA 0007
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       TREATED DEO IN VIOLATION OF R.C. 4939.04(A) AND OHIO COMMON
       LAW BY (A) DIRECTING AND ALLOWING ONE PUBLIC UTILITY TO
       OCCUPY THE EXACT SAME LOCATION DEO WAS LAWFULLY
       OCCUPYING WITH DEO’S PIPELINE AND (B) BY PAYING BETWEEN
       $900,000.00 AND $1,000,000.00 FOR RELOCATING DUCT BANKS AND
       VAULTS OF TWO OTHER PUBLIC UTILITIES, YET REFUSING TO PAY
       DEO’S RELOCATION COSTS IN THE AMOUNT OF $170,838.03.

       {¶40} Pursuant to R.C. 4939.04(A)(1): “A municipal corporation shall provide
public utilities or cable operators with open, comparable, nondiscriminatory, and
competitively neutral access to its public ways.”
       {¶41} Dominion contends it is undisputed that its pipeline was not in direct conflict
with the sewer pipeline. (Shasho Dep. 82-83). It further claims it is undisputed that the
only reasons AT&T and Ohio Edison had to relocate their duct banks and vaults was
because (1) they were in direct conflict with the sewer pipeline and (2) the City had
allowed the sewer pipeline to fall into such a state of disrepair that it could not use a CIP
liner to simply repair the sewer pipeline. Due to AT&T’s and Ohio Edison’s conflicts and
deterioration of the sewer pipeline, the City relocated AT&T’s duct bank to the location
that Dominion was lawfully occupying forcing Dominion to relocate its pipeline to a less
favorable location. Based on these fact, Dominion argues, the trial court should have
concluded that the City discriminated against it.        What makes the situation more
egregious, Dominion asserts, is that the City paid between $900,000 and $1,000,000 to
relocate AT&T’s and Ohio Edison’s duct banks and vaults.
       {¶42} The City, however, states it did not incur AT&T’s and Ohio Edison’s
relocation costs. Therefore, the City argues it did not discriminate against Dominion.
       {¶43} Pursuant to R.C. 4939.04(A):

              (1) A municipal corporation shall provide public utilities or cable
       operators with open, comparable, nondiscriminatory, and competitively
       neutral access to its public ways.




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               (2) Nothing in division (A)(1) of this section prohibits a municipal
       corporation from establishing priorities for access to or occupancy or use of
       a public way by a public utility or cable operator when the public way cannot
       accommodate all public way occupants or users, which priorities as applied
       to public utilities or cable operators shall not be unduly discriminatory and
       shall be competitively neutral.

       {¶44}   Thus, the City was required to provide Dominion with open,
nondiscriminatory, and competitively neutral access to its public ways.
       {¶45}   Dominion relied on statements by the deputy director of public works for
the City, Charles Shasho, to support its claim that it was undisputed that its pipeline was
not in direct conflict with the sewer pipeline. (Shasho Dep. 82-83). But while Shasho did
make a statement to that effect, that was not the entirety of his deposition testimony.
       {¶46}   Shasho stated that once it was determined that the AT&T and Ohio Edison
duct banks would have to be relocated to excavate the sewer this “partially” gave rise to
the conflict with Dominion. (Shasho Dep. 34). Shasho stated that also the excavation of
the sewer as well as the roadway improvements that went along with it would necessitate
Dominion to relocate its pipeline. (Shasho Dep. 34). He stated that the sewer that needed
to be replaced ran at a lower depth than the Dominion gas pipeline. (Shasho Dep. 35-
36). And in order to excavate to reach the sewer there would be a lack of support of the
gas pipeline, which could potentially collapse. (Shasho Dep. 37). So while there was no
direct conflict between the new sewer and Dominion’s pipeline, the sewer work could not
proceed without Dominion relocating its pipeline.
       {¶47} Moreover, as the City points out, while it initially funded the installation of
the AT&T duct bank, this was just to get the project moving forward. (Shasho Dep. 102).
The City never agreed that it would not seek reimbursement from AT&T. (Shasho Dep.
95-97; Maynard Dep. 93). And AT&T paid for relocation and placement of its cable,
splicing, and construction of a new manhole, which exceeded $350,000. (Maynard Dep.
41-42, 77-78, 87-88). Thus, AT&T incurred significantly more costs than Dominion.
Additionally, Youngstown Thermal was required to relocate its steam lines, which it did at
its own cost. (Mulichak Dep. 83-84). And there is no evidence in the record as to what
the cost was to relocate the Ohio Edison line or who paid it.


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      {¶48} Thus, the record does not contain any evidence that the City failed to
provide Dominion with open, nondiscriminatory, and competitively neutral access to its
public ways.
      {¶49} Accordingly, Dominion’s second assignment of error is without merit and is
overruled.
      {¶50} For the reasons stated above, the trial court’s judgment is hereby affirmed.




Waite, P. J., concurs.

Robb, J., concurs.




Case No. 19 MA 0007
[Cite as E. Ohio Gas Co. v. Youngstown, 2020-Ohio-731.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
 against the Appellant.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                       NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
