Court of Appeals of Ohio, Seventh District, Noble
to Certify a Conflict
Ethan Vessels, Fields, Dehmlow and Vessels, and Atty. Andrew
Lycans, Critchfield, Critchfield, and Johnston, for
Daniel Corcoran, Theisen Brock, for Defendants-Appellants.
BEFORE: David A. D'Apolito, Cheryl L. Waite, Carol Ann
OPINION AND JUDGMENT ENTRY
On September 16, 2019, Defendants-Appellants, Stonebridge
Operating Company, LLC ("Stonebridge"), Positron
Energy Resources, Inc. ("Positron"), SEOR LLC
("SEOR"), and W.H. Haas Family Ltd.
filed a motion to certify a conflict to the Ohio Supreme
Court between our decision and the decision of the Fourth
District in Holland v. Gas Enterprises Co., 4th
Dist. Washington No. 14CA35, 2015-Ohio-2527.
Plaintiffs-Appellees, Herman and Betty Nau, and Intervening
Plaintiff-Appellee, Siltstone Resources, LLC filed their
brief in opposition on September 23, 2019. Appellants filed
their reply brief on September 25, 2019.
App.R. 25(A) reads, in pertinent part:
A motion to certify a conflict under Article IV, Section
3(B)(4) of the Ohio Constitution shall be made in writing no
later than ten days after the clerk has both mailed to the
parties the judgment or order of the court that creates a
conflict with a judgment or order of another court of appeals
and made note on the docket of the mailing, as required by
App. R. 30(A). * * * A motion under this rule shall specify
the issue proposed for certification and shall cite the
judgment or judgments alleged to be in conflict with the
judgment of the court in which the motion is filed.
Article IV, Section 3(B)(4) of the Ohio Constitution reads:
Whenever the judges of a court of appeals find that a
judgment upon which they have agreed is in conflict with a
judgment pronounced upon the same question by any other court
of appeals of the state, the judges shall certify the record
of the case to the supreme court for review and final
Hence, the following conditions must be met before and during
certification pursuant to Section 3(B)(4), Article IV of the
First, the certifying court must find that its judgment is in
conflict with the judgment of a court of appeals of another
district and the asserted conflict must be "upon the
same question." Second, the alleged conflict must be on
a rule of law - not facts. Third, the journal entry or
opinion of the certifying court must clearly set forth that
rule of law which the certifying court contends is in
conflict with the judgment on the same question by other
district courts of appeals. (Emphasis deleted.)
State v. Agee, 7th Dist. Mahoning No. 14 MA 0094,
2017-Ohio-7750, ¶ 4, quoting Whitelock v. Gilbane
Bldg. Co.,66 Ohio St.3d 594, 613 N.E.2d 1032, (1993),
paragraph one of the syllabus. In addition, the issue
proposed for certification must be dispositive of the case.
Agee at ¶ 4, citing State ex rel. Davet v.