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Vectren Energy Delivery of Ohio, Inc. v. Bansal Construction, Inc.

Court of Appeals of Ohio, Second District, Montgomery

July 20, 2018

VECTREN ENERGY DELIVERY OF OHIO, INC. Plaintiff-Appellee
v.
BANSAL CONSTRUCTION, INC. Defendant-Appellant

          Trial Court Case No. 2017-CV-1782 (Civil Appeal from Common Pleas Court)

          AMANDA RASBACH YURECHKO, Atty. Reg, W. Lakeside Avenue, Attorney for Plaintiff-Appellee

          THOMAS R. YOCUM, Atty. Reg Attorney for Defendant-Appellant

          OPINION

          FROELICH, J.

         {¶ 1} Bansal Construction, Inc., appeals from a judgment of the Montgomery County Court of Common Pleas, which entered summary judgment in favor of Vectren Energy Delivery of Ohio, Inc., in a dispute related to an accidental strike of an underground gas line.

         {¶ 2} For the following reasons, the judgment of the trial court will be reversed, and the matter will be remanded for further proceedings.

         {¶ 3} In October 2016, Bansal Construction was working in the vicinity of 1246 North Keowee Street in Dayton, at the intersection with East Helena Street, installing light pole foundations and conduits. Bansal personnel notified the Ohio Utilities Protection Service (OUPS), pursuant to R.C. 153.64(C), of its intent to conduct excavation in that area, so that utility companies would be notified to mark the location of their underground utilities in the construction area. However, on October 12, 2016, Bansal struck a gas line owned by Vectren during its excavations.

         {¶ 4} On April 12, 2017, Vectren filed a complaint against Bansal. The complaint alleged that Bansal performed excavation "without informing itself of Vectren's gas line or, in the alternative, negligently excavated despite notice of Vectren's gas line, causing damages in the amount of $6, 475.50, plus interest. Bansal filed an answer denying the allegations. On October 6, 2017, Vectren filed a motion for summary judgment, which was supported by an affidavit from one of its employees; several exhibits were attached to the affidavit, including Exhibits 3 and 4, which were photographs. The motion for summary judgment stated that Exhibit 3 showed that Vectren marked the gas lines prior to the excavation and that Exhibit 4 showed the same area after the damage.

         {¶ 5} Bansal did not respond to the motion within 14 days, as required by Loc.R. 2.05(B)(2)(b) of the Montgomery County Court of Common Pleas, General Division, and by the trial court's final pretrial order of May 12, 2017. On October 26, 2017, the trial court sustained Vectren's motion for summary judgment. The next day, Bansal filed a memorandum in opposition to summary judgment, as well as an affidavit from its project manager for the Keowee Street project. On November 3, 2017, Bansal also filed a motion for relief from judgment.

         {¶ 6} On November 22, 2017, Bansal filed a notice of appeal from the summary judgment. The trial court had not yet ruled on the motion for relief from judgment at that time, and it could not do so once the notice of appeal was filed. Issues related to the motion for relief from judgment are not before us.

         Requirements for Marking Utilities

         {¶ 7} By statute, contractors are required to contact OUPS about planned excavation so that utility lines may be marked before any excavation is done. R.C. 3781.28(A). In response to such notice, each utility must locate and mark its underground utilities facilities within 48 hours; the failure to do so is deemed to be notice that no facilities are in the area. R.C. 3781.29(A). Gas transmission and distribution "facilities" must be marked with "high visibility safety yellow" markings. R.C. 3781.29(C)(1). The approximate location of the lines reflected by the markings, or the "tolerance zone," is "the site of the underground utility facility including the width of the underground utility facility plus eighteen inches on each side of the facility." R.C. 3781.25(E). The excavator is required to conduct excavation within the tolerance zone "in a careful, prudent, and nondestructive manner to prevent damage to utilities. R.C. 3781.30(A)(4). The excavator is also required to protect and preserve the markings of the utility lines until they are no longer needed for safe excavation. R.C. 3781.30(A)(2).

         Summary Judgment Standard

         {¶ 8} Bansal Construction argues that the trial court erred in granting summary judgment because genuine issues of material fact existed and because Vectren's motion for summary judgment was not supported by materials that complied with Civ.R. 56(C). Bansal also argues that there were problems with the judgment entry.

         {¶ 9} Summary judgment is proper when (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, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Civ.R. 56(C); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C), "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action," to show that there is no genuine issue as to any material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

         {¶ 10} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party's pleadings. Dresher at 293; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Id. Throughout, the evidence must be construed in favor of the nonmoving party. Id.

         {¶ 11} We review the trial court's ruling on a motion for summary judgment de novo. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29; Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence, without deference to the trial court, to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.

         Analysis

         {¶ 12} Initially, Bansal argues that this court should consider its memorandum in opposition to Vectren's motion for summary judgment, notwithstanding that it was filed after the trial court entered summary judgment, because it was filed only one day after the judgment. Bansal cites no support for this position, and we are aware of none. Accordingly, we will consider only the materials that were properly before the trial court when it entered summary judgment.

         {¶ 13} Bansal also argues that "there was no evidence before the Court upon which the Court could have relied in granting Vectren's Motion for Summary Judgment" and that Vectren did not meet its initial burden of affirmatively demonstrating that no genuine issue of material fact remained to be litigated. Bansal finds fault, in several ways, with the affidavit of "Darlene Kulhanek, "[1] which was attached to Vectren's motion for summary judgment and was, along with its attachments, the only material submitted by Vectren in support of summary judgment.

         {¶ 14} Bansal's argument is based, in part, on its assertion that an affidavit offered in support of a motion for summary judgment must be "filed separately" and "appear on the docket" in order for it to be considered. Bansal cites only one case in support of this position, and the holding in that case was much more narrow than Bansal suggests. See Waldeck v. North College Hill,24 Ohio App.3d 189, 493 N.E.2d 1375 ...


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