Court of Appeals of Ohio, Second District, Montgomery
VECTREN ENERGY DELIVERY OF OHIO, INC. Plaintiff-Appellee
BANSAL CONSTRUCTION, INC. Defendant-Appellant
Court Case No. 2017-CV-1782 (Civil Appeal from Common Pleas
RASBACH YURECHKO, Atty. Reg, W. Lakeside Avenue, Attorney for
R. YOCUM, Atty. Reg Attorney for Defendant-Appellant
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
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
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).
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.
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
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, " 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
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 ...