Ohio River Pipe Line, LLC v. Henley , 144 Ohio App. 3d 703 ( 2001 )

^* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was allowed in (2001), 92 Ohio St. 3d 1416, 748 N.E.2d 549. The cause was dismissed on joint application in (2001),94 Ohio St. 3d 1403, 759 N.E.2d 781.

OPINION Plaintiff Ohio River Pipe Line, LLC, appeals a summary judgment of the Court of Common Pleas of Fairfield County, Ohio, entered in favor of defendants various property owners, the Fairfield County Treasurer, and other easement holders in 16 consolidated cases. Appellant assigns four errors to the trial court: ASSIGNMENTS OF ERROR ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED BY REFUSING TO ENFORCE APPELLEES' ADMISSIONS REGARDING ORPL'S RIGHT TO APPROPRIATE PROPERTY UNDER R.C. CHAPTER 1723.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN FAILING TO CONDUCT THE MANDATORY NECESSITY HEARING.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN CONCLUDING THAT ORPL WILL NOT TRANSPORT PETROLEUM OR OILS THROUGH THE PROPOSED PIPELINE.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED BY FAILING TO GRANT ORPL'S MOTION FOR RECONSIDERATION.

The trial court's memorandum of decision, filed January 7, 2000, states the parties stipulate there are no issues of material fact. The court outlined the underlying facts in its memorandum. Ohio River Pipeline began this proceeding by filing petitions for appropriation of an easement interest in real property on June 9, 1999. Ohio River Pipeline requested the appropriation of easements across the various properties to construct a petroleum product pipeline from Canova, West Virginia to Columbus, Ohio. Appellants invoked the jurisdiction of the court pursuant to Chapters 163 and 1723.

Appellees filed verified answers to the petition on July 8, 1999. The answers denied appellant's right to make the appropriation, denied the parties have been unable to agree, and denied the necessity of the requested appropriation. The trial court consolidated all the cases for all proceedings except damage hearings. On July 23, 1999, appellees filed their first motion for summary judgment, arguing Ohio River Pipeline had failed to obtain the permission of the county commissioners and Board of Township Trustees to install the proposed pipeline along or under public roads. On July 30, 1999, Ohio River Pipeline filed its response and formally moved the court to conduct the mandatory necessity hearing pursuant to R.C. 163.09. Ohio River Pipe Line's response asserted the statute required a necessity hearing within 5 to 15 days of the filing of defendant's answer. The trial court overruled appellees' motion for summary judgment, finding it was required to hold the necessity hearing mandated by R. C. 163.09. The court stopped the discovery proceedings that had been underway, and set the necessity hearing for October 12, 1999.

Appellees filed a second motion for summary judgment on September 13, 1999. For the first time, appellees argued Ohio River Pipe Line did not qualify under R.C. 1723.01 to appropriate an easement because the intended purpose of the pipeline was not that specified by the statute. On October 14, 1999, the trial court reversed its earlier decision, and reinstated the discovery process, resetting the necessity hearing for January 10, 2000. Instead, on January 7, 2000, the trial court found a necessity hearing was not required because Ohio River Pipe Line did not qualify under the statute as a matter of law.

Assignment of Error Nos. I and II R.C. 163.05 requires a petition for appropriation to contain a description of the parcel of land, a statement that the appropriation is necessary, a statement of the purpose of the appropriation, a statement of the interest sought to be appropriated, a statement of the names and addresses of the owners, a statement that the agents and the owner are unable to agree, and a prayer for relief. R.C. 163.08 outlines the answer a property owner makes. The answer may contain either a general denial, or specific denial of any material allegation not admitted. The owner may challenge the agency's right to make the appropriation, the inability of the parties to agree, and/or the necessity of the appropriation. R.C.163.08 requires the trial court to resolve these issues in favor of the agency unless such matters are specifically denied in the answer, and the answer sets for the facts the owner relies upon in support of the denial.

R.C. 163.09 (B) states when an answer is filed and any matters relating to the right to make the appropriation, the inability of the parties to agree, or the necessity for the appropriation are specifically denied, then the court shall set a day not less than 5 nor more than 15 from the date of the answer to hear such questions. The statute specifically places the burden of proof on the property owner.

In its first assignment of error, Ohio River Pipe Line argues the trial court erred when it did not enforce the specific pleading requirements in R.C. 163.08. Appellant urges its petition complied with the statute setting forth the elements of its petition, and appellees' answer did not state specific facts supporting their denial of the allegations in the petition. Appellant urges these issues are deemed admitted, and the trial court should have set the matter for a valuation hearing. In the alternative, if the court deemed the answers were sufficiently specific, then it should have conducted the necessity hearing mandated by the statute, within 15 days of the filing of the answer. Instead, the trial court delayed, permitting appellees to conduct discovery and to file motions for summary judgment.

In Masheter v. Benua (1970), 24 Ohio App. 2,7, the Tenth District Court of Appeals, for Franklin County, examined the procedures to be used in appropriations proceedings. The court noted in an appropriations proceeding, the entire procedure is entirely regulated by R.C. Chapter 163 which sets forth specific guidelines to be followed,Masheter at 8. The court noted the legislature was very specific, and allowed for few delays or extensions of time. The Masheter court found the legislative intent was that the cases should move as quickly as possible through the court so there was a minimum of delay in proceeding with the project, and the General Assembly was within its authority to set up a procedure so this type of case could proceed as quickly and expeditiously as possible, Masheter at 10.

Appellant cites us to State ex. Rel. Horwitz v. Court of Common Pleas of Cuyahoga County, (1992), 65 Ohio St. 3d 323, where the Ohio Supreme Court issued a writ of mandamus directing a trial court to conduct the R.C. Title 163 necessity hearing. Appellant cites this case in support of its argument it was entitled to the hearing and could have secured an extraordinary writ in order to secure it.

Following the procedure outlined by the General Assembly, it is clear the trial court should have reviewed appellee's answer, and determined whether it contained the specificity to require the necessity hearing be held. If the trial court determined the answer did not contain sufficient facts, it should have proceeded it to the damages hearing. If the trial court found the answer did have sufficient facts, it should have scheduled the necessity hearing five to fifteen days after the date the answer was filed, July 8, 1999. The statute requires the necessity hearing should deal with any issues raised by the answer, including any matters relating to right to make the appropriation, the inability of the parties to agree, or necessity for the appropriation.

On July 30, 1999, Ohio River Pipe Line moved the court to set the mandatary necessity hearing pursuant to R.C. 163.09. Appellant also asserted the statutory procedure did not allow for discovery. Nevertheless, appellant proceeded with lengthy discovery and did not pursue its right to a necessity hearing by seeking a writ of mandamus.

We find when the appellant failed to pursue its right to an immediate necessity hearing, and instead proceeded with its own discovery requests, it waived its right to raise this issue. Further, in the summary judgment proceedings the trial court reviewed all the issues which should have been raised in the necessity hearing. Thus we find no prejudicial error.

The first and second assignments of error are overruled.

Assignment of Error Nos. III and IV The trial court analyzed R.C. 1723.01, which permits a company organized for the purposes of transporting petroleum to appropriate land. The court found it was undisputed that appellant was appropriating the land in order to build a pipeline to transport petroleum by-products or petroleum derivatives such as gasoline, kerosene, jet fuel, or diesel fuel. The trial court found the ordinary use of the word "petroleum" includes only such substances that are found naturally occurring, and thus by definition the word petroleum alone would not include petroleum derivatives or by-products. The trial court concluded appellant's proposed use of the pipeline did not qualify it to appropriate appellees' property, and denied the appropriation as a matter of law.

The day after the trial court announced its memorandum decision, and before it journalized a judgment entry, appellant moved for reconsideration and submitted affidavits asserting that the term "petroleum" as used in the industry includes such things as gasoline, diesel fuels, and jet fuels. The trial court denied the motion, and struck the new evidence from the record.

The trial court then journalized its decision. The trial court correctly held the Rules of Civil Procedure do not provide for a motion for reconsideration, citing Pitts v. Ohio Department of Transportation (1991), 67 Ohio St. 2d 378, 379. However, the motion and accompanying evidentiary materials were filed before the decision was journalized. Only after the decision is journalized does it become a final appealable order. Thus the trial court could have considered the additional evidence had it chosen to do so.

On appeal of a summary judgment, this court stands in the shoes of the trial court and conducts a de novo review of the proceedings, Smiddy v. The Wedding Party, Inc (1987), 30 Ohio St. 3d 35. We have reviewed the record and find the evidence offered in support of the motion for reconsideration is helpful to the determination of the issue the trial court has identified as being crucial to this case, namely, what the legislature meant when it used the term petroleum in R.C. 1723.02. Even without recourse to the additional materials, however, we find the trial court erred in finding the term petroleum means only naturally occurring substances and not petroleum by-products.

We must read R.C. title 1723 as a whole to understand to what substances the legislature referred in using the term petroleum. R.C. 1723.06 uses the term "oils" instead of" petroleum." The statute does not distinguish between the two words, but uses them interchangeably. Elsewhere in the Code, the legislature has defined the words petroleum and oil synonymously, see R.C. 3737.87; R.C. 3746.01; R.C. 1509.01. The Ohio Supreme Court has recognized it is helpful to look to definitions elsewhere in the Code to determine the meaning of terms not defined in a particular statute, see Akron Transport Company v. Glander (1951)155 Ohio St. 471.

Appellant cites us to case law in which courts have construed the term petroleum to include refined petroleum products, see National Gas and Oil Corporation v. Hamby (March 20, 1981) Muskingum County Appellate No. CA 80-27, unreported, citing Alexander v. Buckeye Pipeline Co. (1970),53 Ohio St. 2d 241.

The affidavits offered by appellant in support of its motion for reconsideration likewise bolster the construction of the term petroleum to include refined substances and petroleum by products.

We find the trial court erred in determining the proposed use of appellant's pipeline did not meet the statutory requirements to permit appellant to appropriate appellees' property. The third assignment of error is sustained. The fourth assignment of error is moot.

For the foregoing reasons, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is reversed, and final judgment as a matter of law is hereby entered in favor of appellant pursuant to App.R. 12. The cause is remanded to the trial court for further proceedings in accord with law and consistent with this opinion.

Gwin, P.J., Hoffman, J., and Wise, J., concur