[Cite as Nexus Gas Transmission, L.L.C. v. Houston, 2016-Ohio-5771.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

NEXUS GAS TRANSMISSION, LLC                              C.A. No.      15CA0085-M

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
DONALD R. HOUSTON, et al.                                COURT OF COMMON PLEAS
                                                         COUNTY OF MEDINA, OHIO
        Appellants                                       CASE No.   15CIV0636

                                DECISION AND JOURNAL ENTRY

Dated: September 12, 2016



        MOORE, Judge.

        {¶1}    Defendants Donald R. Houston, Adele H. Borling, Donald E. Borling, and

Dorothy J. Morris (“the landowners”) appeal from the judgment of the Medina County Court of

Common Pleas. This Court affirms.

                                                    I.

        {¶2}    In 2015, Nexus Gas Transmission, LLC (“Nexus”) filed a complaint for

declaratory judgment and injunctive relief against the landowners. In its complaint, Nexus

alleged that the landowners refused to permit Nexus to access their lands in order to conduct

survey activities to determine the suitability of placing a natural gas line across the landowners’

properties. Thereafter, Nexus filed a motion for partial summary judgment on its claims for

declaratory judgment. The landowners opposed the motion and later filed a countermotion for

summary judgment. The trial court granted Nexus’ motion for partial summary judgment,

declaring that Nexus had a statutory right to access the properties to conduct survey activities
                                                2


under both R.C. 1723.01 and R.C. 163.03. The trial court certified its entry in accordance with

Civ.R. 54(B). The landowners timely appealed, and they now present six assignments of error

for our review. We have reordered and consolidated certain assignments of error to facilitate our

discussion.

                                               II.

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN DETERMINING THAT [R.C.] 1723.01
       PROVIDES NEXUS WITH AUTHORITY TO ENTER UPON THE
       [LANDOWNERS’] LANDS WHERE NEXUS IS NOT PRESENTLY SEEKING
       TO APPROPRIATE ANY PROPERTY.

       {¶3}   In their third assignment of error, the landowners argue that the trial court erred in

granting Nexus summary judgment because R.C. 1723.01 permits Nexus to enter onto their lands

only when the company is appropriating the lands.

       {¶4}   We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts

of the case in the light most favorable to the non-moving party and resolving any doubt in favor

of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

       {¶5}   Pursuant to Civ.R. 56(C), summary judgment is proper only if:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶6}   Here, in its complaint Nexus sought two declarations pursuant to R.C. Chapter

2721. In Count 1 of its complaint, it sought a declaration that it is a company organized for the

purpose of transporting natural gas through tubing, pipes, or conduits.         In Count 2 of its
                                                 3


complaint, Nexus sought a declaration that it has the right to enter onto the landowners’ property

to survey the land pursuant to R.C. 1723.01 and/or 163.03. The trial court granted summary

judgment in favor of Nexus on both of these counts. The landowners do not dispute on appeal

the propriety of summary judgment on the first count of the complaint.                However, the

landowners challenge the trial court’s determination that summary judgment was appropriately

granted to Nexus on the second count of its complaint.

       {¶7}    In its motion, Nexus argued that it had the right to enter onto the properties

pursuant to both R.C. 1723.01 and 163.03. The trial court agreed. In this assignment of error,

the landowners argue that R.C. 1723.01, independently of R.C. 163.03, does not grant Nexus

authority to enter onto their lands.

       {¶8}    R.C. 1723.01 provides:

       If a company is organized for the purpose of * * * transporting natural * * * gas *
       * * through tubing, pipes, or conduits * * *; then such company may enter upon
       any private land to examine or survey lines for its tubing, pipes, [and] conduits, *
       * * and may appropriate so much of such land, or any right or interest therein, as
       is deemed necessary for the laying down or building of such tubing, conduits,
       [and] pipes * * *.

       {¶9}    Because it is a company organized for the purpose of transporting natural gas

through tubing, pipes, or conduits, the trial court held that, pursuant to the plain language of R.C.

1723.01, Nexus had the right to enter onto private land to conduct surveying activities. In

opposing summary judgment on this basis, the landowners maintained that Nexus could survey

their lands under R.C. 1723.01 only when “necessary[,]” and a survey is not necessary prior to

Nexus commencing appropriation proceedings.

       {¶10} However, the phrase “as is deemed necessary” qualifies the language in R.C.

1723.01 that grants the right to appropriate. See R.C. 1723.01 (“and may appropriate so much of

such land, or any right or interest therein, as is deemed necessary for the laying down or building
                                                  4


of such tubing, conduits, [and] pipes * * *.”) (Emphasis added.). Nonetheless, the landowners

argue that the “and” between the right of entry and the right of appropriation in R.C. 1723.01

indicates that the right of entry is conditional on the appropriation of the land. We are not

persuaded that the statute’s use of “and” denotes contingency.            Instead, it is joining two

predicates of the sentence (“may enter * * *” and “may appropriate * * *”) for its application on

the same sentence subject (the gas line company). See Merriam-Webster’s Collegiate Dictionary

46 (11th Ed.2005) (“and” may be “used to join sentence elements of the same grammatical rank

or function”). There is no language in R.C. 1723.01 that conditions the right to survey on

appropriation or necessity. The language of the statute clearly and unambiguously provides that,

if a company is of the type listed in that statute, it “may enter upon any private land to examine

or survey lines for its tubing, pipes, [and] conduits[.]” R.C. 1723.01.

       {¶11} Given that this statute lacks ambiguity, we are constrained to apply it as written.

See Roxane Laboratories, Inc. v. Tracy, 75 Ohio St.3d 125, 127 (1996) (“The principles of

statutory construction require courts to first look at the specific language contained in the statute,

and, if the language is unambiguous, to then apply the clear meaning of the words used.”); see

also State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, ¶ 18. Consequently, because there is no

challenge to the trial court’s determination that Nexus is a company organized for the purpose of

transporting natural gas through tubing, pipes, or conduits, R.C. 1723.01 provides statutory

authority for Nexus to enter the properties to conduct surveys. Therefore, the trial court did not

err in granting summary judgment on Nexus’ claim for a declaration that it had a right to enter

onto the landowners’ property to conduct surveys for its pipeline project. Accordingly, to this

extent, the landowners’ third assignment of error is overruled.
                                                  5


       {¶12} Additionally, in their third assignment of error, the landowners maintain that, as a

matter of statutory interpretation, R.C. 1723.01 is a general statute, and R.C. 163.03 is a more

specific statute. See R.C. 1.51. The landowners appear to suggest that, although pursuant to

their interpretation of these statutes there is no conflict, if R.C. 1723.01 does not condition the

right to survey on the filing of a petition for appropriation, then alternatively it “might be read to

conflict” with R.C. 163.03. Accordingly, they maintain that R.C. 163.03, as the more specific

statute, should “rule the day[]” because, where R.C. 1723.01 may generally describe a power of

entry afforded to a gas pipeline company, R.C. 163.03 sets out specific requirements for

exercising that right of entry.

       {¶13} However, the landowners failed to raise the argument pertaining to the relative

specificity of, or potential conflict between, these statutes in the trial court. Although this Court

reviews the trial court’s decision on summary judgment to determine whether it was appropriate,

“[w]hen the non-moving party fails to raise an argument when responding to the motion for

summary judgment, the party forfeits the right to raise that argument on appeal.” Sovereign

Bank, N.A. v. Singh, 9th Dist. Summit No. 27178, 2015-Ohio-3865, ¶ 11, citing Kelley v. Ruf,

181 Ohio App.3d 534, 2009-Ohio-1215, ¶ 15 (9th Dist.). We conclude that summary judgment

was appropriately granted to Nexus on the basis of the plain language of R.C. 1723.01. The

landowners’ have forfeited arguments as to any potential conflict between, and relative

specificity of, R.C. 1723.01 and 163.03, because they did not raise these arguments below. To

this extent, we decline to reach the merits of the third assignment of error, and this portion of the

assignment of error is overruled on this basis.
                                                 6


                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN PERMITTING NEXUS A RIGHT OF ENTRY
       TO LANDS OWNED BY THE [LANDOWNERS] FOR PURPOSES OF
       CONDUCTING SURVEY ACTIVITIES WHERE NEXUS IS, IN FACT, NOT
       FILING A PETITION PURSUANT TO R.C. 163.05; R.C. 163.03
       SPECIFICALLY REQUIRES THAT PRIOR TO AN AGENCY ENTERING
       UPON LANDS FOR PURPOSES OF MAKING SURVEYS, THE AGENCY
       MUST BE "FILING” A PETITION PURSUANT TO R.C. 163.05.[]

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN FINDING THAT NEXUS QUALIFIES AS
       AN “AGENCY” PURSUANT TO [R.C.] 163.03.

       {¶14} In their second assignment of error, the landowners argue that the trial court erred

in not finding that the right of entry conferred by R.C. 163.03 is contingent upon the intent to file

a petition under R.C. 163.05. In their fourth assignment of error, the landowners argue that the

trial court erred in granting Nexus summary judgment on its claim for declaratory judgment

because it is not an “agency” within the meaning of R.C. 163.03.

       {¶15} In ruling on the motion for summary judgment, the trial court concluded that R.C.

1723.01, independently of R.C. 163.03, provided Nexus with the right to enter onto the

landowners’ property to conduct its surveys. Because Nexus sought a declaration that it had this

right of entry pursuant to either R.C. 1723.01 or R.C. 163.03 or both, and we concluded in our

discussion of the third assignment of error that the trial court did not err in determining that R.C.

1723.01 provided Nexus with this right, we need not reach arguments challenging the trial

court’s determinations as to R.C. 163.03. See App. R. 12(A)(1)(c).

       {¶16} Accordingly, we decline to address the merits of the landowners’ second and

fourth assignments of error, and these assignments of error are overruled on this basis.
                                                7


                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN NOT REQUIRING THAT NEXUS FOLLOW
       FEDERAL LAW AND FEDERAL REGULATIONS WITH RESPECT TO ITS
       CLAIMED RIGHT OF ENTRY TO LANDS OWNED BY THE
       [LANDOWNERS].

                                ASSIGNMENT OF ERROR V

       IF THE TRIAL COURT’S INTERPRETATION OF R.C. 1723.01 ALLOWS
       THE RIGHT OF ENTRY TO PRIVATE LANDS WITHOUT THE
       CONSTRAINTS IMPOSED BY R.C. 163.01 TO 163.22, [THE
       LANDOWNERS] RESPECTFULLY ASSERT THAT[,] IN THAT CASE, R.C.
       1723.01 IS UNCONSTITUTIONAL.

                               ASSIGNMENT OF ERROR VI

       THE TRIAL COURT ERRED IN ALLOWING NEXUS TO ENGAGE IN
       SURVEY ACTIVITIES THAT CONSTITUTE A “TAKING” OF PROPERTY
       FOR WHICH THE PROPERTY OWNER IS ENTITLED TO PRIOR
       COMPENSATION PURSUANT TO [ARTICLE I, SECTION 19,] OF THE
       OHIO CONSTITUTION.

       {¶17} In their first assignment of error, the landowners argue that the trial court should

have required Nexus to follow federal regulations for entry onto the properties. In their fifth

assignment of error, the landowners argue that, if R.C. 1723.01 permits the right of entry onto

private lands without compliance with the procedures set forth in R.C. 163.03, then R.C. 1723.01

is unconstitutional. In their sixth assignment of error, the landowners argue that the trial court

erred by permitting a temporary taking of their properties without requiring compensation prior

to such a taking.

       {¶18} The arguments raised in the landowners’ first, fifth, and sixth assignments of error

were not raised in opposition to Nexus’ motion for summary judgment. See Sovereign Bank,

N.A., 2015-Ohio-3865, at ¶ 11, citing Kelley, 181 Ohio App.3d 534, 2009-Ohio-1215, at ¶ 15.

We recognize that the arguments presented in the first and sixth assignments of error were raised

to a certain extent in the landowners’ combined countermotion for summary judgment or
                                                 8


judgment on the pleadings. Assuming without deciding that the arguments advanced below in

the countermotion were sufficient to preserve these arguments for appeal, we cannot discern the

application, if any, of these arguments to Nexus’ claims for declaratory judgment that it had a

right under R.C. 1723.01 “and/or” R.C. 163.03 to enter the landowners’ properties to conduct

surveys for the planned pipeline project. To the extent that these arguments apply to the

propriety of judgment in favor of the landowners on Nexus’ claim for injunctive relief, the trial

court has not yet ruled on the Nexus’ claim for injunctive relief. Accordingly, insofar as these

arguments are meant to challenge injunctive relief, they would be premature.

       {¶19} Therefore, for the reasons set forth above, we decline to reach the merits of the

landowners’ first, fifth, and sixth assignments of error, and these assignments of error are

overruled on these bases.

                                                III.

       {¶20} The landowners’ assignments of error are overruled. The judgment of the trial

court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                9


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                    CARLA MOORE
                                                    FOR THE COURT




WHITMORE, J.
CONCURS.

CARR, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

GREGORY A. HUBER, Attorney at Law, for Appellants.

DAVID A. MUCKLOW, Attorney at Law, for Appellant.

JAMES J. HUGHES, III, FRANK L. MERRILL, WILLIAM D. MASON, and MATTHEW W.
WARNOCK, Attorneys at Law, for Appellee.
