Court of Appeals of Ohio, Seventh District, Monroe
DONALD V. HOGUE, et al. PLAINTIFFS-APPELLANTS
v.
KOY L. WHITACRE, et al. DEFENDANTS-APPELLEES
Civil
Appeal from the Court of Common Pleas of Monroe County, Ohio
Case No. 2015-204
For
Plaintiffs-Appellants: Atty. Timothy B. Pettorini Atty. Sara
E. Fanning Atty. J. Benjamin Fraifogl
For
Defendants-Appellees Koy L. Whitacre, KLJ, Inc., Buckeye Oil
Co., Clearfork Oil Co., Whitacre Oil Co., and Whitacre
Enterprises, Inc.: Atty. Richard A. Yoss Atty. Ryan M. Regel
Atty. Todd J. Abbott
For
Defendant-Appellee AR OHIO LLC: Atty. Peter A Lusenhop Atty.
Steven A. Chang Vorys, Sater, Seymour and Pease LLP
For
Defendant-Appellee American Atty. Kevin L. Colosimo Energy -
Utica Minerals, LLC: Atty. Christopher W. Rogers Frost Brown
Todd LLC
JUDGES: Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol
Ann Robb
OPINION
WAITE,
J.
{¶1}
Appellants Donald V. and Julie A. Hogue appeal a November 17,
2016 decision of the Monroe County Common Pleas Court to
grant summary judgment in favor of Appellees Roy L. Whitacre,
K.L.J., Inc. ("KLJ"), Buckeye Oil Company
("Buckeye"), Clearfork Oil Company
("Clearfork"), Whitacre Oil Company ("Whitacre
Oil"), Whitacre Enterprises, Inc. ("Whitacre
Enterprises"), AR Ohio L.L.C. ("AR"), and
American Energy. Appellants argue that the trial court
erroneously determined that a well located on their property
produced in paying quantities during a three-year time span.
For the reasons provided, Appellants' arguments are
without merit and the judgment of the trial court is
affirmed.
Factual
and Procedural History
{¶2}
Appellants own 78.5 acres of land in Franklin Township,
Monroe County. On January 16, 2006, Appellants entered into
an oil and gas lease with Whitacre Enterprises. On July 7,
2006, a single well was drilled on the property. The well
produced significant amounts of oil and gas for several years
until construction began on a compression station used to
produce gas from the well. The details are not clear from the
record, but at some point KLJ, Buckeye, and Clearfork
obtained an interest in the oil and gas rights.
{¶3}
On June 2, 2011, Whitacre Enterprises, KLJ, Buckeye,
Clearfork, and Whitacre Oil subleased the oil and gas rights
to HG Energy. HG Energy then assigned the rights to Hall and
Ross Resources. Hall and Ross Resources later merged with AR.
{¶4}
All gas produced from Appellants' land was transported to
a compression station through a pipeline called the "PPP
line." The compression station is owned by Dominion Oil
and Gas ("Dominion"). Sometime in 2014, Dominion
informed Whitacre Enterprises that it was planning to
construct a new compression station. In August of 2014,
Dominion told Whitacre Enterprises that the compression
station would be completed in thirty to forty days. However,
Dominion did not begin construction until March of 2015 and
the project was not completed until mid-September of 2015.
Appellees were finally able to use the compression station in
October of 2015. As a result of these issues, Whitacre
Enterprises decided to construct a compression station on
Appellants' property, which was completed in November of
2015.
{¶5}
According to production records, Appellees profited by more
than $1, 000 each year from 2006 until 2012. In 2013, the
year before the Whitacre Enterprises' construction began,
Appellees received $687.01 in profits. In 2014 and 2015, the
construction period, Appellees were left with a loss of
-$328.95 and -$231.38. In the following two quarters after
construction was completed, Appellees received $1, 326.49 in
profits.
{¶6}
On July 13, 2015, Appellants filed a complaint against
Appellees, collectively, seeking a declaratory judgment that
the lease had terminated on its own terms due to the lack of
production and seeking quiet title to Appellees' oil and
gas rights. On September 2, 2016, the parties filed competing
motions for summary judgment. On September 23, 2016,
Appellants filed a motion to strike certain exhibits,
however, the trial court did not rule on the motion. On
October 7, 2016, Appellees filed a motion for leave to
supplement or amend their response to Appellants'
discovery. The court also failed to rule on this motion. On
November 17, 2016, the trial court granted summary judgment
in favor of Appellees. This timely appeal followed.
Summary
Judgment
{¶7}
An appellate court conducts a de novo review of a
trial court's decision to grant summary judgment, using
the same standards as the trial court set forth in Civ.R.
56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105, 671 N.E.2d 241 (1996). Before summary judgment can
be granted, the trial court must determine that: (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, (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing
the evidence most favorably in favor of the party against
whom the motion for summary judgment is made, the conclusion
is adverse to that party. Temple v. Wean United,
Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
Whether a fact is "material" depends on the
substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc, Inc., 104 Ohio App.3d 598, 603,
662 N.E.2d 1088 (8th Dist.1995).
{¶8}
"[T]he moving party bears the initial responsibility of
informing the trial court of the basis for the motion, and
identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." (Emphasis deleted.)
Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d
264 (1996). If the moving party carries its burden, the
nonmoving party has a reciprocal burden of setting forth
specific facts showing that there is a genuine issue for
trial. Id. at 293. In other words, when presented
with a properly supported motion for summary judgment, the
nonmoving party must produce some evidence to suggest that a
reasonable factfinder could rule in that party's favor.
Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d
378, 386, 701 N.E.2d 1023 (8th Dist.1997).
{¶9}
The evidentiary materials to support a motion for summary
judgment are listed in Civ.R. 56(C) and include the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact that have been filed in the case. In
resolving the motion, the court views the evidence in a light
most favorable to the nonmoving party. Temple, 50
Ohio St.2d at 327.
Exhibits
B and C
{¶10}
Much of the following analysis involves two exhibits attached
to Appellees' motion for summary judgment, exhibits B and
C. The exhibits are charts that summarize Appellees'
expenses and profits for the relevant years and were prepared
by an accountant, Lisa A. Jones. Appellants argue that these
documents should not have been considered by the trial court
as they amount to hearsay. Appellees respond by arguing that
these exhibits are appropriate in summary judgment pursuant
to Evid.R. 1006, because they represent summaries of
voluminous records.
{¶11}
On September 23, 2016, Appellants filed a motion to strike
exhibits B and C. As noted by Appellants, the trial court did
not rule on this motion. If a trial court has failed to rule
on a motion at the time the case is disposed, an appellate
court will presume that the motion was overruled. State
v. Labiaux, 7th Dist. No. 16 HA 0016, 2017-Ohio ...